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Environmental Rights and the Constitutions

July 12, 2012

(former Sen. Joe Balyeat)

I’ve spent my entire life in MT’s mountains and great outdoors. From a blue-collar family of 14, I’ve lived almost entirely off wild game and fish my entire life. Kayaking, mountain marathon racing, bowhunting and fishing… Enjoying MT’s environmental perks is the substance of my life. And while I wasn’t a ConCon delegate, I even have my own environment-related section in MT’s Constitution – Article IX, Section 7 Preservation of Harvest Heritage – The opportunity to harvest wild fish and wild game is a heritage that shall forever be preserved to the individual citizens of the state and does not create a right to trespass on private property or diminution of other private rights. I wrote it, sponsored it successfully thru the legislature, and spearheaded the successful statewide campaign that culminated with the voters passing it with more than 80% of the vote — believed to be the highest percentage of any constitutional amendment in MT’s history. Shortly thereafter, the head of MT Wildlife Federation said, “Joe, how does it feel to have your own section of the MT Constitution with your name on it?”

So with that background it may seem paradoxical that I am somewhat critical of the MT Constitution’s environmental rights declarations; and I in fact authored the 2010 Voter Information Pamphlet arguments in favor of a new Con Con for MT. Why? Because I believe there are certain flaws in the MT Constitutions delineation of rights, including the environmental right; which cause great legal mischief, and may in fact be backfiring and creating a longterm detriment to MT’s environment, and our enjoyment of it.

I can illustrate these flaws best by comparing the MT constitution with the US Constitution. I love constitutional rights. But there is a significant difference between the type of rights delineated in the US Constitution and MT’s Constitution. Please listen to what I wrote in the 2010 VIP arguments for CC2… the call for a new con con:

Ø Historically, the US Constitution… delineated rights which barred government intrusion on basic freedoms- religious, press, etc. Individuals can freely exercise these“freedom rights” without imposing costs on anybody else. Montana’s constitution unfortunately mis-adventured into guaranteeing so-called “rights”which aren’t just freedoms, but are more properly called entitlements; and can only be provided to someone at great cost to Montana’s taxpayers and economy.

In standard legal parlance, freedom rights are called “negative rights”; and entitlement or privilege rights are called “positive rights”. This seems counter-intuitive to me because in my view, negative rights are the good ones, and positive rights are the bad ones. Why? Freedom rights are “negative” because they are, in effect, prohibitions on government intrusion into your personal space and freedom. Entitlement rights, on the other hand, are called positive rights because they require proactive government action to effectuate. If government says everyone has a right to make a living, or a right to a well-paying job, somebody has to pay for that entitlement (usually the taxpayers, or your co-workers, your employer, etc.)

We panelists had a great conference call last week and I informed my co-panelists that I would actually be comparing the MT constitution’s environmental right with the US Constitution. CB said he’d be anxious to hear my discussion of the US Constitution, since to his knowledge the US Constitution says nothing about environmental rights. He is precisely correct…. The framers of the US Constitution carefully included only negative rights, or freedom rights in the Constitution and Bill of Rights. The framers carefully attempted to avoid the inclusion of ANY positive rights, or entitlement rights precisely because they had great fear of limitless government power. Their little tiff with the King of England gave them great pause about providing any constitutional empowerments which permitted government to proactively venture into ANY sphere of entitlement – whether it be the right to a job, the right to health care, or the right to environmental purity.

