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Until last week, nothing about the way that Democratic Gov. Jennifer M. Granholm does her job resembled the closed-door operating style of her predecessor, conservative Republican Gov. John Engler.
Engler was ruthless, secretive and so intent on helping the state’s business community evade environmental laws that he encouraged senior aides to meet in private with executives to hammer out agreements that generally led to more environmental degradation.
In contrast, Granholm professed to value a more “inclusive” approach to governing. In her inaugural address, she invited citizens to “come into the halls of government” and participate in important decisions. Moreover, her senior environmental advisers are battle-tested public interest attorneys who made their careers hearing all sides and upholding the law.
But last week, in a move that environmentalists called surprisingly Engleresque, the governor and her senior environmental and economic advisers unexpectedly shut out a feisty citizens group and came to the aid of the world’s largest food company in a 2-year-old David and Goliath legal struggle over an issue that affects all of Michigan: the security of the state’s treasure trove of fresh water.
Because of the Granholm administration’s decision to intervene in the case, and to convince a state appellate court to stay a lower court’s order, Nestlé Waters North America easily won back something that the company had lost after a grueling 19-day circuit court trial earlier this year: the right to keep pumping millions of gallons of spring water from wells in central Michigan’s Mecosta County.
The administration’s action comes in response to Mecosta County Circuit Judge Lawrence C. Root’s Nov. 25 ruling that ordered Nestlé Waters to shut down its spring water wells by midnight on Dec. 16. In issuing the order, Judge Root determined that Nestlé did not have the right to pump and sell drinking water for sale out of its natural basin, and that those very same wells were in clear violation of three state environmental laws because they were draining a system of lakes, streams, and wetlands and producing unreasonable harm to landowners and the environment.
The ruling was seen by the plaintiffs, Michigan Citizens For Water Conservation, as establishing new protections for food companies, manufacturers, resorts, and other Michigan businesses that depend on access to ample supplies of fresh water. Judge Root’s decision assures that Michigan businesses can not be trumped by fabulously rich and powerful multinational corporations that are eyeing Michigan’s liquid gold for sale as drinking water out of state.
Nestlé Waters immediately launched a public relations offensive that characterized Judge Root’s decision as an immediate threat to 120 workers at its Ice Mountain bottling plant in Stanton and hundreds more jobs in other companies that supply the plant. Nestlé also spread fear in the business community by suggesting that the decision threatened any Michigan company that uses groundwater in products — canned food and beverages, for instance — that are shipped out of state.
Although Judge Root defined his ruling as applying only to spring water companies that tap Michigan’s water for sale out of its natural basin, Nestlé was successful in gaining the advantage for its message in the business and political community, and especially with the governor and her advisers.
Behind the administration’s decision to summarily dismiss Michigan Citizens for Water Conservation, according to administration officials and those who participated, was a trail of private phone calls and closed-door meetings between company executives and senior Granholm advisers, and effective schmoozing by the company’s Lansing representatives. The result, say the administration’s critics, was a rash decision made by the governor and her aides and a slam dunk victory for the company.
In the aftermath, not surprisingly, executives and employees of Nestlé Waters North America say they are relieved and environmental leaders are infuriated. Most importantly, though, the attorney for Michigan Citizens for Water Conservation insisted that had the governor kept her inaugural promise to “bring in an air of innovation,” he and his clients could have made a big difference in helping the administration make a more reasoned decision that suited the needs of the company, protected landowners and the environment, and made Granholm look very smart.
One important fact that was missed, says Jim Olson, the group’s Traverse City-based attorney, is that there was no emergency. Nestlé filed an affidavit in Judge Root’s court that said it would continue to pay its bottling-plant workers at least until Jan. 31, more than enough time for the administration to work with all parties to develop a response.
“Michigan Citizens for Water Conservation accomplished a great victory that protects the integrity of the state’s water and prevents the sale and export of drinking water outside of its natural basin,” Olson says. “It’s a wall of protection. The administration should have come out strong for that principle. They had time to do that. Instead they accepted everything the company said and gave Nestlé everything they wanted, including pumping almost without limit and no conditions in return.”
“It was a terrible decision made on her part without consideration,” says Lana Pollack, president of the Michigan Environmental Council and an important ally of the governor’s. “That is the good news and the bad news. The governor didn’t think. She just took her advisers’ word. I think she got bad advice and followed it to a bad result.”
