Pennsylvania's Constitution provides a unique Environmental Rights Amendment that guarantees our right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment and requires the Commonwealth to conserve and maintain Pennsylvania’s public natural resources for the benefit of all people. Since the ERA’s adoption in 1971, Pennsylvania courts have had the task of determining what it means. PennFuture constructs a brief history of the Environmental Rights Amendment court cases and the decisions that interpret and apply this important law.

In the Beginning 

Commonwealth v. National Gettysburg Battlefield Tower, 311 A.2d 588 (Pa. 1973) 

In one of the earliest cases brought under the ERA, the Attorney General sought to prevent a private company from constructing a 307-foot observation tower 700 feet from Gettysburg National Military Park. The Attorney General argued that the tower violated the ERA because it would despoil the natural and historic values of the battlefield. The Pennsylvania Supreme Court held that the ERA did not, by itself, allow the government to stop the actions of private parties in the absence of some other law prohibiting the activity. Since the ERA does not define things like “clean air,” “pure water” and “historic value,” allowing the government to bring suit against private parties for interfering with those values would mean that “individuals could be singled out for interference by the awesome power of the state with no advance warning that their conduct would lead to such consequences.”  

The Payne Era 

Payne v. Kassab, 312 A.2d 86 (Pa. Cmwlth. 1973), affirmed by Payne v. Kassab, 361 A.2d 263 (Pa. 1976) 
 

The next major ERA decision came in 1976. Residents of Wilkes-Barre claimed that the ERA prevented PennDOT from paving over a portion of a public park to widen a highway because doing so would harm the historic value of the park. The Commonwealth Court rejected “such an absolute interpretation” of the ERA and instead held that the ERA was intended to allow “controlled development of resources rather than no development.” The Court concluded that the ERA requires a balancing of environmental concerns and other legitimate government interests. It also devised a three-part test to assess whether the proper balancing had taken place. This test, which came to be known as the Payne test, asks: 

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? 

The Court held that the paving of a portion of the park to widen the highway satisfied this test and was thus permissible under the ERA. On appeal, the Pennsylvania Supreme Court did not explicitly affirm the Commonwealth Court’s three-part test but agreed with the lower court that “it is manifest that a balancing must take place” between  the environmental values protected by the ERA and other important societal values. 

The Commonwealth Court’s decision in Payne v. Kassab ushered in a nearly forty-year period of failed ERA claims. Because the first prong of the Payne test asks whether the challenged action complies with all applicable statutes and regulations, the question of whether any particular action violated the ERA effectively collapsed into the question of whether the action complied with other environmental laws. Under the Payne test, where no other law was violated, the ERA provided no additional protection for the environment. In addition, the Payne test effectively dictated that no action could violate the ERA unless the environmental harm “clearly outweighed” any benefit to be gained by the action. In practice, courts rarely found this to be the case.  

Other important decisions also came out of the Payne era, for example: 

Community College of Delaware County v. Fox, 342 A.2d 468 (Pa. Cmwlth. 1975) 

Residents argued that the Department of Environmental Resources (DER) violated the ERA by issuing a permit allowing the Central Delaware County Authority to expand sewer service. The residents argued that the permit would induce additional development in environmentally sensitive areas, leading to potential water pollution effects. The Commonwealth Court rejected this argument because it concluded that the ERA cannot expand the powers of a state agency like DER. Instead, the ERA operates “only to limit such powers as have been expressly delegated by proper enabling legislation.” The General Assembly had not given DER the authority to consider the effect of future land development when deciding whether to issue permits, so the ERA could not be used to compel DER to consider or make decisions based on such concerns.  

Robinson Township 

Robinson Township v. Commonwealth, 83 A.3d 901 (2013) 

In 2013, the Pennsylvania Supreme Court reinvigorated the ERA with its decision in Robinson Township v. Commonwealth. In this case, several municipalities, environmental advocacy organizations, and other parties challenged amendments to the Pennsylvania Oil and Gas Act, known as Act 13. Among other things, the challengers argued that Act 13 violated the ERA because it forced every municipality in the Commonwealth to allow oil and gas drilling by right in all zoning districts.   

In its decision, the Court opined that the Commonwealth Court’s ERA decisions up until that point had weakened the meaning of the ERA by tending to define the ERA’s broad constitutional rights in terms of compliance with various other laws. It criticized the Payne test, saying that it was not based on the text of the ERA, improperly narrowed the scope of the ERA, and minimized the constitutional duties of the non-legislative branches of government. A better analytical scheme was needed. 

