The Pennsylvania Supreme Court’s fractured decision in Robinson Township v. Public Utility Commission, 83 A.3d 901 (Pa. 2013), has refocused attention on the Environmental Rights Amendment, Article I, Section 27 of the Pennsylvania Constitution. That raises the prospect of pressure on state agencies that are natural resource trustees to assert natural resource damages claims. NRD claims are not, or at least should not be, like cleanup claims. Courts should be much more reluctant to defer to “expert” agencies in NRD cases because expertise may not be possible, even in principle.

NRDs compensate for harms to public natural resources that a cleanup cannot alleviate. If public land becomes contaminated and unusable, one can clean it up, but one cannot restore the use during the period between the release that caused the contamination and the successful completion of the cleanup. Moreover, environmental cleanups rarely achieve a pristine or even a prerelease condition. They mitigate risk to an acceptable level, but may leave environmental resources somehow altered.

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