The Commonwealth's Environmental Amendment...

On May 18, 1971, Pennsylvania's voters by a four-to-one margin ratified what is now Article I, Section 27 of our state constitution-the Environmental Rights Amendment.

"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. 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 all the people."

The Environmental Amendment should not be thought of a shield to protect the environment. Rather, the Environmental Amendment should be a weapon to fight those that would take the public's property interest in clean air, pure water and the preservation of the natural, scenic, historic and esthetic values of the environment. The Environmental Amendment should be at the forefront of a new post activist environmentalism. One which is not concerned with externalities and trying to protect what is at risk, but which is integral to the Commonwealth and public's ownership interests and which uses that property for the benefit of all the people.

The case law on the Environmental Amendment is sparse. The seminal case is Commonwealth v. National Gettysburg Battlefield Tower, Inc. There are actually two cases, one in Commonwealth Court and one in the Supreme Court of Pennsylvania. Read together, these provide a basis for what came next and why I advocate the Environmental Amendment has been looked at wrongly.

On April 3, 1973, the Commonwealth Court decided that the evidence in favor of constructing an observation tower to look over the Gettysburg battlefield sustained the finding that the construction of the tower would not violate the Environmental Amendment. Commonwealth v. National Gettysburg Battlefield Tower, Inc., 8 Pa. Cmwlth. 231, 302 A.2d 886 (1973). Of course, this is just the result, the important thing is the reasoning. Essentially, the court looked at the Commonwealth's interest as a Constitutional interest and balanced it against the private property interest of the company seeking to build the tower. The Commonwealth Court even noted the Commonwealth's power to exercise eminent domain. Of paramount importance throughout this discussion, the court also found the Environmental Amendment to be self-executing and that the Attorney General had standing to raise the Amendment on behalf of the Commonwealth as Trustee of the public's resources. It should be noted the dissents felt that the Environmental Amendment was, in essence, too vague to be self-executing. What is “clean air” or “pure water”? The dissents felt that further legislative or regulatory action was needed to implement the amendment.

On October 3, 1973, the Pennsylvania Supreme Court, by a split decision, affirmed the Commonwealth Court's decision, and implicitly the decision that the Environmental Amendment was self-executing. Commonwealth v. National Gettysburg Battlefield Tower, Inc., 454 Pa. 193, 311 A.2d 588 (1973), reh. den. December 5, 1973. This decision was far from unanimous, nor without controversy. Further case law would prove that the decision whether or not the Environmental Amendment was self executing is essentially irrelevant.

On November 21, 1973, the Commonwealth Court decided the next, and possibly most important, case involving the Environmental Amendment, Payne v. Kassab, 11 Pa.Cmwlth. 14, 312 A.2d 86 (1973) aff'd 468 PA 226, 361 A.2d 263, 6 Envtl. L. Rep. 20,796 (PA 1976). The case involved the widening of a street in the City of Wilkes-Barre. The Plaintiffs were not Commonwealth agencies, but rather citizens who felt that taking of the River Common would violate the Environmental Amendment. The court found standing and also reiterated that the Environmental Amendment was self executing. However, the court imposed a three prong test. First, the court is to examine whether there was compliance with all applicable statues and regulations relevant to the protection of the Commonwealth's natural resources. Essentially, this means the self executing nature is irrelevant, as the applicable statues and regulations will be the executory provisions. Second, the court is to determine whether the record demonstrates a reasonable effort to reduce the environmental incursion to a minimum. This means the courts have “reinterpreted” a self executing, substantive, right to clean air or pure water as a right to “reasonably clean” air, or “as pure water as one can get, given the circumstances. Finally, the third prong weighs whether the environmental harm outweighs the benefits to be derived. To be perfectly clear, the court did not say whose benefits those were, or how they were to be weighed.

Complaints are irrelevant. This is the test: was the law followed, is the harm minimized and do the perceived benefits to someone seem greater than the harm.

The Department of Transportation was allowed to widen the road, just like the tower was allowed to be built at Gettysburg.

