Montana’s pro-environment Constitution goes on trial

By Lesley Clark | 06/12/2023 06:13 AM EDT

The Montana Constitution — a model for other state environmental protections — is facing a massive test in the first U.S. youth climate trial.

A house is swamped by floodwaters after storms washed away a road and a bridge.

A house sits in Rock Creek after floodwaters washed away a road and a bridge June 15, 2022, in Red Lodge, Mont. David Goldman/AP Photo

Montana’s decision to give the environment a prime perch in its constitution has long served as a model for other states. A landmark trial this week is poised to test the boundaries of the Treasure State’s promises to protect its citizens.

Environmental activists in other parts of the country said they will be paying close attention to the climate case that begins Monday in Montana court. During the trial — the first of its kind in the United States — 16 young people will argue that state officials are violating the Montana Constitution’s right to a “clean and healthful environment” by ignoring climate change and approving fossil fuel development.

That constitutional guarantee may have boosted Montana’s climate case after other similar youth-led lawsuits have stumbled.


“We’ve seen youth bringing cases, but they often have lost at the early stages,” said Delaware Riverkeeper Maya van Rossum. “In Montana, I felt confident that this case would play out differently because Montana has this powerful, constitutional green amendment language.”

Enacted in 1972 amid a national wave of environmental awareness, Montana’s Constitution puts the right to a “clean and healthful environment” at the top of the document — ahead of freedom of religion and speech.

For years, Montana law has been the inspiration for van Rossum, who used similar language in Pennsylvania’s Constitution — enacted one year before Montana’s — to topple a 2012 Keystone State law designed to boost natural gas drilling.

“A lot of state constitutions talk about environmental rights and environmental protection, but beyond Pennsylvania, there was only one other state to lift up environmental rights so they were on par with other fundamental rights,” said van Rossum, who founded Green Amendments for the Generations to advance similar constitutional language across the country.

Van Rossum argued successfully before the Pennsylvania Supreme Court in 2013 that parts of the state’s fracking law violated the state constitution, which requires Pennsylvania to “conserve and maintain” public resources “for the benefit of all the people.”

After her court win, van Rossum said she began studying state constitutions across the country and found only Montana could match Pennsylvania’s environmental guarantees.

“I decided that had to change and we needed that kind of amendment in every state across our nation,” she said. “We could not have defeated [Pennsylvania’s fracking law] without this higher constitutional power.”

She developed criteria for so-called green amendments, wrote a book and began pitching the idea. She said “people’s jaws drop” when she tells them Montana and Pennsylvania are the models for constitutional environmental protections.

Since then, lawmakers in more than a dozen states have pushed for similar constitutional language. New York in 2021 became the third state to approve a robust environmental constitutional amendment.

“We definitely looked to Montana as a model,” said Katrina Fischer Kuh, a law professor at Pace University, who chaired a New York bar association task force that examined constitutional environmental issues.

Hawaii is also considered to have a strong constitutional amendment, though it is structured differently. Kuh noted that the Hawaii Supreme Court recently cited the state constitution’s guarantee of a clean and healthful environment in a ruling that upheld a rejection of a biofuels plant.

Kuh, who sits on the board of Green Amendments for the Generations, said there is considerable interest in Pennsylvania and Montana “and the value that their constitutional environmental rights have had.”

The environmental clauses in the Montana, Pennsylvania and New York constitutions have several features in common, including that they are self-executing, which means they do not require a state legislature to pass laws and enforce remedies. That was a major selling point for New York voters who were worried about contaminants in drinking water that were not covered by existing law, Kuh said.

“It was important to New Yorkers that it be self-executing,” she said. “Having a constitutional right that simply allows for the enforcement of existing statutes would have done no good in the context of emerging contaminants.”

Not every push for a pro-environment state constitution has been a success. Bills that would have put a green amendment on the ballot were introduced by legislators in 12 states this year, including fossil fuel-rich states like Texas, West Virginia and New Mexico.

In some states, those efforts have drawn opposition from green energy developers, who say they fear potential new avenues for lawsuits or permitting hurdles will slow the nation’s shift toward renewable sources. New York’s environmental provision is already showing up in lawsuits over landfills and other issues.

