Pennsylvania’s Environmental Rights Amendment Is Now Much Stronger

When in 2013 the Pennsylvania Supreme Court rescinded certain provisions of the state’s oil and gas laws, the landscape of environmental law fundamentally shifted, turning away from 40 years of accepted case law. In Robinson Township v. Commonwealth of Pennsylvania, a four-Justice majority rejected Sections 3215(b)(4), 3215(d), 3303, and 3304 of the Pennsylvania Oil and Gas Act (known as Act 13) because they violated the Pennsylvania Constitution – namely the Environmental Rights Act, which states: “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.” That decision and another like it in 2017 gave filling to the mostly empty rhetoric of the ERA, which was introduced in 1971.

Context

Franklin K. Kury, the amendment’s author, reflected on the origins of the measure: “People were sick and tired of seeing dead fish and dirty water in the streams and rivers after coal companies would dump their waste.” He continued, “I wanted to write a law with broad basic principles that would last for time.” Kury wasn’t content with the new environmental regulations and the amendments to the Clean Streams laws. And he wasn’t alone, as a huge majority of Pennsylvania voters came out in support of the ERA.

Backlash

Not long after the introduction of the amendment, the Commonwealth Court delivered a ruling that rendered the ERA all but meaningless. The judges decided that government interests trumped environmental concerns. Thus, following that decision, the government merely had to show that the benefits of the project outweighed the damage to the environment – a standard that has been easy to meet for the past 40 years.

Not Quite Precedent

In Robinson, the judiciary changed its tune, opting to throw out a set of provisions that gave oil and gas companies free reign to drill almost anywhere. This, the court said, was a “blanket accommodation of industry.” The high court’s decision marked a major victory for environmental advocates looking to monitor and regulate the extraction of shale gas throughout Pennsylvania. A plurality of Justices agreed that the statute’s provisions violated the ERA, while the fourth Justice in the majority argued that the sections in question violated due process. Without a strong majority, the decision lacked the criteria for a true precedent.

Another Opinion

Then, last year on June 20th, the Pennsylvania Supreme Court issued yet another decision, doubling down on its 2013 opinion in favor of environmental rights. In PEDF v. Commonwealth, the Pennsylvania Environmental Defense Foundation argued that revenues from oil and gas leases should not be used to balance the state’s budget, as has been the case since 2008. Prior to 2008, the revenues were sent to the budget of the Department of Conservation and Natural Resources (DCNR), which oversees the leasing projects and addresses the environmental damage caused by those projects.

Big Changes

The court’s majority opinion fundamentally altered the legal framework for environmental regulations. Notably, the Justices threw out a decades-old test – derived from Payne v. Kassab. Without the test, the legislature can no longer unilaterally interpret the ERA (also known as Article I § 27). The high court’s decision heighted the potential impact of Article I § 27, making it the number one standard for all (environmental) challenges against the government. Moreover, the court defined government agencies and the legislature as trustees (under Pennsylvania’s trust law), so if the DCNR refuses to offer a lease for environmental reasons, those agencies can only override if they can show that the leasing projects fall within the mission of Article I § 27. Basically, those agencies are duty-bound to uphold the principles of the ERA. According to the majority opinion: “[W]hen reviewing challenges to the constitutionality of Commonwealth actions under [the ERA], the proper standard of judicial review lies in the text of [the ERA] itself as well as the underlying principles of Pennsylvania trust law in effect at the time of its enactment.”

In Due Time

The Justices’ opinion also suggested that the DCNR should have access to the revenues from oil and gas leases, which amount to hundreds of millions of dollars. This means environmental regulators might eventually have the funding they need to stave off the damaging effects of drilling and mining. For now, the effects of the PA Supreme Court decision are yet to be seen. It will take time for the opinion to settle, as more lawsuits are filed and more action is taken against the oil and gas industry.