The Commonwealth Court recently provided new guidance on the extent to which the Environmental Rights Amendment to the Pennsylvania Constitution gives municipalities or agencies additional powers or imposes on them additional obligations. Frederick v. Allegheny Township Zoning Hearing Board, No. 2295 C.D. 2015 (Pa. Commw. Ct. Oct. 26, 2018), holds that the amendment does not alter the authority of the ZHB or its procedures. See also Protect PT v. Penn Township Zoning Hearing Board, 39 C.D. 2018 (Pa. Commw. Ct. Nov. 8, 2018). On the other hand, the Environmental Hearing Board seems to have held previously that the amendment requires the Department of Environmental Protection (DEP) to engage in an environmental assessment of some sort before granting a permit.

As we have discussed in several prior columns, Article I, Section 27, of the constitution recognizes a right of “the people” to clean air, pure water and to the “preservation” of four “values” of the environment. It also establishes a public trust with all of the commonwealth’s “public natural resources” as the corpus, the commonwealth as the trustee, and “all of the people, including generations yet to come” as the beneficiaries. The Supreme Court infused new life in that provision in two cases. First, a plurality of the court in holding that many provisions of the Oil and Gas Act Amendments of 2013 were unconstitutional opined that the prior 40 years of jurisprudence under Section 27 had failed to treat it as a constitutional provision against which statutes and executive actions would be tested, see Robinson Township v. Public Utilities Commission, 83 A.3d 901 (Pa. 2013). Then, a majority of the court adopted the Robinson Township plurality’s reasoning in holding that disposition of the proceeds of oil and gas leases in state forests violated Section 27, see Pennsylvania Environmental Defense Foundation v. Commonwealth, 161 A.3d 911 (Pa. 2017).