MONTANA ENVIRONMENTAL INFORMATION CENTER; CLARK FORK-PEND OREILLE COALITION; and WOMEN‘S VOICE FOR THE EARTH, Plaintiffs and Appellants, v. DEPARTMENT OF ENVIRONMENTAL QUALITY, Defendant and Respondent, and SEVEN-UP PETE JOINT VENTURE, Defendant-Intervenor and Respondent.
No. 97-455
Supreme Court of Montana
October 20, 1999
296 Mont. 207 | 988 P.2d 1236 | 1999 MT 248 | 56 St. Rep. 964
Argued and Submitted on September 10, 1998.
JUSTICE GRAY specially concurring.
For Appellants: Thomas M. France (argued), National Wildlife Federation; Missoula; David K. Wilson, Reynolds, Motl & Sherwood; Helena.
For Respondents: Rebecca W. Watson (argued), and Alan L. Joscelyn, Gough, Shanahan, Johnson & Waterman; Helena; John North (argued), and Richard R. Thweatt, Montana Department of Environmental Quality; Helena.
For Amici: Frank C. Crowley and Colleen Coyle, Doney, Crowley & Bloomquist, P.C.; Helena; Karl J. Englund, Attorney at Law; Missoula; William A. Rossbach and Elizabeth A. Brennan, Attorneys at Law; Missoula; Jack R. Tuholske, Attorney at Law; Missoula; Matthew O. Clifford, Beers Law Offices; Missoula.
JUSTICE TRIEWEILER delivered the opinion of the Court.
¶1 The Plaintiffs, Montana Environmental Information Center (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 in which the Department of Environmental Quality (DEQ) for the State of Montana
¶2 The issue on appeal is whether the Plaintiffs have demonstrated standing to challenge the constitutionality of
FACTUAL BACKGROUND
¶3 The following facts are taken from those allegations in the Plaintiffs’ complaint and amended complaint which are uncontroverted by DEQ‘s answer and from testimony and exhibits offered in the District Court.
¶4 MEIC is a nonprofit organization, whose members live primarily in Montana and are actively involved in issues related to the protection and enhancement of water quality and fish and wildlife habitat. The Clark Fork-Pend Oreille Coalition is a nonprofit corporation whose members reside primarily in the Clark Fork drainage of Montana and Idaho and who, for the past ten years, have worked to improve water quality in the Clark Fork drainage. Women‘s Voice for the Earth is also a nonprofit organization based in Missoula, Montana and is dedicated to protecting biological diversity in the northern Rockies. Members of all three organizations, float, fish, hunt, and view wildlife on the Blackfoot River and on public and private lands adjoining the Blackfoot River. Furthermore, the Blackfoot River is a major tributary to the Clark Fork River.
¶5 The Defendant, Montana Department of Environmental Quality is the State agency in charge of protecting water quality and issuing
¶6 Seven-Up Pete Joint Venture has submitted an application for a massive open-pit gold mine in the upper Blackfoot River valley, near the confluence of the Landers Fork and Blackfoot Rivers. Plaintiffs’ complaint alleged that in the summer of 1995, DEQ illegally amended SPJV‘s mineral exploration license to allow for the discharge of groundwater containing high levels of arsenic and zinc into the shallow aquifers of the Blackfoot and Landers Fork Rivers, without requiring nondegradation review pursuant to
¶7 The Blackfoot River provides habitat for many different species of fish and wildlife, including important habitat for the imperiled Bull Trout, a species which qualifies for listing as an endangered species pursuant to
¶8 In 1992 SPJV applied for an exploration license pursuant to the Metal Mine Reclamation Act,
¶9 Although SPJV‘s application to amend its exploration license was initially approved, DEQ later realized that the water to be
¶10 Formal authorization for the proposed discharges into the Blackfoot and Landers Fork alluvia was issued by DEQ on August 10, 1995.
¶11 Officials at DEQ determined that the mixing zone in the Blackfoot alluvial aquifer could extend 5000 feet down gradient from the Blackfoot infiltration gallery and the mixing zone in the Landers Fork alluvial aquifer could extend 4000 feet down gradient from the Landers Fork infiltration gallery. They estimated that arsenic would be diluted to meet water quality standards by the time the discharge had gone 2000 feet from the Blackfoot infiltration gallery and 1500 feet from the Landers Fork infiltration gallery.
