Water

Legal Challenges Mount for Bottled Water Industry

While new regulations can respond to the wastefulness of bottled water, solutions are also found in existing state water law.

In the decade between 1994 and 2004, the bottled water industry enjoyed a meteoric rise as consumers flocked to their product, paying more per gallon than gasoline and neglecting a virtually free source of water -- the tap.  Bottled water drinkers formed fierce allegiances to their favorite brands, elevating bottled water beyond a beverage to a symbol of refinement.

More recently, opposition to bottled water has grown, built around an eclectic mix of advocates including activists, restaurateurs, and religious leaders.  Proposals for bottled water operations evoke vocal protests in local communities.  Production of bottled water requires large quantities of energy and generates tons of waste with long-term environmental impacts.  Some cities have responded by taxing bottled water, as in Chicago, and by banning bottled water from official city functions, as in San FranciscoToronto not only banned the sale and distribution of bottled water on city premises but also committed resources to ensure access to tap water in all city facilities.  In Florida, lawmakers are considering a statewide tax on bottled water sales, eliminating a long-standing exemption.

While new regulations can respond to the wastefulness of bottled water, solutions are also found in existing state water law.  CPR Member Scholar Christine Klein recently published an article in the Cardozo Law Review arguing that opponents of bottled water can use elements of state water law to challenge water allocation for bottled water. 

Water allocation in the United States is regulated primarily by state law, and those laws reflect the climatic and geographic divide between east and west.  In general, states east of the one-hundredth meridian follow the common law doctrine of riparianism, which bases water use rights on ownership of property adjacent to a natural water body.  Most western states follow the doctrine of prior appropriation, which prioritizes water use rights according to the date that the use began.

Four elements of state water law can help "ensure that the allocation of water rights for bottling purposes keeps pace with evolving cultural norms that lead away from the bottle and back to the tap," Klein argues: reasonable use, beneficial use, preferred uses, and public interest. 

Eastern states grant permits for water uses that are "reasonable," meaning that proposed use is evaluated based on the purpose of the use, the amount of use, and the place of use.  For bottled water, the most important factor is the purpose of use, a question of social value that necessarily evolves to reflect the times.

A recent study by the Pacific Institute, published in the peer-reviewed journal Environmental Research Letters, supports the argument that allocating large quantities of water for the purpose of bottling may be unreasonable.  The study found that the total energy required to produce bottled water ranges from 5.6 to 10.2 million joules per liter, compared to 0.005 million joules per liter for tap water -- up to 2000 times more energy!  The study concludes:

Given an annual consumption of 33 billion liters of bottled water in the US, we estimate that the annual consumption of bottled water in the US in 2007 required an energy input equivalent to between 32 and 54 million barrels of oil, or a third of a per cent of total US primary energy consumption. 

Reflecting current environmental values, the energy required to produce bottled water may render the use of water for bottling unreasonable under state law.  As a counterpart to the reasonable use inquiry, western states ask whether a proposed water use will be "beneficial."  For example, capturing water for bottling purposes would not be beneficial if demonstrated to constitute an inefficient method of accomplishing its intended purpose -- quenching human thirst.  As more studies reveal the relative inefficiencies of bottled water in comparison to tap water, the idea that bottled water is a non-beneficial use will become an increasingly viable argument. 

The water law concept of "preferred use" poses a third challenge to water bottling.  During times of shortage or drought, many states satisfy preferred uses such as domestic and household consumption before allocating water to so-called artificial uses.  As one court declared, artificial uses are those that "merely increase one’s comfort and prosperity and do not rank as essential to [one’s] existence."  In Michigan, an appeals court determined that bottled water is an artificial use that ranks behind even other artificial uses.  As pressure on water resources increases with population and ecosystem needs, bottled water should fall to the back of the line. 

As a final legal hurdle, many states examine proposed water uses to ensure that they will be consistent with the public interest.  In Florida, the public interest test considers impacts of the use on the natural environment and harm to existing uses, both human and environmental.  Bottled water operations can cause significant localized reductions in stream flows and aquifer levels, leading to erosion of riverbanks or saltwater intrusion of aquifers.  The energy use and waste associated with bottled water constitute environmental harms that may be contrary to an expanded interpretation of the public interest.

At the root of the bottled water debate, beyond the excess and waste that it represents when a virtually free and less wasteful alternative exists, is a question of value: whether private companies should be allowed to pay pennies for water and then sell that water to make millions in profit from a public resource.  It is a question of social norms and cultural values, and the bottled water opponents offer one response: stand by your tap. 

Yee Huang, J.D., L.L.M, joined the Center for Progressive Reform as a Policy Analyst in December 2008. Her public interest experience includes internships with the Department of State in Vienna, Austria, and Windhoek, Namibia.