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.