A key battle in Maine's ongoing war over water will be decided in Wells on Saturday.
Voters at a town meeting will decide whether theirs will become the latest community to ban water extraction by companies like Poland Spring.
Rather than trying to regulate water extraction, the ordinance takes a "rights-based" approach by asserting that ecosystems have rights to exist, flourish and evolve naturally in town. Wells and any of its residents would have standing to seek damages in court against any company that interfered with those rights.
Under the ordinance, corporations would have no constitutional rights within the town. The Supreme Court has found that corporations have some constitutional rights – such as a right to free speech and against government taking of property without due process – but not others, such as the right against self-incrimination.
Two other Maine towns – Shapleigh and Newfield – used such an approach to adopt similar measures this year. The neighboring towns acted after Poland Spring, a subsidiary of Nestle Waters North America, started the process to drill test wells in search of a potential new water source.
In Wells, the controversy stems from a proposed 30-year contract between Poland Spring and the Kennebunk, Kennebunkport and Wells Water District. Under that proposal – tabled indefinitely last summer because of a public outcry – the company would have been able to draw a maximum of 432,000 gallons a day from the Branch Brook aquifer. By comparison, the district's average daily water usage is about 2.8 million gallons, and peak use is about 7 million gallons a day.
The town attorney for Wells has advised selectmen that she believes the proposed rights-based ordinance violates federal and state constitutional principles, as well as state law and the town charter. Selectmen declined by a vote of 3-2 to put the ordinance on a town ballot, but supporters of the measure gathered enough petition signatures to force a town meeting.
The town's Ordinance Review Committee, meanwhile, is working on regulations for water extraction. A draft may be presented to selectmen May 27, said Bill Gosbee, the group's chairman.
The Pennsylvania-based Community Environmental Legal Defense Fund promotes the rights-based approach of the water ordinances and others dealing with issues ranging from sludge spreading to corporate agriculture to mining.
Regulatory schemes have failed to protect ecosystems and have instead helped "the corporate boys build a better permit," said Gail Darrell, the fund's community organizer in New England. A different view of nature – as something that must be able to preserve itself, rather than being plundered for profit – was needed, she said.
"If we treat nature as though it has rights, we can protect it," Darrell said. "So if a corporation understands, if it destroys nature, they have to fix it. They need to be responsible for the destruction."
Darrell questions why a corporation's goals should trump those of people when people are the source of governing power and corporations are only "creations of the state." She considers court decisions giving corporations constitutional rights "illegitimate."
"'Corporation' is not in our Constitution," she said.
While corporations are artificial legal entities, courts decide whether to treat them like people when it comes to constitutional rights, said H. Cabanne Howard, a University of Maine School of Law professor. No state or municipality has the authority to negate the rights that courts say corporations have, he said.
"You can't just pass a statute saying those decisions don't matter," he said.
Dave Owen, another Maine Law professor, said a local ordinance can't trump state law, which includes a regulatory scheme that allows the extraction of water by companies like Poland Spring,...
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