To a Clean and Healthful Environment – Flathead Beacon

 

Steinbecks description of the Treasure State stuck with Bob Campbell, a delegate to the 1972 Montana Constitutional Convention from Missoula. Drawing inspiration from Steinbecks words, and from the 25-foot-wide panoramic oil painting by renowned artist Charles M. Russell that hangs in the state capitol, Campbell and delegate Mae Nan Ellingson of Missoula sat down on Jan. 27, 1972, and wrote the first draft of the preamble to Montanas Constitution. To a Clean and Healthful Environment – Flathead Beacon

 Preamble to Montana Constitution

 

We the people of Montana grateful to God for the quiet beauty of our State, the grandeur of our mountains, the vastness of our rolling plains, and desiring to improve the quality of life, equality of opportunity, and to secure the blessings of liberty for this and future generations, do ordain and establish this Constitution. To a Clean and Healthful Environment – Flathead Beacon

In the 1962 travelogue Travels with Charley, John Steinbeck writes about crossing America in a camper truck accompanied by his standard poodle. When he reached Montana for the first time, he declared his love for the state.

It seems to me Montana is a great splash of grandeur, Steinbeck writes. The scale is huge but not overpowering. The land is rich with grass and color, and the mountains are the kind I would create if mountains were ever put on my agenda.

It recognizes the importance of the physical environment in Montana we were inspired, I think, by the beauty of our state, Ellingson, ne Robinson, said in a 2015 interview for the Montana history series In the Crucible of Change: Montanas Dramatic Period of Progressive Change, 1965-1980. And I think that whole notion of protecting the environment gets reflected not only in that article but presupposing it as part of why we were writing this Constitution.

SHALL MAINTAIN AND IMPROVE

A major impetus for convening a new constitutional convention to rewrite the previous 1889 document was a legacy of corporate mining companies contaminating the environment and then rolling up the rug and leaving the cleanup to the citizens of Montana, says University of Montana law professor Michelle Bryan.

To a Clean and Healthful Environment - Flathead Beacon
To a Clean and Healthful Environment – Flathead Beacon
A satellite view of the Berkeley Pit, a former open pit copper mine that is currently one of the largest Superfund sites. Labels added. | NASAWealth and Political

During the 20th century, the copper mining industry in Montana transformed the state into an economic center which gave the copper barons vast wealth and political power while at the same time degrading the states land, water and air. In the mining town of Butte, now home of the Berkeley Pit Superfund Site, smoke from nearby smelters occasionally blotted out the sun. One historian wrote that the deadly air of Butte, thick with fumes of sulfur, arsenic and smoke killed every blade of grass, every flower, and every tree within a radius of miles.

Montanans grew tired of the pollution, Bryan said, which was a big reason for wanting to hold our government accountable for setting up a legal system that would protect, even restore, the environment in places where it had been harmed.

Environmental Policy

In addition, the burgeoning national environmental movement in the mid-20th century led to wider recognition that environmental policy should figure more prominently in state-governing documents, according to Bryan. When the delegates to Montanas Constitutional Convention regular citizens, not politicians converged on Helena, they brought with them a raft of concerns that their land, water and air were unprotected. To a Clean and Healthful Environment – Flathead Beacon

We just took things for granted until all of a sudden, in 1963, I happened to be at a creek that was known as Ashley Creek and a dead fish comes floating down the creek, said delegate Henry Siderius of the Flathead Valley, according to transcripts from the Convention. Thats when I became concerned about this environment.

To a Clean and Healthful Environment - Flathead Beacon
To a Clean and Healthful Environment – Flathead Beacon
Ashley Creek flows through the Smith Valley west of Kalispell on May 23, 2023. Hunter DAntuono | Flathead Beacon

Ellingson Told

In a March 2023 editorial, Ellingson recalled that it took hours and hours of debate, rethinking, restructuring, political maneuvering and numerous votes until the proponents of a clean and healthful environment finally prevailed.

During the convention, Ellingson told the delegates she believed the environmental protections in Article IX were the most important items they would be dealing with during the convention. For several days, Ellingson, Campbell and other delegates workshopped language to enshrine a right to the environment, sparkingdeliberations among delegates on how to ensure people have some teeth in an environmental law, according to transcripts.

