By Derf Johnson
A chrome lithograph of the Montana Capitol in Helena (Library of Congress, Public Domain).
This year marks the 50th anniversary of Montana’s Constitution, an incredibly ambitious and remarkably forward-thinking document that has served Montana well. The document modernized Montana’s government and took decision-making out of smoke-filled corporate boardrooms, placing it instead in the hands of the people. It also declared a series of rights in Article II, such as the right to a clean and healthful environment, the right to privacy, the right to know, and the right to participate in governmental decision-making.
While we’ve written about the Montana Constitution before, it remains a foundational part of MEIC’s work and advocacy. In 1999, MEIC helped to secure the seminal case interpreting the right to a clean and healthful environment at the Montana Supreme Court in a case against the Montana Department of Environmental Quality (DEQ). The ruling from MEIC v. DEQ established “clean and healthful” as a fundamental right and further applied a “strict review” of laws and regulations that implicate that right. In the majority’s opinion, Justice Terry Trieweiler stated:
We conclude that the right to a clean and healthful environment is a fundamental right because it is guaranteed by the Declaration of Rights found at Article II, Section 3 of Montana’s Constitution, and that any statute or rule which implicates that right must be strictly scrutinized and can only survive scrutiny if the State establishes a compelling state interest and that its action is closely tailored to effectuate that interest and is the least onerous path that can be taken to achieve the State’s objective.
Strict scrutiny is the most stringent standard applied by a court and is reserved for the protection of fundamental rights provided for under Article II of the Constitution and for laws that impact protected classes of people. For example, were the legislature to pass a law to exempt power plants from having to consider and mitigate pollution coming from its stacks, this would certainly implicate our right to breath clean air, a necessary component of a clean environment, and could only remain in effect if the state could demonstrate that it had a “compelling interest” in passing the law. While the legalese can get complicated, the take-home message is important and clear: Montanans have a strong, fundamental right to a clean and healthful environment, and the government can only impact or take that right away in rare circumstances and only for compelling reasons.
Certainly, MEIC relies upon and advocates for the right to a clean and healthful environment on a daily basis. However, MEIC also routinely relies upon the right to access government documents and to participate in governmental decision-making. Without these constitutional guarantees, our work and the ability of our members to influence government processes would certainly be constrained. We have highlighted some very recent work in which MEIC has asserted Montana’s Constitution and Article II rights in defense of our right to a clean and healthful environment.
Gianforte’s Decree on Public Documents: Not for Thee, Only for Me
Regular readers of Down to Earth are unfortunately all too familiar with the story of the environmental nightmare that is the now defunct Zortman-Landusky gold mine, the impacts to the Fort Belknap Indian Community, and the resulting Bad Actor law and its application to the proposed Montanore and Rock Creek mines. The latest chapter in this saga is Gov. Greg Gianforte’s decision to abruptly drop the case against Phillips S. Baker, Jr., after he took over the governorship from Steve Bullock. Baker was a principal with Pegasus Gold, which escaped liability at Zortman by declaring bankruptcy. Now Baker is with Hecla Mining, a company that wants to mine under the Cabinet Mountains Wilderness. As you can imagine, Gov. Gianforte’s decision set off alarm bells at MEIC, as the Bad Actor law is clearly a mandatory prohibition on issuing mining permits to bad actors, not a law that Gov. Gianforte can simply ignore or apply as he sees fit. MEIC is no stranger to making demands of the government. Recognizing the major implications of a governor choosing to simply ignore a mandatory law for political purposes, we filed a records request with his office for all documents and communications surrounding the decision to simply drop the Bad Actor determination. Underpinning this request is Article II, Section 9 of the Montana Constitution, which provides that “No person shall be deprived of the right to examine documents … of all public bodies or agencies of state government and its subdivisions…”
The Governor’s Office ultimately denied the public records request, in part through a novel legal rationale that the Governor has a “deliberative process privilege” that allows for him to deny the public access to government documents that would otherwise be available for review. The Governor’s claim that the public should not be able to see these documents is a major shift in how the public records law has been interpreted for generations. If adopted, this would shred constitutionally guaranteed access to government decision-making. This issue is now in court, and MEIC is arguing vociferously that the Right to Know law must be maintained and appropriately applied.
Laurel Gas Plant: DEQ Stuffs Its Head in the Sand
Back in 2011, the Montana Legislature passed and Gov. Brian Schweitzer signed a law that revised reviews under the Montana Environmental Policy Act (MEPA). The new law prohibits reviews from including a “review of actual or potential impacts beyond Montana’s borders. It may not include actual or potential impacts that are regional, national, or global in nature.” This change was very clearly meant to prohibit state government from analyzing, considering, or mitigating the overriding environmental and social issue of the 21st century: climate change.
The state frequently applies this remarkably regressive law when conducting environmental analyses, most recently with the permitting of NorthWestern Energy’s proposed methane-gas-fired Yellowstone County Generating Station near Laurel (See also: coal mining expansion challenged at Rosebud Mine on pg. 15). In that process, the Montana DEQ purposely ignored climate change and refused to conduct any analysis of the potential impacts of greenhouse gas emissions from the proposed methane gas plant. An exclusion of such an important consideration obviously implicates our right to a clean and healthful environment, and it’d be hard to dream up a “compelling interest” that the state of Montana has in excluding climate change considerations as part of an environmental review for a methane gas-fired power plant.
Based in part on these constitutional concerns, MEIC challenged the MEPA analysis for the state’s air permit for the methane plant as being deficient in that it did not consider climate change. To the extent that the law prohibits such an analysis, we are arguing that the law is an unconstitutional violation of our right to a clean and healthful environment. As of the time of this writing, we are awaiting a decision from a district court judge in Billings.
This article was published in the September 2022 issue of Down To Earth.
