Bruce Farling - July 18, 2005
Montana Trout Unlimited
Self-exercising constitution
Montana Public Radio Commentary – July 18, 2005
Bruce Farling, Montana Trout Unlimited
In 1999, when the Montana Supreme Court rejected the Racicot Administration’s conclusion that pollution resulting from Canyon Resource mining company’ activities on the Blackfoot was fine and dandy, the justices affirmed that the Montana Constitution confers upon the public a fundamental right to a clean and healthful environment. They also reminded us that state government is obligated to prevent environmental harm before it occurs. The ruling produced reflexive wails from lobbyists for polluting industries and their political patrons. They claimed the court empowered rascally environmentalists to concoct blizzards of lawsuits that would stop the economy in its tracks.
Well, turns out the doomsayers were wrong.
An avalanche of lawsuits citing our right to a clean and healthful environment has not emerged. Today the economy chugs along, still imperfect, but not bad, and fueled largely not by traditional polluting activities, but by economic growth that is dependent on an attractive Montana – the Montana we all treasure, one with clean water and air, reasonable amounts of wildlands and parks, and ample and diverse fish and wildlife.
Of the handful of recent suits landing in the Supreme Court referencing our right to a clean and healthful environment, it turns out that local government and individual citizens, not environmentalists, have been the main plaintiffs. Today the court is pondering a case brought by the town of Superior, which has sued Asarco for violating our right to a clean and healthful environment by polluting a community drinking water source and public athletic fields. Superior did this because Montana’s environmental regulators, despite years of hand wringing, haven’t prodded Asarco enough. Ranchers near Hilger are also taking matters into their own hands. They have gone directly after Canyon Resources – the polluters in the pivotal 1999 case and the guys who tried to buy an election last fall – because the company steadfastly refuses to permanently clean up pollution problems from its now-closed Kendall Mine.
Apparently some Montanans, citing our Constitution, are now going directly after the culprits instead of working through middlemen in state government, because recent administrations and Legislatures been weak-kneed in their approach to environmental scofflaws like Asarco, a company that has long skirted cleanup obligations in Superior, as well as in East Helena, at mining sites on the upper Blackfoot, and near Philipsburg, and elsewhere.
This trend alarms some of the very interests that predicted doom after the 1999 Supreme Court case. Some are intervening in the ongoing litigation. Many polluters are particularly concerned about any notion that legal challenges citing our right to a clean and healthful environment conclude that Montana’s Constitution, in legal parlance, is self-exercising – meaning the document says what it says and the judiciary, as is its role, refines the constitutional sideboards of these rights. Many polluters, however, argue that only the Montana Legislature should interpret the Constitution, a role that is considerably more expansive than its Constitutionally prescribed job of devising protective remedies and administering and enforcing environmental protections.
Are these distinctions critical? Absolutely. When courts interpret and the legislature implements and enforces, we have the balance contemplated by our constitutional framers. When our volunteer Legislature is granted the ultimate interpretation of the Constitution, while also creating the laws insulating the interpretation, special interest lobbyists and campaign financiers then inject imbalance to the balance.
Refer to some recent legislation to get an idea of what recent Legislatures – with the cheerful help of industry lobbyists -- considered constitutionally protective of your right to a clean and healthful, For instance, they said you still have a clean and healthful environment even when they legalized major increases in the amount of carcinogens that could be in your drinking water. Lawmakers also claimed your rights are quite adequately addressed when laws are weakened enabling mining companies to avoid cleaning up after themselves. We have also heard repeatedly from the Capitol (with lobbyists skulking in the shadows), that you needn’t worry, your rights are amply covered when state agencies that issue permits are specifically prohibited from requiring industry to implement protections that offset some environmental and public safety threats.
Scholarly jabbering about constitutionality, self-exercising rights and affirmative obligations of Montana’s government often seems like so much strutting and preening among lawyers – and some are doing that as they hear this
-- but it’s important. Certainly as important as knowing that the government that works for you can indeed guarantee your tap water or the air you breathe is safe.
This is Bruce Farling of Montana Trout Unlimited. Contact us at montrout@montana.com.
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