How Montana’s Constitution Laid the Groundwork for a Landmark Climate Change Lawsuit

Ashley Creek flows through the Smith Valley west of Kalispell, Montana. | Photo by Hunter D’Antuono/Flathead Beacon

By Micah Drew

June 8, 2023

This article was originally published by The Flathead Beacon.

"We the people of Montana grateful to God for the quiet beauty of our State, the grandeur of our mountains, the vastness of our rolling plains, and desiring to improve the quality of life, equality of opportunity, and to secure the blessings of liberty for this and future generations, do ordain and establish this Constitution." ~ Preamble to Montana Constitution

In the 1962 travelogue "Travels With Charley," John Steinbeck writes about crossing America in a camper truck accompanied by his standard poodle. When he reached Montana for the first time, he declared his love for the state.

"It seems to me Montana is a great splash of grandeur," Steinbeck writes. "The scale is huge but not overpowering. The land is rich with grass and color, and the mountains are the kind I would create if mountains were ever put on my agenda."

An oil train travels near Marias Pass. | Photo by Greg Lindstrom/Flathead Beacon

Steinbeck's description of the Treasure State stuck with Bob Campbell, a delegate to the 1972 Montana Constitutional Convention from Missoula. Drawing inspiration from Steinbeck's words, and from the 25-foot-wide panoramic oil painting by renowned artist Charles M. Russell that hangs in the state capitol, Campbell and delegate Mae Nan Ellingson of Missoula sat down on Jan. 27, 1972, and wrote the first draft of the preamble to Montana's Constitution.

"It recognizes the importance of the physical environment in Montana … we were inspired, I think, by the beauty of our state," Ellingson, née Robinson, said in a 2015 interview for the Montana history series "In the Crucible of Change: Montana's Dramatic Period of Progressive Change, 1965-1980." "And I think that whole notion of protecting the environment gets reflected not only in that article but presupposing it as part of why we were writing this Constitution."

In addition to drafting the preamble, Ellingson and Campbell were two primary proponents among the 100 delegates to the Constitutional Convention for explicitly including "a clean and healthful environment" as an inalienable right for Montanans.

It's this right, combined with the preamble and Article IX of the Constitution—which says "the state and each person shall maintain and improve" the environment—that's at the heart of Held v. State of Montana.

The lawsuit is the first constitutional climate change lawsuit to go to trial, which is set to begin in Lewis and Clark County District Court on June 12. Roger Sullivan, an attorney for the plaintiffs, said the constitution's preamble and environmental protections spell out "a solemn commitment to future generations." In Held, Sullivan and his co-counsel, representing 16 youth plaintiffs, will argue that Montana, through its executive agencies, has knowingly approved projects and implemented policies that support a fossil-fuel-based energy system that adds dangerous levels of greenhouse gas pollution to the atmosphere, contributing to climate change, damaging Montana's environment and harming the state's youth.

"Shall maintain and improve"

A major impetus for convening a new constitutional convention to rewrite the previous 1889 document was a legacy of corporate mining companies contaminating the environment and "then rolling up the rug and leaving the cleanup to the citizens of Montana," says University of Montana law professor Michelle Bryan.

During the 20th century, the copper mining industry in Montana transformed the state into an economic center—which gave the copper barons vast wealth and political power—while at the same time degrading the state's land, water and air. In the mining town of Butte, now home of the Berkeley Pit Superfund Site, smoke from nearby smelters occasionally blotted out the sun. One historian wrote that the "deadly air of Butte, thick with fumes of sulfur, arsenic and smoke … killed every blade of grass, every flower, and every tree within a radius of miles."

An unidentified sheen seeps onto the north shore of Flathead Lake near Somers. | Photo by Greg Lindstrom/Flathead Beacon

Montanans grew tired of the pollution, Bryan said, "which was a big reason for wanting to hold our government accountable for setting up a legal system that would protect, even restore, the environment in places where it had been harmed."

