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Pa. High Court Addresses Scope of the Environmental Rights Amendment

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Pa. High Court Addresses Scope of the Environmental Rights Amendment THE OLDEST LAW JOURNAL IN THE UNITED STATES 1843-2017 PHILADELPHIA, TUESDAY, JULY 25, 2017 VOL 256 • NO. 16 ENERGY AND ENVIRONMENTAL LAW Pa. High Court Addresses Scope of the Environmental Rights Amendment BY TERRY R. BOSSERT TERRY R. BOSSERT is Special to the Legal the former chief There is no doubt counsel for the that the PEDF n June 20, the Pennsylvania Pennsylvania Supreme Court issued a sig- Department of decision will lead to Onificant and potentially far- Environmental more challenges to gov- reaching opinion in Pennsylvania Protection and a Environmental Defense Foundation (PEDF) principal in Post & Schell’s environmental ernment actions and v. Commonwealth of Pennsylvania, 2017 practice group and co-chair of the firm’s challenges to legislation Pa. LEXIS 1393, No. 10 MAP 2015 shale resource practice group. He counsels or regulations relating to (June 20, 2017). While initial attention clients on environmental regulatory has been paid to the decision’s potential matters and compliance programs, the environment as dif- monetary impact via the use of oil and represents them in related litigation, and ferent stakeholders find gas lease funds, a more detailed analysis provides government relations counseling reveals that the longer lasting impact of and advocacy related to environmental different meanings in PEDF will be found in its pronounce- legislation and regulations in the the decision. ments on the scope of judicial review of commonwealth of Pennsylvania. He can government actions and, perhaps, impli- be reached at [email protected]. cating the separation of powers among resources, the commonwealth shall the three branches of the government. under the Environmental Rights conserve and maintain them for the Amendment (ERA), (Pa. Envtl. Def. benefit of all the people. BACKGROUND Found., 2017 Pa. LEXIS 1393 at *26). The Commonwealth Court had held On its face, the case involved the The ERA provides: “The people have (Pennsylvania Environmental Defense challenge by PEDF to the Legislature’s a right to clean air, pure water and to Foundation v. Commonwealth, 108 A.3d transfer of certain funds from the Oil the preservation of the natural, scenic, 140 (Pa. Cmwlth. 2015)), that since the and Gas Lease Fund to general gov- historic and esthetic values of the envi- transferred funds were used for the ernmental purposes. PEDF argued ronment. Pennsylvania’s public natural general benefit of the public (i.e., “the that those transfers were unconstitu- resources are the common property of benefit of all the people”), there was no tional as being contrary to the all the people, including generations constitutional infirmity. The Supreme commonwealth’s duties as a trustee yet to come. As trustee of these Court reversed. Four justices (Christine Donohue, Debra Todd, Kevin Dougherty which are located on public lands, and are few environmental practitioners, and David Wecht) held that the chal- the very popular “Growing Greener” regardless of their client base, who will lenged provisions of prior fiscal codes program is always searching for a lament it passing. However, it is far were unconstitutional because the funds secure funding source. Either of these from clear what test has replaced Payne. were not transferred to uses consistent purposes would seem to satisfy the After rejecting Payne the court stated: with the trust purposes, namely for con- court’s holding. To the extent that “when reviewing challenges to the serving and maintaining public natural PEDF was looking to limit the use of constitutionality of commonwealth resources. Justice Max Baer concurred in monies in the Oil and Gas Lease Fund actions under Section 27, the proper part but dissented from the majority’s to expenditures for state parks and for- standard of judicial review lies in the application of private trust principles to est lands, they may have achieved a text of Article I, Section 27 itself as the analysis, arguing that public trust limited victory. well as the underlying principles of principles should apply and that, accord- Arguably, the constitutional limita- Pennsylvania trust law in effect at the ingly, the Commonwealth Court’s deci- tion on the use of funds derived from time of its enactment.” That statement sion should be affirmed. Chief Justice the lease of oil and gas resources under is certainly appropriate in the context of Thomas Saylor joined in the dissenting state parks and forests was all the court PEDF where the commonwealth’s trust portion of Justice Baer’s opinion only. needed to examine to address the obligations under the second and third PEDF challenge. However, on appeal sentences of the ERA were at issue, but THE IMPACT OF PEDF the court specifically elected to exam- it is not clear how that statement applies Most of the initial media attention ine the “proper standards for judicial to the first sentence of the ERA. has been focused on the