Although the Environmental Rights Amendment (the “ERA”) to the Pennsylvania Constitution was ratified in 1971, for many years it was rarely a topic of discussion among land use practitioners. Recent Pennsylvania Supreme Court jurisprudence, however, has revived this long-dormant amendment, and is reason to reconsider the ERA’s potential impact on development projects. This two-part post will explore the history of the ERA, the current legal standard for evaluating ERA violations as articulated by the Supreme Court, and potential future implications of the Court’s decision.
The ERA, found in Article I, Section 27 of the Pennsylvania Constitution, provides as follows:
The people have a right to clean air, pure water, and to the preservation of 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 the people.
In Payne v. Kassab, 312 A.2d 86 (Pa. Commw. Ct. 1973), the Pennsylvania Commonwealth Court established a three-prong test to be used in determining whether an action or activity violated the ERA:
- Was there compliance with all applicable statutes and regulations relevant to the protection of the Commonwealth’s public natural resources?
- Did the record demonstrate a reasonable effort to reduce the environmental incursion to a minimum?
- Did the environmental harm which would result from the challenged decision or action so clearly outweigh the benefits to be derived therefrom that to proceed further would be an abuse of discretion?
Although the Payne test contained three parts, courts primarily focused on the first prong of the analysis. As a result, for decades, development projects which complied with all environmental laws and regulations generally were presumed to comply with the ERA.
The Payne test first was called into question with the Pennsylvania Supreme Court’s decision in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013). In Robinson Township, a plurality of the Court found portions of a proposed amendment to the Pennsylvania Oil and Gas Act unconstitutional under the ERA. While the plurality in Robinson Township decision was critical of the Payne test, the fact it was a mere plurality meant that the Payne test was not expressly overturned.
In 2017, the Pennsylvania Supreme Court again considered the scope of the ERA in Pennsylvania Environmental Defense Fund (“PEDF”) v. Commonwealth, 161 A.3d 911 (Pa. 2017). In PEDF, the Court expressly overruled the Payne test and found that “[t]he proper standard of judicial review [for alleged violations of the ERA] lies in the text of Article I, Section 27 itself as well as the underlying principles of Pennsylvania trust law in effect at the time of its enactment.” In so ruling, the Court held that the ERA grants citizens of the Commonwealth two separate rights: 1) the right to clean air and pure water, and to the preservation of natural, scenic, historic and esthetic values of the environment; and 2) the right of common ownership by the people, including future generations, of Pennsylvania’s public natural resources. Part two of this post will explore the scope and nature of these rights, and their potential implications, in greater detail. [EDIT: Part 2 is available HERE.]
Please feel free to contact any member of the McNees Wallace & Nurick Land Use Group for assistance with any land use or development issues and/or if you have any questions regarding this post.