50 years … and still waiting for our ‘inalienable right’ to a ‘clean and healthful environment’

April 14, 2023 4:23 am

Stickers that citizens wore to urge Yellowstone County Commissioners to deny a permit to NorthWestern Energy for a natural gas pipeline for a proposed plant in Laurel, Montana (Photo by Darrell Ehrlick of the Daily Montanan).

Kudos to the Montana Environmental Information Center and Earthjustice for their recent court victory challenging the adequacy of the state’s pitiful permitting process for NorthWestern Energy’s Laurel natural gas power plant.

Once again, a judge has found Montana’s mis-named Department of Environmental Quality guilty of cutting corners, ignoring and misinterpreting state law, and shuffling off another permit for a major polluter with a wink and a nod. As he put it bluntly: “DEQ granted the air permit … that dismissed some of the plant’s most troubling impacts with minimal analysis, improperly deferred others for future consideration and overlooked some harm entirely.”

Montanans should be grateful the Court sent the permit back to DEQ to address those glaring oversights. But on one of the most significant concerns – namely Montanans’ constitutionally guaranteed “inalienable right” to a “clean and healthful environment” – the judge decided the issue would not be “ripe” until after the state had finished the new environmental analysis.

Unfortunately, a long line of court decisions have skirted the question of whether our state permitting agencies are actually meeting the requirements of Montana’s Constitution – not only for our “inalienable right” but also the mandate that “the state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.”

“Inalienable” means it can’t be taken away – and “maintain and improve” does not mean degrade and remediate. Yet, for 50 years since Montana’s citizens ratified the 1972 Constitution and rebutted the brutal corporate corruption and destruction of the Copper Kings, we have done anything but “maintain and improve.”

Consider that virtually all of the defunct open-pit mines that continue to pollute our lands and waters were permitted since the Constitution was written. Colstrip didn’t exist – and now it’s headed to join those abandoned mines as another Superfund site thanks to the failure to “maintain and improve” the state’s environment by its permitting agencies. Libby’s deadly asbestosis, Columbia Falls aluminum plant, Golden Sunlight’s cyanide leakage and many, many more environmental tragedies all took place after the Constitution was adopted.

Nor is industry the only sector for which the state agencies have ignored the constitutional mandates. Big Sky did not exist when the Constitution took effect. But thanks to the state looking the other way for 40 years, the Gallatin River is now – and will remain for many years to come – a neon-green canal for the area’s growing sewage and fertilizer discharges. Even worse, the state continues to permit ever more development in what used to be a pristine, high alpine drainage.
The “Protection and improvement” section of the Constitution specifically notes: “The Legislature shall provide for the administration and enforcement of this duty.” Yet the Legislature has done just the opposite and it’s time for the judiciary to call them on it. Instead of protection or improvement, corporate-friendly legislatures have repeatedly weakened standards for land, water, and air pollution and stuck timelines on permitting that basically ensure shortcutting environmental analysis.
Despite whining by industry, developers and their legislative puppets, Montana’s “drive-through” permitting process for polluters makes a mockery of “maintaining and improving” the state’s environment for “present and future generations.”

A half-century is a long time to wait for something to “ripen” before the courts say “enough is enough” and force the Legislature and state’s permitting agencies to follow their constitutional mandates. The Legislature won’t do it and the governors won’t do it – which means it’s up to the judiciary to enforce our Constitution’s mandate to “maintain and improve” our environment for “present and future generations.”

George Ochenski is a longtime Helena resident, an environmental activist and Montana’s longest-running columnist.

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