Montana’s Constitutional Right to a Clean and Healthful Environment in Action—Part I: Montana’s Constitution

What’s the most important constitutional provision? The First Amendment guarantee of free speech, or the separation of church and state? The Fourth Amendment search warrant requirement? And, of course, who could forget the ever-popular Third Amendment troop-quartering provision?

For those of us living in the Big Sky State, or at least interested in environmental law here, the answer is None of the Above, thanks to the Montana Constitution’s Right to a Clean and Healthful Environment. If you’re a little surprised that there is such a right, or that there even is such a thing as a Montana Constitution, you’re not alone. Both the legal practitioners and the media focus so much attention on the U.S. Constitution that state constitutions often languish in obscurity.

But we are in fact all governed (and protected) by more than one constitution—each state has its own. And these constitutions can be a repository of significant rights left to state courts to develop. Over the past century, the scope of the federal government’s authority and involvement (and the nationalization of our politics) has led many to forget just how much governing is left up to the states, should they choose to do it.

And Montana doesn’t have just any state constitution. Despite being fairly new at just over a half-century old, the document has served as a model for other countries drafting their own constitutions. By all accounts, the drafting of the 1973 Constitution was democracy working at its best: the methods of choosing non-politician delegates from local communities, and even drawing up the seating chart, were designed to minimize the deleterious effects of partisanship or self-serving interests of incumbent politicians. These efforts paid off. It’s worth perusing the transcripts of the Constitutional Convention (ConCon): the level of care, foresight, statesmanship (and common sense) exhibited by these people from all walks of life in crafting the new charter is a truly inspiring contrast to what we’ve come to expect from modern politics at the state and federal levels.

Another reason to read the ConCon transcripts: they actually exist. Unlike the United States Constitutional Convention, from which we know surprisingly little (thus, why efforts to divine the original intent of that constitution’s framers are so unlikely to succeed), the Montana Constitution is accompanied by meticulous transcripts. Confused by what the constitution meant in forbidding “a special or local act”? Flip through the transcripts and see. Curious what delegates had in mind for the human dignity clause? Have a look.

This brings us to the Montana Constitution’s environmental provisions. In a time of dawning environmental awareness, the constitutional delegates were apprised of the fragility of what had previously been thought an inexhaustible natural environment. Montana’s once-pristine mountains and waters stood in contrast to the filth generated by the state’s long and sordid history with the corruption and environmental degradation brought on by the resource extraction of the infamous Copper Kings and those that followed. The framers of the new constitution sought to remedy both.

The 1972 Montana Constitution echoed the famous words of Thomas Jefferson early in the document, holding that “[a]ll persons are born free and have certain inalienable rights” including the “defending their lives and liberties” and seeking “health and happiness.” Mont. Const. art. II, § 3. Unlike Thomas Jefferson, however, the Montana Constitution lists the very first inalienable right as “the right to a clean and healthful environment.”

The right to a Clean and Healthful Environment got another moment in the constitutional spotlight, this time with a detailed constitutional section all to itself:

1) The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.

(2) The legislature shall provide for the administration and enforcement of this duty.

(3) The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.

Mont. Const. art. IX, § 1.

The foresight on the part of the Montana Constitution’s drafters is evident in this constitutional provision’s command to the state’s legislature to provide for administering, enforcing, and adequate remedies for the environmental right. That is because the right to a clean environment is a rare example of a positive constitutional right. Unlike, for example, the right to free speech—which, as a negative right, essentially requires only that the government refrain from acting—the right to a Clean and Healthful Environment requires actual (often highly detailed) action on the part of the government.

Without the Constitution’s clear directive to the Legislature, its environmental right would amount to little more than soaring, yet empty, rhetoric on a page. But, as the Montana Supreme Court has said, the right to a Clean and Healthful environment was intended to be “as evident in the air, water, and soil of Montana as in its law books.” And, as Delegate Mae Nan Robinson explained, you need adequate legal “remedies” to intervene when regulatory efforts inevitably fall short. The 1973 Constitution marked a new chapter in Montana’s legal and environmental legacy.