It Only Hurts When I Use It: The Payne Test and Pennsylvania's Environmental Rights Amendment

15 Pages Posted: 7 Apr 2016 Last revised: 11 Jul 2016

Kenneth Kristl

Widener University Delaware Law School

Date Written: April 4, 2016

Abstract

While the Pennsylvania Constitution’s Environmental Rights Amendment creates rights to clean air, pure water, the preservation of natural, scenic, historic and esthetic values of the environment and a public trust over public natural resources, judicial interpretations since the Amendment’s passage significantly restricted the meaning of the provision. The Commonwealth Court’s three-part test in Payne v. Kassab was the primary basis for those judicial interpretations, and had the effect of a near-universal rejection of such claims. The Pennsylvania Supreme Court’s plurality opinion in Robinson Township provides a fresh and expansive view of the amendment that revitalizes the possibility of constitutional claims. Although Robinson Township expressly criticized the Payne test, the Commonwealth Court continues to apply it. This article explores the development of the Payne test, and identifies fundamental problems with that test in light of Robinson Township. Finding that the Payne test cannot be salvaged, the article proposes a new test based on the principles articulated in Robinson Township that more closely hews to the new understanding of what the Environmental Rights Amendment means. It concludes by postulating that eliminating the Payne test would better serve the effort to revitalize Section 27 and allow Commonwealth agents and judges to assure that Section 27 plays a vital role in helping to protect Pennsylvania’s environment and public natural resources.

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

JEL Classification: K32

Suggested Citation

Kristl, Kenneth, It Only Hurts When I Use It: The Payne Test and Pennsylvania's Environmental Rights Amendment (April 4, 2016). Widener University Delaware Law School Legal Studies Research Paper Series No. 16-04; Environmental Law Reporter, Vol. 46, No. 7, 2016. Available at SSRN: https://ssrn.com/abstract=2758960

Kenneth Kristl (Contact Author)

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

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