Great Lakes advocates say Compact fails to shut door on diversion

Great Lakes: not so protected by Compact, which does little, as it turns out, to keep the sun from setting on the public

Republicans and Democrats love to pat themselves on the back after popular legislation is passed.

Such was the case with the Great Lakes Compact, ratified last month by the United States House of Representatives and signed into law by President Bush.

The package of bills, after all, was designed to protect the Great Lakes from massive diversion — the nightmare scenario of tankers siphoning our water into their holds and sailing for drought-stricken Australia, Spain or the U.S. itself, where more than half of the states are expected to face water shortages inside the next five years.

Gov. Jennifer Granholm called its passage in Michigan — one of several states to vote on it before it made its way to Washington — “a defining moment in Michigan history.”

When it passed the Michigan House in June, Democratic Rep. Rebekah Warren of Ann Arbor, chair of the House Great Lakes and Environment Committee, said:

“Today’s action will ensure that the Great Lakes and Michigan’s inland lakes and streams will remain protected for generations to come.”

That sounds great. We can all agree that protecting the Great Lakes from massive water diversion is vital, noble and urgent.

But to those who care the most about the Great Lakes, the compact is nothing but an unlocked gate.

Stupak urged “no” vote

Great Lakes advocate Bart Stupak is a U.S. congressman who lives in Menominee, Mich., and represents the Upper Peninsula and much of the northern lower peninsula. He points out that his is the only congressional district that borders three of the five Great Lakes.

Stupak doesn’t have to be a naturalist to care about the massive ecosystem, either. According to a study released in April by the Brookings Institution, a Washington, D.C.-based think tank, the health of the Great Lakes has a dollar value for the region, including tourism and other sustainable lakes-related industries: $50 billion.

As the “debate” for the popular legislation was beginning, Stupak asked his colleagues in the House to join him in voting down the proposal.

Why?

For two important reasons: its loophole for bottled water companies, and its official defining of Great Lakes water as a “product.”

The former, of course, says diversion by bottled water companies such as Swiss-based Nestle (already siphoning Michigan groundwater to make Ice Mountain bottled water) is okay, even though the compact’s exemption for diversion “in a container smaller than 5.7 gallons” is certainly counter to the compact’s supposed raison d’etre.

The latter, because using language that defines Great Lakes water as a “product” could open the flood gates to claims on it.

In a statement the day before the House passage, Stupak wrote, “Would actions taken by the Great Lakes states to restrict or prohibit efforts by international commercial entities, who seek to privatize the Great Lakes ever be subject to claims under the General Agreement on Tariffs and Trade or the World Trade Organization?”

In other words, does the language in the compact create legal claims to our water by corporations under international trade laws such as NAFTA or those listed above?

Stupak wrote:

“While the potential removal of millions of gallons of Great Lakes water in the form of bottled water is alarming, of much greater concern is a potential trade dispute between the U.S. and any multi-national corporation or foreign government interested in diverting our water.”

On his Web site, Stupak wrote that he supports the original intent of the compact, but that he thinks it falls short of that goal, thanks to Congress spending less than 20 legislative days to consider its federal and international implications and because of the mysterious insertion of the “product” language.

Rep. Stupak is not alone.

Great Lakes author deeply disappointed

Dave Dempsey is the former policy director for the Michigan Environmental Council and author of the book “Great Lakes for Sale: From Whitecaps to Bottlecaps” (University of Michigan Press).

Dempsey told Michigan Messenger, “I hope I’m wrong, but the rush to ratify this compact may turn out to be the biggest mistake in the history of the Great Lakes environmental community. It’s a classic case of group think. Too many people brushed aside critical arguments on the grounds that something was better than nothing. The danger is that the whole edifice of protection may collapse under the weight of the special status given ‘water as a product.’ Water is critical to human life and can never be a product. But now the Great Lakes community has betrayed that principle.”

Record-Eagle demands loopholes be closed

The Traverse City Record-Eagle covers a touristy area of Michigan where fortunes are tied to the Great Lakes. Late last month, the daily paper published an editorial criticizing the compact and asking for the loopholes in it to be closed. It concludes:

Eight Great Lakes states spent four years in talks to hammer out the compact, starting some 50 years after Congress created the Great Lakes Commission to deal with such issues. Negotiations included testimony and input from businesses, scientists and environmentalists; after all that work, the compact must be fixed so it does what it was intended to do.

Private interests licking their chops?

On his blog, Dempsey wrote about some reasoning in defense of water commercialization and privatization coming out of Michigan’s own Chamber of Commerce in the wake of the compact’s passage, as quoted in a story about the compact and bottled water in The Washington Post that first quotes Anu Bradford, a University of Chicago law professor:

“How do we decide when water is a product?” she asked. “Under the WTO and NAFTA, there is no obligation for a state to extract its natural resources. The difference comes when it makes the decision to allow an entity to commercialize it and they do commercialize it. Then it is a product and you can’t ban the export.”

Doug Roberts Jr., director of environmental and energy policy at the Michigan Chamber of Commerce, agrees.

“We think it’s critical that you are able to make products and ship them all over the world,” Roberts said. “That’s what you do in a free-market economy. We were very concerned [that] groups would target one product and say that product can’t be shipped. What’s the difference between bottled water and beer or cherry juice? Those all have water in them.”

Wrote Dempsey in response to the Roberts quote in the Post article:

This gentleman’s reasoning has sprung a leak.

Water is an ingredient in beer and juice, not a product. There is a long-standing right to use water to make things, but there is no right to sell water. Water itself belongs to the public, and there was no law condoning its commercialization in the Great Lakes Basin in 2006, when Michigan blundered into passing such a law. Now the Compact has done so for the region.

Maybe someday the simple point will become clear to more people: once you convert water in law from a public to a commercial resource, you risk losing public control of it — and in this case, of the Great Lakes.

Hope for shoring up the compact

For his part, Stupak has said he will continue to fight for revision of or amendment to the compact that will clarify that the Great Lakes are not for sale.

Michigan-based syndicated columnist George Weeks, who spoke with Michigan Messenger about his own strong misgivings about the compact — especially its legalizing of reduction of water levels in interior streams and springs by corporations and private interests — thinks that Lt. Gov. John Cherry, chairman of the Great Lakes Commission, will also pursue revision of the compact.

“Cherry believes it should be revisited on ‘product’ language and its ramifications. And he should,” Weeks told Michigan Messenger.

The former Detroit News political columnist continued, “I was surprised by Gov. Granholm’s support for the compact. If people like [Traverse City-based environmental attorney] Jim Olson and Dave Dempsey have pause, then all of us who love the Great Lakes should be worried, too.”