Robinson Township v. Pennsylvania: A Model for Environmental Constitutionalism

Abstract

In Robinson Township v. Commonwealth of Pennsylvania, a plurality of the court held that a controversial law encouraging fracking ("Act 13") violates the state’s constitutional Environmental Rights Amendment, the provisions of which the court held are "on par" with political rights. The decision highlights the challenges of engaging constitutional environmental provisions but demonstrates that, with sufficient creativity and commitment, meeting these challenges lies well within the bounds of judicial capability and authority. Because courts around the world are increasingly being asked to engage in environmental constitutionalism, and Robinson Township's thorough examination of the issues is instructive, not only for cases involving fracking but for cases involving all manner of environmental concerns. Most importantly, it shows what a difference a constitutional environmental right can make.

Robinson Township embodies the hope that constitutionalism affords for current and future generations. This article situates Robinson Township within comparative constitutionalism. Part I provides an overview of Act 13 and the Environmental Rights Amendment. Part II examines how the court there overcame impediments to judicial authority in reaching the merits. Part III considers how the court dispensed with some structural issues involving whether the case was or should be justiciable. Issues of whether and the extent to which constitutional environmental rights are on par with political rights are the focus of Part IV. How the court decided that the Commonwealth of Pennsylvania had violated its public trust responsibilities is addressed in Part V. Part VI then explains how the court’s analysis embraced environmental sustainability.

Robinson Township is worth examining in detail because it provides a roadmap for how courts can maneuver through the factual, legal, and political complexities of environmental constitutionalism. We conclude that Robinson Township is a bellwether decision not only for Pennsylvania, but for advancing environmental constitutionalism around the globe.

Keywords: fracking, environmental law, constitutional law, Pennsylvania, environmental rights, environmental constitutionalism

JEL Classification: K32