The Clean and Healthful Environment in the Courts—Part II: 1979-1999

(first published on May 24, 2026 at https://andersnewbury.substack.com/p/the-clean-and-healthful-environment)

The first Part of this series on Montana’s Clean and Healthful Environment legal tradition examined the context surrounding the enactment of the groundbreaking new constitutional guarantee. However, notwithstanding its powerful language, the new provision, like all constitutional rights, didn’t mean much until tested in the courts with real-life challenges. This is where rights either gain strength, or wither into obscurity.

Kadillak (1979)

The first test for the new Clean and Healthful Environment provision was a 1979 challenge to mining activities conducted by, fittingly, the infamous Anaconda Company in Butte, historic locus of the Copper Kings whose corruption had helped give rise to the new Constitution in the first place. The case, Kadillak v. Anaconda Co.,was a rude welcome for the newborn environmental right. The Montana Supreme Court concluded that the government was not required to conduct an environmental review under the Montana Environmental Policy Act (MEPA) where the timelines imposed by the Hard Rock Mining Act (HRMA) were prohibitively tight. The Court brushed aside consideration of the right to a Clean and Healthful Environment, asserting MEPA was not “enacted to implement the new constitutional guarantee” by the Legislature.

MEIC (1999)

It wasn’t until 1999 that the Right to a Clean and Healthful Environment was finally given wings. In Montana Env’t Info. Ctr. v. Dep’t of Env’t Quality, 1999 MT 248 the Montana Supreme Court reviewed a statute that arbitrarily excluded a particular class of discharges (from monitoring wells) from review under the state’s water quality laws. Groups challenged the law as unconstitutional.

With the right to a Clean and Healthful Environment receiving its first serious judicial interpretation, the Montana Supreme Court conducted a lengthy analysis of the Constitutional Convention transcripts, reaching a number of vital conclusions. First, the Court concluded that the right to a Clean and Healthful Environment was intended to “be the strongest environmental protection provision found in any state constitution.” MEIC, ¶ 66. No more was the right to a Clean and Healthful Environment to be brushed aside as a pesky distraction, as the Kadillak Court had done in 1979.

Second, the Court ruled that the environmental references in both Article II, Section 3 and in Article IX Section 1 were to be read together, along with the inspirational language in the preamble regarding “the quiet beauty of our state, the grandeur of our mountains, [and] the vastness of our rolling plains.” This meant that laws believed to impinge upon the combined right would be subject to constitutional law’s most rigorous test—“strict scrutiny”—under which the government bears a high burden to justify potentially harmful laws.

Third, the Montana Supreme Court rejected the lower court’s belief that a successful Clean and Healthful Environment legal claim must include definitive proof of an environmental harm:

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 that dead fish float on the surface of our state’s rivers and streams before its farsighted environmental protections can be invoked.

This holding is critical in the context of environmental law. It’s often difficult to predict with certainty ahead of time just what the environmental consequences of a proposed project will be. The reason permitting requirements exist in the first place is because the regulated class of activity may cause harm to the environment, not because individual projects always will in every instance. Some projects will, some won’t—being able to tell the difference ahead of time is the whole point of environmental law. Under MEIC’s ruling, citizens typically should only be required to show in court that the government’s review was insufficiently rigorous to ensure environmental protection. Had the Court ruled that, to succeed in a lawsuit, a citizen must first undertake the costly, and often impossible, task of proving that environmental harm will actually result from a project, the right to a Clean and Healthful Environment would have become essentially meaningless.

Finally, the Court found that, because water quality protection was a required government activity under Article IX, Section 1, it was unconstitutional to “arbitrarily exclude[] certain activities from nondegradation review without regard to the nature or volume of the substances being discharged[.]” MEIC, ¶ 80 (internal quotation marks omitted). In other words, the Constitution forbids the Legislature from cutting regulatory loopholes out of essential environmental statutes to conclude, with no scientific basis, that the exempted activities are per se environmentally harmless.

This last holding is critical at the current moment, when a deregulatory agenda has broad support across party lines nationwide, and Montana’s natural resources strain under the weight of numerous new arrivals and burgeoning industries thirsty for Montana’s valuable water and other resources. Deregulation is neither per seunconstitutional nor bad, but under Montana’s Constitution, regulatory streamlining must be thoughtful, based on careful science and public input to ensure that only duplicative bureaucratic red-tape, not essential environmental protections, are removed or dismantled. Courts have continued to face formidable task in holding this line in the face of such powerful economic provisions.