In addition, the burgeoning national environmental movement in the mid-20th century led to wider recognition that environmental policy should figure more prominently in state-governing documents, according to Bryan. When the delegates to Montana's Constitutional Convention—regular citizens, not politicians—converged on Helena, they brought with them a raft of concerns that their land, water and air were unprotected.

"We just took things for granted until all of a sudden, in 1963, I happened to be at a creek that was known as Ashley Creek and … a dead fish comes floating down the creek," said delegate Henry Siderius of the Flathead Valley, according to transcripts from the convention. "That's when I became concerned about this environment."

That increased awareness culminated in a 1972 convention delegation that was overwhelmingly in favor of adding environmental protections to Montana's constitution, with a mind toward safeguarding the Treasure State's natural resources for future generations.

"Throughout the land, young people are asking us to do something about the environment," Jerome Cate, a delegate from Billings, said during the convention, according to transcripts. "Because they’re the ones that are going to have to live with it."

But exactly how those protections should be articulated was the subject of vigorous debate.

A sergeant of arms pauses on the fourth floor of the Montana State Capitol overlooking the Rotunda. | Photo by Lido Vizzutti/Flathead Beacon

In a March 2023 editorial, Ellingson recalled that it took "hours and hours of debate, rethinking, restructuring, political maneuvering and numerous votes until the proponents of ‘a clean and healthful environment’ finally prevailed."

During the convention, Ellingson told the delegates she believed the environmental protections in Article IX were the most important items they would be dealing with during the convention. For several days, Ellingson, Campbell and other delegates workshopped language to enshrine a right to the environment, sparking deliberations among delegates on how to ensure "people have some teeth in an environmental law," according to transcripts.

One delegate proposed deleting the words "clean and healthful" as qualifiers to describe the environmental touchstone they were aiming for, concerned they were too vague; but Ellingson countered by pointing out that the two adjectives were used in other state and federal statutes, including the National Environmental Policy Act, and were needed to help the Supreme Court interpret their intent in the future.

"I can envision going to court to prove that something is not healthful," according to Cate. "I can prove that the sulfur that's being emitted from the steam plant in Billings.… I can prove that's not healthful, and I can prove that that's not clean in a court of law."

Another discussion centered on the phrasing "maintain and improve," particularly as some delegates felt the extent of environmental degradation in Montana—including what occurred in Columbia Falls due to the aluminum plant, and in Butte from its legacy of hard rock mining—should not establish a standard to be maintained, but rather a starting point for enhancement.

It was also vital that citizens had an avenue to bring concerns over environmental degradation to the courts and use the constitution to penalize those responsible, Ellingson argued.

"The present problems we have with our environment are the product of the inability or unwillingness of legislatures to recognize environmental problems and to take proper corrective action," she told the delegates on the floor.

Eventually, late in the evening, Campbell stood up and requested the delegates vote on what he characterized as an elegant clause suited for so lofty an objective: "The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations."

"I do not feel we can accept anything less than a clean and healthful environment," he said. The statute passed 68-19. Later in the convention, the delegates also voted to include a "clean and healthful environment" in Montana's Bill of Rights as the first of a handful of inalienable rights, including "pursuing life's basic necessities" and "possessing and protecting property."

"Once it got into that section it became a fundamental constitutional right that had a much higher level of scrutiny than if it just had remained in Article IX itself," Ellingson said in 2015. She added that the provision is "self-executing," meaning it doesn't require additional laws to carry it out.

The two sections—the inalienable right and the directive to maintain and improve—work in concert to provide Montana's environmental protections the sharpest teeth possible, and explicitly direct the legislature to "provide adequate remedies for the protection of the environmental life support system from degradation."

Attorneys representing the Held plaintiffs have argued that the Constitution's "teeth" spell out enforceable values that can be used to limit the state's support of the fossil fuel system, citing 25 years of interpretation in the courts to back up their case

As Campbell warned delegates in 1972, Montana's environmental provisions were bound to end up challenged before the Supreme Court one day.