The next cases involving the Environmental Amendment continued this trend. The first significant case were Community College of Delaware County v. Fox, et al., and Central Delaware County Authority v. Fox, et al., both reported at 20 Pa.Cmwlth. 335, 342 A.2d 468 (1975). In these cases, several landowners were aggrieved by a local Township's actions with regard to sewage facilities. Essentially, the landowners tried to limit the sewer extension on the grounds that the long term development of the watershed would violate the Environmental Amendment. Of course, an attack on the Department of Environmental Resources decision to grant a permit under the Clean Streams Law and the Sewage Facilities Act is a somewhat collateral attack on the decision of the Township to build the sewer in the first place. Commonwealth Court lost no opportunity to rely on DER's scope of statutory authority and found the granting of the permits did not violate the Environmental Amendment because of the opportunity cost of open space or the cost to human health or happiness.

In Mignatti Construction Company v. Commonwealth of Pennsyvlania, Environmental Hearing Board, et al., and Township of Salford, et al. v. Commonwealth of Pennsyvlania, Department of Environmental Resources, reported at 49 Pa. Cmwlth. 497, 411 A.2d 860 (1980), the Commonwealth Court took an almost identical tack. The challenge was to an air quality permit under the Air Pollution Control Act. The Commonwealth Court followed the Payne test and reasoned that DER acted in accordance with law, minimized the impacts through conditions in the permit and (with no analysis) that the benefits of the quarry were substantial and outweighed the environmental harm that would result. Id., at 504, 864.

The take away is that the courts are not going to give teeth to this amendment in the face of administrative decision making. However, there is another take away. In both cases, the courts required compliance with the laws. Including, in some instances and manner, consideration of the economic impacts. The point is that one cannot use the Environmental Amendment to trump agency action, but one can possibly use it to influence that action.

Although totally different in terms of the type of case, the time in which it was decided and the lesson to be learned, the case of Einsig v. Pennsylvania Mines Corporation, 69 Pa. Cmwlth. 351, 452 A.2d 558 (1982) does have an instructive role to play. In Einsig, a coal owner brought an action to stop an oil and gas driller from drilling pursuant to a permit. The court decided the case on the basis of familiar principles of real property law. The only discussion of the Environmental Amendment was to compare the fact that DER's scope of responsibility to the public under the Environmental Amendment was different than its scope of responsibility as between the two competing natural resource producers. Again, the Environmental Amendment cannot be used to stop an administrative decision or action. It appears it can only be used to help influence that action in some way.

Turning from two private parties where the Environmental Amendment was only tangential, we now examine a case with two Commonwealth Agencies, where standing, as opposed to the applicability of the Amendment took center stage. In Commonwealth, Pennsylvania Game Commission v. Commonwealth, Department of Environmental Resources, Ganzer Sand & Gravel, Inc. and Hammermill Company, 97 Pa.Cmwlth. 78, 509 A.2d 877 (1986) the Commonwealth Court was faced squarely with the issue of what agency would represent the Commonwealth in determining whether the Environmental Amendment had been met. Ganzer Sand & Gravel desired to allow a waste fill site on Ganzer's property near a State Game Lands known as No. 218 – Siegel Marsh. The Game Commission feared a degradation of the environment and filed an appeal with the Environmental Hearing Board raising issues under the Dam Safety and Encroachment Act (DSEA). Commonwealth Court gave great deference to DER and specifically noted that, for purposes of the DSEA, DER was the agency that was to look out for wildlife, not the Game Commission. The Court followed the Payne v. Kassab three prong test. They found the law had been properly followed by DER and that no substantial issue had been raised under the second or third prongs.

On appeal to the Pennsylvania Supreme Court, that Court held that the Game Commission had standing to challenge the permit on the basis of the Dam Safety and Encroachment Act but thereby avoided addressing the impact of the environmental amendment, Commonwealth, Pennsylvania Game Commission v. Department of Environmental Resources, (Supreme) 521 Pa. 121, 555 A. 2d 812 (1988). Justice Larsen did take the opportunity in his concurring opinion, in which Justice Papadakos joined to point out:

“As one of this Commonwealth’s trustees of our natural resources and the public estate under Article I, section 27 of our Constitution, the Commission must have standing to take whatever legal action is necessary and appropriate to “conserve and maintain” our “clean air, pure water,” and “the natural, scenic, historic and esthetic values of the environment where threats to game or wildlife and to waterways and lands acquired and managed by the Commission arise. Commonwealth, Pennsylvania Game Commission v. Commonwealth, Department of Environmental Resources, (Supreme), supra, page 131.”

