This story by ESI Journalism Fellow Micah Drew was originally published as part of Montana’s Climate Change Lawsuit reporting by The Flathead Beacon, where it appears with additional photos and resources.
When Montana’s constitution was ratified by voters in 1972 it enshrined a citizen’s right to a clean and healthful environment into the future. The youth-led climate change lawsuit Held v. Montana is predicated on this right and its interpretation through Montana’s courts.
“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.”
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.”
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 towards 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.
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.’”
“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 Gov. 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].”