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

• Anne Covey (R)
• Christine Donohue (D)
• Kevin Dougherty (D)
• Michael George (R)
• Judith Olson (R)
• Paul Panepinto (I)
• David Wecht (D)