Environmental Rights Amendment Trends Entering 2023

January 18, 2023
Diana A. Silva, Esq., Thomas M. Duncan, Esq., and Danielle N. Bagwell, Esq.
MGKF Special Alert - Pennsylvania Forecast 2023

In recent years, Pennsylvania courts have grappled with numerous challenges to local ordinances as violating Article I, Section 27 of the Pennsylvania Constitution, known as the Environmental Rights Amendment (ERA).  In 2022, the Pennsylvania Commonwealth Court appeared to settle on the application of a balancing test that assesses whether the challenged governmental action unreasonably impairs the values enumerated in the ERA.  In practice, this standard constitutes a high bar to ERA-based challenges, which may dissuade potential plaintiffs from bringing ERA-based challenges to local ordinances in the future. 

For decades, Pennsylvania courts applied a three-factor balancing test to ERA-based challenges, first enunciated in Payne v. Kassab, 361 A.2d 263, 246 (Pa. 1976). In 2017, the Pennsylvania Supreme Court, in Pa. Envtl. Defense Found. v. Commonwealth, 161 A.3d 911 (Pa. 2017) (“PEDF II”), held that local and state government agencies have an obligation under the ERA to act as trustees for the environment and the natural resources of the state, and as such must prohibit their degradation and affirmatively act to protect them. In so holding, the Court effectively struck the decades-old Payne v. Kassab three-part test.

In 2017, the Court applied a new standard to regulatory challenges in UGI Utilities, Inc. v. City of Reading, 179 A.3d 624 (Pa. Cmwlth. 2017), a case in which the City of Reading argued that a local ordinance could not be preempted because “it implicates its protection of historic resources under Article I, Section 27 of the Pennsylvania Constitution.”  The court disagreed, holding that the ERA “does not immunize local regulation from preemption” and making clear that “Article I, Section 27 can bar preemption of a local regulation” only where the “statute or regulation on which preemption is based so completely removes environmental protections that it violates the state’s duties under that constitutional provision.” 

The following year, in Frederick v. Allegheny Twp. Zoning Hearing Bd., 196 A.3d 677 (Pa. Cmwlth. 2018), the Commonwealth Court upheld a zoning ordinance that rendered oil and gas development a permitted use by right in all zoning districts.  A plurality of the court explained that municipalities do not have affirmative duties under the ERA but further held that when the government acts, “it must reasonably account for the environmental features of the affected locale...”   The court explained that a “municipality may use its zoning powers only to regulate where mineral extraction takes place,” but a “municipality does not regulate how the gas drilling will be done.”   Applying a two-step test which differed from the standard applied in UGI Utilities, the court held it must “determine, first, whether the values in the first clause of the [ERA] are implicated and, second, whether the governmental action unreasonably impairs those values.”  Ultimately the court upheld the ordinance, holding plaintiffs had failed to prove the zoning ordinance unreasonably impaired the natural, scenic, historic, and esthetic values of the municipality’s environment, crediting expert testimony showing a long history of oil and gas development safely coexisting with agricultural uses in the township. 

The Commonwealth Court subsequently applied the Frederick test in several decisions to uphold other local ordinances, including one case this year, finding that they did not “unreasonably impair” individuals’ rights under the ERA.  See Delaware Riverkeeper Network v. Middlesex Twp. Zoning Hearing Bd., No. 2609 C.D. 2015, 2019 WL 2605850 (Pa. Cmwlth. June 26, 2019) (unreported); Protect PT v. Penn Twp. Zoning Hearing Bd., 220 A.3d 1174 (Pa. Cmwlth. 2019); Murraysville Watch Committee v. Municipality of Murrysville Zoning Hearing Board, No. 579 C.D. 2020, 2022 WL 200112 (Pa. Cmwlth. Jan. 24, 2022) (unreported).

The court also subsequently fleshed out the UGI Utilities standard with respect to challenges to regulations.  In City of Lancaster, et al. v. Pa. Pub. Util. Comm’n, No. 251 MD 2019 (Pa. Cmwlth. Feb. 21, 2020) (unreported), which involved a challenge to the same regulation at issue in the UGI Utilities case, a group of municipalities argued that the ordinance failed to sufficiently protect historic resources under the ERA.  The Court held that the Pennsylvania Public Utility Code preempted any local regulation or ordinance that falls within the ambit of that field.  The court, citing to Robinson Twp. v. Commonwealth, 83 A.3d 901 (Pa. 2013), also stated that “the duties to conserve and maintain natural resources under the ERA ‘do not require a freeze of the existing public natural resource stock’ and ‘are tempered by legitimate state interests.’”  The Court, citing the standard in UGI Utilities, ultimately dismissed the municipalities’ challenge, finding that they failed to establish that the regulation unreasonably degraded historic values protected under the ERA.

In November 2022, in Pa. Envtl. Defense Found. v. Commonwealth, No. 447 M.D. 2021, 2022 WL 16752900 (Pa. Cmwlth. Nov. 8, 2022), the Commonwealth Court dismissed an ERA challenge to a legislative enactment that authorized snowmobile use on state lands.  While the plaintiffs made general factual allegations that ATVs are noisy and degrade the environment, the court found the conclusory allegations insufficient.  The Court stated that, “[t]o succeed in its facial challenge, the Foundation must show that the statutes in question cannot be valid under any set of circumstances,” and that, on their face, the statutes “meet the standards set forth in PEDF II and Robinson Township.”

The Commonwealth Court will continue to fine-tune the standard for ERA-based challenges, with several important cases to be heard on appeal in 2023.  Looking ahead to 2023, given the heightened standards applied by the Commonwealth Court, plaintiffs may be dissuaded from bringing ERA-based challenges to local ordinances without being prepared to demonstrate via scientific and expert evidence the alleged environmental degradation the ordinance would cause.