The Environmental Rights Amendment to the Pennsylvania Constitution, Article I, Section 27, has become a feature of environmental litigation in our commonwealth over the nine years since a Pennsylvania Supreme Court plurality reanimated it in Robinson Township v. Public Utilities Commission, 83 A.3d 901 (Pa. 2013). In my February column I alluded to some analytical inconsistencies within the Pennsylvania appellate courts’ post-Robinson opinions. This column seeks to sharpen up two large issues under the first sentence of Section 27, the one granting an environmental right. First, is that right substantive or procedural? Second, does the right apply to all environments, or just to “traditional environmental media?”

The first sentence of Section 27 provides: “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.” The Robinson Township plurality read that sentence to impose an obligation on government: “Clause one of Section 27 requires each branch of government to consider in advance of proceeding the environmental effect of any proposed action on the constitutionally protected features.” That would suggest that the right is procedural. Each person (or all the people) have a right to require a government agency taking an action to consider in advance the environmental effect of that action.

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