Protecting The Environment Per The State Constitution? An Expert On The Law Says 'Not!'
Opinion: A retired Montana Supreme Court justice says his state is going backward, not forward, in safeguarding the lands and waters that generations of both parties fought to preserve
In recent years, the Gallatin River has experienced algae blooms that experts say have been beyond what happens during normal natural conditions. Contributing factors are lower and warmer flows caused by climate change as well as elevated levels of nitrates and phosphorous from human developments, like Big Sky. Citizens concerned about water quality in the state say recent laws passed by the state legislature and signed by the governor have weakened regulations aimed at minimizing pollution from both human development and agricultural sources. Photo courtesy Gallatin River Task Force
Op-Ed by Retired Montana Supreme Court Justice James C. Nelson
Not only ago, an essay by longtime Montana environmental and social commentator George Ochenski in the Daily Montanangraphically described how we are despoiling our environment for not only ourselves, but also for future generations. Ochenski cites the inefficacy of laws passed to protect our environment, noting that these are jury-rigged by polluters to obfuscate and weaken science-based standards. What laws and rules that are adopted, are not enforced. The result? Miles and acres of polluted waters; forest resources thinned and logged to the point of ruining habitat and done in the debatable name of halting wildfires.
In short, we are killing our Earth’s environments and ecosystems and threatening the very existence of present and future generations. And, our leaders are allowing this degradation to take place. Worse, they are encouraging it.
Keep in mind that pursuant to Article III, section 3 of Montana’s Constitution, every legislative, executive, judicial and ministerial official in this state takes an oath (i.e., their appeal to God to witness the truth) to, among other things, support, protect and defend our Constitution.
Also keep in mind that the framers of our Constitution crafted, and we the people adopted, a document that guarantees a number of fundamental rights. Indeed, our Constitution’s Preamble begins with a prayer of thanks to God, for “the grandeur of our mountains, the vastness of our rolling plains” and of our desire “to improve the quality of life and equality of opportunity for this and future generations.”
The Preamble of the Montana Constitution begins with a prayer of thanks to God, for “the grandeur of our mountains, the vastness of our rolling plains” and of our desire “to improve the quality of life and equality of opportunity for this and future generations.”
When it comes to the environment, chief among these rights are two: Article II, Section 3, guarantees to each person an inalienable right to “a clean and healthful environment.” And to double-down on that mandate, Article IX, Section 1 requires that the state and each person maintain and protect this clean and healthful environment for present and future generations and that the legislature provide for the administration and enforcement of this duty and provide adequate remedies for the protection of the environmental life support system from degradation and to prevent unreasonable depletion and degradation of natural resources.
Unmistakably clear; no exceptions!
Over the 50 years of our Constitution’s existence, Democrat and Republican politicians and administrations have come and gone.
But throughout this history, there as has been one constant: when it comes to the protection of our environmental rights and guarantees the legislature has utterly failed in fulling its Article IX, Section 1 duties. In their failure, the members of the legislature have defiled their Article II, Section 3 oaths—witnessed by God no less—to support, protect and defend the Constitution of Montana.
Through it all our environment and ecosystems have been degraded and depleted. Present generations have not maintained and protected the gifts for which the framers expressed our thanks to God. Rather, thanks to the legislature, we are handing off to future generations polluted waters, destroyed forest habitats, and depleted and degraded ecosystems and natural resources.
Most certainly, our legacy for future generations is not a clean and healthful environment improved over 50 years by modern science and methods, as the Constitution requires. It is anything but!
Past and present legislatures have not only dropped the ball, they have rigged the game--with impunity: Damn this “socialist rag” of a Constitution as it was called by Derek Skees of Kalispell. Full speed ahead!
Think about that in upcoming elections. But make no mistake. We the voters are complicit in this environmental travesty. Each one of us is also constitutionally tasked with maintaining and protecting a clean and healthful environment for present and future generations. Each of us voters has a voice in electing legislators who will fulfill their oaths of office “with fidelity” and who will enact—and then follow—laws and remedies for the “protection of the environmental life support system from degradation” and “to prevent unreasonable depletion and degradation of natural resources.”
Come election time, think about the environment with which we voters and our legislators have saddled future generations. Indeed, think about the environment for which we thanked God, and then turned around and trashed.
About James C. Nelson
James C. Nelson is a former Montana Supreme Court Justice. He lives in the capital city of Helena.
