Court reads the environment its rights


MISSOULA, Mont. - Tom France talks like a man who knows he's made history. For three years, France, an attorney with the National Wildlife Federation, has been battling a proposed gold mine on Montana's Blackfoot River (HCN, 12/22/97). In October, he won a ruling from the Montana Supreme Court that could mean the end of the mine. Its implications could be as wide as the Big Sky Country itself.

"Montana is now off on a journey, and it will be fascinating to see where it ends," France says.

The decision, penned by Justice Terry Trieweiler for a unanimous court, strikes down a law that exempted the mine from water quality review. More important, it puts a "clean and healthful environment" on a par with such cherished rights as freedom of religion and the right to bear arms. From now on, any time the Montana Legislature passes a law, or any time a state agency issues a permit that could affect the environment, officials must prove there is no potential for harm, or come up with a so-called "compelling state interest" for causing the damage.

France, a High Country News board member, says the ruling is remarkable because most fundamental rights, such as free speech and civil rights, apply to individuals. "The right to a clean and healthful environment is a different kind of right," he says. "The environment is collective to us, and to extend judicial scrutiny to a right that is so clearly broad is profound."

A law comes to light

It all began in 1972, when a New Deal-style Democrat from the small plains town of Glendive attended Montana's constitutional convention, bent on saving the state from strip-mining. Louise Cross proposed using the constitution to impose a duty on the state's political leaders and citizens "to maintain and improve a clean and healthful environment in Montana for present and future generations."

Even in the heady 1970s, when the Legislature was dominated by conservation-minded Democrats and Congress was passing major environmental laws, putting such language into the state constitution was a Herculean task. "Everything came together, but it was not an easy thing," she says. "It was a very, very hard-fought battle and there were times I was standing there alone with it."

But until now, the constitutional guarantee hadn't been tested, says Carl Tobias, a University of Nevada at Las Vegas law professor. He says the ruling "triggers strict scrutiny, which is the most rigorous form of judicial review."

Among other things, the new reading of the constitution makes it easier for people to challenge agency decisions. Before now, if conservationists wanted to appeal a mine permit or timber sale, they had to prove that the state had been "arbitrary and capricious."

"Generally, it's a high standard, and without the constitutional right to invoke, there's not much you can do," Tobias says. "Hopefully, agencies will be more careful about what they do."

Waking a sleeping dog?

Many in Montana's business community are not so optimistic. "Environmentalists are gloating that they have this new toy to play with, but it's a loaded .357," says Cary Hegreberg of the Montana Wood Products Association. "The Supreme Court ruling coupled with other environmental laws are serving to bring this state's economy to a screeching halt."

Hegreberg cautions that the ruling could backfire for those who see tourism as the savior for the state's flagging natural resource economy. Mines aren't the only projects that were exempt from "non-degradation" water-quality reviews under the law the court threw out. Recreational activities were included as well, and they will now have to undergo stricter oversight.

"When people come here, they expect to do something - go skiing, golfing, or do some other recreational activity," Hegreberg says. "Does a golf course or ski development serve a compelling state interest? Because they will degrade the environment."

Hegreberg's dire predictions do not surprise Cross - she heard it all nearly 30 years ago. "It's the same old story: 'it will stifle development, shut down the mining industry, destroy jobs,' " she says. "Ninety-nine percent of the time it doesn't prove to be true."

Andrea Barnett writes from the Paradise Valley north of Gardiner, Mont.

Note: in the print edition of this issue, this article is accompanied by a sidebar, "Decision may help a granddaddy keep its teeth."

You can contact ...

* Tom France, National Wildlife Federation, 406/721-6705;

* Cary Hegreberg, Montana Wood Products Association, 406/443-1566.

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