¶12 DEQ determined that water from the Blackfoot mixing zone would not enter the surface water of the Blackfoot River but that water from the Landers Fork mixing zone would discharge to the surface waters of that river. However, DEQ concluded that all chemical constituents in the groundwater would be diluted below applicable water quality standards prior to discharge to the Landers Fork surface waters.
¶13 The background level of arsenic in the groundwater of the Blackfoot and Landers Fork alluvium in the vicinity of the well test discharges is no more than .003 milligrams per liter (mg/l). The expected level of arsenic in the water at the wellhead from the three water wells tested in 1995, was expected to be .018 mg/l for well No. 4, .055 mg/l for well No. 5, and .036 mg/l for well No. 6. Water wells Nos. 4 and 5 discharged to the Blackfoot infiltration gallery and water well No. 6 to the Landers Fork infiltration gallery.
¶14 The actual levels of arsenic at the wellhead for wells tested in 1995 ranged from .016 to .025 mg/l for well No. 4; .035 to .056 mg/l for well No. 5; and .024 to .039 mg/l for well No. 6. The actual level of ar-
¶15 The 1995 well tests involved the pumping and discharge of 740 gallons of underground water per minute to the Blackfoot alluvium and 240 gallons of underground water per minute to the Landers Fork alluvium. The duration of the tests was four months.
¶16 However, samples taken during and after the 1995 well tests from monitoring wells located at a point approximately 4000 feet down gradient from the infiltration galleries, showed no change in the Blackfoot, and no significant change in the Landers Fork alluvia, from the background level of arsenic.
¶17 Plaintiffs brought this action on October 6, 1995, and alleged that they have been damaged by the discharge of polluted water to the Blackfoot and Landers Fork Rivers. They sought a writ of mandamus compelling DEQ to comply with various statutory procedures prior to amendment of the exploration license. In particular, Plaintiffs sought an order requiring SPJV to comply with the nondegradation requirements found at
¶18 In support of their complaint, Plaintiffs offered testimony from Dan L. Fraser, a registered professional engineer, and environmental consultant who worked for the Water Quality Bureau of the Montana State Department of Health and Environmental Sciences (DHES) from 1976 to 1993 and who was the bureau chief from 1990 to 1993. DHES was the state agency which administered Montana‘s Water Quality Act before that responsibility was given to DEQ. Fraser testified that the Montana numeric water quality standard for protection of health from arsenic is .018 milligrams per liter (mg/l) but that based on his review of data submitted by SPJV to DEQ in support of its application for permission to conduct pumping tests, water with higher levels of arsenic would be discharged to the Blackfoot and Landers Fork alluvia during pumping. He testified that arsenic is a carcinogen which causes skin cancer to humans and that the EPA has found evidence of an association between internal cancer and arsenic.
¶20 James Volberding is the senior project geologist for SPJV and has a degree in geological engineering. He is responsible for supervising the hydrologic studies connected to the proposed McDonald Gold Mine Project. Those studies include the well pump tests at issue.
¶21 Volberding explained that construction of the mine will require the groundwater levels in the vicinity of the mine to be temporarily lowered by a system of wells which will provide water for the mining operations and prevent flooding of the mine workings. The three wells involved in the current tests were constructed in 1993 to provide the necessary data by a series of pump tests regarding the chemistry and volume of water in the groundwater systems. Pumping from the three wells commenced on July 26, 27, and 28, 1995, and by October 11, monitoring data was available regarding the water being pumped and the effect that it had on the surface of the two rivers. He explained that the arsenic load of the discharged water was less than had been expected and while acknowledging that it exceeded the level of the receiving water at the point of discharge, testified that it will be close to nondetectable below the mixing zone of the Landers Fork alluvium and will contain .005 mg/l of arsenic immediately below the mixing zone for the Blackfoot River alluvium compared to .003 mg/l of arsenic for the receiving water. He testified that arsenic concentrations in other Montana waters used for drinking by individuals are higher.
¶22 Joe Gurrieri is a hydrologist with the Reclamation Division of the Hard Rock Bureau of the DEQ. It is his responsibility, in that capacity, to review mining plans as they relate to hydrology. In that capacity he was familiar with the facts that pertained to SPJV‘s pump tests. Based on the data provided by SPJV he concluded that there was no beneficial use of water which would be interfered with by the
¶23 Gurrieri calculated that the concentration of arsenic at a point 3000 feet down gradient from the Landers Fork infiltration gallery would be .008 mg/l and that the arsenic concentration 5000 feet down gradient from the Blackfoot infiltration gallery would be .009 mg/l. These concentrations are lower than the standards for groundwater or surface water but greater than the concentrations in the receiving water.
