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A New Chapter for Court & Environment

Posted on November 4, 2015

Pennsylvania’s Constitution states that:

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. [Article 1, Section 27]

For decades the courts marginalized this simple but profound Constitutional provision. A turning point occurred in December 2013 when Pennsylvania’s Supreme Court, in a plurality decision, acknowledged the foundational principles of Article 1, Section 27 in finding major parts of Act 13, the 2012 oil and gas law, unconstitutional.

The Corbett Administration’s position (supporting Act 13) was that Article 1, Section 27 “recognizes or confers no rights upon citizens and no right or inherent obligation upon municipalities; rather, the constitutional provision exists only to guide the General Assembly, which alone determines what is best for public natural resources, and the environment generally, in Pennsylvania,” explained Justice Castille for the plurality. The plurality rejected this dismissive view of the Constitution.

John Dernbach of the Widener Environmental Law Center writes:

To begin with, the plurality wrote, constitutional interpretation must begin with the plain language of the Article I, Section 27 itself.  The first sentence establishes two rights in the people, Castille wrote.  The first is a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.  The second is “a limitation on the state’s power to act contrary to this right.”  The state as well as local governments are bound by these rights, the plurality said.   In addition, these rights are equal in status and enforceability to any other rights included in the state constitution, including property rights.

The second and third sentences, the plurality wrote, involve a public trust.  Public natural resources are owned in common by the people, including future generations.  Because the state is the trustee of these resources, it has a fiduciary duty to “conserve and maintain” them.  “The plain meaning of the terms conserve and maintain implicates a duty to prevent and remedy the degradation, diminution, or depletion of our public natural resources.”  The state has two separate obligations as trustee.  The first is “a duty to refrain from permitting or encouraging the degradation, diminution, or depletion of public natural resources.”  The second is a duty “to act affirmatively to protect the environment, via legislative action.”  These duties, the plurality said, foster “legitimate development tending to improve upon the lot of Pennsylvania’s citizenry, with the evident goal of promoting sustainable development.”

Pennsylvania’s history, Castille wrote, includes massive deforestation, the loss of game, and industrialization and coal mining. “It is not a historical accident that the Pennsylvania Constitution now places citizens’ environmental rights on par with their political rights,” the plurality said. Constitutional provisions, he pointed out, are to be interpreted based on “the mischief to be remedied and the object to be attained.” [Source:
http://blogs.law.widener.edu/envirolawcenter/2013/12/21/the-pennsylvania-supreme-courts-robinson-township-decision-a-step-back-for-marcellus-shale-a-step-forward-for-article-i-section-27/]

Three justices formed the plurality in this incredibly important affirmation of the Constitution and its support of environmental rights. Justice Ronald Castille has since retired and Justice McCaffery resigned, leaving only Justice Debra McCloskey Todd on the Court. Justices Saylor and Eakin, who remain on the Court, wrote dissenting opinions.

So, what comes next?

On November 3, Pennsylvanians elected three new justices to the Court. Judicial candidates are circumspect in discussing issues but here is what the winning candidates said regarding Article 1, Section 27:

Christine Donohue: “As our legislature works to keep up with the challenges of protecting our environment with new laws and regulations necessary in an ever changing world, it is critically important that our courts apply the law in a manner that preserves our citizens constitutional and fundamental right to clean air, pure water and the preservation of our environment.”

Kevin Dougherty: “Pennsylvania is fortunate to be one of the few states with a constitutional amendment that guarantees individual citizens the rights to clean air, pure water, and preservation of the environment. We must ensure that these important rights are protected, not only for Pennsylvanians today, but for all future generations.”

David Wecht: “Our Commonwealth has a clear and vested interest in protecting its natural treasures, an interest enshrined most forcefully in Art. I, Sec. 27 of the Pennsylvania Constitution.  The Supreme Court must offer clear guidance on fracking, on mineral and land use, and on other contentious issues that impact our environment.” [source: http://www.conservationpa.org/2117-2]

For many years to come, for better or worse, these three justices will decide cases crucial to conservation of our natural resources and the health and prosperity of Pennsylvanians.

Stay tuned.

Andy
Andrew M. Loza, Executive Director
Pennsylvania Land Trust Association
[email protected]
717-230-8560

Filed Under: Advocacy Tagged With: PA Supreme Court

Monumental Election on November 3rd

Posted on October 27, 2015

Shape history! Vote on Tuesday, November 3 when Pennsylvanians will elect 3 judges to the 7-member Pennsylvania Supreme Court. These judges will have a profound impact on Pennsylvania law and the lives of Pennsylvanians.

No matter your positions on issues, you should exercise your obligation to vote. (Find your polling place.)

The Supreme Court justices will address fundamental matters, such as the application of Article I, Section 27 of the Pennsylvania Constitution, the Environmental Rights Amendment, 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. 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.

Supreme Court justices serve 10-year terms before they are subject to voter recall. Between now and 2025, the court will make dozens of rulings that will impact our land and water; our public lands and wildlife; our environmental, social and economic health. Take the opportunity to vote for who you want to make these decisions; vote on November 3.

