PEDF

The PA Supreme Court’s Revival of the Environmental Rights Amendment – Part 2

By Claudia Shank on May 7, 2018

Posted in Land Development, Land Use, Municipal Permitting, Oil & Gas, State Agency Permitting

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?
Continue Reading The PA Supreme Court’s Revival of the Environmental Rights Amendment – Part 2

The PA Supreme Court’s Revival of the Environmental Rights Amendment – Part 1

By Claudia Shank on April 24, 2018

Posted in Land Development, Land Use, Municipal Permitting, Oil & Gas, State Agency Permitting

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.
Continue Reading The PA Supreme Court’s Revival of the Environmental Rights Amendment – Part 1

The McNees Land Use Blog offers insight on current laws and local, state and federal policies and decisions that affect the use and development of land. It provides updates in the areas of zoning, subdivision and land development, state agency permitting, municipal permitting, stormwater, and traffic planning, among others, that are useful to developers, consultants, and municipal officials and staff. Contributors to the blog include all members of the Land Use division, and the blog is maintained by Esch McCombie and Peter Wertz.