In June 2017, the Pennsylvania Supreme Court issued its decision in PA Environmental Defense Foundation v. Commonwealth of Pennsylvania, et. al, (PEDF) establishing a broad interpretation of PA’s Environmental Rights Amendment (ERA), which is found in the Commonwealth’s Constitution. Some folks in PA might not know this, but it’s one of only a few states in the nation to recognize having clean air and water as a basic civil right for its citizens. The case, brought by the Pennsylvania Environmental Defense Foundation, challenged the Commonwealth’s use of oil and gas lease proceeds for anything other than environmental preservation. The court ruled that proceeds must be allocated towards the Department of Conservation and Natural Resources, and could not be syphoned by the Commonwealth’s general fund.
Specifically, the ERA, passed by referendum in 1971, played a critical part in the decision. Article 1, Section 27, provides:
The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic 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.
Importantly, the court set forth that under the ERA, the Commonwealth has a duty to prohibit the degradation, diminution, and depletion of public natural resources, whether these harms might result from direct state action or from the actions of private parties. The court also established that the Commonwealth must act affirmatively via legislative action to protect the environment. With a seemingly all-encompassing scope, the decision was seen to open the door for the ERA to be used in a variety of ways to reduce industrial development and limit environmental threats, including hydraulic fracturing.
Prior to PEDF, the application of the ERA was first supported in Robinson v. Commonwealth of Pennsylvania, et. al., which was decided in 2013. In this case, the Pennsylvania Supreme Court ruled that the ERA preempted local municipal laws and key portions of Act 13 of 2012, which had allowed drilling activity with very little restrictions.
Now, citizens of Allegheny Township are citing to the ERA, as interpreted by the Pennsylvania Supreme Court in 2013 and 2017, as a legal basis to prevent hydraulic fracturing activities altogether by challenging the township’s zoning ordinances. In Dolores Frederick, et. al. v. Allegheny Township Zoning Board, et. al. Petitioners (citizens) are seeking to invalidate a 2010 zoning ordinance which specifically permits shale gas drilling in semi-rural areas of the Westmoreland municipality. At issue, is whether the ERA, as interpreted in PEDF and Robinson, theoretically applies to local zoning laws. Notably, the trial court ruled in favor of the township. Local citizens subsequently appealed to the Pennsylvania Commonwealth Court. Petitioners on appeal essentially argue that the zoning ordinance should be invalidated under the ERA because the township somehow violated a constitutional duty to protect the health, safety, and welfare of residents, as set forth under the ERA. Conversely, the Zoning Board argued that the ERA is a completely improper basis in which to seek to invalidate a zoning ordinance involving private property rights.
The lawsuit represents the latest creative effort by environmental groups and others seeking to advance public policy-related arguments in litigation as a means of constricting hydraulic fracturing in Pennsylvania.