Posted March 30, 2000 The Right to Be Green By Tom Arrandale A few conservation-minded state legislators have been talking for years about amending the U.S. Constitution to grant every American the right to live in a clean and healthy environment. Their proposal isn’t going anywhere. In Montana, however, a recent court decision reaffirmed that the state’s 800,000 residents are already endowed with that guarantee. That’s because Montanans wrote it into the state constitution they adopted 28 years ago, as the environmental era first blossomed. Last fall, the Montana Supreme Court overturned a 1995 state law that exempted mining exploration from water quality standards. The court ruled that the law violated the 1972 state constitution’s provision declaring that all Montanans have inalienable rights “to a clean and healthful environment.” “This is a first,” says Thomas J. France, the Missoula-based National Wildlife Federation lawyer who won the case. “The notion that a clean and healthy environment is a fundamental right of a state’s citizens is unprecedented.” Yet the court concluded that’s exactly what Montana residents intended when they adopted the current constitution. In addition to granting a personal right to an unspoiled environment, the document further directs state government to “maintain and improve” environmental quality and “prevent unreasonable depletion and degradation of natural resources.” Based on that language, the justices ruled that the proposed Seven-Up Pete gold mine would have to get a state permit before pumping water from exploratory wells that could release toxic arsenic and zinc at the headwaters of the Blackfoot River, the trout stream celebrated in Normal MacLean’s A River Runs Through It. The 1972 state constitutional convention drafted the environmental right amid a backlash against a century of uncontrolled mining in Montana. The state was just emerging from the Anaconda Copper Company’s long stranglehold on its politics and economy, while fears were growing about a strip mining boom on the state’s coal-rich eastern plains. Since those days, however, Montana officials have welcomed job-creating mines and other resource development projects, and state environmental regulators joined the mining industry in defending the 1995 law that allowed exploration operations to drill wells without obtaining state water quality permits. Two years ago, Montana voters stunned mining interests by approving a ballot initiative that banned using cyanide to leach gold from ore, the method that the Seven-Up Pete Mine contemplated. The owners are now threatening to sue the state for illegally taking property, and industry lawyers are struggling to puzzle out the further implications of the court’s constitutional ruling. “I don’t know precisely what the impact will be,” Montana Governor Marc Racicot says, “but I do know that the law will be enforced. Given Montana’s customary pro-development politics, France, the wildlife group’s lawyer, calls the court decision “remarkable.” The constitution’s provisions “would be a real tough sell in Montana today,” he acknowledges. “On the other hand, it’s something the people would be loath to undo now that it’s in the constitution.” Tom Arrandale is a staff correspondent for Governing. Agree? Disagree? Want to expand on a point? E-mail us at mailbox@governing.com, and we'll post your comments here. Please include your name, location, government or business title or job description, and a daytime phone number (for verification purposes). Complete index of previous columns Copyright © 2000, Congressional Quarterly, Inc. Reproduction in any form without the written permission of the publisher is prohibited. Governing, City & State and Governing.com are trademarks of Congressional Quarterly, Inc.