¶24 Geoffrey Beale, a hydrologist employed by SPJV also agreed that the water pumped from underground had higher concentrations of arsenic than the water into which it would be received, but testified that at some point downstream from the point of discharge the arsenic level will be diluted sufficiently, that it will not affect the arsenic level of the background water.
¶25 In support of their motion for summary judgment, the Plaintiffs contended that pursuant
¶26 In opposition to the Plaintiffs’ motion for summary judgment and in support of DEQ‘s motion, DEQ and SPJV pointed out that at a short distance from the points of discharge there were no changes from background levels of arsenic, that therefore, Plaintiffs have not demonstrated violation of their right to a clean and healthful environment, and for that reason, strict scrutiny of the blanket waivers provided for by
¶27 In reply, Plaintiffs pointed out that Rule 16.20.712(1)(b), ARM (now Rule 17.30.715(1)(b), ARM), classifies any discharge of carcinogens in excess of those levels present in the background water as significant and that therefore, they have demonstrated all the harm necessary to establish standing and to require strict scrutiny of the statute which provides blanket exemption for that type of discharge from nondegradation review. In essence, Plaintiffs argued that
¶28 The District Court held that
¶29 1. There is no proof that discharges from the mixing zones (as opposed to discharges from the ground) exceeded water quality standards;
¶30 2. Plaintiffs have demonstrated no significant changes to the quality of water on either the surfaces of the Landers Fork or Blackfoot Rivers;
¶31 3. Before a constitutional violation can be shown, Plaintiffs must demonstrate that the waters of the Blackfoot and Landers Fork are so affected that public health is threatened or applicable water quality standards are violated to the extent that there is a significant impact on either river. Absent a finding of actual injury, as defined,
¶32 In an order denying the Plaintiffs’ request for an order temporarily restraining further pumping tests, the District Court noted the following factual findings which formed the basis for its conclusions:
¶34 2. SPJV, however, concluded that the level of arsenic discharged into the infiltration galleries is .009 mg/l, far below the standard for aquatic life and the human health standard and that there will be no detectable change in the ambient level of arsenic in water 50 feet downstream from the point of discharge.
¶35 3. Based on these figures, there is no evidence of threat to public health, no violation of water quality standards, and no significant impact on the Landers Fork River or the Blackfoot River.
¶36 The District Court originally held, however, that based upon the affidavit of Dan Fraser there was an issue of fact which could not be resolved by summary judgment. The Plaintiffs later asked the Court to either reconsider its order based on the amount of arsenic at the point of discharge or enter a final order based on the facts which the court currently assumed to be true. The District Court did so; it denied the Plaintiffs’ motion for summary judgment, granted the DEQ‘s motion and dismissed the Plaintiffs’ complaint.
¶37 On appeal, Plaintiffs contend that when the legislature amended the Water Quality Act, by enacting
¶38 The DEQ and SPJV respond that because the District Court correctly found that arsenic levels returned to ambient standards within 50 feet from the point of discharge of the well water, Plaintiffs have not sustained their burden of proving they are threatened with injury by the enactment of
ISSUE
¶39 The issue on appeal is whether the Plaintiffs have demonstrated standing to challenge the constitutionality of
DISCUSSION
Standard of Review
¶40 The District Court held that based on the facts presented to it, Plaintiffs had not established that
Standing
¶41 In Gryczan v. State (1997), 283 Mont. 433, 442-43, 942 P.2d 112, 118, we held that the following criteria must be satisfied to estab-
¶42 In Missoula City-County Air Pollution Control Board v. Board of Environmental Review (1997), 282 Mont. 255, 937 P.2d 463, this Court considered the first prong of the two-part test and concluded that a threatened injury to the Local Board had been established by demonstrating “potential economic injury.” Missoula City-County Air Pollution Control Bd., 282 Mont. at 262-63, 937 P.2d at 468. The court accepted the Local Board‘s argument that “it face[d] potential economic harm from the additional expenses necessary to monitor, collect and analyze data, and to develop a regulatory response which will ensure that Missoula air quality meets minimum federal standards in the face of increased air pollution from Stone Container.” Missoula City-County Air Pollution Control Bd., 282 Mont. at 262, 937 P.2d at 468.
