My most recent article, Protecting Freshwater Resources in the Era of Global Water Markets: Lessons Learned from Bottled Water, will be published in the next volume of the University of Denver’s Water Law Review and a prepublication draft is now available online.
The article covers a brief history of bottled water, the business of bottled water, and opposition to bottled water, along with a short summary of international trade law and federal food law as applied to the bottled water market. It then provides a detailed analysis of bottled water issues in the courts, legislatures, and politics – providing case studies of the good, the bad, and the ugly results of bottled water controversies. The article concludes with an analysis of two recent strategies for addressing bottled water – expansion of the public trust doctrine and taxing water bottlers, strategies with significant legal and political weaknesses. Here’s the abstract, followed by the conclusion:
Throughout human history, water has defined our sense of place. American water law reflects the connections between water and local people, communities, and the environment. Against this backdrop, global water markets have developed to sell and export this increasingly precious resource. Water markets are recognized in international trade law and take many forms, from tankers of freshwater crossing the Mediterranean to bottles of spring water coming to America from distant pacific islands. While the scale of water sales and exports is still relatively small, this emerging market represents a new challenge for management of water resources.
This article examines the challenge of protecting freshwater resources in the era of global water markets by looking at the most mature and developed example – bottled water. Bottled water in America dates back to colonial times, but over the past decade it has become a massive global industry. As bottled water has grown, so has the backlash against it. The resulting lawsuits and legislation offer a glimpse of the future of domestic water law in the global water market era. Bottled water fights provide important lessons for how the law should (and should not) respond to globalization of water use. By learning from these lessons, we can meet the challenge of global trade in water by developing effective legal protections for our freshwater resources.
Along with climate change, globalization may be the most significant challenge for state water law in the twenty first century. The pressures on water resources are no longer limited to local users and property owners, but now include supply for a global water market. Bottled water is the oldest and most mature water market that transcends state lines. Bottled water disputes have forced state courts and political leaders to reevaluate old doctrines and water management regulations. In most cases, bottled water disputes have lead to meaningful and useful legal reforms, especially in the area of groundwater management. However, in some cases bottled water disputes have exposed problematic flaws in state water law and protectionist knee-jerk reactions by state political leaders that would do nothing to better protect water resources.
Unsatisfied by modest reforms in the courts and legislatures, bottled water opponents have turned their hopes to the public trust doctrine and taxing water bottlers, strategies with significant legal and political weaknesses. Instead, bottled water opponents and state leaders should take the challenge of bottled water as an opportunity to further reform water management law with an emphasis on resource protection, science-based decision making, and water conservation. These approaches will help protect water resources from the pressures of globalization while respecting property rights and international trade law rules.