Bottlemania - Elizabeth Royte [74]
I sense relief among the Nestlé opponents, but no one is celebrating quite yet. The ordinance may have been one referendum on Nestlé, but the company still has many other ways to sink its roots into the town of Fryeburg—among them, legal challenges and new proposals. As the town manager ruefully says to me afterward, “The saga continues.”
In mid-April of 2007, less than two weeks after Fryeburg’s town meeting, attorney Scott Anderson, representing the citizens group Western Maine Residents for Rural Living, and attorney Catherine R. Connors, representing Nestlé Waters North America, stand before the seven robed justices of Maine’s Supreme Judicial Court, in Portland. At long last, Anderson will argue that the tanker station in East Fryeburg isn’t an “allowed use” in a rural residential zone. He’ll also be arguing, on behalf of a Denmark landowner, against that town’s decision to allow Nestlé to pump springwater, on the grounds that it doesn’t meet the environmental and commercial standards for bulk-water extraction. Connors is here to defend both the pumping and the trucking.
Hannah Warren, Emily Fletcher, and Scott Gamwell, a certified public accountant who lives in East Fryeburg near the proposed tanker station, drove down from Fryeburg this morning to watch the proceedings. They take seats at one end of the stately, columned room and watch with dismay, but not surprise, as Gene Bergoffen sweeps in and takes a seat at the opposite end of the room, with two public-relations executives from Nestlé. And then the arguments begin. For someone unaccustomed to the frank language of business, the next fifty-four minutes are a revelation.
The Denmark case hinges on a clause in Maine’s bulk-water transport law, enacted in 1987, that says tankers of water can move over municipal boundaries for commercial purposes only if (1) its transport won’t constitute a threat to public health, safety, or welfare; (2) the water isn’t available naturally in the location to which it will be transported; and (3) failure to authorize transport of the water would create a substantial hardship to the potential recipient of the water.
The first and second clauses aren’t a big deal for Nestlé, or Anderson. The third clause, however, is huge. What does “substantial hardship” actually mean?
“Economic hardship,” Connors says, starting things off.
Chief Justice Leigh Ingalls Saufley asks for a clarification. “You’ll lose an opportunity to make greater profits?”
Well, yes, Connors says. “Not only will we be unable to meet projected demand but also existing. As the population increases in towns with facilities, less water is available for Poland Spring.”
“Doesn’t that show it’s a finite resource?” Saufley asks. “If you arrived at a point where you have to go to Denmark and pump out multiple gallons . . .” She trails off. “Why should we accept an argument that a loss of market share is enough to show substantial hardship that allows your client to continue to truck water out of the state?”
Gripping a wooden lectern, worn at the top from years of such gripping, Connors explains that Poland Spring’s pumping is sustainable, that the aquifer recharges. “If Denmark increases its needs, we’ll go elsewhere.” Her voice quavers, just a little.
“Isn’t it an upside-down pyramid,” asks Saufley, “as you extract more water and take it away, local towns lose their water capacity and you move elsewhere, and you create more desire for bottled water elsewhere, which means that this finite natural resource in Maine begins to be the source for a greater and greater demand, nationally? If your incapacity to [meet] market share gets you substantial hardship, it is endless.”
“It’s rechargeable,” Connors replies.
After a short break the court turns to the matter of the East Fryeburg trucking station—not its pros or