The environmental mess in the Montana Constitution

The successful plaintiffs in the Held v. Montana climate-change lawsuit are suing again—although it appears they will have to begin with a district judge rather than proceeding directly to the state supreme court. They claim three new state laws violate the state constitution’s “right to a clean and healthful environment.”

Are they correct? The constitution’s text is too poorly written for us to know.

This is the third column explaining why Montanans should vote for a new state constitutional convention in 2030. The first explained the convention procedure and summarized some of the constitution’s problems. The second focused on the document’s confused treatment of state university governance. This column addresses the bill of rights, particularly the environmental provisions.

The Montana Bill of Rights

Good practice is for constitution-writers to use language that is either clear on its face or clarified by history or pre-existing law. When drafting the bill of rights, the 1972 constitutional convention sometimes did so, as when it included rights to property, free speech, and freedom of religion.

But on other occasions, the delegates became overly creative—and that caused them to run into trouble. For example, they invented a right “of pursuing life’s basic necessities.” They did not fully explain it, and no legal sources explain it either. The unresolved questions about this “right” are endless. For example, is a car a “basic necessity” in rural Montana? Is it a “basic necessity” in Missoula, where mass transit is available?

Similar questions plague the “right to a clean and healthful environment.” Among those questions are “How clean?” “How healthful?” How do you measure cleanliness and health? Who measures them? And so forth.

Forced Labor?

In another provision, the constitution mandates that “each person shall maintain and improve a clean and healthful environment in Montana.” Does this mean that each person must spend time cleaning roadsides, restoring wetlands, or changing pollution filters? Probably not: that kind of unpaid forced labor sounds a lot like the hated corvée system imposed in France during the 18^th century. It was one of several causes of the French Revolution.

But if this provision means something else, then what does it mean?

Conflicts

Some of the state constitution’s listed rights conflict with others. If a car is a “basic necessity” but driving one degrades the environment, you have a conflict between the basic necessity and environmental rights.

The right to property surely includes the right to develop it. But doesn’t development usually degrade the environment?

If, as some people seem to think, the environment always wins, then why? The constitution doesn’t privilege some rights over others. It treats them all equally.

There is also the uncomfortable fact that exercise of a right may improve and degrade “cleanliness” and “health” at the same time. Construction of a new factory may increase pollution, but it also may make Montanans more prosperous, and there is evidence that, in the long run, prosperity promotes both the environment and public health.

How the Constitution Was Represented

During the 1972 public debates over the constitution, opponents raised some of these issues. To reassure the voters, advocates told them that only the legislature, not the courts, would define the environmental rights. But after the vote, the Montana Supreme Court ignored those assurances and exploited the constitution’s vagueness to impose its own environmental policies. That sort of judicial presumption was behind the plaintiffs’ victory in the Held case.

But in a democratic republic, policy is made by the people and their representatives, not by the courts. Restoring democratic and republican values to Montana is another reason the state needs a new constitution.