Clean and Healthful

One delegate proposed deleting the words clean and healthful as qualifiers to describe the environmental touchstone they were aiming for, concerned they were too vague; but Ellingson countered by pointing out that the two adjectives were used in other state and federal statutes, including the National Environmental Policy Act, and were needed to help the Supreme Court interpret their intent in the future. To a Clean and Healthful Environment – Flathead Beacon

I can envision going to court to prove that something is not healthful, according to Cate. I can prove that the sulfur thats being emitted from the steam plant in Billings I can prove thats not healthful, and I can prove that thats not clean in a court of law.

Another discussion centered on the phrasing maintain and improve, particularly as some delegates felt the extent of environmental degradation in Montana including what occurred in Columbia Falls due to the aluminum plant, and in Butte from its legacy of hard rock mining should not establish a standard to be maintained, but rather a starting point for enhancement.

 

To a Clean and Healthful Environment - Flathead Beacon
To a Clean and Healthful Environment – Flathead Beacon
Bob Campbell signs the proposed constitution on March 22, 1972, on the final day of the Constitutional Convention.

INTERPRETATION

Historically, Montanas environment has kind of gone by the board, retired Montana Supreme Court Justice Jim Nelson said in a recent interview. It hasnt been maintained, much less improved.

Legally speaking, the right to a clean and healthful environment lay dormant for more than two decades before it was brought under close constitutional examination by the Montana Supreme Court.

Montana’s Constitution

Nelson finished law school in 1974, two years after Montana’s Constitution was adopted. Ive watched the Constitution grow up, he said. When I finished law school and came to Montana I was absolutely blown away when I read our Constitution for the rights it gave the citizens.

Nelson spent 14 years as the county attorney in Cut Bank and chaired the Montana Oil and Gas Conservation Board. It wasnt until 1988 that he was first confronted with the states most salient environmental provision. The board was considering a lease for an exploratory well on the edge of Glacier National Park and held nearly three days of public hearings in Kalispell. Opponents of the well argued it would harm endangered animals and pollute a pristine national park, testimony that resonated with Nelson and hammered home the idea of a clean and healthful environment. The well was still approved, but the thrust of the legal argument lingered with Nelson.

Its clear now that this board has a duty to ensure protection of the environment, he told the Los Angeles Times in 1989.

To a Clean and Healthful Environment - Flathead Beacon
To a Clean and Healthful Environment – Flathead Beacon
An oil train travels near Marias Pass on Sept. 12, 2017. Greg Lindstrom | Flathead Beacon

Nelson was appointed to the high court by Republican Gov. Marc Racicot in 1993 and served as a member when it issued the first clear interpretation of the states right to a clean and healthful environment. To a Clean and Healthful Environment – Flathead Beacon

Blackfoot River Valley

In 1992, a mining venture known as Seven-Up Pete sought to construct a gold mine in the upper Blackfoot River Valley. The developers received a permit from the Montana Department of Environmental Quality (DEQ) allowing the discharge of arsenic-laden groundwater from several test wells into Landers Fork and the Blackfoot River. Three environmental interest groups including the Montana Environmental Information Center (MEIC) sued, alleging damages from the discharge of the polluted water and citing a legislative statute exempting well tests from environmental review as a violation of the Constitution.

Despite the states argument that the plaintiffs had failed to show the arsenic levels in the river were unsafe, or that they had suffered injury or violation of their constitutional rights, the court ruled that the Constitutions environmental provisions were both anticipatory and preventative.

Trierweiler wrote

For the majority, Justice Terry Trierweiler wrote, The delegates 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 dead fish to float on the surface of our states rivers and streams before its farsighted environmental protections can be invoked.

 

To a Clean and Healthful Environment - Flathead Beacon
To a Clean and Healthful Environment – Flathead Beacon
An unidentified sheen seeps onto the north shore of Flathead Lake near Somers on May 5, 2017. | Beacon file photo

Supreme Court Decision

A more recent Montana Supreme Court decision related to the right to a clean and healthful environment involved Canadian mining company Lucky Minerals, which had received a DEQ permit to conduct exploratory drilling for gold near Yellowstone National Park. The case looked at a 2011 amendment made to the Montana Environmental Protection Act (MEPA), in which the Legislature specified that a permit, license, lease or authorization issued by an agency is valid and may not be voided modified or suspended pending the completion of an environmental review. This amendment removed the ability for opposing groups to halt projects that were challenged in court.

