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Save Our Environment
The Payne v. Kassab Test is Dead after 40 years:
Is there a New Test Associated with Article 1,
Section 27 (the Environmental Rights Amendment)
of the Pennsylvania Constitution?
By John R. Embick, Esquire
Chairman of the Environmental
Law Section
O
n June 20, 2017, the Pennsylvania Supreme Court
issued its decision in Pennsylvania Environmental
Defense Foundation v. Commonwealth, et al., Docket
No. 10 MAP 2015 ("PaEDF v. Commw.").
This case involved a challenge by the Pennsylvania
Environmental Defense Foundation ("PaEDF"), brought
under the fiduciary provisions of the Pa Declaratory Judgment
Act, regarding the use of funds in the Gas Lease Fund. See
generally, the Oil and Gas Lease Fund Act ("Lease Fund Act of
1955"), 71 P.S. §§ 1331-1333. These dollars, generated by rents,
royalties and bonuses associated with oil and shale gas leases
in State Forest Lands, were placed in the Gas Lease Fund and
were to be "exclusively used for conservation, recreation, dams,
or flood control or to match any Federal grants which may be
made for any of the aforementioned purposes." 71 P.S. § 1331.1.
However, at various times from 2008 to 2014, some of the
monies were removed from the Gas Lease Fund, and used
for the General Fund purposes. In addition, the PaDCNR
was restricted in the amounts in the Gas Lease Fund that
it could use annually, and was required to use Gas Lease
Funds for operation of the agency (as opposed to use of the
funds for conservation purposes). PaEDF challenged these
actions, and asserted, among other things, that the actions
violated the provisions of Art. 1, Sec. 27 of the Pennsylvania
Constitution (also popularly known as the Environmental
Rights Amendment).
10 | New Matter
Art. 1, Sec. 27 of the Pennsylvania Constitution provides
as follows:
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.
This amendment was added to the Pennsylvania
Constitution in 1971, after passing the Pa Legislature two times
and after adoption by Commonwealth voters in a referendum
by a large majority. This constitutional provision is unique
among the states, in that it provides important self-executing
environmental rights and responsibilities, and was placed in
Article 1 of the Pennsylvania Constitution. Article 1 contains
various rights guaranteed to the people (e.g., freedom of
speech, freedom of the press, etc.) and which rights cannot be
taken away by the State, as they are inherent and indefeasible.
Note that there are three distinct parts or clauses of Sec. 27.
The Pa Supreme Court majority decision in PaEDF v.
Commw. was authored by Justice Christine Donohue, and was
joined by Justices Debra Todd, Kevin Dougherty and David
Wecht. Justice Baer filed a concurring and dissenting opinion
in which he concurred on aspects of the broad interpretation
of the Sec. 27, but dissented on the issue of the imposition of
private trust doctrines, and the holding that the state violated
the constitution by diverting the funds in the Gas Lease Fund
(Justice Baer specifically agreed with Justice Donohue and the
majority on many other aspects of her analysis concerning
Sec. 27, and spoke approvingly of the similar constitutional
analysis presented by former-Chief Justice Castille in Robinson
Township II). See, Baer Concurring and Dissenting Opinion,
Slip Op. at 1-2. Chief Justice Thomas Saylor filed a dissent.
Justices Donohue, Dougherty and Wecht have only recently
joined the Court, having been elected to the Pennsylvania
Supreme Court in the 2015 Pennsylvania general election, and
all three are known to be Democrats.
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