Robinson Twp. v. Commonwealth, No. 63 MAP 2012 (Pa. Dec. 19, 2013), upended a lot of what we thought we knew about the Environmental Rights Amendment to the Pennsylvania Constitution, Pa. Const. art. I, § 27.  My January column in the Pennsylvania Law Weekly / Legal Intelligencer addresses that aspect of the decision, one that affects much more than just land use regulation of oil and gas operations.

I have previously addressed the specific holding of Robinson Townshiphere.  I have also suggested, including here, that Article I, section 27, presents opportunities to promote new projects.  Article I, section 27, establishes (a) a right in ”the people” to certain environmental values, (b) a public trust in public natural resources, and (c) the Commonwealth (and each of its agencies and subdivisions) as the trustee for those public natural resources.

The Commonwealth Court has repeatedly held that the three-part test of Payne v. Kassab, 323 A.2d 407 (Pa. Commw. Ct. 1974), aff’d, 361 A.2d 263 (Pa. 1976), sets out what a state or municipal government must do when considering whether to take or not to take an action.  Under that test, the government agency must ask:

(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?

 The Robinson Township plurality would hold that that test understates the duties of the Commonwealth and municipalities to promote environmental quality and to enhance the value of the public trust.  Decisions must be made after some sort of more comprehensive balancing.

As my column argues, the rights and obligations flowing from Article I, section 27, apply both to the grant of a permit or approval and to the denial of a permit or approval.  The Environmental Rights Amendment is not a constitutionalized precautionary principle, inhibiting new development unless it can be shown to enhance the environment.  Instead, the Environmental Rights Amendment also requires that denialsof approvals have similar support.  Article I, section 27, provides an opportunity for proponents of new projects from power plants to roads to schools to homes.  It allows them to argue that their projects will enhance the values protected by the Environmental Rights Amendment more fully than the status quo.

Read Pennsylvania’s Environmental Rights Amendment after Robinson Township, 36 Pa. L. Weekly 28 (Jan. 14, 2014), here.