Thus, although there was some judicial recognition that the Game Commission is a trustee of resources under the environmental amendment, the recognition has been less than decisive.

This is instructive on two counts. First, as to what type of evidence must be presented. It is not enough to allege a damage to a bird, a plant or a viewshed. One must prove by clear and convincing evidence that a recognized right is economically damaged and that such damage outweighs the benefit of the proposed action. Second, it is clear that the burden is heavy. A private right should not be weighed against a private right pursuant to Einsig, supra., and a public's right as a public interest is not a traditional property right such as is capable of quantification.

Lest there be any doubt whether these conclusions make sense, read Belden & Blake Corporation v. Commonwealth, Department of Conservation and Natural Resources, 600 Pa. 559, 969 A.2d 528 (2009). In that case the Supreme Court was virtually incredulous that DCNR had the temerity to claim a special status for the public under the Environmental Amendment. The analysis was limited to whether Belden and Blake met its statutory (NOT constitutional) obligations and whether Belden & Blake tried to minimize its damage caused by the exercise of its property rights. The third prong of Payne: whether the damage outweighed the benefits, was virtually ignored under the guise of protecting private property rights. Essentially, a government agency stands in no better position than any other citizen.

The most recent instruction on the Environmental Amendment and its use came in 2012. In the case of Robinson Township et al, v. Commonwealth, Public Utility Commission, et al., 52 A.3d 463, the Commonwealth Court had occasion to review the constitutionality of “Act 13”, 58 Pa.C.S. 2301-3504. Act 13 repealed Pennsylvania's Oil and Gas Act and replaced it with a comprehensive code. Specifically, Act 13 preempted local regulations, including environmental laws and most zoning provisions. The Plaintiffs raised a myriad of constitutional challenges. One of these was Article I, Section 27 of the Pennsylvania Constitution – the Environmental Amendment. The Supreme Court deemed this a justiciable question. They specifically rejected the Commonwealth's reasoning that the Legislature was to make policy determinations such as whether zoning (a General Assembly created creature under the Municipalities' Planning Code) should be preempted. The Court specifically found municipalities had standing to raise the issue. However, when actually addressing Article 1, Section 27, the Supreme Court gave great deference to the General Assembly's decisions as to how to develop oil and gas, specifically Marcellus and other shale oils and gases. The express statutory language prohibiting local regulation was found to settle the question and to vest the authority for Article I, Section 27 in the Department of Environmental Protection.

So much for being self executing.

However, this also points out the avenue of attack. A plaintiff cannot expect to raise the Environmental Amendment against DEP and receive deference. However, a plaintiff can use the Environmental Amendment to force DEP to create an administrative record. Such a record can take time and can be used to indicate where proposed permittees may make accomodations. The record can also be used to appeal to the Environmental Hearing Board to show violations of DEP mandates in its own regulations. While this has proven difficult in the past, several times cases turned not on the facts, but the absence of evidence. Practitioners must make every effort to show damages. The evidence cannot be replete with references to plants and animals which everyone knows will suffer some harm by development. To be successful, a record needs to reflect that other property rights, on balance, will suffer more harm than the alleged benefit of the proposed action to be permitted. This means involvement early on in a case of expert economists, business and industry officials, as well as a frank appraisal of whether a plaintiff has a justiciable claim or simply has a bias against the project. To be successful, no such litigation will be inexpensive.

Quite simply, the Environmental Amendment will not shield the environment from damage. However, it can be used as a sword to force administrative agencies, most notably DEP, to consider valuable interests of other persons when making permitting decisions. The proof of these interests and damages to them will be key.