This post, which is the second in a two-part series exploring the scope of Pennsylvania’s Environmental Rights Amendment (the “ERA”), will delve deeper into the text of the ERA as analyzed and explained by the Pennsylvania Supreme Court in Pennsylvania Environmental Defense Fund (“PEDF”) v. Commonwealth, 161 A.3d 911 (Pa. 2017).

In PEDF, the Court ruled that the ERA grants citizens of the Commonwealth two distinct 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. The Court noted that the first right, which comes directly from the text of the ERA itself, “places a limitation on the state’s power to act contrary to [the] right, and while the subject of the right may be amenable to regulation, any laws that unreasonably impair the right are unconstitutional.” Despite this declaration by the Court, the scope and meaning of the first right remains undefined. It remains to be seen how the courts will define “clean air” or “pure water” and even more intangibly, who will determine which “scenic” or “esthetic” values are worthy of preservation?

The second right identified by the Court stems from the second and third sentences of the ERA, which provide as follows:

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 examining these provisions, the Court found that the ERA essentially creates a public trust, the corpus of which is the Commonwealth’s public natural resources. The Commonwealth is the trustee and Pennsylvania citizens are the named beneficiaries of the trust. As trustee, the Commonwealth has a fiduciary obligation to maintain the Commonwealth’s public natural resources for the benefit of its citizens. Specifically, the Court found that the Commonwealth has two basic duties as trustee: 1) to prohibit the “degradation, diminution and depletion” of its public natural resources, whether these harms result from direct state action or from the actions of private parties; and 2) to act affirmatively via legislation to protect the environment.

The application of these concepts was particularly relevant in the PEDF decision, which involved the legislative diversion of royalties received by leasing public land for natural gas extraction from the Pennsylvania Department of Conservation and Natural Resources to the Commonwealth’s general fund. Applying the aforementioned public trust concepts, the Court held that legislation authorizing this re-appropriation of royalties was unconstitutional as it “plainly ignore[d] the Commonwealth’s constitutionally imposed fiduciary duty to manage the corpus of the environmental public trust for the benefit of the people” and permitted the trustee to use trust assets for non-trust purposes, “a clear violation of the most basic of a trustee’s fiduciary obligations” under the ERA.

Despite all of the foregoing, in the wake of the PEDF decision, Pennsylvania land use practitioners and developers are left with more questions than answers. The PEDF Court expressly noted that the Commonwealth’s trustee obligations “are not vested exclusively in any single branch of Pennsylvania’s government”; rather, “all agencies and entities of the Commonwealth government, both statewide and local, have a fiduciary duty to act toward the corpus with prudence, loyalty, and impartiality.” Although there have been several Environmental Hearing Board decisions which addressed challenges under the ERA to the issuance of permits by the Department of Environmental Protection, it likely will take several years before a consensus emerges as to how local entities (such as municipalities or municipal authorities) will interpret their obligations under PEDF.

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.