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A landmark PA decision on Environmental Rights

03 Jul

Drilling rig in Pa’s Tioga State Forest – Scott Detrow photo – StateImpact
In a landmark environmental decision, a majority of Pennsylvania’s Supreme Court justices established a broad interpretation of the Environmental Rights Amendment to the state constitution Tuesday, cementing in place the commonwealth’s role as trustee for public natural resources. The move is a victory for environmental advocates, and a defeat for the state and industrial polluters, who had argued that granting a wider interpretation could deter economic development.
Writing the majority opinion, Justice Christine Donohue said the prior interpretation of the amendment, which included a 3-part legal test and was in place for four decades, “strips the constitution of its meaning.” The opinion clearly defines the role of the state as trustee, which the court said is associated with fiduciary responsibilities.
“The Commonwealth (including the Governor and General Assembly) may not approach our public natural resources as a proprietor, and instead must at all times fulfill its role as a trustee,” wrote Donohue. “Because the legislative enactments at issue here do not reflect that the Commonwealth complied with its constitutional duties, the order of the Commonwealth Court with respect to the constitutionality of 1602-E and 1603-E is reversed, and the order is otherwise vacated in all respects.”
The case brought by the Pennsylvania Environmental Defense Foundation challenged the use of oil and gas lease proceeds for anything other than environmental preservation. Each year the state brings in millions of dollars from leasing state forest land to drillers, which was directed back into environmental conservation programs. In 2009, the legislature and former Governor Ed Rendell allowed some of that money to flow into the general fund. Commonwealth Court in 2015, upheld diverting income from those leases to the general fund.
Tuesday’s Supreme Court decision rejected the Commonwealth’s ruling that employed a more narrow interpretation of Article 1, Section 27 of the state constitution, also referred to as the Environmental Rights Amendment, which was passed by referendum in 1971:
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.
The decision relies on a 2013 ruling that struck down parts of a major gas drilling law known as Act 13. But in that case, only a plurality of justices agreed with a broad interpretation of the Environmental Rights Amendment. Tuesday’s 4-2 decision is more solid, according to John Dernbach, an environmental law professor at Widener University who filed an amicus brief in the case.
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