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Save Our Environment
Continued from page 11
by Judge Mencer, the Pennsylvania Commonwealth Court
held that the mandate of Art. 1, Sec. 27 could be evaluated by
the use of a three-part test (the "Payne Test") to determine if
the use of Commonwealth land violated the provisions of the
Environmental Rights Amendment, as follows:
(1) Was there compliance with all applicable statutes and
regulations relevant to the protection of the Commonwealth's
public natural resources?
(2) Does the record demonstrate a reasonable effort to reduce
the environmental incursion to a minimum?
(3) Does the environmental harm which will result from the
challenged decision or action so clearly outweigh the benefits
to be derived therefrom that to proceed further would be an
abuse of discretion?
Payne I, 312 A.2d at 94.
Justice Donohue, as did former-Chief Justice Castille in
Robinson Township II (plurality decision), stated that the Payne
Test is inadequate:
The Payne I test, which is unrelated to the text of Section 27
and the trust principles animating it, strips the constitutional
provision of its meaning.
PaEDF v. Commw., Majority Opinion, Slip Op. at 27.
In Robinson Township II, former-Chief Justice Castille
criticized the Payne Test as follows:
[T]he test poses difficulties both obvious and critical. First,
the Payne test describes the Commonwealth's obligations-
both as trustee and under the first clause of Section 27-in
much narrower terms than the constitutional provision.
Second, the test assumes that the availability of judicial relief
premised upon Section 27 is contingent upon and constrained
by legislative action. And, finally, the Commonwealth Court's
Payne decision and its progeny have the effect of minimizing
the constitutional duties of executive agencies and the judicial
branch, and circumscribing the abilities of these entities to
carry out their constitutional duties independent of legislative
Robinson Township II, 83 A.3d at 967 (plurality).
So, the Payne Test has been overruled. However, Justice
Donohue does not offer a discrete new test, or a guide map to
direct how the rights articulated in the first sentence of Art. 1,
Sec. 27 are to be protected. This is likely because the focus of
the PaEDF v. Commw. case was on the second and third clauses
of Art. 1, Sec. 27. These latter two sentences relate to the
public trust obligations associated with the management and
protection of public natural resources. Justice Donohue stated:
12 | New Matter

Because state parks and forests, including the oil and gas
minerals therein, are part of the corpus of Pennsylvania's
environmental public trust, we hold that the Commonwealth,
as trustee, must manage them according to the plain language
of Section 27, which imposes fiduciary duties consistent with
Pennsylvania trust law. We further find that the constitutional
language controls how the Commonwealth may dispose of any
proceeds generated from the sale of its public natural resources.
PaEDF v. Commw., Majority Opinion, Slip Op. at 2.
The Pa High Court in PaEDF v. Commw. also addressed
another long-unsettled issue: are the provisions of Art. 1, Sec.
27 self-executing (meaning that no additional implementing
legislation or regulation is necessary)? The majority opinion
indicates that the public trust elements Art. 1, Sec. 27 are selfexecuting. Majority Opinion, Slip Op. at 39-40.
As to the first clause of Art. 1, Sec. 27, the Pa. Supreme Court
The plurality in Robinson Township recognized that our prior
case law has not resolved the issue of whether Section 27 is selfexecuting or whether it requires implementing legislation to be
effective, at least in regard to an attempt to enforce the people's
rights against owners of private property. Robinson Township, 83
A.3d at 964-65.
Majority Opinion, Slip Op. at 39.
However, no further guidance is provided in
PaEDF v. Commw.
With the PaEDF v. Commw. decision, a clear majority of the
Justices on the Pennsylvania Supreme Court now hold that
Art. 1 Sec. 27, and the public trust responsibilities imposed
by that language, are binding upon the Commonwealth of
Pennsylvania, and restrict the way in which Pennsylvania
manages its public natural resources.
As a result of the decision in PaEDF v. Commw., it appears
that the Commonwealth must treat the state's natural resources
like the corpus of a trust, and must act in the capacity of
a trustee of those natural resources. It also appears that
the Court has determined that, in carrying out those trust
responsibilities, the Commonwealth must comply with all of
the legal fiduciary requirements applicable to a trustee.
The concern that some people have with this, including
the Commonwealth's attorneys, was that the breadth of this
decision may constrain economic development. Former-Chief
Justice Castille did address this concern in Robinson Township
II, as follows:
Relatedly, while economic interests of the people are not a
specific subject of the Pennsylvania Declaration of Rights, we


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