monetary review of government actions and leg- As the court itself notes there are implication of the decision. However, islation challenged under [the ERA] in two separate parts to the ERA. The that aspect of the decision may have light of Robinson Township v. first sentence grants certain rights to limited impact. While they found the Commonwealth, 83 A.3d 901 (Pa. 2013) the people as a limitation on the power challenged fund transfers to be uncon- (plurality)” (Pa. Envtl. Def. Found., of the government, much like other stitutional, the majority noted that 2017 Pa. LEXIS 1393 at *33-34). This grants of rights found in Article I of the DCNR is not the only agency commit- portion of the court’s decision has the Constitution. The second and third ted to conserving and maintaining potential to have a far greater and far sentences address the commonwealth’s public natural resources and specifi- longer lasting impact than the question public natural resources and place a cally noted: “the General Assembly of how to spend lease funds. The duty on the commonwealth to act as would not run afoul of the constitution majority opinion will be prime fodder trustee of those public natural resourc- by appropriating trust funds to some for law review articles and will likely es. Is the court suggesting that the other initiative or agency dedicated to spawn much litigation. Depending on commonwealth is a trustee for the air effectuating Section 27.” One can how broadly the opinion is read and and water and land in general, includ- readily envision multiple uses of oil applied in the future, it is not too ing natural resources on private prop- and gas lease funds that would not vio- extreme to see a potential constitu- erty? The plain language of the ERA late the court’s limitations. For exam- tional crisis brewing between the court certainly does not say that. ple, the Department of Environmental and the Legislature. One of the conundrums that plagued Protection’s (DEP) entire function is Initially, the court definitively struck the Payne three-part test is that Payne essentially “dedicated to effectuating down the long-standing three-part test involved impact to a traditional public Section 27.” More narrowly, the DEP first established in Payne v. Kassab, 312 resource—a park. Practitioners strug- has historically been in need of more A.2d 86 (Pa. Cmwlth. 1973), aff’d 361 gled with applying the Payne test to funds to address acid mine drainage A.2d 263 (Pa. 1976)). As the court government action that implicated the from abandoned coal mines which date noted, that test did not enjoy much environment generally but did not back to the 19th century, some of support among the litigants and there implicate publicly owned resources. Unfortunately, the decision in PEDF is The majority opinion cites to and It is not clear how the PEDF court not much help in this regard, as the quotes from Robinson with frequency. would view the Casey decision. The court does not clearly explain what it Perhaps the most potentially disrup- legislature already grants agencies such considers a public natural resource. tive concepts derived from the Robinson as DEP broad rulemaking authority The court notes, in a footnote, that a plurality is found in footnote 20. The that allows it to supplement legislative draft version of the ERA was amended quoted passage states, in part, that enactments. However, to suggest that to specifically insert the word “public.” executive agencies and the judiciary are DEP, for example, has the power under That would suggest the intent to limit empowered to carry out “their consti- the ERA to regulate in a manner dif- the trusteeship to publicly owned tutional duties independent of legisla- ferent from the enabling legislation resources. However, the court also cites tive control.” While no one would would introduce significant uncertain- a statement by then Rep. Franklin Kury question the power of the judiciary to ty and arbitrariness into environmental suggesting that the trust applies to review the constitutionality of legisla- regulation, not to mention undermin- resources not owned by the common- tion and regulations, the concept that ing the constitutional role of the legis- wealth, “which involve a public inter- executive agencies, which have no con- lature. It is not clear to what degree est.” Given the long line of authority stitutional foundation and are created the PEDF court is adopting or endors- holding that the comments of a single by the legislature, have powers beyond ing this statement from Robinson. legislator are not evidence of legislative those granted by the legislature is There is no doubt that the PEDF intent, the significance of footnote 22 is nothing short of revolutionary. Clearly, decision will lead to more challenges to unclear. As the court goes on to discuss executive agencies have a duty under government actions and challenges to the commonwealth’s duty as trustee it the ERA and their actions can be chal- legislation or regulations relating to consistently refers to public natural lenged by the people on that basis.
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