Nearly 50 years ago, Pennsylvania took a bold step to protect the state’s natural resources. In May 1971, voters ratified an amendment to the state constitution under Article I, Section 27, known as the Environmental Rights Amendment (ERA). Following Illinois, Pennsylvania became the second state, and is still one of only six overall, to adopt a constitutional amendment to address citizens’ desire to preserve the environment.
“The ERA conferred upon the Commonwealth of Pennsylvania the status of trustee of its resources,” says James M. Lammendola, associate professor of legal studies at the Fox School. “It was designed to protect the people by protecting the environment.”
With the ERA, voters put their trust for preserving public natural resources in the hands of the state. Unfortunately, according to Lammendola, the government did not hold up its end of the bargain.
A real estate law professor, Lammendola studied Pennsylvania’s path from environmental protector to complicit exploiter and back again in his paper, “The Pennsylvania Environmental Rights Amendment: Pennsylvania’s Challenge to Act as a Trustee to Conserve and Maintain its Public Resources,” published in the Real Estate Law Journal.
A Constitutional Duty
Given its status as a constitutional amendment, the ERA should have been interpreted as a law that was superior to state statutes. According to Lammendola, due to the amendment’s placement within the state’s Declaration of Rights, “the ERA is a right on par with, for example, religious freedom and trial by jury.”
When it was adopted in 1971, the ERA outlined two key rights: the people’s right to clean natural resources and the Commonwealth’s duty to uphold that right as a Public Trust. As a trustee, the state and local governments have the responsibility to “conserve and maintain” the state’s natural resources for the benefit of the people. Decisions that affected land use—such as fracking, mining and the preservation of ecosystems—should have been made in the context of environmental protection.
However, many have challenged the ERA since its inception. “We live in a time where some industries are focused almost exclusively on the exploitation of natural resources. State and local governments are interested in raising revenue from these resources,” Lammendola says. So for decades, as industry expanded and used the state’s resources for profit, the government watched quietly.
A Failing Trustee
In 1973, the city of Wilkes-Barre faced public pressure against plans to disrupt the River Common, a public area, in efforts to reconstruct and expand River Street. All that was at issue was a minimal widening of a road. The litigation, known as Payne v. Kassab, eventually resulted in a judicial “balancing-test” that, according to Lammendola, violated the ERA.
“Payne v. Kassab developed a three-part test to determine whether or not the actions of a private actor or the government were in compliance with the amendment,” says Lammendola. “If there was compliance with a statute or regulation, a reasonable effort to minimize environmental disruption and the determination that harm did not outweigh the benefits, then the amendment would not be violated.”
The Payne test created a path for companies to engage in environmentally-damaging projects by arguing that they were economically beneficial for the state. “The ERA is an amendment, but after that case, businesses and politicians treated it as a statute. It was not granted the required deference by the courts,” Lammendola says.
Further legislation also limited local governments’ power to enforce the ERA. In 2012, the state legislature passed, and then-Governor Tom Corbett signed, several statutes that took away municipalities’ ability to ban fracking, a controversial method of extracting oil and natural gas from underground shale deposits. “This severely impaired the ability of municipalities to control where fracking can occur within their borders. That is restricting their abilities to protect the health, welfare and safety of their citizens,” Lammendola says.
A Renewed Opportunity
In two recent landmark cases, the Pennsylvania Supreme Court finally reinstated the constitutional force of the ERA. In the 2013 Robinson Township case, the Court ruled the fracking legislation unconstitutional, finding in favor of local zoning laws, thus limiting state oversight over local land use regulation. Lammendola says that the fracking statutes made it practically “impossible for the local governments to act as trustees as mandated by the public trust language of the ERA.”
A few years later, the Court reinvigorated the strength of the ERA as a constitutional right. The 2017 Pennsylvania Environmental Defense Foundation (PEDF) case was precedent-setting. The Court’s decision took the state to task over the lack of allocation of state funds, earned from oil and gas leasing, to activities designed to protect the environment.
“(The rulings) restored the ERA to its rightful status as a constitutional amendment. The Commonwealth and courts must now interpret the ERA with the deference and scrutiny that is accorded to a constitutional provision and not subject its application to a balancing test,” Lammendola explains. The court rulings, while belated, were welcomed by environmental activists who urged businesses and governments to consider the climate crisis when making decisions on land use. The future is fragile, Lammendola argues.
“The 2019-2020 coronavirus pandemic should be a sobering lesson. At our present slow rate of converting to renewable energy sources, a time will come when our country is as unprepared to deal with mass extinction, rising sea levels, and more droughts and heatwaves as it was unprepared for the pandemic. We will have violated more than Article 1, Section 27 of the Pennsylvania constitution,” warns Lammendola.