In interviews, the governor’s advisers framed their decision to intervene in almost exactly the same terms as Nestlé Waters. The court-ordered deadline would idle 120 workers at Nestlé’s new $150 million Ice Mountain bottling plant in Stanton at a time when the heaviest rains in years had saturated the streams, wetlands and lakes that everybody was so worried about. In other words, in weighing harms, the administration was convinced that shutting the wells would do little to improve environmental conditions but cause tremendous hardship to the plant’s workers.
The governor, her aides say, is also committed to passing a comprehensive groundwater protection statute and they hope that the urgency and business uncertainty created by Judge Root’s ruling would convince Republicans in the Legislature to help her.
“This is about jobs and this is about developing comprehensive water policy for the state,” says Dana Debel, the governor’s environmental adviser. “The judge’s decision was out there and by midnight on Tuesday, if a stay was not granted, 120 workers were on notice they’d be laid off the next day. Let’s not allow the judge’s decision to create panic in the business community.”
It’s not as if Granholm didn’t see the Nestlé case or the clear issues about the safety of the state’s fresh water that it raised coming her way. As attorney general and a Democratic candidate for governor two years ago, Granholm criticized her predecessor for violating federal water law by issuing Nestlé the spring water well drilling permits without consulting other governors in the Great Lakes basin. She issued a formal attorney general’s opinion calling the pumping of spring water in Mecosta County a “diversion or export of water from the Great Lakes for use outside the basin” in September 2001. That same month, Michigan Citizens for Water Conservation filed its lawsuit in Big Rapids to prevent Nestlé from pumping.
Two months later she stood in the rotunda of the state Capitol with Terry Swier, the president of Michigan Citizens for Water Conservation, and told a news conference that the Nestlé plant was “exhibit A” in the case for new state water policy and that she would work with legislators, the environmental community and others to craft a comprehensive water policy to protect the Great Lakes and all water resources that feed into the lakes.
The formal opinion and the news conference helped candidate Granholm distinguish herself as a champion of Michigan’s environment and fresh water, which is the state’s global ace in the hole. No other region on earth has such a ready supply of a resource that is increasingly scarce almost everywhere else. Granholm further illustrated her commitment to protecting the state’s fresh water assets by developing a campaign platform that focused on the issue, and her stump speech included this line:
“We will defend our most valuable and vulnerable resource, water,” she said in a 2002 campaign speech in Grand Rapids. “As precious to us as blood is to the body, water is our defining resource — and it is our solemn duty to protect our legacy, our endowment and the character of Michigan by becoming the world’s best water guardians.”
As governor, her record on preserving the state’s fresh water is vastly better than Engler’s. Her Department of Natural Resources in September formally protected the Pine and Upper Manistee rivers in northern Michigan as state Natural Rivers, the first such designations since 1988. Steve Chester, director of the state Department of Environmental Quality, has brought enforcement cases against a large dairy factory farm in southern Michigan to halt water pollution caused by manure flowing into streams, and another case against a developer in Traverse City that filled in water-purifying wetlands.
But Granholm’s record has also included signing a Republican bill that allows some shoreline landowners on Lake Huron and Lake Michigan to bulldoze beaches to clear weeds caused by low Great Lakes water levels. She signed several other incidental bills that direct the DEQ to study groundwater supplies and mediate disputes over water.
Her administration has not, however, proposed a comprehensive water policy as she promised. And even if it did it is not at all clear that such a policy would gain any traction in the Legislature. A similar comprehensive water protection statute proposed by Republican Senate Majority Leader Ken Sikkema of Grandville went nowhere last year.
Debel, the governor’s adviser, says the administration believes that the court ruling in the Nestlé case could motivate lawmakers. But Pollack and other environmental leaders interviewed for this article say the administration’s action last week is likely to have the opposite effect.
“I spoke to the governor and she focused on what needed to be done and what she was going to do about legislation,” says Pollack. “I said, ‘Well the amicus brief you just filed [to support Nestlé’s appeal] could only weaken the chance of real success.’ It relieved the pressure and, in my opinion, gave a measure of credibility to the Nestlé arguments. The governor’s office said they were only seeking a stay of the court order to shut down the wells, and not affecting the substance of water policy. I say that’s a distinction without a difference. By filing the amicus brief they undermined the chance of success in the Legislature.”