Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania: Recognition of Environmental Rights for Pennsylvania Citizens (original) (raw)
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Robinson Township v. Commonwealth of Pennsylvania: Examination and Implications
SSRN Electronic Journal, 2000
In Robinson Township v. Commonwealth of Pennsylvania, the Pennsylvania Supreme Court held unconstitutional major parts of Pennsylvania’s “Act 13” — a 2012 oil and gas law designed to facilitate the development of natural gas from Marcellus Shale. In so doing, the Court breathed new life into Article I, Section 27 of Pennsylvania’s constitution, which creates public rights in certain environmental amenities and requires the state to “conserve and maintain” public resources “for the benefit of all the people.” This paper describes the decision, explains some of its immediate implications in Pennsylvania, and also explains its importance for public environmental rights and environmental constitutionalism elsewhere.
2018
Pennsylvania voters overwhelmingly added environmental rights to the other rights protected by the state constitution in 1971 at the height of the modern environmental movement. In two cases decided shortly thereafter, however, state courts essentially buried the amendment, most prominently with a judicially invented test that served as a substitute for the text. In 2017, in Pennsylvania Environmental Defense Foundation v. Commonwealth, the Pennsylvania Supreme Court held that the text of the amendment, Article I, Section 27, provides the legal basis for deciding environmental rights claims, not the judicially invented test. For many lawyers, judges, and citizens, the change is so dramatic that it is as if Article I, Section 27 was adopted in 2017. This Article describes the background of this landmark case, including the cases in which the Pennsylvania courts put the Environmental Rights Amendment into a state of near dormancy for more than four decades. After briefly reviewing Robinson Township, it then reviews each of the Pennsylvania Supreme Court’s opinions in PEDF. It then addresses a variety of issues about the interpretation and application of Section 27 after PEDF. This article also explains how this case is adding momentum to the growing use of constitutional environmental amendments in other states and countries.
Robinson Township v. Pennsylvania: A Model for Environmental Constitutionalism
Widener University Delaware Law School Legal Studies Research Paper Series, 2014
In Robinson Township v. Commonwealth of Pennsylvania, a plurality of the court held that a controversial law encouraging fracking ("Act 13") violates the state’s constitutional Environmental Rights Amendment, the provisions of which the court held are "on par" with political rights. The decision highlights the challenges of engaging constitutional environmental provisions but demonstrates that, with sufficient creativity and commitment, meeting these challenges lies well within the bounds of judicial capability and authority. Because courts around the world are increasingly being asked to engage in environmental constitutionalism, and Robinson Township's thorough examination of the issues is instructive, not only for cases involving fracking but for cases involving all manner of environmental concerns. Most importantly, it shows what a difference a constitutional environmental right can make.Robinson Township embodies the hope that constitutionalism affords f...
West Virginia Law Review, 2014
Hydraulic fracturing for oil and natural gas is perhaps the most polarizing energy issue in the United States and around the world, and Pennsylvania has emerged as an example of passionate views both for and against hydraulic fracturing for shale gas. To limit local government restrictions on gas drilling, the Pennsylvania legislature passed Act 13 in September 2012, and the Act largely eliminated the ability of local governments to restrict oil and gas operations through zoning. The Pennsylvania Supreme Court overturned Act 13 in December 2013. This Article reviews how Act 13 came to be, highlights the key provisions of the Act, and explains the various rationales used by the court to overturn the Act. The Article then takes a critical look at the Pennsylvania Supreme Court’s reliance on unsupported facts and illustrates how even well-meaning assumptions applied to highly complex issues can cause more harm then good. The Article further argues that the court did not sufficiently analyze the full scope of environmental impacts of Act 13 and the related natural gas output that would accompany it. After the court decided to engage in the environmental analysis (rather than deferring to the legislature on policy matters), a detailed fact-gathering and analysis process was warranted to avoid adopting common misconceptions as legal facts. To be clear, this Article does not argue that the court was wrong to question the potential environmental impacts of hydraulic fracturing. Instead, it argues that the court’s decision failed to consider the full host of potential environmental risks related to energy extraction and production, which provide necessary context when considering the proper way to manage the corpus of the public trust and enforce the environmental protections mandated by the Pennsylvania Constitution. The Article cautions that a majority of the court appears to have relied on “fracking distractions,” which are real social or environmental risks that are incorrectly, and inappropriately, linked with hydraulic fracturing. Despite the court’s laudable focus on environmental protection, the Article also argues that the decision could cause unintended problems beyond the natural gas industry, unless future courts read the case narrowly. The Article concludes that a more tailored version of Act 13 may be feasible and that a renewed commitment to determining and analyzing the full complement of pertinent facts related to hydraulic fracturing is warranted and necessary to minimize potential environmental and social harms and to maximize potential benefits.
