This year is the 50th anniversary of Montana’s constitution and over the coming months we will be commemorating that anniversary with a series of columns. This column is based in-part on the presentation “What the Constitution Can do for You” by retired Montana Supreme Court Justice Jim Nelson, held on January 12. A YouTube recording of his presentation can be found here: https://www.youtube.com/watch?v=uK_8O3uCRnk
One of the most fundamental rights protected by Montana’s 1972 Constitution is the inalienable right to a “clean and healthful environment” (Article II, Section 3). The Montana Supreme Court has ruled this right is “preventative in nature,” which means it protects Montanans from potential environmental problems. Montana’s right is being used to address the climate crisis.
An inalienable right is a natural right. These universal rights cannot be taken away by legislation and are beyond the control of a government because they are “naturally given” to every individual at birth. The Montana Constitutional inalienable rights section begins “All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment….” The difference between inalienable rights and legal rights is that an inalienable right is bestowed on every human being by the nature of birth, and the other is coded in law. Inalienable rights are rights that we are unable to give up, even if we want to. The Declaration of Independence refers to the inalienable rights of “life, liberty, and the pursuit of happiness”.
By including “the right to a clean and healthful environment” as an inalienable right, the Montana Constitution goes beyond the inalienable rights in the Declaration or in the US Constitution. Only a few states currently have a constitutional right to a healthy environment, and it gives Montanans a powerful weapon to protect citizens from environmental threats.
As with all the rights in our Constitution, it is up to the courts to define them based on lawsuits.
In a 1999 landmark decision, MEIC v. Montana DEQ, the Montana Supreme Court ruled unanimously that Montanans’ constitutional right to a clean and healthful environment is a fundamental right and one that is intended to be preventative in nature. The original suit was filed because the Montana Department of Environmental Quality had allowed the Seven-Up Pete Joint Venture to pump, without any treatment, millions of gallons of arsenic-tainted water into the Landers Fork and Blackfoot Rivers. The plaintiffs claimed that the discharges violated the Constitution’s right to a clean and healthful environment, and that the exemption was unconstitutional. In an opinion by Justice Trieweiler, the Montana Supreme Court held that: “Our constitution does not require that dead fish float on the surface of our state’s rivers and streams before its farsighted environmental protections can be invoked,” and concluded that “the delegates’ intention was to provide language and protections which are both anticipatory and preventative,” establishing that the right is preventative in nature.
Based on this decision, sixteen young Montanans filed a lawsuit against the state of Montana (Held v State of Montana). They are claiming that, by supporting a fossil fuel-driven energy system which is contributing to the climate crisis, Montana is violating their constitutional rights to a clean and healthful environment. The plaintiffs also argue that the state’s fossil fuel energy system is degrading and depleting Montana’s constitutionally protected public trust resources, including the atmosphere, rivers and lakes, fish, and wildlife. This lawsuit is pending. If it succeeds, it could compel the state of Montana to prepare and implement a remedial plan to reduce greenhouse gas emissions.
The 2021 Montana Legislature passed SB 358, a bill that replaces current objective, numeric standards for water quality discharge with subjective, narrative standards for water quality. Will these new standards promote clean and healthful water, or allow water quality to degrade as individual sources of discharge no longer have standards to meet? Section IX, articles 1-3 of the Montana Constitution create a duty to maintain and improve a clean and healthful environment and charge the legislature to provide for the administration and enforcement necessary to carry out this duty. Our Constitution gives us the right to sue our state government if it is not meeting its responsibilities to maintain and improve our environment. We may see more lawsuits in the future.
The League of Women Voters has been registering voters and providing non-partisan voting information for over 100 years. Membership is open to men and women, citizens and non-citizens over the age of 16. For more information about the Missoula League, go to our website: lwvmissoula.org.