Posted on July 13, 2018 by John Dernbach
One year ago—June 20, 2017—the Pennsylvania Supreme Court issued a landmark decision on constitutional environmental rights. The case, Pennsylvania Environmental Defense Foundation v. Commonwealth (PEDF), has implications that will take decades to sort out, as subsequent litigation is making clear. And it may contribute to re-imagining of environmental law.
Almost a half century earlier—May 18, 1971—Pennsylvania voters adopted by a four-to-one margin an amendment to Article I of the state constitution, which is the state’s Declaration of Rights. Section 27 provides:
The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.
Because Pennsylvania courts were concerned about its impact on development, and because the first two cases brought under Section 27 had weak facts, Pennsylvania’s Commonwealth Court in 1973 (Payne v. Kassab) articulated a three-part balancing test as a substitute for the text. The test was easy to apply and, as a 2015 article shows, those seeking to vindicate environmental rights almost never won. More fundamentally, the test had nothing to do with environmental rights, much less the text of Section 27. The Payne decision evinced the kind of judicial activism—or more precisely, judicial rewriting of the constitution—that the late Justice Antonin Scalia criticized. But for more than 40 years, it was the law of Pennsylvania.
In PEDF, the petitioner challenged the state’s expenditure of hundreds of million dollars of funds from gas leasing on state forest land. (Disclosure: I filed an amicus curiae brief in this case.) PEDF argued that both state forests and the gas under them constituted “public natural resources” under Section 27, and that royalties and other money received from leasing must be spent to “conserve and maintain” those resources, and not used to balance the state’s budget. A majority of the Supreme Court agreed. In so doing, the Court held that the text of Section 27 is of primary importance in interpreting the Amendment, specifically setting aside the Payne v. Kassab balancing test.
The revitalization of Section 27 has led to a spate of environmental rights claims in litigation, much of it involving permits for shale gas drilling facilities and gas pipelines. The Supreme Court appears to be charting a future course on Section 27 with caution. In Gorsline v. Board of Supervisors of Fairfield Township (June 1, 2018), which was widely anticipated to further develop the law of Section 27, the Court instead decided the case based on the meaning of the township zoning ordinance.
A major outstanding question is what Section 27 means for day-to-day environmental permitting. The large number of environmental statutes and regulations adopted and strengthened after 1971 provide much of the protection that Section 27 now also provides. Here, Section 27 is most likely to make a difference when a litigant can demonstrate that the applicable regulatory program contains a significant gap (e.g., cumulative effects).
A broader question is what constitutional environmental rights can mean for environmental regulation as we know it, in which decisions are influenced by, and often based on, consideration of costs and benefits. In Friends of Lackawanna v. Commonwealth, the Environmental Hearing Board (EHB), which hears appeals from decisions by the Pennsylvania Department of Environmental Protection, said in late 2017 that the people living near a landfill who are adversely affected by odors are not simply part of the costs and benefits calculus in municipal waste management; they have constitutional rights. If DEP did not do a better job of protecting them, the EHB warned, it would. And under the radar, I am told, the revitalization of Section 27 has caused some bad project proposals to quietly go away.
Widener University Commonwealth Law School has published a listing of available Section 27 resources with links. A lot is happening, and there is more to come.