Taking the Pennsylvania Constitution Seriously When it Protects the Environment: Part I - An Interpretative Framework for Article I, Section 27

Abstract

Article I, Section 27 of the Pennsylvania constitution does something that statutes and regulations cannot do; it makes environmental and historic protection part of the constitutional purpose of state government. This two-part Article explains how the Amendment accomplishes that purpose and what it should mean for Pennsylvania, and suggests the value of similar inquiries under other state and national constitutions. Pennsylvania's experience is particularly important in understanding such provisions because Article I, Section 27 is the most prominent environmental amendment to a state constitution.

Part I of this Article suggests an interpretative framework for understanding the Amendment that is based on its text, legislative history, and purposes. First, the Amendment creates two separate constitutional rules - one concerning the public's right to clean air, pure water, and the preservation of certain environmental values; and the other creating a public right in the conservation and maintenance of public natural resources.

Second, Article I, Section 27 gives the environment the same legal protection that other provisions of the state constitution give to individual property rights. The Amendment, when balanced by provisions protecting property rights, is thus not anti-development. Rather, it is directed toward environmentally sustainable development.

Third, Article I, Section 27 needs to be understood primarily on the basis of governmental responsibilities. While citizen rights are an essential part of the Amendment, such rights should be directed primarily at enforcement of the government's duties.

Finally, when legislation or administrative regulation provides as much protection as Article I, Section 27, or even more protection, there is no need for judicial enforcement of the Amendment. Where legal gaps exist, however, courts should enforce the substantive rules contained in the Amendment. Courts should also use Article I, Section 27 to support the application of other legal rules. These four premises create a framework for understanding the environmental rights and public trust parts of the Amendment, which are discussed in detail in Part II of this Article.

Keywords: environmental law, property rights, constitutional law, state constitutional law, Pennsylvania, sustainable development, public trust doctrine, environmental rights

JEL Classification: K32, K11, K19, K39, Q01