Montana's Constitutional Challenges to Corporate Extraction

Lindsey Schromen-Wawrin and Bob Gentry

From the Copper Kings

For most of the 20th century, resource extractors ruled Montana. One major force for decades was the Anaconda Copper Mining Company, whose reach extended as far as Chile and Mexico. Their power base cracked when, in 1971, Chile’s newly elected socialist president Salvador Allende seized Anaconda's Chilean mines. In that moment, the people of Montana saw an opportunity to pose their own challenge to the reign of the copper kings. The spring after Allende’s action, Montana held a constitutional convention, drafting a new constitution in an effort to prevent the likes of Anaconda from running the state again. A centerpiece of the new constitution implores the state to provide "a clean and healthful environment in Montana for present and future generations." 

But those words only went so far, as Anaconda left a heavy legacy in the form of the largest Superfund site in the nation. The vast swath of land is contaminated with arsenic, lead, copper, cadmium, mercury, and other toxic pollutants. The site stretches from Butte to Missoula, over 120 miles in length, and includes another 300 square miles of uplands contaminated by smelter emissions.

To King Coal

Today, the resource has changed, but the methods are the same. One of the biggest sources of environmental degradation in modern day Montana is coal extraction.

In August 2012 anti-coal activists staged a week of sit-ins called the Coal Export Action at the state capitol in Helena. The target of their protest was a lease being considered by the land board which would expand Signal Peak Energy's mine in Musselshell County, which opened in 2009 to serve a new demand for coal to export to Asian markets. Signal Peak's mine is already huge and it is growing thanks to a 2012 Bureau of Land Management lease of 2,680 additional acres. It is primarily a long-wall underground mine with a history of safety violations, but the mine site includes areas slated for surface extraction. Signal Peak's proposal was to lease a several hundred acre section of school trust land from the state. Despite the week of protests, the state awarded Signal Peak the bid in September. The approval came with no consideration of environmental impacts of the mining and burning of the coal.

What difference does a constitution make?

Somehow, a new constitution was not enough to prevent history from repeating itself in Montana. But now, once more, Montana is waking up to the need to resist resource extraction.

What happens in Montana will affect all of us. And not just because of the global impacts of increasing greenhouse gas emissions or the local-impacts of coal dust trains blowing through Northwestern communities, but because the citizens of Montana, only 40 years ago, changed their constitution with the intention to free themselves and future generations from this kind of corporate exploitation. Montana is, at least theoretically, ahead of other states in challenging corporate environmental destruction. How Montana courts interpret the scope of the constitutional language, "a clean and healthful environment in Montana for present and future generations," could guide strategies in other states, or other countries, as they consider crafting constitutional resistance to the power of corporations over nature and communities.

For more on the Coal Export Action and its NLG legal support, see the Winter 2012 issue of Guild Notes.