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PA Supreme Court Strengthens Environmental Rights Amendment

In a decision issued June 20, 2017, the Pennsylvania Supreme Court greatly strengthened the Environmental Rights Amendment (“ERA”) to Pennsylvania’s Constitution by broadly interpreting the Commonwealth’s role as trustee for public natural resources. This result will require the Commonwealth, particularly the Department of Environmental Protection (“DEP”), to give increased scrutiny to projects that affect the environment, such as excavation, manufacturing, and farming. The decision will also provide environmental, citizen groups, and others additional tools to challenge permits that are granted by DEP by giving teeth to allegations that the grant of a permit negatively impacts the environment, and as such, the Commonwealth has violated its fiduciary duty as trustee for public natural resources when granting that permit.

The ERA provides that “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 case, Pennsylvania Environmental Defense Foundation v. Pa., challenged the State’s practice of allocating  royalties from the lease of state lands for gas drilling to the State’s General Fund. The Court held that Pennsylvania, as trustee of the Commonwealth’s natural resources, must use these funds to enhance and protect these resources. The Court stated that the ERA “imposes two basic duties on the Commonwealth as the trustee. First, the Commonwealth has a duty to prohibit the degradation, diminution, and depletion of our public natural resources, whether these harms might result from direct state action or from the actions of private parties. Second, the Commonwealth must act affirmatively via legislative action to protect the environment.” (Emphasis added). This decision sets aside more than 40 years of judicial practice, and overturned precedent that more narrowly interpreted the ERA.

Attorneys in Stock and Leader’s Environment, Energy, and Environmental Mediation Group will be assessing the implications of this case and monitoring developments for their impact on DEP permitting and other actions.

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