Last month, the Pennsylvania Commonwealth Court reiterated its general view of the Environmental Rights Amendment, Article I, Section 27, of the Pennsylvania Constitution. That court seems to believe that executive agencies must implement the ERA while “staying in lane.” They may only engage in the evaluation of rules or permits using the procedures and under the standards established for them by statute or regulation. The ERA does not create additional procedures, although the absence of those procedures may make a statute or regulation unconstitutional.
Some, of which I am one, regard this view of the ERA as critical to having well-functioning government programs. That is very important generally, and specifically in this moment. But, the actual facts of the case, Delaware Riverkeeper Network (DRN) v. Pennsylvania Department of Environmental Protection, No. 285 M.D. 2019 (Pa. Commw. Ct. Jan. 12, 2021), highlight the risk that Pennsylvania is falling short of that goal.