Skin in the Game

Drunk on their own power, bullies arrogantly break the rules, beat up on the weak and powerless, and make their little fiefdoms a living hell for those who live in them. Yet, when called to account, when grabbed by the scruff of their necks and dragged to the principal’s office, bullies whine, lie, wring their hands and cast blame on others.

And that fairly sums up the conduct of the legislative and executive branches in 2023. The legislature passes, and the Governor signs, laws that violate the clear and unambiguous requirements of Montana’s Constitution, and then feign outrage and shock when the courts do their constitutionally mandated job and overturn these laws.

Be damned their oaths to support, protect and defend the Constitution–which encompasses the separation of powers, the system of checks and balances, and, indeed, our democracy itself.   The bullies reign: of their party, by their party and for their party; they represent those who fill their election coffers; they represent corporate Montana.

There are too many examples to recount in detail here, so I limit myself to one.

Every Montanan has a fundamental right to a clean and healthful environment under Article II, section 3 of Montana’s Constitution.

To implement this fundamental right, Article IX, section 1(1), imposes on the State (including every governmental subdivision) and on each person (us) the mandatory duty to maintain and improve a clean and healthful environment for present and future generations.

Subsection (2) of Article IX goes on to require the legislature to provide for the administration and enforcement of the above duties.  And, subsection (3) requires, the legislature to provide adequate remedies for the protection of the environmental and life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.

Again, these duties are mandatory, not discretionary.  The language of Article IX, section 1 could not be clearer.

In 2021, the Department of Environmental Quality issued a permit to Northwest Energy to build a 175-megawatt gas plant in Laurel.  Three Laurel residents and various environmental, concerned citizen and climate advocacy groups sued the State (DEQ) because this agency failed to consider greenhouse gas emissions and lighting impacts when it permitted the gas plant.

Ultimately, the District Court in Yellowstone County agreed with the plaintiffs and entered its order invalidating the permit. The court ruled that DEQ had to follow the Montana Environmental Policy Act (MEPA) and evaluate Northwest Energy’s project for the impacts described above.

And the legislature’s response?  With little public notice, no adequate hearing and nearly six weeks after the bill transmission deadline for bills, the legislature passed HB 971 on a party-line vote.

Remember the Constitution’s mandatory duties imposed on the legislature to maintain andimprove the environment, and to adopt laws to carry out those duties, that I mentioned above?  Well, HB 971 takes a broad-ax to those—even going so far as to prevent DEQ from analyzing power plant and mining projects under MEPA.

Maintain and improve the environment?  Yeah, right!

Not to put too fine a point on it, a Republican representative from Colstrip said that the bill seeks to address a problem he’d been fighting his entire career— “obstructionists . . . trying to stop industry.” And, he continued, “as long as they don’t have any skin in the game, they’re going to keep doing that.”

Note to the legislature: A clean and healthful environment is the Peoples’ right to enjoy, not yours to destroy.  Under Article IX, section 1, every Montanan has skin in the game; every single one of us!

James C. Nelson a retired Montana Supreme Court justice. He lives in of Helena.