Massachusetts Versus EPA: Parens Patriae Vindicated
2008
Last term, the Supreme Court delivered a courthouse victory to Massachusetts and its allied states over the U.S. Environmental Protection Agency. 1 Many states take seriously their roles as Parens Patriae for protecting their natural environment. 2 The Supreme Court's holding in the Massachusetts case affirms the common law understanding of Parens Patriae. States did not give up these rights to protect their citizens' interests upon entry to the Union. 3 I. IPCC REPORTS ON GLOBAL WARMING'S IMPACT ON THE ENVIRONMENT The Intergovernmental Panel on Climate Change (IPCC) has issued several reports, including a recent report which links the causes of global warming to its effects. 4 In that report, the IPCC states that:
Clean Power Plan: Legal Background and Pending Litigation in West Virginia v. EPA
2017
On October 23, 2015, the Environmental Protection Agency (EPA) published its final Clean Power Plan rule (CPP or Rule) to regulate emissions of greenhouse gases (GHGs), specifically carbon dioxide (CO 2), from existing fossil fuel-fired power plants. The aim of the Rule, according to EPA, is to help protect human health and the environment from the impacts of climate change. The CPP would require states to submit plans to achieve state-specific CO 2 goals reflecting emission performance rates or emission levels for predominantly coal-and gas-fired power plants, with a series of interim goals culminating in final goals by 2030. The CPP has been one of the more singularly controversial environmental regulations ever promulgated by EPA, and the controversy surrounding the Rule is reflected in the enormous multi-party litigation over the Rule ongoing in the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit). Numerous petitions challenging the CPP have been consolidated into one case, West Virginia v. EPA. While the litigation is still ongoing at the circuit court level, an unusual interlocutory-that is, mid-litigation-application to the Supreme Court resulted in a stay of the Rule, meaning that the Rule does not have legal effect at least for the duration of the litigation. On May 16, 2016, the D.C. Circuit, on its own motion, ordered the case to be heard in the first instance by the full court (en banc), rather than by the three-judge panel originally scheduled to hear the case, and rescheduled oral argument for September 27, 2016. This report provides legal background on the Rule, its Clean Air Act (CAA) framework under Section 111, and climate-related lawsuits that have preceded the present litigation over the CPP. It then gives an overview of the participants in the current litigation, including two groups of Members of Congress, who have offered briefs in support of the petitioners and the respondents, respectively. This report explains the major events in the litigation as of the date of publication, including the Supreme Court stay, and the likely timetable of events in the near term. Some of the main arguments on the merits are then briefly summarized and excerpted from court filings, including the standard of review to apply to EPA's action; the scope of EPA's overall authority under CAA Section 111; whether Section 111 allows the CPP's inclusion of generation-shifting, such as from coal-fired power plants to lower-emitting sources of electricity; the interpretation of a statutory exclusion in CAA Section 111 that crossreferences CAA Section 112's regulation of hazardous air pollutants, particularly in light of the apparent enactment in 1990 of differing House and Senate amendments to the same cross-reference; constitutional arguments relating to federalism and separation of powers; record-based challenges to the achievability and reasonableness of the Rule; and arguments regarding rulemaking procedures. This report concludes with a brief look at parallel litigation in the D.C. Circuit, consolidated as North Dakota v. EPA, which is challenging a related EPA regulation that imposes new source performance standards (NSPSs) limiting CO 2 emissions from new, modified, or reconstructed fossil fuel-fired power plants.
Massachusetts Versus EPA: Parens Patri� Vindicated
2008
Last term, the Supreme Court delivered a courthouse victory to Massachusetts and its allied states over the U.S. Environmental Protection Agency. 1 Many states take seriously their roles as Parens Patriae for protecting their natural environment. 2 The Supreme Court's holding in the Massachusetts case affirms the common law understanding of Parens Patriae. States did not give up these rights to protect their citizens' interests upon entry to the Union. 3 I. IPCC REPORTS ON GLOBAL WARMING'S IMPACT ON THE ENVIRONMENT The Intergovernmental Panel on Climate Change (IPCC) has issued several reports, including a recent report which links the causes of global warming to its effects. 4 In that report, the IPCC states that:
Environment, Energy, and Resources Law: The Year in Review 2012, Constitutional Law Report
This chapter from The Year in Review, published by the ABA Section on Environment, Energy and Resources, covers developments during 2012 in the areas of standing, Commerce Clause, political question doctrine, displacement and preemption, takings, due process, First Amendment, Tenth Amendment, separation of powers, and state constitutional law.
Recent work on legal geographies has arguably paid far too little attention to the environment as both an object of governance and a terrain of struggle with respect to the law. Conversely, political ecology as a field, with its focus on informal and extra-legal dynamics, has arguably engaged too little with the legal geographies that are central to environ- mental conflicts in many locations. This paper examines and theorizes the legal geographies that have been essential ele- ments of the recent boom in extraction of natural gas from the Marcellus Shale in Pennsylvania. Specifically, it examines the ways in which laws and the authority of the state more broadly have been changed, deployed, and invoked, particularly through the passage of Act 13, to enable the extraction of the gas in the shale and its circulation as a viable commodity. This analysis of the relevant multiscalar legal geographies illustrates the productivity of a more direct engagement be- tween political ecology on one hand, and legal geography on the other.