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David Mandelbaum. David Mandelbaum.

The Pennsylvania appellate courts decided about two dozen cases that one could call “environmental” last year. A brief review follows that necessarily gives short shrift to some of these opinions. This review may also omit some cases, for which I apologize.

Environmental Rights Amendment

The second and third sentences of Article I, Section 27, of the Pennsylvania Constitution (ERA) establishes a trust of “public natural resources” held by the commonwealth for the benefit of “all the people.” In Pennsylvania Environmental Defense Foundation v. Wolf, 161 A.3d 911 (Pa. 2017), the Supreme Court held that the ERA required proceeds from sale of the trust corpus (oil and gas leases in state forests) to be returned to the trust, and not appropriated to the General Fund. The court endorsed the plurality opinion in Robinson Township v. Pennsylvania Public Utility Commission, 83 A.3d 901 (Pa. 2013), and disapproved the analysis under Payne v. Kassab, 312 A.2d 86, 94 (Pa. Commw. 1973), aff’d 361 A.2d 263 (Pa. 1976). The court made some statements not necessary to the decision to the effect that the first sentence of the ERA calls for agencies of the commonwealth to conduct an environmental review before taking any action, and to refrain from acting if the adverse impacts on the environment would be unreasonable. Further, the court said that the duties of the commonwealth as trustee were those of a private trustee.

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