chapter three Justice and Economic Distribution

chapter three Justice and Economic Distribution    109
5. Is it fair to the community if an individual refuses payment
and blocks a socially useful project? Putting legal issues
aside, are there situations in which it would be morally
permissible for government to seize private property for
the public good with less than full compensation or even
with no compensation at all?
6. Assess the concept of eminent domain, in general, and
the plight of Susette Kelo and her neighbors, in particular, from the point of view of the different theories
of justice discussed in this chapter. Is it possible to
square the government’s exercise of eminent domain
with a libertarian approach to justice?
Water is the lifeblood of the earth, but by
2025, according to the U.N., two-thirds of the world’s population could face chronic shortages of water. In fact, some
countries are already importing huge supertankers of freshwater from other countries. But one place that’s definitely not
short of water is the state of Michigan, which has 11,000
lakes and is surrounded by Lakes Michigan, Huron, Superior,
and Erie. So it came as a surprise to some that the Nestlé
company’s new Ice Mountain bottled-water plant in Mecosta
County, Michigan, dredged up so much controversy when it
began pumping water from a local spring.80
Nestlé’s willingness to invest $100 million to build a new
410,000-square-foot bottling plant in Mecosta reflects the
fact that bottled water is big business, with annual sales of $6
billion (up 35 percent since 1997). Many county residents, in
fact, are thrilled about Nestlé’s being there. The Ice Mountain
plant employs about a hundred people at $12 to $23 per
hour, significantly more than many local jobs pay. And the
company shells out hundreds of thousands of dollars in local
taxes. Township supervisor Maxine McClellan says, “This is
probably the best project we’ve ever brought into Mecosta
County.” She adds that she wants “a diversified economy
where our kids don’t have to move away to find jobs.”
The problem, as some local residents see it, is that
Nestlé has also built a 12-mile stainless steel pipeline from
the plant to Sanctuary Spring, which sits on an 850-acre
private deer-hunting ranch and is part of the headwaters of
the Little Muskegon River, which flows into the Muskegon
and then into Lake Michigan. The company started pumping 130 gallons of water every minute from the spring, with
plans to increase that to 400 gallons per minute, or about
262 million gallons a year. But whose water is Nestlé
pumping? That’s the question being asked by Michigan
Citizens for Water Conservation (MCWC), a local Mecosta
group that has filed suit contesting Nestlé’s right to the
spring’s waters. Although the company has a ninety-nineyear lease on the land, MCWC contends that the water itself
is a public resource. As Jim Olson, MCWC’s lawyer, explains
it, under the doctrine of “reasonable use” the owners of a
stream can use its water for drinking, boating, swimming,
or anything else “as long as it’s in connection with their
land.” But, he argues, “this does not include the right to
CASE 3.2
Battling over Bottled Water

110 part one moral philosophy and business
transport water to some distant land for [some other] use.
We’re arguing that the same is true with groundwater—
you can’t sever it from the estate.”
Michigan State Senator Ken Sikkema, who chaired a task
force on Michigan water issues, rejects that argument: “A
farmer pumps water out of the ground, waters potatoes, and
sends the potatoes to Illinois—there’s no real difference. The
water in those potatoes is gone.” This reasoning hasn’t
assuaged the fears of three American Indian tribes who have
joined the fray. Citing an 1836 treaty that protects their fishing and hunting rights in the Great Lakes region, they have
brought a federal lawsuit against Nestlé and the state of
Michigan to stop what they see as a massive water grab. “Our
fear,” says a spokesperson for the Little Traverse Bay Bands
of Odawa Indians, “is that the export could significantly and
permanently damage the fishery.”
However, David K. Ladd, head of the Office of Great
Lakes, argues that bottled water is a special case. Legally, he
contends, it’s a “food,” regulated by the Food and Drug
Administration. “There’s no difference between Perrier bottling water, Gerber making baby food, or Miller brewing beer.
When you incorporate water from the basin into a product,
it’s no longer water per se.” And Brendan O’Rourke, an Ice
Mountain plant manager, adds that the 262 million gallons it
wants to pump are less than 1 percent of the annual recharge
rate of the local watershed, equivalent to just 14 minutes of
evaporation from the surface of Lake Michigan.
For their part, scientists opposed to the project argue that
Nestlé’s pumping has already lowered the local water table
and that northern pike are having trouble spawning in a
stream fed by Sanctuary Spring. Jim Olson argues that the
Ice Mountain plant should reduce its water consumption to
100 gallons per minute or less, not increase it to 400 gallons.
“Every gallon removed is needed for the stream to sustain
itself,” he states. “The right to withdraw groundwater does not
include the right to diminish . . . existing or future uses.”
To the surprise of many, Michigan state court judge
Lawrence Root bought that argument and upheld the MCWC’s
lawsuit. Ruling that the environment is at risk no matter how
much water Nestlé draws out, he ordered the pumps turned
off. Two years later, an appellate court reversed Judge Root’s
decision, and MCWC and Nestlé subsequently entered an
agreement limiting Nestlé’s withdrawals from Sanctuary
Spring to 250 gallons per minute—although there has been
some legal skirmishing between the two antagonists since
then. In the meantime, however, the political tide has turned
against Nestlé. Small towns in Maine and California have
opposed its building new bottled water plants in their jurisdictions; Congress has held hearings into the diversion of
groundwater by bottled water companies and other businesses; and Michigan has passed legislation that, among
other things, makes it virtually impossible for operations such
as the Ice Mountain plant to remove more than 100,000 gallons of groundwater per day.
Discussion Questions
1. Should people in Michigan be concerned about how, and
by whom, the state’s ground water is used? In your view,
what issues of justice does this case raise?
2. Would Nestlé’s pumping 262 million gallons of water per
year from Sanctuary Spring constitute “reasonable use”?
Is the company treating either local residents or the Native
American tribes unfairly, or would it be unfair to restrict
Nestlé’s use of water from the spring?
3. Is groundwater a public resource, the use of which is
appropriate for society to regulate? Or is it the property
of those who own the land to use as they see fit? Who
has the strongest claim on groundwater—the owners of
the land from which it is pumped, the original inhabitants of the area (that is, the local Indian tribes), local
residents, citizens of the whole Great Lakes region, or all
Americans?
4. Assess this case from the perspective of the utilitarian,
libertarian, and Rawlsian theories of justice. How would
each address the case? Which theory’s approach do you
find the most helpful or illuminating?

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