Applying the Pennsylvania Environmental Rights Amendment Meaningfully to Climate Disruption

Abstract

The Pennsylvania Constitution contains a unique Environmental Rights Amendment (“ERA”) creating an individual right to “clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.” The ERA also includes a public trust element that makes “Pennsylvania’s public natural resources... the common property of all the people, including generations yet to come.” It makes the Commonwealth the “trustee of these resources,” requiring it to “conserve and maintain them for the benefit of all the people.” Recent decisions by the Pennsylvania Supreme Court in Robinson Township v. Commonwealth and Pennsylvania Environmental Defense Foundation v. Commonwealth provide significant support for Pennsylvania regulation to address the threat of climate disruption posed by greenhouse gas (“GHG”) emissions to achieve net zero carbon emissions by the second half of the 21st century.

In light of the threats that climate disruption poses to Pennsylvania’s public natural resources, the text of the ERA and the principles articulated in those cases, we argue that a stable climate (a climate that has not been disrupted by anthropogenic emissions of GHGs) should be considered protected by the rights provided by the ERA, and the public trust and trustee duties it creates. We argue that this duty requires Pennsylvania to undertake measures to limit GHG emissions employing all regulatory measures up to the social cost of carbon, and that there are judicially recognizable standards to compel the Commonwealth to exercise its existing legislative authority to do. In light of existing legislative authority, the obligations imposed by the United Nations Framework Convention on Climate Change, the Paris Agreement and the federal Clean Air Act, we make the case that this regulatory program should take the form of an economy-wide cap-and-trade program providing for the auction of allowances with a reserve price based on the social cost of carbon and additional measures to prevent leakage.

Keywords: Robinson Township, Pennsylvania Environmental Defense Foundation, climate change, Paris Agreement, cap and trade, environmental law, environment, environmental, greenhouse gases, Environmental Rights Amendment, social cost of carbon, public trust

JEL Classification: K00, K10, K20, K29, K32, K33, Q00, Q01, Q10, Q2, Q20, Q25, Q28, Q3, Q30, Q4, Q40, Q48