Category: Case Studies

Respect owners’ rights on Michigan water rules

Despite appeal, judge’s ruling in the Ice Mountain case has created the possibility of trampling private-property considerations and punishing job creators.

It’s crucial for the future of our state to be able to control Michigan’s unparalleled bounty of fresh water. And it’s practically farcical that Michigan—surrounded on three sides by the repositories of most of the world’s fresh water—is the only state in the Great Lakes that doesn’t yet have a comprehensive plan to do so.

But be careful what you wish for: In protecting and preserving our rightly cherished water resources, we shouldn’t willy-nilly trample on another important principle that undergirds our economic system: the right of private ownership.

The Ice Mountain case is what lately has thrown the water resource issue into higher relief. Ruling on a lawsuit brought by environmentalists, a local circuit court judge in Mecosta Township, near Grand Rapids, ordered the bottled-water plant owned by Nestle Co. to stop pumping water from the wells that are its sole source of spring water.

Judge Lawrence Root heeded the plaintiffs’ dubious arguments that the $100-million plant would permanently lower the water table for miles around, even though the state’s Department of Environmental Quality, in the routine permitting process before allowing the plant to open in mid-2002, had found that the water-bottling operation didn’t pose a significant risk to the quality of local rivers, lakes and wetlands.

Fortunately, the Michigan Court of Appeals recognized the probability that the ruling would cause imminent and permanent harm to Nestle and quickly reversed Judge Root’s ruling, allowing Ice Mountain to continue its livelihood while the case wends its way through the courts.

But unfortunately, like blood in the water, Judge Root’s ruling already has created the strong possibility for further judicial abuses of long-cherished private property rights that apply to water beneath your ground as surely as they apply to the house on top of it.

Water below the ground isn’t a resource that is owned by “the people,” but rather one to which the owner of the land or his assigned agent has the right of reasonable use. That’s why people have long respected the idea that a property holder owns his or her plot to the center of the earth and the ceiling of the sky.

What is going on in the Ice Mountain case would turn that axiom upside-down in a sense. And so to take water away from those already availing them selves of what they always have been availed of is nothing less than the taking of a basic property right.

Further, if aquifer water is limited in this circumstance, there is no reason that the limitation on use couldn’t extend to all other uses of any water. If Ice Mountain can’t pump the water from beneath the land that it owns even after environmental regulators have given it the OK, why should Coca-Cola and PepsiCo bottling plants in Metro Detroit be allowed to withdraw the millions of gallons of water a year that they pump into their plants?

You could argue that this comes out of the lakes via the Detroit water system, so everything is kosher. But the aquifer beneath the Ice Mountain plant and Lake St. Clair are intimately linked in the same watershed. Taking a gallon over near Grand Rapids or a gallon out of the Detroit River is pretty much six of one and a half-dozen of the other.

And if the state appellate court should unwisely end up agreeing with the over-reaching Judge Root, what’s to stop the next plaintiff from complaining about all the water that is sopped up by the local car wash? By the restaurant down the street? By your neighbor who has his sprinklers on all day, every day? By you—how do you “waste” water?

The notion that any water removal harmfully affectsthe ecosystem portends future limitations on farming, drain activity, industrial and recreational and other uses of water as well as simple residential water supply. And to limit one participant or type of participant in the economic and demographic marketplace from removing water, without commensurate limitations on all others, is an unfair taking of the participant’s rights.

Sure, it’s a good idea for Gov. Jennifer Granholm and the Legislature to plan immediately and aggressively for how to nurture our precious water resources in a future that will bring vast new demands on them. But it is imperative that common sense directs us in the preparation of these laws, with liabilities for payment and considerations of use as part of the process.

And that greater good shouldn’t begin by stomping on our constitutional property rights and by penalizing another good: corporate citizens of Michigan who create jobs — and play by the rules.

Is the Supreme Court’s Test for “Public Use” Merely Rational Basis

What part of the Constitution limits the power of eminent domain? The obvious answer is the Takings Clause of the Fifth Amendment, which states “nor shall private property be taken for public use, without just compensation.”1 But what about the Due Process Clause of the Fourteenth Amendment.2 It was not until 1978, in Penn Central Transp. Co. v. New York,3 that the Supreme Court matter-of-factly held that the Takings Clause of the Fifth Amendment was “of course” applicable to the states.4 To justify incorporation, Penn Central cited only one 19th century case, which itself did not mention the Fifth Amendment.5 Before Penn Central, the Court relied on the Due Process Clause to restrict the scope of state taking power.

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