In Pennsylvania Environmental Defense Foundation v. Commonwealth, the Pennsylvania Supreme Court overturned the standard that had been applied by the courts since 1973 when they review governmental determinations under Pennsylvania’s Environmental Rights Amendment (“ERA”). In so doing, the Court effectively re-set and re-established the ERA which was ratified in 1971.
Imagine taking a relic of 1971, plucking it out of that time, and dropping it down in 2017. Would it seem out of place? Would it have any relationship to the current social and political climate? For most of its history, Pennsylvania’s ERA had virtually no significant impact and was considered by the courts to be mostly aspirational. Until now.
The ERA provides:
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.
In a 1973 decision, the Pennsylvania Commonwealth Court established a three-part test thereafter used by courts to determine whether a government action was consistent with the ERA. That test required courts to determine (1) whether there was compliance with applicable statutes and regulations; (2) whether the record demonstrates a reasonable effort to reduce environmental incursions to a minimum; and (3) does the environmental harm which will result from the challenged action so clearly outweigh the benefits to be derived therefrom that to proceed would be an abuse of discretion.  In practice, this meant that most governmental determinations under the ERA were affirmed by the courts.
Signaling the coming change, in 2013 a plurality of the Pennsylvania Supreme Court in Robinson Township v. Commonwealth interpreted the ERA as requiring a “balancing test” in which the government must, on balance, reasonably account for the effect of a proposed action on the environmental features of an affected locale.
However, in 2015, in response to a challenge filed by the Pennsylvania Environmental Defense Foundation (“PEDF”) regarding the Commonwealth’s leasing of state lands for oil and gas development and the resulting allocation of funds, a unanimous Commonwealth Court ruled that the Supreme Court’s balancing test established in Robinson Township was not binding, as it was backed by a plurality of only three justices. The lower court relied instead on the three-part Payne test. PEDF appealed to the Supreme Court.
On June 20, 2017, the Supreme Court reversed the Commonwealth Court, and held that “the legislative enactments at issue here do not reflect that the Commonwealth complied with its constitutional duties.” In so ruling, a 5-1 majority of the Supreme Court explicitly rejected the Payne test and held that the proper standard of judicial review lies in the text of the ERA itself as well as the underlying principles of Pennsylvania trust law in effect at the time of its enactment.
This is a monumental decision that discards the almost 45-year-old Payne test and promotes environmental concerns to the forefront of governmental determinations having an impact on the environment. It is though the ERA was frozen in time in 1971 and thawed out a few weeks ago. While the language of the ERA is the same, the world around it has changed. Other than Robinson Township and PEDF, the language of the ERA is as pristine as a recently discovered Jimi Hendrix solo on reel-to-reel tape. Future cases will define the parameters of the ERA.
Here are some takeaways from the opinion, followed by questions:
- The Environmental Rights Amendment is more than an aspirational statement. It “formally and forcefully” recognizes the environmental rights of Pennsylvania citizens as “commensurate with their most sacred political and individual rights.”
- The Payne test is dead. The Supreme Court rejected the Payne test, used for nearly 45 years, as the test to decide challenges under the ERA. It determined that the proper standard of judicial review lies in the text of the ERA itself as well as the underlying principles of Pennsylvania trust law in effect at the time of its enactment.
- Robinson Township is alive and well. A 5-1 majority of the Supreme Court quoted numerous provisions from the December 2013 plurality decision in Robinson Township, and effectively made the provisions the law of Pennsylvania. Specifically, the Commonwealth has a duty to prohibit the degradation, diminution, and depletion of Pennsylvania’s public natural resources, whether these harms might result from direct state action or from the actions of private parties. What this means in any particular instance will be subject to litigation.
- The Environmental Rights Amendment is self-executing. The ERA created an automatic right for individuals to seek to enforce its obligations in order to prevent the government from taking action that unduly harms environmental quality.
- Public vs. Private: The ERA relates to the management of public natural resources. To what extent does government permitting on private land relate to a public natural resource?
- Impact Fee: Pennsylvania’s Oil and Gas Act (Act 13) established an impact fee. Generally, the fee is assessed on production which results from an agreement between a private land owner and private operator. However, the Supreme Court suggested that the ERA may apply to resources not owned by the Commonwealth but which involve a public interest. If that is the case, are impact fees “generated from the sale of trust assets”?
- Unreasonable impairment: The Supreme Court noted that the right to clean air and pure water and the preservation of natural, scenic, historic and esthetic values of the environment are “amenable to regulation,” but “any laws that unreasonably impair the right are unconstitutional.” What is an unreasonable impairment?
- The ERA is applicable to all levels of Commonwealth government. This decision applied the ERA to all levels of government. What this means exactly will have to be sorted out in litigation over the coming years.
 161 A.3d 911 (Pa. 2017), rev’g in part and vacating in part 108 A.3d 140 (Pa. Cmwlth. 2015).
 Payne v. Kassab, 312 A.2d 86, 94 (Pa. Cmwlth. 1973), aff’d, 361 A.2d 263 (Pa. 1976).
 Robinson Twp. v. Commonwealth, 83 A.3d 901 (Pa. 2013).
 Pennsylvania Environmental Defense Foundation, supra, 108 A.3d at 159.