Van Rossum said the energy industry’s fears are overblown.

There has been no “massive onslaught of litigation” in any of the states with environmental protections in their constitutions, she said.

Van Rossum said that because Montana officials have challenged the fact that the state’s constitution doesn’t mention climate change, she tells lawmakers and activists who want to back green amendments in their states to clearly include climate in the language.

Other states are “getting the benefit of learning from what has happened in Pennsylvania and Montana,” she said.

“If you’re clear and explicit, you can avoid the waste of time and resources on these challenges,” she said.

‘Entitlement for citizens’

While van Rossum and others argue that the placement of environmental protections in the Montana Constitution’s bill of rights implies considerable authority, the intentions of the state’s framers have long been a matter of dispute.

Martha Davis, a law professor at Northeastern University who has studied state constitutions, said the provision’s prominence in the document gives Montana courts the authority to find government officials in violation of the law and the power to monitor compliance.

“The placement of an environmental right in that area signals that it’s meant to be something that is enforceable,” Davis said.

Other states have protective language about the environment in their constitutions, she said, but they don’t always extend a cause of action to individuals. In Massachusetts, for example, the state constitution includes rights to clean air and water but no private enforcement mechanism.

Montana’s Constitution, on the other hand, provides “an entitlement for citizens of the state,” Davis said.

Van Rossum said Montana’s constitutional language has been tested “multiple times and found to be protective.”

She pointed to the Montana Supreme Court’s finding in 1999 that pumping arsenic-tainted water from a gold mine into two rivers violated the state’s constitutional right to a clean environment. The operator of the mine had argued that the constitutional protection only applied after actual harm, but the court found that the document was intended to “provide language and protections which are both anticipatory and preventative.”

Former Justice Terry Trieweiler memorably wrote in that case that the Montana 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.”

The case “made very clear that because of the constitutional language, environmental rights do get that highest constitutional standing and protection,” van Rossum said.

Judge Kathy Seeley — who will oversee the Montana climate trial that begins Monday — has already leaned on the state constitution in an order last month rejecting the state’s efforts to torpedo the 16 young activists’ case.

She wrote that “the Court has repeatedly found that the Framers intended the state constitution contain ‘the strongest environmental protection provision found in any state constitution.'”

‘More aspirational’

Some legal scholars and Montana officials, however, have argued that the state’s constitutional provision is merely a guideline.

John Horwich, a retired law professor at the University of Montana who has written extensively on the subject, has called the provision “a moral statement more than it is a legal statement.”

In a 2001 Montana Law Review article, he called the state Supreme Court’s 1999 decision in the arsenic pollution case an “inadequate effort to address the meaning of Montana’s constitutional environmental provisions” and said the court should withdraw it or “otherwise repudiate it.”

The 16 youth in the climate lawsuit that will be argued starting Monday claim that state officials have breached their “affirmative duty to protect and improve a clean and healthful environment in Montana.” They quote a delegate to the 1972 constitutional convention, who called the document the “last bulwark and protection that the people have.”

But state officials involved in the climate case have argued otherwise, pointing in court filings to another section of Montana’s Constitution that says lawmakers “shall provide adequate remedies for the protection of the environmental life support system.”

“Thus, the Legislature is assigned the task of enacting laws to implement the right to a clean and healthful environment,” Montana Attorney General Austin Knudsen, a Republican, wrote in a court brief.

State Supreme Court decisions since the 1999 arsenic pollution case show that the pro-environment constitutional provision is not as robust as its supporters believe, said Montana state Senate Majority Leader Steve Fitzpatrick, a Republican.

“What has happened is that the courts have come to conclude, more or less, that it’s unworkable and they really can’t develop a body of law around it,” he said.

In 2007, the Montana Supreme Court ruled in a dispute between private landowners and a mining company that if litigants are able to raise common law arguments such as trespass or nuisance, they “don’t get to bring these constitutional claims,” Fitzpatrick said.

The ruling did not expressly block lawsuits that rely on the Montana Constitution’s right to a clean and healthful environment, but it put a damper on those claims, he said.

State lawmakers, Fitzpatrick said, instead view the Montana Constitution’s environmental protections as “more aspirational and something we would want to achieve.”