Article 1 of the Pennsylvania Constitution—the “Declaration of Rights”—is essentially the state’s bill of rights for the people. It sets forth rights to free speech, trial by jury, bearing arms, and religious freedom. It also sets forth environmental rights:
27. Natural resources and the public estate.
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.
May 18 marks the 50th anniversary of this constitutional right. In 1971, the voters approved it 1,021,342 to 259,979 after unanimous passage in both the House and Senate.
A terrible 1973 Pennsylvania Commonwealth Court ruling—Payne v. Kassab—neutered this right. Not until forty years later, in a 2013 plurality decision and then in a 2017 majority decision, did the Pennsylvania Supreme Court take up the meaning of this right. The court essentially found that the text of article 1, section 27 says what it says, and the courts should follow it. While this should have been obvious all along, we finally have justices who acknowledge it.
What does this all mean for the future of Pennsylvania environmental law. Already we can see improvement on some fronts, but there’s great uncertainty as to where various matters will ultimately settle. Court rulings in the next few years should prove instructive.
WeConservePA again used constitutional arguments in its amicus curiae brief of earlier this year to the Supreme Court in a case of importance for conservation easement enforcement (Naylor v. Bd. of Supervisors).