Climate summit: Reviving the Pa. Environmental Rights Amendment

(This article is part of One United Lancaster’s reporting on the 2023 Lancaster County Climate Summit.)

Almost immediately after the adoption of Pennsylvania’s Environmental Rights Amendment, an adverse court decision effectively neutralized it for more than four decades.

But with several favorable decisions over the past decade, the text of the amendment is back in play, said John Dernbach, director of the Environmental Law and Sustainability Center.

Dernbach spoke during a panel discussion at the First Reformed Church during the Lancaster County Climate Summit.

Pennsylvania is one of just four states with an Environmental Rights Amendment: The other three are Hawaii, Montana and New York.

Pennsylvania’s amendment was ratified by a 4-1 majority in May 1971. As formalized in Article 1, Section 27 of the state Constitution, it states that people have right to clean air, pure water and the preservation of “the natural, scenic, historic and esthetic values of the environment,” and that the commonwealth is the “trustee” of those resources.

The “trustee” provision is extremely unusual Dernbach said: Hawaii is the only other state that has it.

Two years after the amendment’s ratification, the Commonwealth Court nullified it for all practical purposes in Payne v. Kassab.

Citizens had challenged a street-widening project in Wilkes-Barre that required the incorporation of 0.6 acres of a public park, less than 3% of its area. If the amendment could legitimize a challenge like that, the court reasoned, development everywhere would be brought to a screeching halt. So, the judges created a three-prong “balancing” test:

1. Does a proposed development comply with applicable law?
2. Is there a reasonable effort to minimize the environmental incursion?
3. Would the environmental harm outweigh the benefit so dramatically that proceeding would be an “abuse of discretion”?

The test effectively insulated development from environmental challenges, and until 2013, “the environmental side almost never won,” Dernbach said.

The turning point came with Robinson Township v. the Commonwealth, in which the municipality challenged a state law pre-empting local jurisdictions from regulating Marcellus Shale fracking operations. The state Supreme Court ruled in Robinson Township’s favor, and three of the justices based their decision on the Environmental Rights Amendment.

A 2017 decision strengthened the holding. The state had been sued when it tried to use the proceeds from leasing state lands for drilling to balance the general fund budget: A state Supreme Court majority ruled that doing so violated the “trustee” provision in Article 1, Section 27.

The rights secured by the Environmental Rights Amendment are rights “against the government,” Dernbach said. It’s fairly certain, he said, that the amendment applies to climate change. Moreover, it applies to subsidiary components of state government, including state agencies, authorities, and county and municipal governments.

The “trustee” provision imposes a fiduciary duty on the state, he noted. That is, it is obliged to act in the best interest of Pennsylvania’s citizenry, both present and future.

How do Pennsylvanians’ environmental rights cash out in debates over planning, zoning, energy use and all the other ways in which state and local regulations have environmental impacts? That remains to be seen, but Randolph Harris, a local historian and preservation consultant who moderated the discussion, believes the impact could be profound.

He likened the situation today to the dawn of the civil rights movement, when the 13th, 14th and 15th amendments to the U.S. constitution were finally given the force of law, a century after they were enacted. He urged citizens to advocate at the local level for stronger ordinances to protect the environment, farmland and historic buildings.

“Think of the Environmental Rights Amendment as a mission statement. … We have to stand up for our rights,” he said.