Injunctive remedy is super important, because it can stop an action before harm is done, Bryan said. The constitutional right and duty to the environment includes the phrase prevent, and the court agreed the amendment violated that clause.

To a Clean and Healthful Environment - Flathead Beacon
To a Clean and Healthful Environment – Flathead Beacon
A meadow below Clements Mountain is replete with bright glacier lilies on Logan Pass in Glacier National Park on June 19, 2021. Hunter DAntuono | Flathead Beacon

FOR CURRENT AND FUTURE GENERATIONS

Montanas right to a clean and healthful environment will again be argued in court this summer in Held v. Montanabut with even more at stake. The youth plaintiffs are challenging the states approach to energy policy and permitting, alleging Montanas prioritization of the fossil fuel industry has significantly increased greenhouse gas emissions, contributing to global climate change, and damaging Montanas environment. To a Clean and Healthful Environment – Flathead Beacon

MEPA

The suit, filed in 2020, specifically names two statutes the Montana State Energy Policy, and a separate 2011 amendment to MEPA that excludes state agencies from considering environmental impacts beyond state borders that violate the plaintiffs constitutional right.

This isnt an example where governments are just kind of sitting by idly while climate change happens around them, said Nate Bellinger, one of the plaintiffs attorneys litigating the case. Its much more egregious than that, actually, in the sense that governments are actively causing and contributing to climate change through various laws and policies.

To a Clean and Healthful Environment - Flathead Beacon
To a Clean and Healthful Environment – Flathead Beacon
Nate Bellinger, an attorney with Our Childrens Trust, is representing the plaintiffs in court. | Courtesy photo

Judge Kathy Seeley

Bellinger and Our Childrens Trust, an Oregon-based nonprofit law center, have filed similar legal action in all 50 states, but Held is the first of its kind to be scheduled for trial. In August of 2021, a landmark decision by Lewis and Clark County District Judge Kathy Seeley cleared a path for the plaintiffs to proceed to trial, a surprising victory given that state and federal courts have dismissed many similar lawsuits in recent years. (On April 6 a judge in Hawaii ruled a youth-led climate case against that states Department of Transportation will proceed to trial this fall, and on June 1 a federal judge ruled the case Juliana v. United States will also advance to trial.) However, Montanas constitutional right to a clean and healthful environment is almost unparalleled among the states and offers a legal foundation for Held to move forward, despite the states efforts to have it dismissed.

Nelson said

The Legislature has never been protective of the environment, Justice Nelson said. This session of the Legislature has almost launched a Holy war against the environment.

Two bills in particular have made headlines for their bearing on the lawsuit one 11th-hour measure amended MEPA by barring state agencies from considering any greenhouse gas emissions and impacts on climate change during environmental reviews of energy projects. Attorneys for the defendants have filed requests to dismiss all complaints based on the MEPA amendment arguing the new language substantially changes the laws meaning. To a Clean and Healthful Environment – Flathead Beacon

To a Clean and Healthful Environment - Flathead Beacon
To a Clean and Healthful Environment – Flathead Beacon
The state Capitol rotunda. Beacon File Photo

In addition, the Legislature repealed the state energy policy in March, a move that prompted Montana Attorney General Austin Knudsen to seek a dismissal of all complaints based on that statute. On May 23, Judge Seeley dismissed those portions of the lawsuit, though remained firm in her decision to allow the trial to proceed, albeit with a significantly narrowed focus.  

Emily Flower

The main part of this case has now been thrown out, and whats left of the case should also be dismissed, said Emily Flower, a spokesperson for the Attorney Generals Office. We believe this political theater will come to an end soon.

The case is set for a 10-day bench beginning June 12. In her 2021 ruling to allow the case to proceed, Seeley stated it was outside of her power to approve injunctive relief and order the state to prepare a remedial plan to reduce greenhouse gas emissions, but said the court could offer declaratory relief and order the state agencies to stop subjecting the plaintiffs to the Climate Change Exception to MEPA. To a Clean and Healthful Environment – Flathead Beacon

 

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