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This is part one in a blog series about how the Supreme Court’s decision in PEDF cemented Chief Justice Castille’s vision of the Environmental Rights Amendment in Robinson Township. Join us in Philadelphia on Sept. 14 for the Environmental Rights Amendment Forum to listen to key litigators from the cases mentioned throughout this piece, and to learn more about how it impacts the air you breathe and the water you drink. Click here to register for this free event today.
PennFuture members have inquired why the state Supreme Court’s decision in Robinson Township v. Commonwealth did not result in an immediate change in how state and local governments make decisions. When issued, the Robinson case seemed to breathe new life into Article I, Section 27 of Pennsylvania’s Constitution (the Environmental Rights Amendment or ERA). Chief Justice Castille’s opinion, in particular, was widely quoted and frequently praised by those in the conservation community, but it seemed to be largely ignored by lower courts and government agencies.
To understand the reason for the differing responses, this blog explains the concept of “legal precedent” and how it took four years and another Supreme Court decision to transform Chief Justice Castille’s opinion from a learned treatise into binding Pennsylvania law.
In 2013, the Supreme Court’s decision in Robinson provided hope that, for the first time since the ERA’s ratification in 1971, the judiciary would play a critical role in ensuring protection of citizens’ environmental rights. Chief Justice Castille’s opinion, which exhaustively reviewed the history of environmental degradation that led to the adoption of the ERA, sought to establish a framework that recognized the fundamental nature of citizens’ environmental rights, and imposed conservation obligations on the government’s management of public natural resources. The opinion seemed to many a siren’s song for vigorous protection of Pennsylvania’s natural resources. But that did not turn out to be the case - at least not immediately.
Legal precedent is a fundamental principle of the American legal system. It means that a ruling in a particular case, under certain circumstances, controls a subsequent decision in another case involving similar facts and issues. One of the circumstances is that a majority of the judges of the court agree on the rationale for deciding the case. If that happens, that majority decision controls how subsequent cases with similar facts and issues are decided, thus increasing its impact.
In some cases, however, a majority of the court agrees on the outcome of the case, but not on the reason for the decision. When that happens, those in the majority will write multiple opinions explaining their decision. The opinion that gets the most judges, but short of a majority, is referred to as the plurality opinion. Unlike majority opinions, plurality opinions are not binding on subsequent courts.
Such was the case with the Robinson decision. Four of seven justices voted to overturn parts of the Oil and Gas Act, but only three justices agreed that the provisions should be overturned because they violated the ERA. The fourth justice in the majority agreed that the provisions were unconstitutional, but he preferred to rely on a constitutional principle known as substantive due process. Because Chief Justice Castille’s opinion was issued on behalf of three of seven justices, the opinion did not result in “precedent” that required future courts to interpret the ERA in the same manner.
More than 40 years before Robinson, the Commonwealth Court, in a case known as Payne v. Kassab, explained how it would decide whether a government action violated citizens’ rights under the ERA. The court held that a court could not overturn a government action unless it determined that the action violated a statute or regulation, failed to incorporate reasonable efforts to reduce environmental harm, or caused environmental harm that clearly outweighed the benefits of the action. This three-part test, known as the Payne test, was exceedingly deferential to the legislative and executive branches of government. Unless the government acted in some patently egregious manner, courts would not find that citizens’ rights under the ERA had been violated. Not surprisingly, in more than 40 years since the adoption of the Payne test, Pennsylvania courts had not struck down a single government action as violating the ERA.
Chief Justice Castille’s opinion in Robinson excoriated the Payne test, declaring that it was made from whole cloth and did not adequately protect citizens' fundamental constitutional rights. Chief Justice Castille favored an approach that featured courts more prominently in protecting citizens’ environmental rights, just as if they were being asked to protect other fundamental rights such as the right to vote, or free speech. The courts, Chief Justice Castille said, should focus their evaluation on the reason for the government action and the extent to which citizens’ rights to “clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment” have been impaired.
Following Robinson, PennFuture and other organizations argued in a variety of cases that, because of its sheer persuasiveness, courts should adopt the reasoning in Robinson. Our opponents, however, argued that Chief Justice Castille’s opinion was not binding on the courts, which should reject Robinson in favor of continuing to use the Payne test. The lower courts, as well as government agencies - sided with our opponents - no matter how sound the reasoning, Robinson’s plurality opinion was not binding in subsequent cases.
All of that changed on June 20, 2017, when the state Supreme Court issued its decision in Pennsylvania Environmental Defense Fund v. Commonwealth. The Pennsylvania Environmental Defense Fund (PEDF), a nonprofit organization, challenged the constitutionality of a series of state laws that changed how revenue from the lease of oil and gas rights on public lands was being used. The revenue had previously been used solely to support conservation efforts associated with the public lands. The legislation changed that by transferring those funds to the general fund, where it would be used to support a wide variety of public purposes.
The ERA provides that the Commonwealth holds our public natural resources in trust for the benefit of all people, including future generations. PEDF argued that any revenue derived from the disposition of those public natural resources must remain a part of the trust and be used to further the purposes of the trust. The Supreme Court agreed, holding that funds derived from the lease of oil and gas rights on public lands must remain a part of the trust and be used to further the public’s right to “clean air, pure water and the preservation of the natural, scenic, historic and esthetic values of the environment.” The state, the Court said, does not own our public natural resources as a proprietor, but instead manages them as would a bank that manages funds in a trust.
The Court’s decision was monumental, but equally so was the Court’s rationale. Unlike Robinson, a clear majority agreed that the laws violated the ERA. In making that decision, the Court squarely rejected the continued use of the Payne test, and just as squarely adopted, instead, the rationale described by Chief Justice Castille in Robinson.
Justice Baer acknowledged the change in direction embarked on by the Court: “Through today’s decision, this Court takes several monumental steps in the development of the Environmental Rights Amendment … [including] dismantling of the Commonwealth Court’s Payne test … [and] solidify[ing] the jurisprudential sea-change begun by Chief Justice Castille’s plurality in Robinson Township v. Commonwealth.”
So it came to be that, four years after Robinson, the state Supreme Court converted Chief Justice Castille’s plurality opinion from an eloquent essay on the meaning of the ERA into binding legal precedent in Pennsylvania.
In Part II of this blog, we delve further into the substance of the PEDF decision and the promise it holds for protection of our public natural resources and citizens’ fundamental environmental rights