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The Environmental Rights Amendment: Recent Developments and How it May Apply to

Local Land Use Decisions

STEVENS & LEE

Ambrose W. Heinz, Esq. (717) 255-7377 awh@stevenslee.com

Environmental Rights Amendment Article 1, Section 27

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and aesthetic values of the environment

Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come

As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people

Adopted May 18, 1971

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PA Constitution Declaration of Rights Inherent Rights of Mankind Article 1, Section 1 All men are born equally free and

independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness

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Payne v. Kassab, 361 A.2d 263 (PA 1976) Action against municipal officials to enjoin a street widening project

that would impact park land along Susquehanna River within the City of Wilkes-Barre

PA Commonwealth Court rules in favor of municipal officials and adopts a 3-part test:

1. Was there compliance with all applicable statutes and regulations relevant to the protection of the Commonwealth’s public natural resources?

2. Does the record demonstrate a reasonable effort to reduce the environmental incursion to a minimum?

3. Does the environmental harm which will result from the challenged decision or action so clearly outweigh the benefits to be derived therefrom that to proceed further would be an abuse of discretion?

Since there was a statutory basis for suit (e.g., PennDOT legislation) no need to decide if ERA is self-executing

Affirms Commonwealth Court – no ERA violation

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1976 - 2013

PA Courts follow 3-part Payne v. Kassab test

Few successful actions brought

Why? – very hard standards to overcome?

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Act 13 of 2012: The PA Oil and Gas Act The goal was to facilitate the prompt expansion of the Marcellus oil and gas industry in PA Made oil and gas drilling permitted uses in all

zoning districts

Established uniform statewide setbacks for fracking and drilling operations

Essentially pre-empted much local zoning, in favor of state regulation

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Robinson Township v. Commonwealth of Pennsylvania (Robinson #2), 83 A.3d 901 (PA 2013)

On December 19, 2013, the Pennsylvania Supreme Court, in a tedious, 115 page plurality (nonbinding, non-precedential), ruled unconstitutional major parts of PA’s Act 13. (There was also a Robinson #1 decision, which is unimportant for our discussion)

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Municipal Liability as the Environmental “Trustee”

The Commonwealth (as well as its municipalities) have a “duty to refrain from permitting or encouraging the degradation of public natural resources…through direct state action or indirectly…because of the state’s failure to restrain the actions of private parties.” Robinson #2, p.957

As a Trustee, the Commonwealth (as well as its municipalities) must “act affirmatively to protect the environment, through legislative action.” Robinson #2, p. 958

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Municipal Liability as the Environmental “Trustee” (cont’d)

A municipality has to decide if a proposed action places a higher environmental burden on some citizens than on others, because if it does, it will violate the municipal trustee’s duty of impartiality to treat the environmental beneficiaries “equitably in light of the purposes of the trust.” Robinson #2, p. 980

There is a duty to act toward public natural resources with “prudence, loyalty and impartiality.” Robinson #2 p. 957

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Who Can Sue Has Always Been Constrained in Pennsylvania

Until Robinson #2, a litigant had to show a direct personal interest in a controversy to be able to sue, even under this Section 27 of the PA Constitution

Have the floodgates been opened or is this a handout to the plaintiff lawyer’s bar?

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Every Person in the Commonwealth Can Litigate, No Matter Where the Project May Be!

“This Court perceives no impediment to citizen beneficiaries enforcing the constitutional prohibition in accordance with established principals of judicial review.”

Permitted litigants: Delaware River Keeper, an environmental action group, upon

alleging that one of its members is suffering immediate or threatened injury (there is no fracking in the Delaware River basin to date);

A medical doctor in Bucks County, where no fracking has occurred, because he alleged that he couldn’t accurately report his findings in medical records without disclosure of fracking chemicals;

A Township Supervisor in Bucks County, where no fracking has occurred

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Robinson Township v. Commonwealth of Pennsylvania (Robinson #3) 147 A.3d 536 (PA 2016)

Robinson #2 was a plurality decision which was remanded back to the Commonwealth Court

Robinson #3 again struck down significant portions of Act 13, the 2012 Act which restructured the PA Oil and Gas Act

Mercifully, #3 was only 88 pages…

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Robinson Township v. Commonwealth of Pennsylvania (Robinson #3) (Now a majority holding)

“A municipality’s duty to protect the environment for the benefit of its residents is not merely a creation of statute, but an affirmative obligation placed on these entities by...our Commonwealth’s Constitution”

This did not authorize municipalities to exercise unconstitutional self-help

It did reinstate municipal power to enact ordinances permitted by the MPC where oil and gas interests are concerned

Raises questions about which state laws remain preemptive of municipal action

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Robinson Township v. Commonwealth of Pennsylvania (Robinson #3) (Now a majority holding) (cont’d)

Did not address whether a municipality has an environmental duty as Trustee to the public, and if so, what that duty is

Did not address the issue of standing of the oddly permitted litigants – leaving that issue in limbo, or arguably, where it was before Robinson #2 – with a requirement that a litigant must show a direct, personal interest to be able to sue

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Post Robinson Decisions Feudale v. Aqua Pennsylvania, Inc. & DCNR, 122 A.3d 462 (Pa. Cmwlth. 2015), affirmed, 135 A.3d 580 (PA April 2016)

Citizen action against Aqua’s proposal to replace 100 year old gravity fed water line through a state forest

Aqua’s predecessor had obtained water rights before land became state forest

Alleged logging and earth moving will destroy a large swath of forest and degrade the area’s natural and aesthetic value

Aqua had obtained all necessary permits (NPDES) which Feudale did not appeal. Therefore, claims against DCNR dismissed

