Recognition of Environmental Rights for Pennsylvania Citizens: Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania

Abstract

Pennsylvania voters overwhelmingly added environmental rights to the other rights protected by the state constitution in 1971 at the height of the modern environmental movement. In two cases decided shortly thereafter, however, state courts essentially buried the amendment, most prominently with a judicially invented test that served as a substitute for the text. In 2017, in Pennsylvania Environmental Defense Foundation v. Commonwealth, the Pennsylvania Supreme Court held that the text of the amendment, Article I, Section 27, provides the legal basis for deciding environmental rights claims, not the judicially invented test. For many lawyers, judges, and citizens, the change is so dramatic that it is as if Article I, Section 27 was adopted in 2017.

This Article describes the background of this landmark case, including the cases in which the Pennsylvania courts put the Environmental Rights Amendment into a state of near dormancy for more than four decades. After briefly reviewing Robinson Township, it then reviews each of the Pennsylvania Supreme Court’s opinions in PEDF. It then addresses a variety of issues about the interpretation and application of Section 27 after PEDF. This article also explains how this case is adding momentum to the growing use of constitutional environmental amendments in other states and countries.

Keywords: Pennsylvania Supreme Court, Robinson Township, Pennsylvania Environmental Defense Foundation, constitutional environmental law, environment, environmental, environmental law, public trust, Marcellus shale, natural gas, shale gas, Department of Conservation and Natural Resources

JEL Classification: K00, K10, K32, Q00, Q01, Q10, Q2, Q3, Q4