Conservationists broke out the champagne in October in celebration of Montana’s Supreme Court pronouncement that the state’s constitutional guarantee to a “clean and healthful” environment has teeth to it.
Writing for a unanimous court, Justice Terry Trieweiler states that the provision is intended not only to protect the state’s resources from actual, proven damage, but from threatened harms as well. In an oft-quoted statement, Trieweiler asserts that “the delegates [to the 1972 constitutional convention] did not intend to merely prohibit that degree of environmental degradation which can be conclusively linked to ill health or physical endangerment. 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.”
It was the court’s first chance to interpret the provision, which was enacted when the state re-wrote its constitution in 1972. The opportunity arose from a lawsuit filed by conservation groups against the state over its permitting of “pump-tests” by the Seven Up Pete gold mining project on the Blackfoot River. In that case, environmentalists challenged as unconstitutional a 1995 law that allowed the mining company to discharge water with higher-than-background levels of arsenic to the stream of “A River Runs Through It” fame without going through a rigorous “non-degradation” review.
For now, the case is back in district court, where the judge must decide if the law exempting the pump-tests from the non-degradation review process meets some sort of compelling state interest—in which case the constitutional provision could be waived—or if the law is unconstitutional under any circumstances.
But amidst all the revelry—and hand-wringing on the part of Montana’s extractive community—the decision itself leaves almost as many questions unanswered as it settles. No one knows, for instance, if substances other than carcinogens would invoke the constitution, nor how distant the potential harm could be. Neither does the decision answer any questions as to how the newly defined right might be applied outside the context of the Water Quality Act.
In addition, despite the fact that the constitution requires that both the “state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations,” three justices wrote separate opinions, holding out on the question of whether private actions would also be held to such a high standard.
“It’s a first step,” says John North, attorney with the Department of Environmental Quality. “The court indicated that a ‘clean and healthful environment’ is a pretty high standard and that’s about all we have here.”