Pa. Supreme Court upholds broad interpretation of Environmental Rights Amendment

Susan Phillips Bio Recent Stories Susan Phillips tells stories about the consequences of political decisions on people's every day lives. She has worked as a reporter for WHYY since 2004. Susan's coverage of the 2008 Presidential election resulted in a story on the front page of the New York Times. In 2010 she traveled to Haiti to cover the earthquake. That same year she produced an award-winning series on Pennsylvania's natural gas rush called "The Shale Game." She received a 2013 Alfred I. duPont-Columbia University Journalism Award for her work covering natural gas drilling in Pennsylvania. She has also won several Edward R. Murrow awards for her work with StateImpact. In 2013/14 she spent a year at MIT as a Knight Science Journalism Fellow. She has also been a Metcalf Fellow, an MBL Logan Science Journalism Fellow and reported from Marrakech on the 2016 climate talks as an International Reporting Project Fellow. A graduate of Columbia School of Journalism, she earned her Bachelor's degree in International Relations from George Washington University.

Scott Detrow/ StateImpact Pennsylvania

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.

“You have a majority of the Pennsylvania Supreme Court that is now saying that the text of Article 1 Section 27, and the public trust responsibilities imposed by that text, binds the state of Pennsylvania and limits the way in which the state of Pennsylvania manages its public natural resources,” said Dernbach. “That has never been said before by a majority of the Pennsylvania Supreme Court.”

Dernbach says the decision sets aside more than 40 years of judicial practice, which employed a less robust interpretation of that amendment. But he says it’s hard to know how that will play out in each individual case brought before the courts.

John Childe, the attorney for the Pennsylvania Environmental Defense Foundation, called the decision a big win.

“It clearly mandates that the Commonwealth can no longer treat our natural resources as government property,” said Childe. “The only right the Commonwealth has is to act as trustee of our natural resources. The Court has specifically determined that that duty requires compliance with all legal fiduciary requirements of a trustee.”

Jordan Yeager is an environmental attorney who represented the Delaware Riverkeeper Network in their challenge to Act 13, often referred to as the Robinson Township case. Yeager says the decision bolsters the strength of the Environmental Rights Amendment, and the ability to challenge state actions that could cause environmental harm.

“Just like the government can’t take action that would deprive you of your free speech rights, or the right to bear arms, or private property rights, the same holds true for your environmental rights,” said Yeager.

He says any unreasonable environmental degradation resulting from permitting or legislation, could now be challenged in court on constitutional grounds.

The Delaware Riverkeeper Network’s Maya van Rossum says it will take time before any clear impacts are felt.

“We’re not going to have instant definition and transformation overnight because all of these rights take time to define,” said van Rossum. “It has to go through that court process. But this is a huge step forward for the rights of the people of Pennsylvania to a healthy environment.”

Attorneys for the state had argued that a broad interpretation of the Environmental Rights Amendment could thwart economic development. A spokesman for Governor Wolf said they’re reviewing the decision.

Justices Debra Todd, Kevin Dougherty and David Wecht joined the majority opinion. Justice Max Baer filed a concurring opinion on the broad interpretation of the amendment, but dissented on the imposition of private trust doctrines, and that the state violated the constitution by diverting the oil and gas lease funds. Chief Justice Thomas Saylor joined Baer in his dissent.

Requests for comment from the Pennsylvania chapter of the American Petroleum Institute and the Pennsylvania Independent Oil and Gas Association were not returned.

Correction: An earlier version misidentified the governor in 2009, it was Ed Rendell.

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