"I know it will regardless of the language we use," he said. "Certainly, the strongest language we could use … is ‘a clean and healthful environment.’"

Interpretation

"Historically, Montana's environment has kind of gone by the board," retired Montana Supreme Court justice Jim Nelson said in a recent interview. "It hasn't been maintained, much less improved."

Legally speaking, the right to a clean and healthful environment lay dormant for more than two decades before it was brought under close constitutional examination by the Montana Supreme Court.

Nelson finished law school in 1974, two years after Montana's constitution was adopted. "I’ve watched the Constitution grow up," he said. "When I finished law school and came to Montana I was absolutely blown away when I read our constitution for the rights it gave the citizens."

Nelson spent 14 years as the county attorney in Cut Bank and chaired the Montana Oil and Gas Conservation Board. It wasn't until 1988 that he was first confronted with the state's most salient environmental provision. The board was considering a lease for an exploratory well on the edge of Glacier National Park and held nearly three days of public hearings in Kalispell. Opponents of the well argued it would harm endangered animals and pollute a pristine national park, testimony that resonated with Nelson and "hammered home" the idea of a clean and healthful environment. The well was still approved, but the thrust of the legal argument lingered with Nelson.

"It's clear now that this board has a duty to ensure protection of the environment," he told the Los Angeles Times in 1989.

Nelson was appointed to the high court by Republican governor Marc Racicot in 1993 and served as a member when it issued the first clear interpretation of the state's right to a clean and healthful environment.

In 1992, a mining venture known as Seven-Up Pete sought to construct a gold mine in the upper Blackfoot River Valley. The developers received a permit from the Montana Department of Environmental Quality (DEQ) allowing the discharge of arsenic-laden groundwater from several test wells into Landers Fork and the Blackfoot River. Three environmental interest groups including the Montana Environmental Information Center (MEIC) sued, alleging damages from the discharge of the polluted water and citing a legislative statute exempting well tests from environmental review as a violation of the Constitution.

Despite the state's argument that the plaintiffs had failed to show the arsenic levels in the river were unsafe, or that they had suffered injury or violation of their constitutional rights, the court ruled that the Constitution's environmental provisions were both "anticipatory and preventative."

For the majority, Justice Terry Trieweiler wrote, "The delegates did not intend to merely prohibit that degree of environmental degradation which can be conclusively linked to ill health or physical endangerment. Our Constitution does not require dead fish to float on the surface of our state's rivers and streams before its farsighted environmental protections can be invoked."

After languishing unchallenged for a quarter century, the MEIC decision "breathed new life into the provisions, creating an exceptionally strong legal tool for environmentalists seeking to challenge governmental or private actions that potentially threatened the environment," wrote Stanford Law professor Barton Thompson Jr. in a 2000 Montana Law Review article.

Bryan, the University of Montana law professor, characterized the MEIC decision as "pivotal" in its interpretation.

The second key decision by the Montana Supreme Court over the state's residents’ right to a clean and healthful environment came in 2001. It involved a contract between two private parties in which a developer, Cape-France Enterprises, was required to drill a well to test a parcel's groundwater quality prior to subdividing. When Cape-France became aware of pollution in a nearby aquifer, the developer opted not to drill the well to avoid liability for clean-up costs.

The Supreme Court found that Cape-France could not execute its contract without risking environmental harm, writing that doing so would go against "the guarantees and mandates of Montana's Constitution." The case, Nelson said, "gave voice to the same constitutional language we’re talking about [with Held]."

A more recent Montana Supreme Court decision related to the "right to a clean and healthful environment" involved Canadian mining company Lucky Minerals, which had received a DEQ permit to conduct exploratory drilling for gold near Yellowstone National Park. The case looked at a 2011 amendment made to the Montana Environmental Protection Act (MEPA), in which the Legislature specified that "a permit, license, lease or authorization issued by an agency is valid and may not be voided … modified or suspended pending the completion of an environmental review." This amendment removed the ability for opposing groups to halt projects that were challenged in court.

