What does it mean to have the right to a 'clean and healthful environment'?

Austin Amestoy: Welcome to the Big Why, a series from Montana Public Radio, where we find out what we can discover together. I'm your host, Austin. Amestoy. This is a show about listener-powered reporting. We'll answer questions, large or small, about anything under the Big Sky. By Montanans for Montana, this is the Big Why.

Today, reporter Ellis Juhlin is here to talk about Montanans' right to a clean and healthful environment. Hey, Ellis.

Ellis Juhlin: Hey, Austin, thanks for having me. And hello from the millionth week of the Legislative Session.

Austin Amestoy: So, Ellis, when you're not running around the Capitol, you've been digging into the language in Montana's Constitution about the environment. So, tell me a little bit more about that.

Ellis Juhlin: Yeah, so the question that I set out to answer comes to us from Dr. Vicki Watson. She's a retired professor from the University of Montana, and she spent her career studying aquatic ecosystems.

Vicki Watson: When I came to Montana 40 years ago, I heard from a lot of people how proud Montanans are of their new constitution; all the thought that went into it. That people from both parties and independents — people from all walks of life — had participated in writing the Constitution and that it was adopted with widespread support.

Ellis Juhlin: Most of her research is centered around the Clark Fork River Basin, which is part of the largest complex of toxic-waste cleanups in the country. And, the degradation there is the product of years of hard-rock mining in Butte and Anaconda, which sit at the headwaters of the river.

Vicki Watson: My parents taught us that, if you take care of the land and take care of your community, they'll take care of you. And, they also taught us that with every right comes responsibilities. And when I read the Constitution, I said, "My parents could have written this Constitution." It sounds a lot like them.

Ellis Juhlin: So, Vicki wanted to know — why does Montana have a constitutional right to a clean and healthy environment?

What's so special about Montana's privacy protections?

The state constitution says the right of privacy is essential to the well being of a free society. Privacy affects issues from electronic data to abortion, and has come into play in decisions by the state Supreme Court. So why did Montana end up with such strong privacy protections and why does it matter today?

Austin Amestoy: Okay, so where should we start?

Ellis Juhlin: I think we should start with the 1972 Constitutional Convention, where delegates from all over the state met in Helena to write the document that we have today. I sat down with Mae Nan Ellingson. She was the youngest delegate at the convention and part of the Natural Resources Committee, which is the subgroup of delegates that wrote this environmental language in the Constitution. And she said Montana back then looked a lot different from the Montana we know now.

Mae Nan Ellingson: In Missoula, where I live, the air was so thick with smoke and particulates it smelled like sulfur. There were clear cuts going on in all the forest around Missoula. Up at Columbia Falls, the aluminum plant was spewing out so much pollution, it was killing all the trees kind of in the gateway to Glacier Park.

Austin Amestoy: Wow. I can't imagine what that would have been like. What was the Legislature doing while all this was going on?

Ellis Juhlin: Mae Nan told me that the Legislature had been under the control of the Anaconda Copper Company for so many years that environmental legislation wasn't really in place, and Montanans were tired of it. This set the stage for some serious consideration of how to put environmental protections into the new Constitution.

Mae Nan Ellingson: There was enough environmental degradation in Montana, where Montana taxpayers were left holding the bag in terms of cleaning abandoned mines and toxic waste sites and so on, because we had not done a good job of regulating that.

Austin Amestoy: So, did the drafters have anything to go off of while they were writing this provision? You know, did any other states have broad environmental language, at this point, in law?

Ellis Juhlin: Not really, no. The federal Clean Air Act had just been passed by Congress in 1970, and 1970 was also when we had the first Earth Day. So, protecting the environment was an idea that was taking root, but it was really still in its infancy.

Mae Nan Ellingson: There were so many unanswered environmental questions. And so, it was a time where people were wondering what could be done. And I know that, for myself and several others, I ran on a platform of having strong environmental protections in the Constitution.

Ellis Juhlin: Mae Nan told me that the delegates working on this section of the Constitution had to come up with a lot of this all on their own. But, they were really careful to write up this language in a way that was going to protect citizens.

I learned while researching this story there was a lot of back and forth between delegates. Bob Campbell, who drafted this particular provision in the Constitution, decided that the term "environment" on its own was just too vague. He wanted that language qualified, which is how we ended up with what we have now: "The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations."