Now, granted, MT’s is not the first state constitution which has veered from the historical pattern of the US Constitution. Other state constitutions, depending on the political leanings of their framers, began inserting certain entitlement rights. So the Courts responded by developing a rule of historical jurisprudence – negative rights barring government intrusion on freedom were self-executing and could be enforced directly by courts, while positive entitlements rights were not self-executing and could not be directly implemented by courts, but must be fleshed out statutorily by legislation. This is related to the “political question” doctrine. Historical jurisprudence stated that positive rights could not be directly decided by courts without statutory guidance because they involved political questions — qualitative decisions – what constitutes a proper standard of living? What is a quality education? Or adequate healthcare? Courts said these questions should be left to legislative bodies to decide, rather than vested in a single judge or single Court. And the Mt Constitution was sold to Montana voters precisely under the publicly stated premise that the environmental right was a non-self executing right which courts could not use arbitrarily without it being well-defined first by the legislature. (See Natelson, MT Constitution Project Unveiled at UM)

But after passage of the 72 Constitution, The MT Court took a substantial sharp left hand turn, becoming the most activist Supreme Court in the entire country. Our Court abandoned the restraints of historical jurisprudence, including the rule about non-self-executing positive rights. Two different nationwide studies, one by former MT ACLU director Jeff Renz, revealed MT’s Court as the most activist Court in the entire nation, over-turning prior precedent and its own prior case law at a rate more than twice that of the second-most activist Court.

Specifically with respect to the environmental rights, MT courts ignored the fact that voters had only narrowly approved the constitution, at a primary election no less, under the publicly stated premise that the environmental right was a non-self-executing provision that had little significance aside from future legislative action to define its parameters.

As I stated in the 2010 VIP — The “clean and healthful environment” provision has since been expanded by Montana’s overzealous courts to prohibit any publicor private activity which “implicates” the environment, unless you can prove a compelling state interest permitting it. Thus, the Montana constitution’s environmental right now empowers judges and bureaucratic rulemakers to micro-meddle in your property rights, business affairs, and personal conduct. Traditionally, the prevailing balance between conflicting entitlement rights (such as the right to earn a living versus the right to a healthful environment) was decided by legislatures, through political discourse and statutory law, rather than decided by judicial decree based on vague constitutional phrases and even vaguer interpretations thereof.”

So, by declaring the environment right a self-executing right, our Courts have created a legal quagmire, lawsuits can be and are brought ad infinitem against any resource or energy development attempt; because everything we do… whether grand or in our personal backyards “implicates” the environment.

So how does this legal quagmire effect MT’s environment? The problem with positive rights is “somebody has to pay for them”. More specifically, the problem with the “right to a clean and healthful environment” is that it is both a positive right, and an infinitely open-ended phrase which can never be fully satisfied… even if you diverted MT’s entire economic gross product to try to pay for it. And some argue that is precisely what has happened in the 4 decades since the 72 constitution was adopted. Prior to the 72 Constitution, average wages in MT ranked in the top ten in the nation. 40 years hence, we now consistently bounce along at dead last wages in the entire nation.

As I said, I’ve spent my entire life in MT’s mountains and great outdoors. But here’s the problem with delineating flowery phrased positive rights in MT’s Constitution… Because of the high cost of implementing this open-ended entitlement right, you run the risk of killing the goose that laid the golden egg. Paying for a clean environment is only possible if you have a robust economy. This is why the US economy is far less polluting (and far more advanced in environmental safeguards) than less prosperous industrial economies in Russia and China. MT is dangerously close to killing our own ability to pay for environmental safeguards. In fact, I would submit that if MT were an independent nation, if we were not propped up by federal transfer payments, MT’s economy and wages would’ve already slipped into third world status, and our environment would already be reflecting that third-world, third-rate care.

In Summary: We all want a clean environment… The question is whether those protections should be statutory or constitutional provisions. The ConCon erred in placing a positive environmental entitlement right in the Constitution. MT’s courts have strayed from historical jurisprudence and erred in making that environmental right a self-executing right which, even absent legislative parameters, can be used to shut down enterprise ad nauseum, destroying what was once a very robust economy, and in the long term even destroying the economic prosperity necessary to afford a clean and healthful environment.

Former Sen. Joe Balyeat, CPA (Republican – Belgrade) served as Chairman of the Senate Business, Labor, and Economic Affairs Committee and Vice-Chairman of the Senate Fish & Game Committee.

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