Brian Shupe: Good news about groundwater

Editor's note: This commentary is by Brian Shupe, the executive director of the Vermont Natural Resources Council.,

[W]ith so much bad news circulating about our society’s – and our governments’ – inability to confront the enormous environmental challenges that we face, it is important to recognize the good news when the system works as it should and laws that were passed to protect the health and safety of citizens are put to good use.

In recent months, both the Vermont Department of Environmental Conservation and the state’s Attorney General have taken advantage of an important legal principle to help protect groundwater. It’s known as the public trust doctrine, which means that Vermont’s groundwater is held in common to serve the public interest of all Vermonters.

This is an important concept, and critical to the state’s future, considering that over two-thirds of Vermonters rely on groundwater for potable water – and considering that many large areas of the planet suffer a water crisis that results in deprivation, conflict, and hardship.

Worldwide, over 780 million people lack access to clean water. That’s about one in nine people. And, 3.4 million people die every year from water-related illness. Granted, global overpopulation is a large part of the problem, and that will only bring more pressure to those corners of the earth – such as Vermont – that have seemingly plentiful supplies of clean water.

Defending our common interest in protecting groundwater is just what Attorney General William Sorrell did when he sued some of the largest refiners of gasoline in the country – including Exxon/Mobil, Irving and Shell among others – for polluting Vermont’s groundwater with methyl tertiary butyl ether (MTBE).

MTBE was, but is no longer, used as an additive in gasoline. In several instances throughout the state gasoline containing MTBE leaked out of underground storage tanks and contaminated groundwater. The U.S. Environmental Protection Agency has said that while data is lacking on long-term exposure to ingesting MTBE, there is evidence to suggest that MTBE is a potential human carcinogen.

The lawsuit against gasoline refiners relies in large part on the state’s Groundwater Protection Act of 2008, a law that declared groundwater to be a public trust resource and created a regulatory system for managing commercial water extraction.


In his filings in federal court, the Vermont Attorney General’s Office refers repeatedly to the fact the state holds groundwater resources in trust for the benefit of the public and alleges that the oil companies have interfered with those rights.

“As a proximate and direct result of Defendants’ acts and omissions as alleged in this complaint, MTBE has unreasonably interfered with trust rights by causing the statewide contamination of groundwater, drinking water supplies, public drinking water supply wells, private wells, and other waters and property of the state,” the complaint from the AG’s office reads.

The lawsuit against gasoline refiners relies in large part on the state’s Groundwater Protection Act of 2008, a law that declared groundwater to be a public trust resource and created a regulatory system for managing commercial water extraction.

The origins of that law go back at least to 2006, when the Vermont Natural Resources Council, partner organizations, and concerned Vermonters from the towns of Randolph, Dorset, East Montpelier and elsewhere, began a campaign to more fully protect Vermont’s groundwater. In 2008, lawmakers passed the law protecting groundwater.

And in recent weeks, the Department of Environmental Conservation incorporated important public trust provisions into a new groundwater protection rule that further builds upon the 2008 law.

The so-called Underground Injection Control rule, which goes into effect in the near future, explicitly affirms that the state has an obligation to protect groundwater for all Vermonters. This is one of several rules that will be updated to ensure that the property of all Vermonters – our groundwater – is protected for the common good.

Lots of Vermonters teamed up to push for the bedrock law to safeguard groundwater by declaring it to be a public trust resource. Lawmakers considered the arguments for and against, and passed legislation to do just that. Elected officials turned to the courts to enforce the law when that trust was violated. And bureaucrats in Montpelier are applying the law through a variety of available programs. That’s all good news.

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