The following candidates are on the ballot for Supreme Court:
  • Anne Covey (R)
  • Christine Donohue (D)
  • Kevin Dougherty (D)
  • Michael George (R)
  • Judith Olson (R)
  • Paul Panepinto (I)
  • David Wecht (D)

(The Pennsylvania Land Trust Association is not permitted to endorse candidates for public office.)

Not since colonial times have Pennsylvanians had to fill so many vacancies on the Supreme Court. Thank you for acting on this historic opportunity.

Filed Under: Advocacy Tagged With: PA Supreme Court

Governor Corbett Signs 2014-15 Budget and Fiscal Code

Posted on July 1, 2014

On July 10, Governor Corbett signed the 2014-15 budget (House Bill 2328) and fiscal code (House Bill 278), line item-vetoed specific  legislative appropriations and placed legislative spending initiatives into budgetary reserves.

On June 30, the Pennsylvania Senate (26-24) and House (108-95), passed this Republican-written budget. (In subsequent days, the General Assembly also passed the fiscal code, legislation important to implementing the budget.)

The budget leaves the Keystone Recreation, Park and Conservation Fund untouched. Likewise, farmland preservation and Growing Greener. These conservation investment programs will continue to deliver lasting results in 2014-15.

Thanks to everyone who reached out to their legislators regarding conservation funding! Your outreach made a difference.

Legislators who advocated for conservation funding deserve thanks. Please take a few minutes today to write a THANK YOU LETTER or make a THANK YOU CALL to your legislators who expressed support for conservation funding when you were reaching out to them. They need to hear from you that their support is appreciated. (Note that given the political complexities, a yes or no vote on the budget is not fair gauge of conservation support.)

Other features of the budget include the following:

  • The budget pattern of funding an increasing share of DCNR operations via the Oil and Gas Lease Fund rather than general tax revenues continued. (The Oil and Gas Lease Fund is where lease payments and royalties from drilling on State Forests are deposited.)
  • $95 million in revenue from additional leasing of State Forest and State Park for no surface disturbance gas extraction was budgeted. Additional leasing that does not include the right to surface disturbance is consistent with Governor Corbett’s new executive order regarding leasing.
  • REAP and historic preservation tax credits were left in place.
  • $500,000 was cut from the line item for the Delaware River Basin Commission.
  • The Heritage Areas Program line item in DCNR was increased by the General Assembly from the Governor’s originally proposed $2.5 million to $2.75 million. The Governor subsequently line-item vetoed $500,000 of this line item–one veto among many $10s of millions of vetoes made to budget expenditures passed by the General Assembly.

 

Filed Under: Alert/Update, Public Policy Tagged With: farmland, governor, Keystone Fund, state budget

Amicus Brief Filed to Defend Community Parks

Posted on July 1, 2014 Leave a Comment

The Pennsylvania Land Trust Association filed an amicus curiae brief in Commonwealth Court on April 21 in defense of parkland and open space held by governments for the benefit of the public per the discussion at the March policy committee meeting and the authorization of PALTA’s board. The catalyst of the brief is the litigation regarding Kardon Park (Petition of the Borough of Downingtown). If the court adopts the amicus curiae’s arguments (and it should!), PALTA will have performed a great service for conservation and parks in Pennsylvania.

Commonwealth Court Brief Amicus Curiae

Filed Under: Alert/Update, Public Policy Tagged With: public land

Memo to Joint Conservation Committee Re: Instrastate Pipelines

Posted on June 30, 2014 Leave a Comment

In April 2014, the Joint Legislative Air and Water Pollution Control and Conservation Committee held a hearing on several proposed bills that would impact the pipeline approval and oversight process of intrastate pipelines. The Pipeline Safety Coalition, along with several local land trusts, drafted a memo (download below) to the committee with specific recommendations regarding the siting process and specifically Senate Bills 504 and 506.

Download Memo to Joint Legislative Air & Water Pollution Control & Conservation Committee RE: Intrastate Pipelines (6/30/2014) 

Filed Under: Public Policy Tagged With: legislation, water quality

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Land Trusts, Trail Groups, Local Governments, and Other Landowners Get New Liability Protection

October 25, 2018

On October 24, 2018, Governor Wolf signed Act 98 into law. Act 98 amends the Pennsylvania Recreation Use of Land and Water Act (RULWA) to better protect from liability those who open their properties to the public for recreation without charge. Improvements to the law include: Explicitly listing paths, paved and unpaved trails, fishing and […]

Governor Signs HB 2468

June 25, 2018

Governor Wolf quietly signed HB 2468 (and several other bills) into law on Sunday, June 24. The bill is now Act 45 of 2018. A correction to the previous PALTA communication: Act 45 should apply retroactively to McCormick Farm, so, hopefully, the Cumberland Valley School District will cease its pursuit of the farm. The district […]

HB 2468 Is on Governor’s Desk

June 25, 2018

Friday evening, after the Senate passed HB 2468 (37-12), the House voted to concur (177-15) with the Senate’s changes to the bill. The governor is expected to sign the bill. This is a thrilling victory for conservation! This landmark, bipartisan legislation provides a crucial safeguard for conservation easements from the unnecessary exercise of eminent domain […]

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