Pa Supremes Breathe New Life into Article 1, Section 27 of the Pennsylvania Constitution

by: John R. Embick, Esq.

Chair, Chester County Bar Association, Environmental Law Section


The recent and long-awaited decision of the Pennsylvania Supreme Court concerning the validity of the new Pa Oil and Gas Act (Act 13 of 2012), was rendered on December 19, 2013, in the case of  Robinson Township, et al. v. Commonwealth of Pennsylvania, et al. No. 63 MAP 2012.

The Robinson Township case raised many interesting issues related to standing, ripeness, separation of powers, due process, statutory and constitutional interpretation, and the scope of the authority of the General Assembly and Pennsylvania municipalities.

From an environmental law standpoint, however, the main opinion, authored by Chief Justice Castille, was striking in its treatment of Article 1, Section 27 of the Pennsylvania Constitution.  Art. 1, Sec. 27 is also known as the Environmental Rights Amendment.  Ratified by voters in a 1971 referendum, the Environmental Rights Amendment grants citizens certain environmental rights, and appoints the Commonwealth as the trustee of various natural resources:

“The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.”

The Robinson Township case pitted the Commonwealth against a group of citizens, elected officials and municipalities (the latter will be referred to collectively as “Citizens”) regarding the development of the Marcellus Shale Gas deposits. One of the main effects of Act 13 of 2012, was to severely limit municipalities’ zoning rights with respect to shale gas development.

In the decision below, Commonwealth Court had dismissed the Citizen’s claims (for failure to state a claim) premised on the Environmental Rights Amendment by concluding that Act 13 had relieved municipalities from balancing gas development with environmental concerns in zoning matters.  The revival of those claims and the extensive treatment and reliance of Chief Justice Castille on the Environmental Amendment was surprising, and largely unexpected by many.  Justice Castille wrote:

“To describe this case simply as a zoning or agency discretion matter would not capture the essence of the parties’ fundamental dispute regarding Act 13. Rather, at its core, this dispute centers upon an asserted vindication of citizens’ rights to quality of life on their properties and in their hometowns, insofar as Act 13 threatens degradation of air and water, and of natural, scenic, and esthetic values of the environment, with attendant effects on health, safety, and the owners’ continued enjoyment of their private property. The citizens’ interests, as a result, implicate primarily rights and obligations under the Environmental Rights Amendment -- Article I, Section 27. We will address this basic issue, which we deem dispositive, first.”

The Court placed the environmental rights and responsibilities afforded by Art. 1, Sec. 27 on the same level as other political rights granted by Art. 1 of the Pa. Constitution.  

The Court also declined to construe the extent of the personal and individual rights of citizen afforded by the first sentence of the Environmental Rights Amendment, finding the arguments of the Citizens to be not sufficiently developed.

The Court, therefore, focused on the obligations of the Commonwealth as trustee of the Commonwealth’s natural resources.  The central question presented, according to Chief Justice Castille, is whether the General Assembly performance of its legislative function in enacting Act 13 is consistent with the constitutional mandate of the Environmental Rights Amendment.  Chief Justice Castille specifically related the development of the Environmental Rights Amendment as a response to past industrial activities which wreaked widespread and long lasting environmental pollution in the Commonwealth, such as the early deforestation of Pennsylvania, and the extraction of anthracite coal in the 19th and 20th centuries.

In short, the Court found that the limitation of local municipal zoning authority and the ability of the Commonwealth to waive certain set back limitations as contained in Act 13 were inconsistent with the Commonwealth’s role as trustee of natural resources and its duty to preserve and maintain them for generations to come.

This all happened, in my view, because some of the justices thought more in depth, after over 40 years, about what exactly is the meaning of the Environmental Rights Amendment, and how is that meaning applied in the evaluation of Act 13 of 2012. This was all possible because, rightly or wrongly depending upon your perspective, the rights described by the Environmental Rights Amendment were placed into the Commonwealth’s Charter.