¶43 The second prong of the test for standing requires that the litigant distinguish his or her injury from injury to the general public. Gryczan, 283 Mont. at 442, 942 P.2d at 118. However, the injury need not be exclusive to the litigant. Gryczan, 283 Mont. at 443, 942 P.2d at 118. In Gryczan we held that the plaintiffs had satisfied the second prong because they “presented evidence of specific psychological effects caused by the statute.” We further found it significant that “to deny Respondents standing would effectively immunize the statute from constitutional review.” Gryczan, 283 Mont. at 446, 942 P.2d at 120.
¶44 In Missoula City-County Air Pollution Control Board we held that the Local Board‘s “interest in the effective discharge of the obligations imposed upon it by law is the equivalent of the personal stake which would support standing of a private citizen of the Missoula airshed.” Missoula City-County Air Pollution Control Bd., 282 Mont. at 262, 937 P.2d at 467. We further stated that:
It is clear to this Court that a citizen of Missoula, as one who breathes the air into which Stone Container is expelling pollutants, would have standing to bring this action .... In the same way as a citizen of the Missoula airshed is more particularly affected by the State Board‘s acts than is a citizen of another area, the interest
of the Local Board is distinguishable from and greater than the interest of the public generally.
Missoula City-County Air Pollution Control Bd., 282 Mont. at 262, 937 P.2d at 467-68.
¶45 Based on these criteria, we conclude that the allegations in the Plaintiffs’ complaint which are uncontroverted, established their standing to challenge conduct which has an arguably adverse impact on the area in the headwaters of the Blackfoot River in which they fish and otherwise recreate, and which is a source for the water which many of them consume. Whether Plaintiffs have demonstrated sufficient harm from the statute and activity complained of to implicate their constitutional rights and require strict scrutiny of the statute they have challenged, is a separate issue.
Constitutional and Statutory Framework
¶46 Appellants contend that
¶47
All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment ....
¶48
(1) The State and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.
....
(3) The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.
¶49 Although enacted prior to the constitutional provisions relied on, the Plaintiffs contend that the nondegradation policy for high quality waters established by
(1) Existing uses of state waters and the level of water quality necessary to protect those uses must be maintained and protected.
(2) Unless authorized by the department under subsection (3) or exempted from review under
75-5-317 , the quality of high quality waters must be maintained.(3) The department may not authorize degradation of high quality waters unless it has been affirmatively demonstrated by a preponderance of evidence to the department that:
(a) degradation is necessary because there are no economically, environmentally, and technologically feasible modifications to the proposed project that would result in no degradation;
(b) the proposed project will result in important economic or social development and that the benefit of the development exceeds the costs to society of allowing degradation of high quality waters;
(c) existing and anticipated use of state waters will be fully protected; and
(d) the least degrading water quality protection practices determined by the department to be economically, environmentally, and technologically feasible will be fully implemented by the applicant prior to and during the proposed activity.
¶50 Plaintiffs contend that the Constitution‘s environmental protections were violated by the legislature in 1995, when it amended
(1) The categories or classes of activities identified in subsection (2) cause changes in water quality that are nonsignificant because of their low potential for harm to human health or the environment and their conformance with the guidance found in
75-5-301(5)(c) .(2) The following categories or classes of activities are not subject to the provisions of
75-5-303 :....
(j) discharges of water from water well or monitoring well tests ... conducted in accordance with department-approved water quality protection practices ....
¶51 Plaintiffs contend that the groundwater discharged into the alluvia of the Landers Fork and Blackfoot Rivers and ultimately to the alluvial aquifers and the surface water of at least the Landers Fork River, degraded high quality waters by definition as established by the Department or its predecessor through A.R.M. 17.30.715(1)(b), which provides as follows:
(1) The following criteria will be used to determine whether certain activities or classes of activities will result in nonsignificant changes in existing water quality due to their low potential to affect human health or the environment. These criteria consider the quantity and strength of the pollutant, the length of time the changes will occur, and the character of the pollutant. Except as provided in (2) of this rule, changes in existing surface or groundwater quality resulting from the activities that meet all the criteria listed below are nonsignificant, and are not required to undergo review under
75-5-303, MCA :....
(b) discharges containing carcinogenic parameters ... at concentrations less than or equal to the concentrations of those parameters in the receiving water ....