Providing that analytical scheme, the Court explained that the ERA is structured in “three mandatory clauses that define rights and obligations.” The first clause establishes Pennsylvanians’ right to clean air, pure water, and to the preservation of the natural, scenic, historic, and esthetic values of the environment. It operates to protect the people from governmental action that unreasonably causes actual or likely deterioration of these features. This clause does not impose an express duty on the government to enact specific affirmative measures to promote clean air, pure water, and the preservation of different values of the environment, but it does impose an obligation to refrain from unduly infringing upon that right by legislative or executive action. 

The second and third clauses work together. The second clause guarantees the common ownership of the people, including future generations, of Pennsylvania’s public natural resources. This applies to a narrower category of “public” natural resources than is covered by the first clause, but nevertheless implicates relatively broad aspects of the environment, including state-owned lands and other resources that “implicate the public interest” such as ambient air, surface and ground water, and wild plants and animals. 

The third clause establishes a public trust—a type of legal relationship whereby the Commonwealth as “trustee” must conserve and maintain Pennsylvania’s public natural resources (called the “corpus” of the trust) for the benefit of all Pennsylvanians, present and future, referred to as “beneficiaries” of the trust. The Court explained that this means that the Commonwealth has a duty to conserve and maintain Pennsylvania’s public natural resources with prudence, loyalty and impartiality. It also means that the Commonwealth must prevent and remedy degradation, diminution, and depletion of those resources, whether they occur through direct state action or due to the state’s failure to restrain the actions of private parties. The Commonwealth’s trustee obligations are both negative and affirmative, meaning that the Commonwealth not only has a duty to prevent degradation of public natural resources, but to act affirmatively to protect the environment by passing laws.  

The Court went on to caution that the ERA does not call for a stagnant landscape, the derailment of economic or social development, or the sacrifice of other fundamental values. It is not intended to stop development. Rather, the ERA means that economic development cannot take place at the expense of unreasonable degradation of the environment.  

The Court also explained that the ERA imposes obligations and limitations on all branches and levels of government—including local government—because the quality of the environment is a task with both local and statewide implications. Because the ERA is a constitutional command, the General Assembly cannot take away local governments’ responsibilities under it, nor can it remove the necessary and reasonable authority local governments need to carry out their constitutional duties. Therefore, the Court held, the portion of Act 13 that removed local governments’ authority to decide where oil and gas operations may be located within their boundaries violated the ERA and must be struck down.    

Post-Robinson Township 

Only three of the Pennsylvania Supreme Court’s seven justices agreed with the reasoning in Robinson Township, although a fourth agreed with the outcome based on a different rationale. This meant that the provisions of Act 13 that forced municipalities to allow oil and gas development in all zoning districts were invalidated, but the Court’s analysis of the ERA did not become binding precedent on lower courts. Because a majority of the Supreme Court had not conclusively rejected the Payne test, the Commonwealth Court continued to apply it for several more years, until the Supreme Court definitively rejected it in a case known as PEDF II. 

PEDF II

Pa. Envtl. Def. Found. v. Commonwealth, 161 A.3d 911 (Pa. 2017) (PEDF II) 

The next significant ERA decision by the Pennsylvania Supreme Court came in 2017. In this case, the Pennsylvania Environmental Defense Fund (PEDF) challenged the leasing of state-owned land for oil and natural gas development and the budgetary scheme that dispersed the revenue from those leases. This scheme redirected over $330 million that would have been used for conservation purposes under prior law to the General Fund, where it was appropriated for a variety of state government purposes unrelated to maintaining and protecting public natural resources. 

The Court began its analysis by decisively rejecting the Payne test, stating that it was unrelated to the text of the ERA and stripped the ERA of its meaning. This time, four Supreme Court justices agreed with this holding, finally spelling the end of the Payne test. The four-justice majority also affirmed Robinson Township’s statement of basic ERA principles, thus solidifying those principles into binding precedent. The Court went on to elaborate on the Commonwealth’s trustee duties, firmly grounding these in private trust law. These duties include the duty of loyalty, which imposes an obligation to manage the corpus of the trust so as to accomplish the trust’s purposes for the benefit of the trust’s beneficiaries, and the duty of impartiality to treat all beneficiaries equitably in light of the purposes of the trust. The Commonwealth’s discretion as to how to handle Pennsylvania’s public natural resources is limited by these trustee duties and the purpose of the trust. 

