Montana Environmental Information Center v. Department of Environmental Quality
296 Mont. 207, 1999 MT 248, 988 P.2d 1236 (1999)
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Rule of Law:
The right to a clean and healthful environment, guaranteed by Article II, Section 3 of the Montana Constitution, is a fundamental right, and statutes or rules implicating it or the related environmental rights in Article IX, Section 1, must be subjected to strict scrutiny. This constitutional protection is anticipatory and preventative, meaning it is implicated by environmental degradation, such as the discharge of a known carcinogen above background levels, without requiring proof of actual harm to human health or significant environmental impact.
Facts:
- Montana Environmental Information Center (MEIC), Clark Fork-Pend Oreille Coalition, and Women’s Voices for the Earth (Plaintiffs) are non-profit organizations whose members recreate and use the Blackfoot River and its tributaries.
- Seven-Up Pete Joint Venture (SPJV) applied for a massive open-pit gold mine in the upper Blackfoot River valley, near the confluence of the Landers Fork and Blackfoot Rivers, and was issued an exploration license in 1992.
- In June 1995, SPJV submitted a new work plan to amend its exploration license to allow extended pumping of underground water at the proposed mine site.
- This plan involved discharging groundwater from a bedrock aquifer, containing higher levels of arsenic than the receiving water, into infiltration galleries in the Blackfoot and Landers Fork River alluvia.
- The Department of Environmental Quality (DEQ) initially approved, then rescinded approval upon realizing the high arsenic content, and later re-approved the amendment after SPJV proposed using mixing zones for dilution.
- DEQ formally authorized the discharges on August 10, 1995, and estimated that arsenic would dilute to meet water quality standards within specific distances from the mixing zones.
- The background level of arsenic in the receiving groundwater was .003 mg/l, while the expected and actual arsenic levels at the wellheads for the pumped water ranged from .016 mg/l to .056 mg/l.
- The 1995 well tests involved pumping 740 gallons per minute to the Blackfoot alluvium and 240 gallons per minute to the Landers Fork alluvium for four months.
Procedural Posture:
- The Plaintiffs (MEIC, Clark Fork-Pend Oreille Coalition, and Women’s Voices for the Earth) filed an amended complaint in the District Court for the First Judicial District in Lewis and Clark County, naming the Department of Environmental Quality (DEQ) as Defendant.
- Seven-Up Pete Joint Venture (SPJV) subsequently intervened as a defendant.
- Plaintiffs alleged that § 75-5-317(2)(j), MCA (1995), which allows discharges without nondegradation review, violated Article IX, Section 1(1) and (3) of the Montana Constitution and sought an injunction suspending SPJV's exploration license.
- Both parties moved for summary judgment.
- The District Court held that absent a finding of actual injury, § 75-5-317(2)(j), MCA (1995) was not unconstitutional as applied and entered judgment for the DEQ.
- The Plaintiffs appealed from the judgment of the District Court.
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Issue:
Does a state statute that exempts certain water discharges, including those containing known carcinogens at concentrations exceeding background levels, from nondegradation review violate the fundamental right to a clean and healthful environment under Article II, Section 3, and the environmental protection mandates of Article IX, Section 1, of the Montana Constitution?
Opinions:
Majority - Justice Trieweiler
Yes, the statute violates the fundamental right to a clean and healthful environment because the right to a clean and healthful environment (Article II, Section 3) is a fundamental right found in Montana's Declaration of Rights, and the environmental rights provided in Article IX, Section 1, are interrelated and interdependent. Therefore, any state action implicating these rights must be subjected to strict scrutiny. The court reasoned that the delegates to the 1972 Constitutional Convention intended these environmental protections to be anticipatory and preventative, not merely prohibiting environmental degradation that is conclusively linked to ill health or physical endangerment. The constitution does not require actual harm, such as dead fish, before its environmental protections can be invoked. The demonstration that SPJV's pumping tests would add a known carcinogen like arsenic to the environment in concentrations greater than the background levels in the receiving water, combined with DEQ's own rule classifying such discharges as 'significant' (ARM 17.30.715(1)(b)), is sufficient to implicate these constitutional rights and trigger strict scrutiny. Consequently, § 75-5-317(2)(j), MCA (1995), which arbitrarily exempts certain activities from nondegradation review without regard to the nature or volume of substances discharged, violates Article II, Section 3 and Article IX, Section 1 of the Montana Constitution as applied to the facts of this case. The court reversed the District Court's judgment and remanded for strict scrutiny of the statutory provision to determine if there is a compelling state interest.
Concurring - Justice Leaphart
Yes, the statute violates the fundamental right to a clean and healthful environment. Justice Leaphart concurred with the majority's conclusion that the right to a clean and healthful environment is a fundamental right under Article II, Section 3, and that state action implicating it or Article IX, Section 1, is subject to strict scrutiny. However, Justice Leaphart believed the majority should have declared § 75-5-317(2)(j), MCA (1995), unconstitutional on its face, not just as applied. He argued that the statute's blanket exemption from nondegradation review inherently prevents the state from fulfilling its constitutional obligation to prevent unreasonable depletion and degradation of natural resources, regardless of the specific facts of a case. He also expressed concern that the majority's statement about applying strict scrutiny to 'private action' was dicta and potentially unworkable.
Concurring - Justice Gray
Justice Gray specially concurred, agreeing with the Court's opinion in all regards except for the "private action" subject addressed in Justice Leaphart’s special concurrence. She joined Justice Leaphart's opinion specifically regarding the propriety of addressing the "private action" question in this case.
Analysis:
This case significantly strengthens environmental protection in Montana by elevating the right to a clean and healthful environment to a fundamental right, thereby subjecting any state action that infringes upon it to strict scrutiny. The ruling's emphasis on the anticipatory and preventative nature of constitutional environmental protections means that degradation, not just proven harm, is sufficient to trigger judicial review. This precedent may lead to increased scrutiny of environmental permits and regulations, ensuring that legislative exemptions do not undermine constitutional mandates and could serve as a model for other states with similar constitutional provisions.
