SIDEBAR Spring 2018 - 10

MONTGOMERYBAR.ORG

BOOK REVIEW:

The Green Amendment:
Securing Our Right to a
Healthy Environment
by Maya K. van Rossum
Review By Jules J. Mermelstein, Esq.
Article I Section 27 of the Pennsylvania
Constitution reads:
"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 Green Amendment: Securing Our
Right to a Healthy Environment by Maya K.
van Rossum delves deeply into the scientific
evidence of environmental destruction as
well as the "fracked-up legal environment"
nationally regarding attempts to protect us
against environmental harm. She points out
that Pennsylvania's constitutional provision (as
well as one in Montana) raises environmental
protection to a fundamental right and in
two important cases, one in 2013 and one in
2017, the Pennsylvania Supreme Court has
affirmed that our green amendment prevents
the Commonwealth or its agencies (like
municipalities) from allowing environmental
degradation.
As lawyers, we recognize that the plain
language of our amendment, in three
sentences, provides three elements to our
environmental rights.
First, we have the right to "clean air, pure
water" and the entire environment as the
Pennsylvania Supreme Court has stated. Its
location in our Declaration of Rights makes
this a fundamental right of all in Pennsylvania.
Second, the Commonwealth's natural
resources are owned by everyone in the state,
including those not yet born.
Third, it sets up a trust with the
Commonwealth as trustee and the people as
beneficiaries, and our natural resources are the
trust assets which must be preserved by the
Commonwealth.
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Because of these provisions, both
individuals as well as the Commonwealth
or its agencies (the 2013 case specifically
authorized a municipality to sue the
Commonwealth) may go to court to seek
protection of our natural resources.
Most of this book deals with both
anecdotal as well as scientific evidence of
the destruction of the environment, and our
health, by the oil and gas industry in general,
and fracking in particular. This review will
deal mostly with the legal issues in the book.
Many of the current environmental
court fights involve the natural gas
industry, whether fracking or pipelines. The
scientific evidence is clear that neither are
environmentally safe. Ms. van Rossum points
out that the arguments against environmental
regulations include that they cost too much.
But van Rossum brings up evidence to show
that the economic benefits far exceed the
economic costs of environmental regulations.
To quote just a couple:
According to the EPA, 2012's mercury
standards cost an annual $10 billion in
compliance and implementation. But they
delivered between $37 and $90 billion
in public health savings! Automobile
energy compliance costs $150 billion just a fraction of the $475 billion that
consumers are projected to save on
gasoline costs alone. Someone also had to
build and install all the new technology
required to meet the new standards. These
new standards not only saved lives but
supported jobs.
Van Rossum provides similar costbenefit analyses for various environmental
regulations.
Pipelines can get permits from the Federal
Energy Regulatory Commission (FERC).
Once they do, companies are granted eminent
domain powers to seize land to install their
pipelines. FERC is self-funding in that it gets
its total costs from the industry it is supposed

to regulate. In addition to its revolving door
problems between regulators and the regulated,
some of its employees are allowed to continue
a relationship with the companies seeking
permits, a clear conflict of interest even if there
are no legal restrictions against it. In addition,
FERC issues "tolling orders" which keep people
and organizations from challenging its decisions
in court for a period of time, sometimes up to
a year. This allows many of the projects to get
fully underway before any challenge has begun.
However, states are permitted to say "no"
to a pipeline under federal law. For instance,
the Clean Water Act requires states to certify
that the project complies with the state's
water-quality standards. The Pennsylvania
Constitution clearly sets a fundamental right
to "pure water" and must be considered part of
our state's standards.
In the 2017 decision involving our
green amendment (Environmental Defense
Foundation v. Commonwealth of Pennsylvania,
decided June 20, 2017), our state Supreme
Court made clear the importance of the
amendment. As summarized by van Rossum,
the Court decided:
The court confirmed its previous
determination that environmental rights
are "inherent and indefeasible" and that
article I, section 27 places a limitation on
the state's power to deprive people of these
rights, either through direct governmental
action or through the acts of others. As the
court made clear, Pennsylvania's government
is a trustee of the state's natural resources,
obligated to preserve them for the people of
Pennsylvania, including future generations.
In order to fulfill its trustee obligations,
Pennsylvania's government must not only
prohibit the degradation, diminution,
and depletion of natural resources, but
must also act affirmatively to protect the
environment. (emphasis added)
Given our green amendment, the clear
scientific evidence that neither fracking
nor pipelines are environmentally neutral,
and our Supreme Court's rulings, can our
Department of Environmental Resources
(DEP) ever approve a permit for fracking or
pipelines consistent with their duty as trustee
of our natural resources? I will leave that to
environmental litigators and future court
decisions to determine.


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