¶52 Because discharges containing carcinogenic parameters, (i.e., discharged water containing concentrations of arsenic equal to .009 mg/l) greater than those in the receiving water (i.e., .003 mg/l) were allowed in this case, Plaintiffs contend that the discharges should not have been exempt from nondegradation review by DEQ‘s own standards and that they have, therefore, demonstrated the necessary harm for strict scrutiny of the blanket exemption provided for in
¶53 DEQ and SPJV on the other hand, contend that even before the 1995 amendment to
¶54 In order to address the issue raised on appeal, it is necessary that we determine the threshold showing which implicates the rights provided for by
¶55 We have not had prior occasion to discuss the level of scrutiny which applies when the right to a clean and healthful environment guaranteed by
¶56 In Butte Community Union v. Lewis (1986), 219 Mont. 426, 712 P.2d 1309, we held that:
If a fundamental right is infringed or a suspect classification established, the government has to show a “compelling state interest” for its action.
....
... in order to be fundamental, a right must be found within Montana‘s Declaration of Rights or be a right “without which other constitutionally guaranteed rights would have little meaning.” In the Matter of C.H. (Mont. 1984), [210 Mont. 184], 683 P.2d 931, 940, 41 St.Rep. 997, 1007.
Butte Community Union, 219 Mont. at 430, 712 P.2d at 1311.
¶57 We held, however, that a middle-tier level of scrutiny will be applied when a right is implicated which, though not contained in our declaration of rights, is referred to in our constitution even though the constitutional provision in question is merely directive to the legislature. We held that:
A benefit lodged in our State Constitution is an interest whose abridgement requires something more than a rational relationship to a governmental objective.
....
... Where constitutionally significant interests are implicated by governmental classification, arbitrary lines should be condemned. Further, there should be balancing of the rights infringed and the governmental interest to be served by such infringement.
Butte Community Union, 219 Mont. at 434, 712 P.2d at 1313-14.
¶58 We held that when a government classification is challenged as a violation of equal protection and a constitutionally significant interest is implicated, middle-tier scrutiny requires that the State demonstrate two factors: “(1) that its classification ... is reasonable; and (2) that its interest in classifying ... is more important than the people‘s interest in obtaining [constitutionally significant benefits].” Butte Community Union, 219 Mont. at 434, 712 P.2d at 1314.
¶59 We elaborated on the level of scrutiny for statutes or rules which implicate rights guaranteed in our declaration of rights in Wadsworth v. State (1996), 275 Mont. 287, 911 P.2d 1165. There we held that, “the inalienable right to pursue life‘s basic necessities is stated in the Declaration of Rights and is therefore a fundamental right.” Wadsworth, 275 Mont. at 299, 911 P.2d at 1172.
¶60 We also held in Wadsworth that the nature of interest affected by state action dictates the standard of review that we apply and that: “[t]he most stringent standard, strict scrutiny, is imposed when the action complained of interferes with the exercise of a fundamental right or discriminates against a suspect class.” Wadsworth, 275 Mont. at 302, 911 P.2d at 1174 (citations omitted).
¶61 In Wadsworth, we gave the following explanation of what is required by strict scrutiny:
Strict scrutiny of a legislative act requires the government to show a compelling state interest for its action. Shapiro v. Thompson (1969), 394 U.S. 618, 634, 89 S. Ct. 1322, 1331, 22 L. Ed. 2d 600. When the government intrudes upon a fundamental right, any compelling state interest for doing so must be closely tailored to effectuate only that compelling state interest. State v. Pastos (1994), 269 Mont. 43, 47, 887 P.2d 199, 202 (citing Zablocki v. Redhail (1978), 434 U.S. 374, 98 S. Ct. 673, 54 L. Ed. 2d 618). In addition to the necessity that the State show a compelling state interest for invasion of a fundamental right, the State, to sustain the va-
lidity of such invasion, must also show that the choice of legislative action is the least onerous path that can be taken to achieve the state objective. Pfost v. State (1985), 219 Mont. 206, 216, 713 P.2d 495, 505.
Wadsworth, 275 Mont. at 302, 911 P.2d at 1174.
¶62 Finally, in language relevant to this case, we held in Wadsworth that, “while DOR‘s conflict of interest policy or rule is at issue rather than a statute, we, nevertheless, apply strict scrutiny analysis since the operation of that rule implicates Wadsworth‘s fundamental right to the opportunity to pursue employment.” Wadsworth, 275 Mont. at 303, 911 P.2d at 1174 (emphasis added).
