Monday, October 10, 2011

Adjudication of Montana's Constitutional Right to a Clean and Healthful Environment

by Mary Pezzulo

Mary Pezzulo is a 2011 graduate of Albany Law School. The recipient of the Robert C. Glennon Adirondack Park Fellowship for researching environmental and land use issues for the Adirondack Park Agency, she was active in environmental causes while in law school. Mary was also a nationally-ranked rugby champion.

The notion that all human beings have an unrestricted fundamental right to enjoy what we have come to think of as basic amenities, such as clean air and water--breathing air that is free of harmful particulate matter and having unlimited access to toxic pollutant free water--is often overlooked in daily life due to our overly simplistic reliance on what most perceive to be a never ending availability of natural resources. The magnitude of present day impacts from devastating environmental disasters occurring worldwide and the increased attention to the phenomenon of anthropogenic global climate change have brought the stark truth to light that we will not forever be afforded the luxury of unlimited access to essential natural resources without serious protection.*

The discourse surrounding our struggle to balance present consumption with future needs has provided a platform for debate in legal academia regarding whether the health and safety of the environment should constitute a fundamental right....

As the federal legislature and judiciary have been reluctant to expand interpretation of fundamental rights under the federal constitution, individual states have stepped up in their role as enforcing rights guaranteed under their state constitutions....This "reemergence" of state constitutional activism overlapped and coincided somewhat with the environmental rights movement, leading states to amend their constitutions to provide for individual rights relating to environmental issues.  Montana's 1972 Constitution is a perfect example of this trend, as it has been described as "the single strongest statement of conservation philosophy in the constitution of any state and, very likely, of any nation in the world."
* For citations to materials listed in this introduction, please download the full paper.

Read the entire paper HERE