The Pennsylvania Supreme Court’s June decision in Pennsylvania Environmental Defense Foundation v. Wolf, 161 A.3d 911 (Pa. 2017) (PEDF), has sparked many conversations about how the newly interpreted Environmental Rights Amendment to the Pennsylvania Constitution will be implemented. In my column this month for the Pennsylvania Law Weekly I hope to catalogue at least some of the issues to help move the conversation along.

For most of the last 40 years, the courts have tested statutes, actions of the executive agencies and decisions of municipalities under the three-part test of Payne v. Kassab.  In PEDF, the court made clear that Payne’s test no longer governed. The first sentence of the Environmental Rights Amendment sets out an affirmative right of “the people” to “clean air, pure water, and the preservation of the natural, scenic, historic and esthetic values of the environment.” Government cannot take action that impinges on that right without (a) evaluating the environmental effects of its action beforehand and (b) avoiding “unreasonable” adverse effects in light of the other governmental purposes of the action.

Further, the second sentence of the Amendment creates a trust, the corpus of which is all of the public natural resources of the Commonwealth. The Commonwealth is the trustee of that trust, and the beneficiaries are “all the people” including “generations yet to come.” When the Commonwealth sold some of that trust corpus in the form of natural gas leases in the state forests, it was obligated to use the proceeds to benefit the trusts’ purposes.

In Center for Coalfield Justice v. DEP, EHB Dkt. No. 2014‐072‐B (Aug. 15, 2017), appeal pending, No. 1290 CD 2017 (Pa. Commw. Ct. filed Sept. 15, 2017), the Environmental Hearing Board applied PEDF to a third-party challenge to two coal mine permit extensions affecting streams. A temporary impairment of a stream could be a reasonable incursion on the people’s first‐sentence constitutional right, but permanent loss of the stream would be unreasonable.

Almost every project has at least one opponent.  If every individual has a right to stop any project with any environmental impact, Pennsylvania will come to a grinding halt.  The Commonwealth must devise a way to implement Article I, section 27, so that it facilitates, and does not impede, useful change.

Read more from my article in The Legal Intelligencer supplement, PA Law Weekly, by clicking here.

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Photo of David Mandelbaum David Mandelbaum

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and…

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and Oil and Gas Law in rotation at the Temple University Beasley School of Law as well as an environmental litigation course at Suffolk (Boston) Law School.

Since United States v. Atlas Minerals, the first multi-generator Superfund contribution case to go to trial in 1993, Mr. Mandelbaum has been engaged in matters involving allocation of costs among responsible parties, especially under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  He has tried large cases and resolved others as lead counsel.  He has written, spoken, and taught extensively on the subject.  More recently he also has been engaged to assist lead counsel from this firm and others:

  • to develop cost allocation methodologies;
  • to craft expert testimony in support of a favored methodology (given a definition of “fairness,” why one methodology better tracks it than another);
  • to develop efficient case management approaches; and to assist private allocation as part of the neutral team.

Concentrations

  • Air, water and waste regulation
  • Superfund and contamination
  • Climate change
  • Oil and gas development
  • Water rights