Montana High Court Ruling
Could Have Sweeping Impact

(Editor's note: From where we sit, it appears that clever eco-activists planted a long-fused time bomb in the Montana constitution almost three decades ago. It has just detonated. Read the way the state's highest court is reading it, the provision is so sweeping that it could prohibit virtually any activity, no matter how mundane or traditional, unless state officials specifically okay it, and even the approval would be subject to a court challenge with the deck stacked high on the left. For instance, don't get pregnant without a permit.)

HELENA, Mont. —(AP)— It may be years before the full effect is known of the recent state Supreme Court decision guaranteeing Montanans' constitutional right to a clean and healthful environment.

But Montana businesses are shaking over the possibilities.

``This case is another blow at the economic vitality and at the future for Montana and Montana's children,'' said Rebecca Watson, a lawyer on the losing side of the case. ``I think that it colors Montana's view of companies and of mining. It creates an environment that maybe isn't good for the long term.''

However, Karl Englund, a Missoula attorney who often represents environmental activist groups, said the decision isn't the death knell for industry, but rather a new commitment in Montana to protecting air, water and land.

``This is the old rhetoric that you can't have clean air and clean water and jobs and it's just not true,'' said Englund. ``The critical thing is that there's no question that this is what the framers of the constitution had in mind.''

The high court, in the landmark ruling Oct. 20, found the state must have a compelling state interest to allow activities that have the potential to pollute. It was the first time the court had interpreted the provision of the 1972 Montana Constitution.

``I think that we have to see how the court approached other factual circumstances in order to understand completely the overall effect of the decision,'' said Jerome Anderson, a Helena attorney and longtime industry lobbyist. ``I think business will be very nervous and it clearly opens the door to probably some extensive litigation.''

``It is a little hard to predict how this precedent will work,'' agreed Tom France of Missoula, a senior attorney with the National Wildlife Federation who represented the environmental groups in the case. ``It will take time for it to shake out.''

One of the largest unknowns is how the ruling will apply to individuals and private interests. The court said the ruling applies to private as well as state actions.

France called that the ``biggest question mark in the case.''

``I'm not sure how that part of the ruling will be extended,'' he said. ``I think there's certainly an implication there if someone can show a private activity has materially impacted the environment, they can go to court,'' he said.

Legislators, both Democrat and Republican, said it's far too soon to tell what last week's ruling will mean, but it certainly will give them something to think about when they convene again in 2001. Most agreed, however, it is likely going to cause some pause when natural resource bills come before them.

Senate Minority Leader Steve Doherty, D-Great Falls, said legislators either will be cautious and consider the decision, or they will ``get bullheaded and do what they want anyway.''

``It should cause those folks to have great pause and thoughtfulness in what they do,'' said Doherty.

Sen. Chuck Swysgood, R-Dillon, said the ruling gives him ``real heartburn'' because it could potentially stop any type of development or natural resource projects in the state.

``That's not saying that we shouldn't protect our air quality and the environment,'' said Swysgood. ``We've got laws in place that do that. But to let that get overshadowed and get in the way of any conceivable development is taking it a stretch too far.''