Aqua not a Commonwealth governmental entity. Therefore not a trustee under ERA. Therefore, no duty under ERA to conserve and maintain PA natural resources

Commonwealth Court applies Payne v. Kassab test and finds no evidence that DCNR didn’t follow proper statutory and regulatory guidelines

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Kretschmann Farm LLC v. Township of New Sewickley, 131 A.3d 1044 (Pa. Cmwlth. January 2016)

Conditional use application for gas compressor station

Met the ordinance requirements

Objectors did not preserve their constitutional challenge to Ordinance

Applicant had no obligation to show compressor station – complied with ERA; only that is would satisfy state and federal environmental laws

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Funk v. Governor Wolf, 144 A.3d 220 (Pa. Cmwlth. 2016), affirmed, 158 A.3d 642 (PA March 28, 2017)

Special interest groups brought action against the Commonwealth for failure to develop and implement a comprehensive plan to regulate CO2 emissions to prevent global warming, as violation of ERA

Court noted existing statutory scheme regulating air pollution in PA

ERA does not compel government to perform any specific acts. Therefore, performance is not mandatory

Commonwealth Court dismisses action and Supreme Court affirms

ERA does not allow petitioners to disturb the legislative scheme in place of regulating air quality

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Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania 161 A.3d 911 (PA June 20, 2017)

This case “examines the contours of the Environmental Rights Amendment” in the context of legislation which allows funds to be generated from the leasing of state forest and park lands for oil and gas exploration and extraction (only 45 pages)

The court declares the public trust provisions of the ERA to be self-executing

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Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania (June 20, 2017) (cont’d)

Declares that the ERA contains two rights:

A prohibitory clause limiting state power if it is exercised in opposition to “the right of citizens to clean air and water, and to the preservation of natural, scenic, historic and aesthetic values of the environment”

A reservation of the right of common ownership, by the people, including future generations, of the Commonwealth’s public natural resources

This creates a “trust” relationship in which the Commonwealth trustee is obligated to protect public natural resources from adverse state or private action

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Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania (June 20, 2017) (cont’d)

Reaffirms the Commonwealth and its subsidiaries (including municipalities) as trustees to the public regarding the use of public natural resources Captures funds generated from public land leases and royalties

in a trust for the environmental benefit of the public (funds are currently directed to a Hazardous Sites Clean-up Fund and to an Environmental Stewardship Fund)

Rejects and overrules the Payne v. Kassab balancing test first created by the Commonwealth Court in 1973 through which private rights and environmental harm were balanced before environmental actions were taken

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Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania (June 20, 2017) (cont’d)

Reaffirms that a challenger has the heavy burden of showing that a challenged statute or ordinance “clearly, plainly and palpably” violates the Constitution.” Decision was based on an environmental challenge to the use of public assets, and not to environmental degradation generally

Says that municipalities have the same obligations as the Commonwealth. But do they? Is the holding valid in a case in which municipalities have no involvement?

Municipalities cannot simply turn down a land development that meets its ordinance requirements on the basis of a perceived ERA violation (EQT Production Company et. LLC v. Borough of Jefferson Hills (Pa Commonwealth May 18, 2017)

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Delaware Riverkeeper Network v. Sunoco Pipeline, L.P., 179 A.3d 670 (Pa. Cmwtlh. February 20, 2018)

Trial court ruled that Township Ordinance prohibiting placement of natural gas lines in residential districts was preempted by PUC jurisdiction

Ruling did not conflict with Township’s constitutional duties to protect natural resources under the ERA

Ordinance was preempted by existing Public Utility Code provisions regulating location of public utilities

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Clean Air Counsel v. Sunoco Pipeline L.P., 185 A.3d 478 (Pa. Cmwtlh. April 30, 2018)

This case deals with whether an entity operating as a public utility (Sunoco) is a “trustee” under the ERA when exercising eminent domain powers

Sunoco is not a “private” party, so Commonwealth Court has exclusive jurisdiction to hear claims regarding violations of ERA

However, Court does not answer the question of whether public utility exercising eminent domain has a duty under ERA

Stay tuned...

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Gorsline v. Board of Supervisors of Fairfield Township, 186 A.3d 375 (PA June 1, 2018)

Reversed decision of Commonwealth Court holding that an unconventional gas well (“fracking”) a Residential-Agricultural (R-A) should have been allowed

Commonwealth Court had ruled that use was “similar to” a Public Service Facility and was thus permitted by conditional use in the R-A (following MarkWest I from 2014)

Supreme Court ruled that use was not similar to or compatible with a public service facility in the R-A district

Declined to address argument that allowing the use would violate objectors rights under the Environmental Rights Amendment

Theme of Courts so far in zoning cases is to avoid addressing ERA claims

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MarkWest Liberty Midstream v. Cecil Township Zoning Hearing Board, ___ A.3d ___ (Pa. Cmwlth. order published 9/13/18)

Following remand of a special exception request for natural gas compressor which court ordered approved (MarkWest I, 2014)

MarkWest appealed the conditions of approval imposed by ZHB

Neighbors’ sought intervention in matter

Court held that the decision to deny intervention did not violate neighbors Environmental Rights

No showing that Commonwealth failed in its duty to protect their rights or the environment or keep environmental harm to a minimum

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Unanswered Questions Does a municipal adjudicative body (i.e., ZHB or

governing body reviewing a plan) have a duty under the ERA beyond compliance with ordinance?

Should developer always provide an environmental impact report to avoid and ERA dispute or only on requests for legislative action?

If ordinance contains generic, subjective requirement to “not adversely impact environment,” who has the burden to prove? Is compliance with environmental laws enough?

As a constitutional issue, can an ERA challenge be raised at any time? What is the appropriate tribunal?

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Questions?