"Injunctive remedy is super important, because it can stop an action before harm is done," Bryan said. "The constitutional right and duty to the environment includes the phrase ‘prevent,’ and the court agreed the amendment violated that clause."

The court's ruling states that the MEPA amendments sought to allow Lucky Minerals to continue its work while DEQ completed additional environmental review, "a review that can be expected to achieve very little beyond informing Montanans—perhaps tragically—of the consequences of the actions that have already been taken." The court cited comments by Ellingson during the Constitutional Convention that "a remedy implemented only after a violation is a hollow vindication of constitutional rights if a potentially irreversible harm has already occurred."

For current and future generations

Montana's right to a clean and healthful environment will again be argued in court this summer in Held v. Montana, but with even more at stake. The youth plaintiffs are challenging the state's approach to energy policy and permitting, alleging Montana's prioritization of the fossil fuel industry has significantly increased greenhouse gas emissions, contributing to global climate change, and damaging Montana's environment.

The suit, filed in 2020, specifically names two statutes—the Montana State Energy Policy and a separate 2011 amendment to MEPA that excludes state agencies from considering environmental impacts beyond state borders—that violate the plaintiffs’ constitutional right.

"This isn't an example where governments are just kind of sitting by idly while climate change happens around them," said Nate Bellinger, one of the plaintiffs’ attorneys litigating the case. "It's much more egregious than that, actually, in the sense that governments are actively causing and contributing to climate change through various laws and policies."

Bellinger and Our Children's Trust, an Oregon-based nonprofit law center, have filed similar legal action in all 50 states, but Held is the first of its kind to be scheduled for trial. In August of 2021, a landmark decision by Lewis and Clark County District Judge Kathy Seeley cleared a path for the plaintiffs to proceed to trial, a surprising victory given that state and federal courts have dismissed many similar lawsuits in recent years. (On April 6, a judge in Hawai'i ruled a youth-led climate case against that state's Department of Transportation will proceed to trial this fall, and on June 1 a federal judge ruled the case Juliana v. United States will also advance to trial.) However, Montana's constitutional right to a clean and healthful environment is almost unparalleled among the states and offers a legal foundation for Held to move forward, despite the state's efforts to have it dismissed.

"The legislature has never been protective of the environment," Justice Nelson said. "This session of the Legislature has almost launched a holy war against the environment."

In addition, the legislature repealed the state energy policy in March, a move that prompted Montana attorney general Austin Knudsen to seek a dismissal of all complaints based on that statute. On May 23, Judge Seeley dismissed those portions of the lawsuit, though remained firm in her decision to allow the trial to proceed, albeit with a significantly narrowed focus.

"The main part of this case has now been thrown out, and what's left of the case should also be dismissed," said Emily Flower, a spokesperson for the Attorney General's Office. "We believe this political theater will come to an end soon."

The case is set for a 10-day bench beginning June 12. In her 2021 ruling to allow the case to proceed, Seeley stated it was outside of her power to approve injunctive relief and order the state to prepare a remedial plan to reduce greenhouse gas emissions, but said the court could offer declaratory relief and order the state agencies to stop subjecting the plaintiffs to the Climate Change Exception to MEPA.

"I’m just pleased to no end that [this case] was filed," Nelson, who will be closely following the trial, said. "These plaintiffs, I think, have the best shot ever to get some favorable relief from the district court and a favorable decision in the Montana Supreme Court."

This article is part of a series on the youth-led constitutional climate change lawsuit Held v. Montana, which goes to trial in Helena on June 12. The rest of the series can be read at mtclimatecase.flatheadbeacon.com. This project is produced by the Flathead Beacon newsroom, in collaboration with the Montana Free Press, and is supported by the MIT Environmental Solutions Journalism Fellowship.

Micah Drew is a writer at the Flathead Beacon.