Thinking Anew About the Environmental Rights Amendment: An Analysis of Recent Commonwealth Court Decisions

30 WIDENER COMMW. L. REV. 147 (2021).

Widener Law Commonwealth Research Paper No. 21-4

54 Pages Posted: 3 Feb 2021 Last revised: 7 Jun 2021

See all articles by John C. Dernbach

John C. Dernbach

Widener University - Commonwealth Law School

Abstract

In landmark decisions in 2013 and 2017, the Pennsylvania Supreme Court revitalized the Environmental Rights Amendment (Article I, Section 27) to the state constitution. It did so by rejecting a three-part test that the Commonwealth Court articulated in 1973 as a substitute for the text of the Amendment. The new standard of review, the Supreme Court said, is based on “the text of [a]rticle I, [s]ection 27 itself as well as the underlying principles of Pennsylvania trust law in effect at the time of its enactment.”

This Article is an analysis of the Commonwealth Court’s 13 Environmental Rights Amendment decisions in the first four years after the Supreme Court revitalized the Amendment. The Commonwealth Court plays a critical role in shaping the law of the Amendment because it is a specialized intermediate appellate court that decides questions of public law, including constitutional questions. These 13 decisions involve a variety of permitting, zoning, and related cases that are quite different from the two Supreme Court decisions, which involved the constitutionality of statutes under Section 27. They thus provide a sense of the wide variety of contexts in which Section 27 can apply. This Article describes these cases and draws seven key themes from them about the Commonwealth Court’s approach to Environmental Rights Amendment jurisprudence during this four-year period.

Keywords: Pennsylvania Commonwealth Court; Article I, Section 27; Environmental Rights Amendment; Pennsylvania Constitution; environmental law; environmental rights; state constitutional law; public trust doctrine; constitutional environmental law; sustainable development; environmental rights; Pennsylvania S

JEL Classification: K00, K10, K32, K11, K19, K39, Q00, Q01, Q10, Q2, Q3, Q4

Suggested Citation

Dernbach, John C., Thinking Anew About the Environmental Rights Amendment: An Analysis of Recent Commonwealth Court Decisions. 30 WIDENER COMMW. L. REV. 147 (2021)., Widener Law Commonwealth Research Paper No. 21-4, Available at SSRN: https://ssrn.com/abstract=3777547

John C. Dernbach (Contact Author)

Widener University - Commonwealth Law School ( email )

3800 Vartan Way
Harrisburg, PA 17110-9380
United States

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