The "Environmental Bill of Rights" is now indisputably the law of the land in Pennsylvania. A majority of the Pennsylvania Supreme Court reaffirmed and extended its landmark decision in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013) (plurality) in the June 20, 2017, decision Pennsylvania Environmental Defense Foundation v. Commonwealth, No. 10 MAP 2015 (Pa. June 20, 2017)(PEDF). In a ruling written by Justice Christine Donohue, a majority of the court[1] reversed a Commonwealth Court decision that some had viewed as limiting the applicability of Robinson Township. The Supreme Court held that the Commonwealth’s duty as a trustee under Article I, § 27 of the Pennsylvania Constitution—the Environmental Rights Amendment—governs natural gas leasing on state forestlands and struck down acts of the General Assembly that it found inconsistent with that duty. 

The plaintiff in PEDF challenged a series of legislative enactments that had eliminated previous requirements that dedicated natural gas resource lease revenues from state lands to the Pennsylvania Department of Conservation and Natural Resources and had restricted the use of those revenues for conservation purposes. The challenged legislative enactments had transferred significant revenues from restricted funds into the general fund. The Commonwealth Court had granted summary judgment to the Commonwealth, holding that it was not bound by the plurality opinion in Robinson Township and that the three-part test formulated by the Commonwealth Court in Payne v. Kassab governed. In reversing the Commonwealth Court, the Supreme Court adopted broad language that reaffirmed the breadth of the Robinson Township decision and Article I, § 27 rights.

The Supreme Court first addressed the standard of review under Article I, § 27, and rejected the Commonwealth Court's Payne v. Kassab standard, holding that the constitutional standard enunciated in Robinson Township applied. Specifically, the Supreme Court held that the Commonwealth was governed by its duty as a trustee under established trust law for all constitutionally protected resources on both public and private lands. The court then applied trust law to hold that the disposition of natural resources and related revenues from state lands was governed by a trustee’s duty with respect to the corpus of a trust, requiring that the corpus not be diminished or wasted. The court found that the acts of the General Assembly at issue were facially unconstitutional under that standard and remanded the case to the Commonwealth Court, where the parties present evidence regarding whether the manner in which the funds were to be spent would be consistent with the Commonwealth's duty as a trustee for natural resources.

The court further rejected an argument raised by the Republican caucus of the General Assembly that Article I, § 27 was not self-executing but required implementing legislation. The court noted that prior jurisprudence had left open the question of whether the Amendment was self-executing with respect to environmental resources on lands owned by private parties, but reaffirmed its prior decisions and rejected the Republican caucus argument in the case presented, which dealt with the General Assembly's duties with respect to publicly owned resources. The court therefore reaffirmed its prior holding in Payne II that “[t]here can be no question that the Amendment itself declares and creates a public trust of public natural resources for the benefit of all the people (including future generations as yet unborn) and that the Commonwealth is made the trustee of said resources, commanded to conserve and maintain them. No implementing legislation is needed to enunciate these broad purposes and establish these relationships.” It further reaffirmed its holding in Robinson Township “that the Commonwealth's obligations as trustee 'create a right in the people to seek to enforce the obligations.’”

The PEDF decision does not address the application of Article I, § 27 to challenges to government approvals for actions on private land addressing constitutionally protected resources or implicating the rights to "clean air, pure water, and . . . the preservation of the natural, scenic historic and esthetic values of the environment" provided by the first clause of Article I, § 27. In those cases, constitutionally protected property rights can conflict with the rights protected by Article I, § 27.  PEDF disapproved the application of the Commonwealth Court's Payne v. Kassab test to the circumstances presented there, where the affected resources were publicly owned. On the other hand, the plurality decision in Robinson Township noted that the three-part Payne test can apply in the narrowest of circumstances. To the extent that the Payne test survives, the PEDF court’s broad adoption of the principles in Robinson Township, such its recognition of Article I, §27 rights as “fundamental rights,” suggests that greater consideration will need to be given to environmental rights and values than provided in the jurisprudence applying Payne. This suggests that more attention may need to be paid to designs that avoid impairing the values protecting Article I, § 27 while still preserving constitutionally protected property rights. It further suggests that, where environmental harm cannot be avoided, greater weight be given to Article I, § 27 values in the balancing of those values against private property rights than occurred under the Payne jurisprudence. This application of PEDF will have obvious implications for project design.

The PEDF decision may also have particular significance with respect to future litigation regarding, among other things, the Commonwealth’s duty to address climate disruption caused by emissions of greenhouse gases. The Commonwealth Court and the Supreme Court avoided deciding the issue in Funk v. Wolf, 144 A.3d 228 (Cmwlth. 2016) aff’d without opinion (PA. March 28, 2017), where the Commonwealth Court rejected an attempt to invoke mandamus to support broad action on climate change, but suggested that rights under the Amendment might be exercised through an appropriately drafted rulemaking petition directed to the Environmental Quality Board seeking action under the Pennsylvania Air Pollution Control Act. The decision and its reaffirmance of duties to future generations could also call into question the General Assembly’s ability to block regulations implementing programs for the protection of trust resources, including regulations addressing climate disruption.

The precise contours of the broader application of Article I, § 27 rights enunciated in Robinson Township and PEDF remain unclear. Nevertheless, the importance of the rights created as fundamental, individual rights limiting the power of the General Assembly to act contrary to the public trust is no longer in doubt.

Ballard Spahr's Environment and Natural Resources Group advises on national and regional compliance, permitting, rulemaking, development, business planning, and contamination matters. The Group also provides representation in litigation, during investigations, and for transactions.

[1] Justices Todd, Dougherty and Wecht joined the opinion.  Justice Baer filed a concurring and dissenting opinion and Chief Justice Saylor dissented.  Former Justice Eakin did not participate.

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