Should citizens in the United States have a constitutional right to clean air and clean water, just as they have rights to free speech and freedom of religion? That’s the broad question raised by a court decision in Montana last month.

Fight for your right to clean water.

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In a ruling that is sure to reverberate around the country, the Montana Supreme Court held that the state’s constitution guarantees all Montanans a fundamental right to a “clean and healthful environment” and protects the state’s resources from potential harm as well as from actual, proven damage.

“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,” wrote Justice Terry Trieweiler on behalf of the court.

No other court in the country has recognized such a profound right or given it such a powerful meaning.

Montanans approved the right to a clean and healthful environment in a 1972 rewrite of the state’s constitution. For 27 years that provision has lain dormant, however, awaiting an interpretation from the courts. During this time, legal scholars have pondered its possible meaning and puzzled over how a court might measure a clean environment or establish some sort of enforceable standard for a healthful environment. Most concluded that while the constitution articulated a wonderful concept, it held no real meaning beyond what the legislature chose to give it by enacting environmental laws.

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Montana elk, free to frolic.

Photo © Art Wolfe, Inc.

That conventional wisdom has now been blown out of the water. In its first direct ruling on the provision, the Court found that not only do Montanans have a vital, dynamic right to a clean environment, but the legislative and executive branches of state government must carefully respect this right as they go about the business of fashioning and implementing new laws and policies. If the government fails to protect Montana’s environment, citizens may go into court with powerful legal arguments that will likely lead to the state’s actions being held unconstitutional.

Full Court Redress

The court decision sprang from a lawsuit brought by environmentalists who challenged a state permit that allowed a mining company to pump water with high levels of arsenic into the Blackfoot River. The permit was granted under laws passed in 1995 by the Montana legislature which exempted mining companies from meeting state water-quality standards. In the wake of the court ruling, these laws — passed by an overly zealous, pro-mining legislature — will undoubtedly be held unconstitutional when the case is reheard by the district court. Other ill-conceived statutes will face a similar fate.

From now on, when lawmakers want to weaken environmental protections, they will have to demonstrate that the action is being taken out of compelling urgency and that the statute is drafted narrowly to effect a limited purpose with minimal impacts to the environment. That’s good news for Montanans, most of whom deeply treasure their state’s pure waters and air.

Understandably, business interests, legislators, and government regulators have voiced serious concern with the court’s decision. They wonder whether if it will drag down Montana’s economy or lead to unprecedented judicial intervention in the state’s affairs. There are no immediate or sure answers, since this is uncharted territory.

Little house on the big sky prairie.

But two facts are clear. First, as the court’s opinion fully recognizes, the delegates who crafted the Montana Constitution created a remarkable document. Just as the framers of the U.S. Constitution created a living document that has provided a basic fabric of law and government for more than 200 years, the Montana framers wrote a constitution that has not only anticipated many issues, but provided compelling solutions to them. Under Montana’s constitution, the environment must receive a basic level of protection regardless of which party is in power or what the prevailing political enthusiasm might be.

Second, I am optimistic that through the Montana Constitution and the state Supreme Court’s interpretation of it, a body of law will be created that advances basic protections of the environment. And because states are the great incubators of ideas in this country, I foresee a day when other states and perhaps even the national government will adopt a right to a clean and healthful environment.

This should be a source of great pride, not anxiety. Where other fundamental rights have been recognized, such as the rights to equal opportunity and free speech, Congress and state legislatures have been able to work within the constraints these rights impose on government. At the same time, Americans have come to cherish such fundamental rights as central to our democracy.

We shouldn’t expect anything less for our right to a clean and healthful environment.