No Nestlé, Bottled Water Is Not an 'Essential Public Service,' Court Says
Nestlé cannot claim that its Ice Mountain bottled water brand is an essential public service, according to Michigan's second highest court, which delivered a legal blow to the food and beverage giant in a unanimous decision.
The three-judge panel that sits on Michigan's Court of Appeals said bottled water is not a public water supply, and Osceola Township was completely within its rights to reject Nestlé's bid to put a booster pumping structure in an area zoned for agricultural use, as the Detroit Free Press reported.
"The circuit court's conclusion that [Nestlé's] commercial water bottling operation is an 'essential public service' is clearly erroneous," the judges wrote, as The Guardian reported. "Other than in areas with no other source of water, bottled water is not essential."
The issue in question is that Nestlé wants to increase the amount of water it takes from the groundwater in Michigan's Osceola County from 250 gallons per minute to 400 gallons per minute. Environmental groups say the 250 gallons per minute that Nestlé takes from the groundwater is already too much. They say the effect is already seen in lower levels of nearby wetlands, rivers and streams, according to the Detroit Free Press. Nestlé, however, contends that its operation causes no harm.
Michigan's Department of Environmental Quality approved a permit for the increase last year, but that decision is awaiting an appeal. In order to extract so much water, the Nestlé needs a booster pump station along the pipeline that carries water from the well to tanker trucks, as the AP reported.
The owner of the property where Nestlé wants to install the booster pump station agreed to the project, but the township said the structure is not allowed in an area zoned for agriculture, according to the AP.
For Nestlé to carry out its plan, it has to prove that it provides an essential public service, which the court rejected as implausible. The ruling may have a ripple effect on Nestlé's ambition to privatize water around the country, as The Guardian reported.
"What this lays bare is the extent to which private water marketers like Nestlé, and others like them, go [in] their attempts to privatize sovereign public water, public water services, and the land and communities they impact," said Jim Olson, an environmental attorney in Michigan, according to The Guardian. Olson, who has previously battled Nestlé, added that any claim that the food giant is an essential public service or a public water utility is "ludicrous."
The Michigan environmental attorney Jim Olson, who did not represent Osceola township but has previously battled Nestlé in court, said any claim that the Swiss multinational is a public water utility "is ludicrous."
Olson said the decision is a huge victory. "In the context of the larger question, 'Who owns the water?' — in this round, the state and public do, because selling containerized water for profit is simply private, not public," Olson said to The Guardian.
The AP reported that Nestlé argued that the township's denial of the zoning permit was a backdoor way of stopping the company from ramping up its water production. The judges, however, said there was no proof of that.
"Ultimately, the township is attempting to enforce its zoning ordinances," according to the opinion by Judges Cynthia Stephens, Deborah Servitto and Amy Krause, as the AP reported. "Enforcing a zoning ordinance is neither exceptional nor forbidden."
The judges' comments about Nestlé not being a water service nor returning anything to water table provided a boon to environmental groups and Native American tribes contended that the permit to increase production to 400 gallons per minute should be overturned.
"[Nestlé] extracting water and sending it to other places where it cannot return to the water table, and, critically, doing so faster than the aquifer can replenish, is an 'irretrievable' depletion unless the pumping is reduced or halted," the judges wrote, as The Guardian reported.
Maryland will become the first state in the nation Thursday to implement a ban on foam takeout containers.
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Kevin T. Smiley
When hurricanes and other extreme storms unleash downpours like Tropical Storm Beta has been doing in the South, the floodwater doesn't always stay within the government's flood risk zones.
New research suggests that nearly twice as many properties are at risk from a 100-year flood today than the Federal Emergency Management Agency's flood maps indicate.
Flooding Outside the Zones<p>About <a href="https://furmancenter.org/files/Floodplain_PopulationBrief_12DEC2017.pdf" target="_blank">15 million</a> Americans live in FEMA's current 100-year flood zones. The designation warns them that their properties face a 1% risk of flooding in any given year. They must obtain flood insurance if they want a federally ensured loan – insurance that helps them recover from flooding.</p><p>In Greater Houston, however, <a href="https://doi.org/10.1111/j.1539-6924.2012.01840.x" target="_blank">47% of claims</a> made to FEMA across three decades before Hurricane Harvey were outside of the 100-year flood zones. Harris County, recognizing that FEMA flood maps don't capture the full risk, now <a href="https://www.hcfcd.org/floodinsurance" target="_blank" rel="noopener noreferrer">recommends that every household</a> in Houston and the rest of the county have flood insurance.</p><p>New risk models point to a similar conclusion: Flood risk in these areas outstrips expectations in the current FEMA flood maps.</p><p>One of those models, from the <a href="https://firststreet.org/flood-lab/research/2020-national-flood-risk-assessment-highlights/" target="_blank">First Street Foundation</a>, estimates that the number of properties at risk in a 100-year storm is 1.7 times higher than the FEMA maps suggest. Other <a href="https://doi.org/10.1088/1748-9326/aaac65" target="_blank" rel="noopener noreferrer">researchers</a> find an even higher margin, with 2.6 to 3.1 times more people exposed to serious flooding in a 100-year storm than FEMA estimates.</p>