¶63 Applying the preceding rules to the facts in this case, we conclude that the right to a clean and healthful environment is a fundamental right because it is guaranteed by the Declaration of Rights found at
¶64 State action which implicates those rights provided for in
¶65 A thorough review of the discussion and debate among the delegates to our 1972 Constitutional Convention leads us to the further conclusion that the nature of the environmental rights provided by
The majority felt that the use of the word “healthful” would permit those who would pollute our environment to parade in some doctors who could say that if a person can walk around with four pounds of arsenic in his lungs or SO2 gas in his lungs and wasn‘t dead, that that would be a healthful environment. We strongly believe—the majority does—that our provision—or proposal is stronger than using the word “healthful.”
Montana Constitutional Convention, Vol. IV at 1201, March 1, 1972.
¶67 In discussing the interrelationship of subsections (1) and (3), Delegate McNeil stated:
Subsection (3) mandates the Legislature to provide adequate remedies to protect the environmental life-support system from degradation. The committee intentionally avoided definitions, to preclude being restrictive. And the term “environmental life support system” is all-encompassing, including but not limited to air, water, and land; and whatever interpretation is afforded this phrase by the Legislature and courts, there is no question that it cannot be degraded.
Montana Constitutional Convention, Vol. IV at 1201, March 1, 1972 (emphasis added).
¶69 Delegate McNeil explained the committee‘s concern about including “clean and healthful” as follows:
[T]he majority felt this would permit degradation of the present Montana environment to a level as defined in Illinois, which may be clean and healthful. And our intention was to permit no degradation from the present environment and affirmatively require enhancement of what we have now.
Montana Constitutional Convention, Vol. IV at 1205, March 1, 1972 (emphasis added).
¶70 In further discussing the interrelationship between subsections (1) and (3) of
The majority proposal before you now does recommend, as did Mr. Lindbergh, government monitoring. It goes further than that and directs the Legislature to provide remedies to prevent degradation. This is anticipatory.
Montana Constitutional Convention, Vol. IV at 1206, March 1, 1972 (emphasis added).
The proposal mandates the legislature to prevent degradation and to prevent unreasonable depletion. Now, that includes private property.
Montana Constitutional Convention, Vol. V at 1221, March 1, 1972 (emphasis added).
¶71 Delegates such as Mae Nan Robinson who agreed in substance with the preceding statements by Delegate McNeil suggested amendments but only for the purpose of assuring greater protection of the current environment. Delegate Robinson stated:
I contend that if you‘re really trying to protect the environment, you‘d better have something whereby you can sue or seek injunctive relief before the environmental damage has been done; it does very little good to pay someone monetary damages because the air has been polluted or because the stream has been polluted if you
can‘t change the condition of the environment once it has been destroyed.
Montana Constitutional Convention, Vol. V at 1230, March 1, 1972.
¶72 In defending the section as proposed, proponents explained that:
The reason that the majority did not support a separate section saying “the right to sue“, the paragraph 3 of our report states, “The Legislature is directed to provide adequate remedies for the protection of the environmental life support system from degradation and to provide adequate remedies to prevent unreasonable depletion of natural resources.” Now, to those of us that studied what we were doing for a long time before we did it, we felt that this, in itself, is a lot stronger than, certainly, the proposal we‘re looking at right now [a proposed right to sue provision].
Montana Constitutional Convention, Vol. V at 1232-33, March 1, 1972.
¶73 In concluding remarks in opposition to amending the committee majority‘s proposed
We did not want the Supreme Court of this state or the Legislature to be able to say that the environment in Montana, as we know right now, can be degraded to a healthful environment. So our purpose in leaving that word out was to strengthen it. I would like also to remind the delegates that the Illinois provision does not contain subparagraph 3 of the majority proposal, [
Article IX, Section 1(3) ] which speaks precisely to the point that concerned Jerry Cate so much, and that is there is no provision by which the Legislature can prevent—and this is anticipatory—can prevent unreasonable depletion of the natural resources. I submit if you will read that majority proposal again and again, you will find that it is the strongest of any constitution ....
Montana Constitutional Convention, Vol. V at 1243, March 1, 1972.
