Applying the Environmental Rights Amendment in 2020
After two years of rapidly developing case law involving the Pennsylvania Environmental Rights Amendment, Pennsylvania courts, and particularly the Pennsylvania Supreme Court, pulled back in 2019.
Article I, Section 27 of the Pennsylvania Constitution, known as the Environmental Rights Amendment (ERA), states:
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.
In 2017, the Pennsylvania Supreme Court, in Pa. Envtl. Defense Found. v. Commonwealth, 161 A.3d 911 (Pa. 2017) (PEDF II), overturned a decades old balancing test and instead focused on the text of the ERA, splitting it into two parts – the individual right embodied in the first sentence, and the Commonwealth’s trustee obligations embodied in the second and third sentences. The Court applied private trust principles that existed at the time the ERA was enacted in 1971 and struck down as unconstitutional statutory enactments that directed oil and gas royalties to the Commonwealth’s general fund rather than a fund used exclusively for conservation purposes. The Court found that “royalties – monthly payments based on the gross production of oil and gas at each well – are unequivocally proceeds from the sale of oil and gas resources,” and must therefore remain in the trust. The Court remanded to the Commonwealth Court the issue of whether rental payments and up-front bonuses received under those oil and gas leases constituted trust assets that must also be used exclusively for conservation purposes.
On July 29, 2019, as we reported, the Commonwealth Court, in Pa. Envtl. Defense Found. v. Commonwealth, 214 A.3d 748 (Pa. Cmwlth. 2018) (PEDF III), held that two-thirds of rental payments and up-front bonuses received by the Commonwealth as proceeds from oil and gas leases on state forest and park lands must be reserved for conservation purposes under the ERA. The Pennsylvania Environmental Defense Foundation has sought an appeal, which could give the Pennsylvania Supreme Court an opportunity to weigh in on this issue in 2020.
One question left open by the Supreme Court’s decision in PEDF II is the extent to which the ERA imposes obligations on municipalities and state agencies other than the Pennsylvania Department of Environment Protection (DEP). On May 14, 2019, as we reported, the Supreme Court issued an order refusing to hear an appeal of the Commonwealth Court’s decision in Frederick v. Allegheny Twp. Zoning Hearing Bd., 196 A.3d 677 (Pa. Cmwlth. 2018), in which the Commonwealth Court held that municipalities lack the authority to regulate in the areas of environmental protection reserved to DEP. The Commonwealth Court, in Frederick, upheld a zoning ordinance that renders oil and gas development a permitted use by right in all zoning districts, including residential and agricultural districts, finding that the zoning ordinance did not violate the ERA. The Court had held that, “as a creature of statute, the Township can exercise only those powers that have been expressly conferred upon it by the General Assembly.” To that end, the Court stated that zoning necessarily requires municipalities to account for the natural, scenic, historic and esthetic values of the environment. But, as to the remaining environmental issues covered by the ERA – i.e., clean air and pure water – the Court found that “[m]unicipalities lack the power to replicate the environmental oversight that the General Assembly has conferred upon DEP and other state agencies.”
The Commonwealth Court later reiterated this holding in Delaware Riverkeeper Network v. Middlesex Township Zoning Hearing Board, No. 2609 C.D. 2015 (Pa. Cmwlth. June 26, 2019), in In re Andover Homeowners’ Ass’n, Inc., 217 A.3d 906 (Pa. Cmwlth. 2019), and again in Protect PT v. Penn Township Zoning Hearing Board, No. 1632 C.D. 2018 (Pa. Cmwlth. Nov. 14, 2019). The Supreme Court’s refusal to hear an appeal of the Commonwealth Court’s decision in Frederick leaves that decision in place as the primary guidance by which municipalities will continue to assess their duties and authority under the ERA.
Looking into 2020, the relative decreasing trend in ERA case law may continue, but still expect additional challenges to local land use decisions and General Assembly budgetary measures. There are also still a number of unanswered questions in the aftermath of the Supreme Court’s decision in PEDF II, such as better defining the terms “Commonwealth” and “public natural resources,” and determining the extent to which the ERA imposes independent obligations on DEP and other state agencies.