What FEMA’s Flood Maps Miss<p>Understanding why areas outside the 100-year flood zones are flooding more often than the FEMA maps suggest involves larger social and environmental issues. Three reasons stand out.</p><p>First, some places rely on relatively old FEMA maps that don't account for recent urbanization.</p><p>Urbanization matters because impervious surfaces – think pavement and buildings – are not effective sponges like natural landscapes can be. Moreover, the process for updating floodplain maps is locally variable and can take years to complete. Famously, New York City was updating its maps when Hurricane Sandy hit in 2012 but hadn't finished, meaning flood maps in effect <a href="https://projects.propublica.org/nyc-flood/" target="_blank">were from 1983</a>. FEMA is required to assess whether updates are needed every five years, but the <a href="https://www.fema.gov/cis/nation.html" target="_blank" rel="noopener noreferrer">majority of maps</a> <a href="https://www.oig.dhs.gov/sites/default/files/assets/2017/OIG-17-110-Sep17.pdf" target="_blank" rel="noopener noreferrer">are older</a>.</p><p>Second, binary thinking can lead people to an underaccounting of risk, and that can mean communities fail to take steps that could protect a neighborhood from flooding. The logic goes: if I'm not in the 100-year floodplain, then I'm not at risk. Risk perception <a href="https://doi.org/10.1088/1748-9326/ab195a" target="_blank" rel="noopener noreferrer">research</a> backs this up. FEMA-delineated flood zones are the major factor shaping flood mitigation behaviors.</p><p>Third, the era of climate change scuttles conventional assumptions.</p><p>As the planet warms, extreme storms are becoming <a href="https://nca2018.globalchange.gov/" target="_blank">more common and severe</a>. If greenhouse gas emissions continue to increase at a high rate, computer models suggest that the chances of a severe storm dropping 20 inches of rain on Texas in any given year will increase from about 1% at the end of the last century to 18% at the end of this one, a chance of <a href="https://doi.org/10.1073/pnas.1716222114" target="_blank" rel="noopener noreferrer">once every 5.5 years</a>. So far, <a href="https://www.rstreet.org/wp-content/uploads/2020/02/195.pdf" target="_blank" rel="noopener noreferrer">FEMA hasn't taken into account the impact climate change is having</a> on extreme weather and sea level rise.</p>
Racial Disparities in Flooding Outside the Zones<p>So, who is at risk?</p><p>Years of research and evidence from storms have highlighted social inequalities in areas with a high risk of flooding. But most local governments have less understanding of the social and demographic composition of communities that experience flood impacts outside of flood zones.</p><p>In analyzing the damage from Hurricane Harvey in the Houston area, I found that <a href="https://doi.org/10.1088/1748-9326/aba0fe" target="_blank">Black and Hispanic residents disproportionately experienced flooding</a> in areas beyond FEMA's 100-year flood zones.</p><p>With the majority of flooding from Hurricane Harvey occurring outside of 100-year flood zones, this meant that the overall impact of Harvey was racially unequal too.</p><p>Research into where flooding occurs in Baltimore, Chicago and Phoenix points to some of the potential causes. <a href="https://www.nap.edu/read/25381/chapter/4#16" target="_blank" rel="noopener noreferrer">In Baltimore and Chicago</a>, for example, aging storm and sewer infrastructure, poor construction and insufficient efforts to mitigate flooding are part of the flooding problem in some predominantly Black neighborhoods.</p>
What Can Be Done About It<p>Better accounting for those three reasons could substantively improve risk assessments and help cities prioritize infrastructure improvements and flood mitigation projects in these at-risk neighborhoods.</p><p>For example, First Street Foundation's risk maps account for <a href="https://firststreet.org/flood-lab/research/flood-model-methodology_overview/" target="_blank">climate change</a> and present <a href="https://floodfactor.com/" target="_blank" rel="noopener noreferrer">ratings</a> on a scale from 1 to 10. FEMA, which works with communities to update flood maps, is <a href="https://www.fema.gov/media-library-data/1521054297905-ca85d066dddb84c975b165db653c9049/TMAC_2017_Annual_Report_Final508(v8)_03-12-2018.pdf" target="_blank" rel="noopener noreferrer">exploring rating systems</a>. And the National Academies of Sciences, Engineering and Medicine recently <a href="https://www.nationalacademies.org/news/2019/03/new-report-calls-for-different-approaches-to-predict-and-understand-urban-flooding" target="_blank" rel="noopener noreferrer">called for a new generation of flood maps</a> that takes climate change into account.</p><p>Including recent urbanization in those assessments will matter too, especially in fast-growing cities like Houston, where <a href="https://authors.elsevier.com/a/1boBRyDvMFW6W" target="_blank" rel="noopener noreferrer">386 new square miles</a> of impervious surfaces were created in the last 20 years. That's greater than the land area of New York City. New construction in one area can also <a href="https://scalawagmagazine.org/2018/01/city-in-a-swamp-as-houston-booms-its-flood-problems-are-only-getting-worse/" target="_blank" rel="noopener noreferrer">impact older neighborhoods downhill</a> during a flood, as some Houston communities discovered in Hurricane Harvey.</p><p>Improving risk assessments is needed not just to better prepare communities for major flood events, but also to prevent racial inequalities – in housing and beyond – from <a href="https://www.npr.org/2019/03/05/688786177/how-federal-disaster-money-favors-the-rich" target="_blank" rel="noopener noreferrer">growing</a> after the unequal impacts of disasters.</p>
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