Warren Environmental Counsel



Pennsylvania Supreme Court to Revisit Public Trust DoctrineBy: Kenneth J. Warren, The Legal IntelligencerLast month, the Pennsylvania Supreme Court granted oral argument in Pennsylvania Environmental Defense Foundation v. Wolf, No. 10 MAP 2015, a case involving the Environmental Rights Amendment, Article I, Section 27 of the Pennsylvania Constitution. The two issues to be addressed at oral argument are: the proper standards for judicial review of government actions and legislation challenged under the Environmental Rights Amendment in light of Robinson Township v. Commonwealth, 3 A.3d 901 (Pa. 2013) (plurality), and the constitutionality of certain Fiscal Code provisions and the General Assembly's transfers from the Oil and GasLease Fund. The court's resolution of these issues may have a profound effect on the management of the state's natural resources. To understand the importance of these two issues, a brief background may be helpful. Historically, the common-law "public trust doctrine" provided limited protection for certain public resources by requiring the government to act as trustee of all lands subject to the ebb and flow of the tide and all waters navigable in fact. In 1971, Pennsylvanians decided to expand this doctrine by overwhelmingly voting to add Article I, Section 27 to the Declaration of Rights in the Pennsylvania Constitution. This Environmental Rights Amendment provides: "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 first sentence of this amendment restricts government action and is self-executing: Citizens may file suit to challenge government actions that degrade the quality of the air or water or denigrate the values embodied in Article I, Section 27. The second and third sentences impose an obligation on the government as trustee to "conserve and maintain" public natural resources. The state's fiduciary obligations as trustee extend to both present and future generations. The language of the amendment elevates the environmental rights of the public and government's obligations to the public to constitutional heights. Judicial decisions rendered shortly after enactment of the amendment greatly curtailed its effect. In Payne v. Kassab, 312 A.2d 86, 88 (Pa. Commw. Ct. 1973), aff'd, 361 A. 2d 263 (Pa. 1976), the Commonwealth Court established a three-part test under the amendment that considers compliance with applicable statutes and regulations, efforts to minimize environmental harm and the balance between the environmental harm caused by the project and the benefits of the project. Government performance or approval of a project would violate the amendment if the environmental harm so clearly outweighs the benefit as to render approval of the project an abuse of discretion. Very few government actions would fail this test. Forty years after Payne, the Pennsylvania Supreme Court in Robinson Township considered a challenge to portions of Pennsylvania's Oil and Gas Act, Act 13 of 2012. Act 13, among other things, superseded local zoning regulation of natural gas activities and required waivers of setback requirements to be granted for such activities. In a groundbreaking plurality opinion written by then-Chief Justice Ronald D. Castille, three justices found that these and certain other provisions of Act 13 violated the Environmental Rights Amendment. The plurality declined to follow the standard enunciated in Payne, instead relying on the language of the amendment. As the plurality explained, the requirement that the state serve as trustee of public natural resources obligates it to refrain from permitting the degradation, diminution or depletion of natural resources, and to enact legislation protecting the environment. Justice Max Baer concurred, basing his opinion on substantive due process grounds. After the Robinson Township decision was issued, the Commonwealth Court decided PEDF. PEDF involved a challenge to the commonwealth's decision to sell leases in state forests for natural gas development and to transfer much of the revenue from the lease sales to the General Fund. The Pennsylvania Environmental Defense Foundation contended these actions violated the amendment by failing to "conserve and maintain" state forests for which the state held duties as trustee. The Commonwealth Court held that Payne remained binding precedent and compelled the conclusion that the lease sales and revenue transfers were lawful. The PEDF court described the amendment as a "thumb on the scale" in favor of environmental protection when balanced against the economic benefits of development, a weight insufficient to invalidate the lease sales. The court was unimpressed with the challenge to the transfer of leasing revenues to the General Fund, noting that the judiciary may not readily intervene in funding disputes. The court concluded that state funding was not so deficient as to prevent the exercise of trustee duties and that the revenues were not trust assets. On appeal, the Supreme Court seems poised to enunciate a new standard of review under the amendment. The Robinson Township plurality relied on the language of the amendment itself as the standard for evaluating government compliance with the amendment. If a majority of the court adopts this approach, elucidating the meaning of the amendment's terms becomes critical. The corpus of the trust established by the second and third sentences of the amendment is "public natural resources." The Robinson Township plurality viewed that term expansively to "include not only state-owned lands, waterways and mineral reserves, but also resources that implicate the public interest, such as ambient air, surface and ground water, wild flora, and fauna (including fish) that are outside the scope of purely private property." If the court majority adopts this broad meaning, permitting decisions may need to be based on a more comprehensive environmental assessment than commonly occurs. The nature of the trustee's duty, "to maintain and conserve" the public's resources, suggests that preserving the resources in their pristine condition was not the objective of the amendment. Rather, consistent with the public trust doctrine, "conserve" connotes allowing public use of the trust assets in a sustainable manner. In the words of Gifford Pinchot, a former Pennsylvania governor and the first chief of the U.S. Forest Service, the government's obligation is to pursue the "greatest good for the greatest number in the long run." Key to determining whether an action may degrade a public natural resource is evaluating how the action may affect the ecosystem services that the resource provides. For example, a forested area may filter water contaminants, promote groundwater infiltration, slow surface water runoff, and serve as a carbon sink, absorbing carbon dioxide and emitting oxygen. Conservation of the natural capital in these resources would further the government's trustee obligation and also protect the rights granted by the first sentence of the amendment. Under this approach, development could occur that did not adversely affect these ecosystem functions to a material degree. Today, the concept of "sustainable development" involves pursuing environmental, economic and social objectives. The amendment grants environmental rights constitutional protection, but private property rights and other interests likewise are constitutionally protected in other sections of the Pennsylvania Constitution. The court may consider how to embody "win-win" solutions in the standard of review that it establishes so as to facilitate economic development in a manner that protects ecosystem functions. Any standard set by the court may consider when the government is affirmatively required to legislate or regulate to "conserve and maintain" public natural resources. (See, e.g., Foster v. Washington Department of Ecology, No. 14-2-25295-1 SEA (Nov. 19, 2015), concluding that the Washington Department of Ecology was constitutionally mandated to take action to mitigate the climate effects of greenhouse gases.) The result in PEDF may inform the public of whether and how the Environmental Rights Amendment will shape or even compel government action to protect public natural resources. ?Kenneth J. Warren is a founding partner of Warren Environmental Counsel and has been practicing environmental law for more than 30 years. He is a former chair of the American Bar Association section of environment, energy, and resources, where he led the section's 10,000 members. He can be reached at kwarren@.Reprinted with permission from the December 11, 2015 edition of The Legal Intelligencer?2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@ or visit . ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download