On June 20, the Pennsylvania Supreme Court issued its opinion in Pennsylvania Environmental Defense Foundation (PEDF) v. Commonwealth, 2017 Pa. LEXIS 1393 (Pa. June 20), in connection with the so-called Environmental Rights Amendment or ERA (Article 1, Section 27 of the Pennsylvania Constitution). Suffice it to say, the opinion has reopened the debate as to the meaning of the ERA, and more importantly, how the ERA is implemented as a practical and legal matter. In brief, the court ruled that amendments to the state’s fiscal code (which sought to address budgetary shortfalls by redirecting money from a fund containing rents and royalties from oil and gas leases on commonwealth land to the general fund) violated the ERA. While the facts before the court were narrowly drawn, the court used the opportunity to revisit the decades old “test” applied in evaluating ERA claims, an issue it first addressed in its 2013 plurality opinion in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013). It abruptly rejected the well-established Payne v. Kassab test and roughly 45 years of ERA-related case law, thereby placing the ERA, and industry, back into legal limbo. Despite some legal uncertainty, this opinion should not be interpreted as a major stumbling block to key energy and infrastructure projects.

First, some context. Decades before the 2013 Robinson Township opinion, the Commonwealth Court in Payne v. Kassab, 312 A.2d 86 (Pa. Cmwlth. 1973), aff’d 361 A.2d 263 (Pa. 1976), established a three-part test that allowed the ERA to become “operational.” In applying the Payne test, a court could determine whether a state action violates the ERA by determining whether there was compliance with all applicable statutes and regulations; reviewing the record for evidence of a reasonable effort to reduce environmental incursions; and determining whether the environmental harm of the challenged action clearly outweighs the benefits to be derived. These criteria gave legal meaning and structure to the otherwise amorphous ERA, which incorporates aspirational language: the people’s right to “clean air and pure water” as well as the right to the natural, scenic, historic, and esthetic values of the environment (individual rights); and the “common ownership by the people of the commonwealth’s public natural resources” (the public’s rights).

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