The environmental rights amendment to Pennsylvania’s constitution was passed by the state’s voters in 1971, by a margin of four to one.
Since then, it’s largely sat dormant. The assertion that, “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,” hasn’t been invoked much in case law. That is, until the 2013 decision in Robinson Township vs. Commonwealth, when three of six justices used the amendment as basis to strike down part of Act 13, the state’s oil and gas law.
This week, the supreme court is again hearing an appeal in the Robinson Township case— as well as another case regarding the proper use of the oil and gas lease fund—and could use that as an opportunity to clarify how the environmental rights amendment should be applied.
For an explanation, 90.5 WESA’s Josh Raulerson spoke with Penn State University law professor and land use expert Ross Pifer.
Josh Raulerson: Clearly there’s a lot of complexity to these two cases here. We don’t want to get sidetracked too much by the specifics of those cases because as I understand it, those details maybe aren’t as important as the broader implications of the amendment itself and especially its application here.
Ross Pifer: I would agree with that. I think the potential impact there is much broader than the specifics of these two cases. Now the Robinson Township case is an important case and it did strike down a portion of Act 13 that addressed zoning, but it was really the reasoning behind that plurality opinion that I think is the most interesting. As you mentioned, 3 of the 6 justices relied upon the environmental rights amendment for their ruling, and that’s significant because since it was not a majority of the justices, it’s a plurality opinion, it does not provide binding precedent. Possibly through the lens of these two cases that are now before the Supreme Court, the court may decide to apply this amendment and give us a little bit more guidance into the future.
JR: Was it at all unusual for the justices to cite this amendment? Has it come up much in its 40-odd years on the books?
RP: It hasn’t been used very much and I think it was a bit surprising that this was the basis for the plurality’s opinion. In fact, the challengers to Act 13 had not even fully briefed this issue.
JR: What would this mean if this decision were to go from being a plurality decision to being a precedent? What’s the legal distinction there?
RP: Future courts could rely upon this court ruling in rendering their decision. We’ve seen in cases that have been issued, or opinions that have been issued since the Robinson Township case, the courts have not followed this broad interpretation of the environmental rights amendment. So if it were mandatory precedent then lower courts would be obligated to apply the environmental rights amendment as the Supreme Court were to direct them to.
JR: Help us understand the implications then. If the justices were to affirm that this application of the amendment was proper and valid, what are some of the ways in which you could see it potentially being used in the future?
RP: I think we would have to see exactly what standards the court is requiring or what is the framework that they are establishing in their application of the environmental rights amendment, and how broad or how narrow that framework is. In the broadest sense it could impact agriculture, construction, you name it, virtually anything that potentially has an impact on air quality, water quality or environmental quality viewed very broadly. They also could apply it very narrowly so we’ll just have to wait and see.
JR: Let’s suppose that the justices were to uphold that 2013 decision in the Robinson case by a majority as opposed to a plurality, setting the precedent then that the environmental rights amendment could be enforced more broadly, would that then be considered a win for environmental groups?
RP: I think that definitely would be a very large win for the environmental groups.
JR: The last time this was before the court, the composition was a little bit different. Now I think it’s safe to say the court leans a little bit more to the left than it was in 2013 when this decision came down. How do you see that potentially impacting the way the justices view the amendment this week when they review the case?
RP: We have three new justices that are Democratic. We don’t have as much of a track record of those justices … to be able to predict how they would rule. Often issues such as shale gas are viewed through the traditional political lens but it is important to remember that Chief Justice Castille who was generally regarded as a conservative justice was the author of this opinion. I think we’ll just have to wait and see how the individual justices are going to rule.