¶74 Delegate Foster also gave the following defense of the language as originally proposed:
I feel that if we, as a Constitutional Convention of Montana, use our line of defense on the environment on the basis of healthful, then we, in fact, might as well forget it, because what I‘m concerned about in Montana is not a healthful environment. This country is going to have to address itself to the question of a healthful environment. What I‘m concerned about is an environment that is
better than healthful. If all we have is a survivable environment, then we‘ve lost the battle. We have nothing left of importance. The federal government will see to it one way or another, if it‘s in its power, that we have an environment in which we can manage to crawl around or to survive or to in some way stay “alive“. But the environment that I‘m concerned about is that stage of quality of the environment which is above healthful; and if we put in the Constitution that the only line of defense is a healthful environment and that I have to show, in fact, that my health is being damaged in order to find some relief, then we‘ve lost the battle; so I oppose this amendment.
Montana Constitutional Convention, Vol. V at 1243-44, March 1, 1972.
¶75 In the end advocates for adding the descriptive language “clean and healthful” prevailed. However, it was not on the basis that they wanted less protection than articulated by Delegates McNeil and Foster, it was because they felt the additional language was necessary in order to assure the objectives articulated by Delegates McNeil and Foster. See Delegate Campbell cmts. (Montana Constitutional Convention, Vol. V at 1246, March 1, 1972). It was agreed by both sides of the debate that it was the convention‘s intention to adopt whatever the convention could agree was the stronger language. See Delegate McNeil cmts. (Montana Constitutional Convention, Vol. IV at 1209, March 1, 1972).
¶76 Although
The prime effort or fundamental purpose, in construing a constitutional provision, is to ascertain and to give effect to the intent of the framers and of the people who adopted it. The court, therefore, should constantly keep in mind the object sought to be accomplished ... and proper regard should be given to the evils, if any, sought to be prevented or remedied ....
General Agric. Corp. v. Moore (1975), 166 Mont. 510, 518, 534 P.2d 859, 864.
¶77 We conclude, based on the eloquent record of the Montana Constitutional Convention that to give effect to the rights guaranteed by
¶78 We conclude, therefore, that the District Court erred when it held that Montana‘s constitutional right to a clean and healthy environment was not implicated, absent a demonstration that public health is threatened or that current water quality standards are af-
¶79 We conclude that the constitutional right to a clean and healthy environment and to be free from unreasonable degradation of that environment is implicated based on the Plaintiffs’ demonstration that the pumping tests proposed by SPJV would have added a known carcinogen such as arsenic to the environment in concentrations greater than the concentrations present in the receiving water and that the DEQ or its predecessor after studying the issue and conducting hearings has concluded that discharges containing carcinogenic parameters greater than the concentrations of those parameters in the receiving water has a significant impact which requires review pursuant to Montana‘s policy of nondegradation set forth at
¶80 We conclude that for purposes of the facts presented in this case,
¶81 Based on these holdings, we reverse the judgment of the District Court and remand to the District Court for strict scrutiny of the statutory provision in question, and in particular for a determination
¶82 The judgment of the District Court is reversed and this case is remanded for further proceedings consistent with this opinion.
JUSTICES HUNT, NELSON and REGNIER concur.
JUSTICE LEAPHART, specially concurring.
¶83 I concur in the result reached by the Court and specifically with the conclusion that the right to a clean and healthful environment is a fundamental right guaranteed by the Declaration of Rights found at
¶84 Finally, the Court concludes that
to the extent
§ 75-5-317(2)(j), MCA (1995) , arbitrarily excludes certain “activities” from nondegradation review without regard to the nature or volume of the substances being discharged, it violates those environmental rights guaranteed byArticle II, Section 3 andArticle IX, Section 1 of the Montana Constitution . Our holding is limited to§ 75-5-317(2)(j), MCA (1995) , as applied to the facts of
this case. We have not been asked to and do not hold that this section facially implicates constitutional rights.
¶85 I do not see how the Court can logically avoid declaring that the statute is unconstitutional on its face. The constitutional infirmity of
CHIEF JUSTICE TURNAGE joins in the foregoing specially concurring opinion.
JUSTICE GRAY, specially concurring.
¶86 Except for the “private action” subject addressed in Justice Leaphart‘s special concurrence, I concur in the Court‘s opinion in all regards. I join Justice Leaphart‘s opinion insofar as it relates to the propriety of addressing the “private action” question in this case.