Federal standards tell the people of Montana little or nothing about any potential impact of the GHG emissions of the LGS specifically, and do not satisfy "MEPA's role" in fulfilling "the strongest environmental protection provision found in any state constitution." Park Cnty. Env't Council, ¶¶ 61, 65 (citing Mont. Env't Info. Ctr. v. Mont. Dep't Env't Quality, 1999 MT 248, ¶ 66, 296 Mont. 207, 988 P.2d 1236). An environmental review "assist[s] the legislature in determining whether laws are adequate to address impacts to Montana's environment and . . . inform[s] the public and public officials of potential impacts resulting from decisions made by state agencies."
Conceptually, the ERA is designed to be proactive rather than reactive, and may be "invoked to provide anticipatory and preventative protection against unreasonable degradation of natural resources." Robinson Township , 83 A.3d at 953 (citing and parenthetically describing Montana Environmental Information Center v. Department of Environmental Quality , 296 Mont. 207, 988 P.2d 1236, 1249 (1999) ( MEIC ) ). Under this standard, the Landowners' ERA claim is cognizable and worthy of relief, "even absent a demonstration that public health is threatened or that current [ ] quality standards are affected to such an extent that a significant impact has been had" on the environment. MEIC , 988 P.2d at 1249.
This means that each of the Article II rights is a significant component of liberty, the alleged infringement of which triggers the highest level of scrutiny and, thus, the highest level of protection by the courts. Walker, ¶ 74; Wadsworth, 275 Mont. at 302, 911 P.2d at 1174; see also e.g. State v. Mount, 2003 MT 275, ¶ 98, 317 Mont. 481, ¶ 98, 78 P.3d 829, ¶ 98; Mont. Environmental Info. Center v. Dept. of Environmental Quality, 1999 MT 248, ¶ 64, 296 Mont. 207, ¶ 64, 988 P.2d 1236, ¶ 64. For the reasons discussed earlier in Part II-B, our analysis under Article II, Section 29 does not involve "scrutiny" of the governmental action, except insofar as the requirement of a "public use" has been raised.
¶ 13 Facial challenges, unlike as applied challenges, do not depend on the facts of a particular case. See e.g. MEIC v. Dept. of Environmental Quality, 1999 MT 248, ¶ 80, 296 Mont. 207, ¶ 80, 988 P.2d 1236, ¶ 80; Associated Press, Inc. v. Department of Revenue, 2000 MT 160, ¶ 27-28, 300 Mont. 233, ¶ 27-28, 4 P.3d 5, ¶ 27-28; Roosevelt v. Montana Dept. of Revenue, 1999 MT 30, ¶ 51-52, 293 Mont. 240, ¶ 51-52, 975 P.2d 295, ¶ 51-52. Having agreed to resolve the facial challenges presented, it is my view that we should do so without further delay.
Art. II, Sect. 3, Mont. Const. The right to a clean and healthful environment constitutes a fundamental right. MEIC v. Dept. of Environmental Quality, 1999 MT 248, ¶ 63, 296 Mont. 207, ¶ 63, 988 P.2d 1236, ¶ 63. Texaco argues, however, that Article II, Section 3, cannot support a private cause of action for monetary damages as it is not "self-executing."
¶ 22 "[I]n 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.'" MEIC v. Dept. of Environmental Quality, 1999 MT 248, ¶ 56, 296 Mont. 207, ¶ 56, 988 P.2d 1236, ¶ 56 (citing In the Matter of C.H. (1984), 210 Mont. 184, 201, 683 P.2d 931, 940). Found within the Declaration of Rights, the right of property is a fundamental one, dictating that the standard of review applied to governmental action affecting this interest is "the most stringent standard, strict scrutiny." MEIC, ¶ 60 (citing Wadsworth v. State (1996), 275 Mont. 287, 302, 911 P.2d 1165, 1174).
Under Butte Community Union v. Lewis (1986), 219 Mont. 426, 434, 712 P.2d 1309, 1314, we held that if "constitutionally significant interests are implicated by governmental classification," there must a balancing of the rights infringed and the governmental interest. Further, in Montana Envtl. Info. Ctr. v. Department of Envtl. Quality, 1999 MT 248, ¶ 57, 296 Mont. 207, ¶ 57, 988 P.2d 1236, ¶ 57, we held that a constitutionally significant interest is implicated when a right is not in the Declaration of Rights in Article II, but is referred to in the Constitution. The Taxpayers cite Roosevelt in support of their argument that constitutionally significant interests are implied by Article VIII, Sections 1 and 3.
¶ 60 This Court has stated repeatedly that a right is fundamental under Montana's Constitution if the right is either found in the Declaration of Rights or is a right without which other constitutionally guaranteed rights would have little meaning. State v. Bird, 2001 MT 2, ¶ 25, 308 Mont. 75, ¶ 25, 43 P.3d 266, ¶ 25 (right to be present for all court proceedings); In re Mental Health of K.G.F., 2001 MT 140, ¶ 30, 306 Mont. 1, ¶ 30, 29 P.3d 485, ¶ 30 (right to effective assistance of counsel for involuntary commitment proceedings); Armstrong v. State, 1999 MT 261, ¶ 34, 296 Mont. 361, ¶ 34, 989 P.2d 364, ¶ 34 (right to privacy); and MEIC v. Dept. of Environmental Quality, 1999 MT 248, ¶ 56, 296 Mont. 207, ¶ 56, 988 P.2d 1236, ¶ 56 (right to a clean and healthful environment); State v. Clark, 1998 MT 221, ¶ 22, 290 Mont. 479, ¶ 22, 964 P.2d 766, ¶ 22 (right to confront and examine accusers); State v. Weaver, 1998 MT 167, ¶ 26, 290 Mont. 58, ¶ 26, 964 P.2d 713, ¶ 26 (right to a unanimous verdict); Wadsworth, 275 Mont. at 299, 911 P.2d at 1172 (right to pursue employment); Matter of C.H. (1984), 210 Mont. 184, 201, 683 P.2d 931, 940 (right to physical liberty). We could never have enforced the fundamental rights litigated in these and in other cases where fundamental rights were at issue had access to the courts been denied in the first instance. Indeed, without access to the courts, these other fundamental rights would have had no real existence; they would have been merely aspirations without substance.
They reflect the theory underlying environmental protection that being proactive rather than reactive is necessary to ensure that future generations enjoy both a healthy environment and the wildlife it supports. See generally MEIC v. Dept. of Environmental Quality, 1999 MT 248, ¶ 77, 296 Mont. 207, ¶ 77, 988 P.2d 1236, ¶ 77. ¶ 34 FWP had a statutory basis for jurisdiction over the Wallaces as licensees, and the Wallaces failed to comply with statutory limitations pertaining to the disposal of their game farm elk.
State v. Clark, 1998 MT 221, ¶ 22, 290 Mont. 479, ¶ 22, 964 P.2d 766, ¶ 22 (citing Wadsworth v. State (1996), 275 Mont. 287, 299, 911 P.2d 1165, 1171-72). See also, Armstrong v. State, 1999 MT 261, ¶ 34, 296 Mont. 361, ¶ 34, 989 P.2d 364, ¶ 34; and MEIC v. Dept. of Environmental Quality, 1999 MT 248, ¶ 56, 296 Mont. 207, ¶ 56, 988 P.2d 1236, ¶ 56. ¶ 41 We now return to the current status of our case law in this area.