Austin Amestoy: Hmm. Well, I imagine "clean and healthful" still leaves some room for interpretation. So, how has this language been interpreted over the 50 years since it was put in place?

Why does Montana have such strong stream access laws?

In Montana, we're used to hitting the water in our tubes, rafts or waders and going wherever the river takes us. Anyone can recreate on streams in the state below the high-water mark — no matter who owns the land beneath them. This isn't possible in most of the country. How did we end up with such strong stream access protections, and what does the law's future look like?

Ellis Juhlin: That's a great question, Austin. The first time the Constitution's environmental quality provisions were put to the test was in 1999 in the Montana Supreme Court. That case was between the Montana Environmental Information Center and the state's Department of Environmental Quality. And, it was over a proposed gold mine on the banks of the Blackfoot River and how that could impact arsenic levels in the watershed. I talked to Anne Hedges, the director of policy and legislative affairs for MEIC.

Anne Hedges: Internally, our thought was, either a right to a clean, healthful environment means something or it doesn't. And so, let's find that out.

Austin Amestoy: Okay, so how did the court rule?

Ellis Juhlin: The Montana Supreme Court ruled that the right to a clean and healthful environment is fundamental, and that citizens and the state need to look ahead at what impacts could be to prevent future problems.

Anne Hedges: The court said, "Yes, you cannot wait for dead fish to float on the surface of the water before you can invoke the the far reaching provisions of our Constitution." And, our Constitution was intended to be preventative and anticipatory — it was intended to prevent pollution before it begins.

Austin Amestoy: So, I'm betting the ways this part of our Constitution has been interpreted didn't stop with that court case. What does that clause mean today?

Ellis Juhlin: So, to me, it all really comes back to the basic tension that informed the creation of the "clean and healthful" language in the first place — the push and pull between industry and the environment.

To step back, there are very real reasons why some folks have problems with the way the language gets applied. Mining, logging, coal, natural gas — a lot of that stuff can be really important to our economy. Entire cities, counties and regions can depend on industries that impact ecosystems. And, I think what's happening on that front, this Legislative Session, is a really good example of what all of this means today.

Henry Kriegel (lobbyist): Cutting this red tape is good for energy development, it's good for Montanans and it's good for business.

Ellis Juhlin: There are a couple of bills being fought out right now as we're recording that speak to this exact tension. One bill looks just at lawsuits.

Sen. Mark Noland (R-Bigfork): We've had frivolous lawsuits many times come across the state, stopping good practices, good mining, good oil and gas production.

Ellis Juhlin: And it makes it harder for nonprofits and other groups to litigate against projects that could impact Montana's ecosystems. But, the other side of that is legal challenges are exactly how our constitutional language gets defined and enforced in the first place.

How did Montana become infested with knapweed?

"I've heard so many different stories about how it got here and who's responsible, and I've never really heard the legitimate reason, and I thought that's a good question for you guys."

Casey Felder (Laurel resident): We're not rich people. We can't afford 12 lawyers to push our agenda or sway our legislators. Our state agencies, like the [Department of Environmental Quality], are supposed to look out for and take care of Montanans and people like us.

Ellis Juhlin: And today, we're also dealing with something making the "clean and healthful environment" language in our Constitution more contentious than ever, and that's climate change.

Leo Barry (lawyer): That concept is just too big to try to evaluate in the sense of Montana, and it should be handled at the national level by Congress.

Ellis Juhlin: Another bill allows the Montana Department of Environmental Quality to avoid considering greenhouse gas emissions in its environmental review.

Steve Krum (Laurel resident): Someone has to sacrifice for progress; creating jobs, putting money in the state's coffer. So, who's going to sacrifice? This plant will be classified as a major source of HAPs — hazardous air pollutants.

Ellis Juhlin: So, this is kind of the next frontier that's yet to be defined. Does the "clean and healthful environment" language in our Constitution apply to things that are less tangible than dead fish on rivers or sulfur-smelling air, namely, planet-warming emissions?

Austin Amestoy: A story that will continue to unfold. Well, thanks so much for coming on the show, Ellis.

Ellis Juhlin: Thanks for having me, Austin.

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