The Court also held that the proceeds from the sale of public natural resources, including the sale of oil and gas from public lands, are to be considered part of the corpus of the trust and must be dealt with in the same way as other public natural resources. Therefore, the Commonwealth is not entitled to spend that revenue on general budgetary items in any way it sees fit; those funds must be directed toward the purpose of the trust—conserving and maintaining Pennsylvania’s public natural resources. Accordingly, the Court held that the budgetary provisions that took revenue generated from the sale of oil and gas on state lands and placed them in the General Fund without requiring the Commonwealth to put them toward conserving and maintaining public natural resources violated the ERA. 

The remainder of the Court’s decision, as well as several subsequent decisions, dealt primarily with characterizing the precise nature of the revenue generated by oil and gas leases and the precise scope of the activities that could be funded with that revenue. For example, in a later case, Pennsylvania Environmental Defense Foundation v. Commonwealth, 279 A.3d 1194 (Pa. 2022), the Supreme Court held that a trustee is entitled to incur reasonable costs in administering the trust, and, therefore, oil and gas revenues could be used to fund general operating expenses of the Department of Conservation and Natural Resources such as salaries, wages, and travel expenses for its employees. 

Recent Cases 

In the years since Robinson Township and the PEDF cases, Courts have tended to focus on language in those two seminal cases stating that the ERA protects only against unreasonable degradation of natural resources and “does not call for a stagnant landscape” or “require a freeze of the existing natural resource stock.” Although Payne’s explicit balancing test has gone by the wayside, courts have continued to view the Commonwealth’s ERA obligations in terms of a balance between the duty to maintain and conserve natural resources for the benefit of all the people and other legitimate government interests. The effect has been that, when specific government actions have been challenged, courts have focused on whether the challenged action represents an appropriate balance between environmental interests and other concerns or is instead an unreasonable degradation of the environment. In nearly all cases, courts have decided that the appropriate balance has been struck and no unreasonable degradation has or will occur. Often, these decisions have resulted from what courts or local decision-making bodies have found to be inadequate evidence of alleged environmental harms.     

One such case is Frederick v. Allegheny Twp. Zoning Hearing Bd., 196 A.3d 677 (Pa. Cmwlth. 2018). In this case, residents of Allegheny Township challenged a zoning ordinance that permitted fracking by right in all zoning districts, subject to various restrictions. The Commonwealth Court held that the challengers had not produced sufficient evidence that fracking was harmful to the environment or public health and, even if they had, Township had appropriately balanced those concerns against the economic benefits of fracking.  

Courts have also doubled down on the principle, first articulated in Community College of Delaware County v. Fox in 1975, that the ERA does not give executive branch agencies like the Department of Environmental Protection (DEP) additional powers or authority beyond what the General Assembly has given them by statute. On multiple occasions, courts have held that DEP and other agencies like it cannot create regulations, make decisions, issue or deny permits, or take any other actions based on ERA concerns if there is no state statute allowing them to do so. For example, the Commonwealth Court in Marcellus Shale Coalition v. Department of Environmental Protection, 193 A.3d 447 (Pa. Cmwlth. 2018), invalidated a regulation that required DEP to consider impacts to species of special concern when issuing permits for oil and gas development because the statute that created the permitting scheme only authorized DEP to consider impacts to endangered and threatened species.  

The same applies to municipalities, who cannot act beyond the powers given to them by the General Assembly. For example, in Frederick v. Allegheny Township, the Court held that municipalities lack the power to replicate the environmental oversight that the General Assembly has conferred upon DEP and other state agencies. 

Conclusion

Courts continue to wrestle with the ERA and the implications of Robinson Township and PEDF II. Courts have never directly addressed what preservation of the “scenic” and “esthetic” values of the environment means. The scope of what constitutes “public natural resources” also remains largely unexplored. Questions remain as to the nature of the Commonwealth’s duty to act affirmatively to protect the environment by passing laws. Few cases have delved deeply into the question of what “prudence, loyalty, and impartiality” look like in the context of preserving and maintaining public natural resources. The Pennsylvania Supreme Court has not elaborated on the proper approach to balancing the rights guaranteed by the ERA with other legitimate government interests like promoting economic development, and it is unknown whether it will approve of the two-part test created by the Commonwealth Court in Frederick Township. 

As these questions percolate through the courts, PennFuture’s legal team is dedicated to protecting and defending our fundamental constitutional right to a healthy environment through litigation and regulatory commenting. To learn more about PennFuture’s legal efforts on the ERA, visit our webpage on the ERA. To view the PennFuture ERA Policy Brief, click here.