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Tuesday, March 25, 2014

An analysis of the landmark PA Act 13 decision

Three professors from Widener Law School have written an excellent analysis of the decision - one that’s accessible to dullard non-lawyers like me. Robinson Township v. Commonwealth of Pennsylvania: Examination and Implications is a must-read.

The case turned on the long-moribund environmental rights amendment of the state constitution that Pennsylvania voters approved in 1971 by an overwhelming 4 to 1 margin. The amendment has been largely ignored since; indeed, the analysis shows that the state government argued last year that the amendment 
“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.” 
So the state Constitution is merely “guidance”? Not so, said the Court, because Article I, Section 27 enumerates 
inherent rights that are reserved to the people; they operate as limits on government power...
The [amendment] establishes two rights in the people…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 is 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...
...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...”
Pennsylvania’s history, [Chief Justice] 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 wrote. 
What might be the impact of this decision? 
The most obvious impact of the Robinson Township decision is to force lawyers and decision makers to look anew at the text of Article I, Section 27, and to recognize it as constitutional law...
No Pennsylvania court has ever before articulated the “foundational principles” of Article I, Section 27 in this way, or at this level of detail. In addition, no Pennsylvania court has previously used Article I, Section 27 as a justification for holding a statute unconstitutional. In so doing, the court provided a framework for understanding and applying the amendment that will likely be considered for decades...
Last, the plurality in Robinson Township...observed: “By any responsible account, the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction”...The plurality opinion in particular advances the purpose of constitutional-enshrinement of environmental rights and public trust duties in the first place – to promote environmental protection and advance individual rights to a quality environment for both present and future generations...
It is likely that other courts within and outside Pennsylvania will take notice, even though these views did not command a majority of the Pennsylvania court.

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