Thursday, January 8, 2015

We have a new opinion today under the Environmental Rights Amendment to the Pennsylvania Constitution. Pennsylvania Environmental Defense Foundation v. Commonwealth, No. 228 M.D. 2012 (Pa. Commw. Ct. Jan. 7, 2015). Maybe the state constitution mandates some sort of environmental impact study before the commonwealth acts. Maybe it means nothing more than that one must comply with environmental statutes. The courts do not seem to be on the way to clarifying that confusion soon.

The Pennsylvania Commonwealth Court today issued its opinion in an environmental group’s challenge to appropriations legislation that (a) induced the Pennsylvania Department of Conservation and Natural Resources to lease state forest land for natural gas development and (b) transfered large sums from the Lease Fund — used to maintain the parks and DCNR generally — to the General Fund. That practice began under Governor Rendell in 2008 and continued through last year under Governor Corbett. The intermediate appellate court found no constitutional infirmity in any of this.

The constitutional challenge arose under the Environmental Rights Amendment, Article I, section 27, of the Pennsylvania Constitution. The courts and commentators, including this blog, have been struggling with what the Environmental Rights Amendment requires in the wake of the decision a year ago in Robinson Twp. v. Pub. Util. Comm’n, 83 A.3d 901 (Pa. 2013). The Supreme Court plurality in Robinson Township seemed to announce that any part of the commonwealth’s government has to engage in some sort of (vaguely described) balancing — perhaps like an environmental impact study, perhaps not — before acting. The Supreme Court plurality specifically criticized the pre-existing test for constitutionality under the Environmental Rights Amendment expressed by the Commonwealth Court in Payne v. Kassab, 312 A.2d 86, 94 (Pa. Commw. Ct. 1973) (en banc), aff’d, 361 A.2d 263 (Pa. 1976), as too narrow, too dependent on statutory compliance, and too detached from the constitutional text. The Payne test was:

(1) Was there compliance with all applicable statutes and regulations relevant to the protection of the Commonwealth’s public natural resources? (2) Does the record demonstrate a reasonable effort to reduce the environmental incursion to a minimum? (3) Does the environmental harm which will result from the challenged decision or action so clearly outweigh the benefits to be derived therefrom that to proceed further would be an abuse of discretion?

The Commonwealth Court today considered Robinson Township, but decided that as a plurality opinion, it is not binding. Therefore, said the Commonwealth Court, Payne v. Kassab is still the operative test.

Read Pennsylvania Environmental Defense Foundation v. Commonwealth, No. 228 M.D. 2012 (Pa. Commw. Ct. Jan. 7, 2015), by clicking here.