Sunday, November 22, 2015

Environmental Rights Continue To Be Vindicated In Pennsylvania

The right to pure water, clean air and a healthy environment has been twice vindicated in
Pennsylvania in this past week.  Given that environmental rights are recognized by many, including the Pennsylvania Supreme Court, as inherent and indefeasible rights that belong to all people, this is good news for Pennsylvania as well as the nation.

Pennsylvania’s election of state Supreme Court justices who recognize the importance of honoring all the State’s Constitutional provisions, including its environmental rights amendment, is a clear demonstration that the people of Pennsylvania want their environmental rights honored as firmly as all of their other constitutional rights such as the right to free speech and freedom of religion. These election results come on the heels of a decision by the current Supreme Court justices to reject an invitation to roll back the 2013 decision that, for the first time, gave substantive legal strength to the environmental rights provision in the state’s Constitution.  The election results plus the Supreme Court’s decision not to revisit its most recent pronouncement on environmental rights should solidify the growing strength of constitutional environmental rights in the State.

December 19, 2013 the Chief Justice of the Pennsylvania Supreme Court, Justice R. Castille, confirmed that by virtue of Article 1, Section 27 of the Pennsylvania Constitution, the rights to pure water, clean air and a healthy environment are inherent and indefeasible rights that belong to both present and future generations; that they are rights with the same legal standing as the rights to free speech, freedom of religion and private property rights; and that they are rights that must be protected by every government official at every level of government in the Commonwealth of Pennsylvania.  (See Robinson Township, DelawareRiverkeeper Network, et al v. Commonwealth, 83 A.3d 901 (Pa., Dec. 19, 2013).    

Since this decision was issued the shale gas, drilling and fracking industry, along with pro-drilling government officials, have been denying that this Supreme Court ruling should be given the same force and effect as every other ruling issued out of the court – they have wrongly asserted that Article 1, Section 27, is a mere statement of policy with little substantive importance. 

Earlier this year,  the Pennsylvania PUC, supported by industry, specifically petitioned the PA Supreme Court to revisit the Robinson Twp, Delaware Riverkeeper Network ruling and to deny Chief Justice Castille’s interpretation and application of Article 1, Section 27 – the PA Supreme Court notably ignored the request.  

It is also clear that the lower courts in Pennsylvania recognize the legal authority of Chief Justice Castille’s application of the Environmental Rights Amendment and is seeking to continue to apply, define and refine the legal affect and meaning of the provision.  Among the refinements issued out of the Commonwealth Court of Pennsylvania in just this last year is that:
  • ·      “[T]he Environmental Rights Amendment places an affirmative duty on the Commonwealth to ‘prevent and remedy the degradation, diminution, or depletion of our public natural resources’—i.e., to conserve and maintain . . . .”
  • ·      “If anything, when environmental concerns of development are juxtaposed with economic benefits of development, the Environmental Rights Amendment is a thumb on the scale, giving greater weight to the environmental concerns in the decision-making process.”  (Pennsylvania Envtl. Def. Found. v. Com., 108 A.3d 140 (Pa. Commw. Ct. 2015).

 The people of Pennsylvania have taken a stand that their healthy lives and healthy environment can and should be honored at the highest levels of the law.  The people of Pennsylvania, through this recent election, have made clear the public’s understanding that in order to ensure a healthy economy and healthy business you also need a healthy environment.

It is shameful that industry and government officials don’t want to acknowledge and honor our rights to healthy water, air and environments but it is time for them to accept the truth, our environmental rights are inherent and indefeasible and here in Pennsylvania have the highest constitutional protection you can obtain in our state. 

Only a few states give constitutional level protect to the environment that is as strong as Pennsylvania’s.  But there is a push for other states to look to Pennsylvania as an inspiration for the premise that environmental rights are inherent and indefeasible and should be given the same level of constitutional regard, respect and legal protection as other recognized rights such as the rights to free speech, freedom of the press, to bear arms, to freedom of religion, and to private property rights.  Learn where your states stand at

 4 Environmental Questions You Should Ask Politicians Today

Across the nation, communities are standing up for their rights to pure water, clean air, and a healthy environment.  People are banding together to champion for:

   Their right to have safe drinking water in their homes that is free from contamination.
   Their right to shower safely in their homes without risk of explosion from combustible gases in their water.
   Their right to enjoy their private property and not have it taken through eminent domain.
   Their right to experience the beauty of public open spaces safe from pollution and degradation.
   Their right to fish local creeks and rivers without fear that the fish have been contaminated by pollution.

One of the biggest challengers to these rights is the fracked shale gas industry.

Every week, the body of science on the harms of drilling and fracking grows. There are now more than 580 peer-reviewed articles examining the environmental and human health harms of shale gas extraction. Dr. Anthony Ingraffea, award-winning and nationally recognized expert on shale gas extraction, has analyzed these studies and noted that, “94 percent find harmful impacts to human health, 69 percent find harmful impacts on water quality, and 88 percent find harmful impacts to air quality.”

One of the newest reports shows what would happen if the moratorium against shale gas extraction in the Delaware River watershed were lifted and just 4,000 wells were drilled. CNA Analysis and Solutions, an independent group of scientists and researchers, determined that if these wells were drilled, there would be a cascade of negative events that would jeopardize the drinking water, air quality, forests, and health of Upper Delaware River communities.

Some of the potential impacts of fracking in the Delaware River watershed include:
   Increases in dangerous strontium and barium in the water by up to 500 percent, even if drilling is done in total compliance with state regulations.
   Depletion of crucial stream flows of up to 70 percent in small streams in the Delaware River Basin during times of low flow, a time when the critters and communities need those waters the most.
   Increases in land erosion by up to 150 percent during construction with an increase of up to 15 percent during day-to-day drilling operations.
   Depletion of underground aquifers, which feed both our streams and groundwater wells.
   Increases of 4 to 5.8 billion cubic feet of methane to the atmosphere each year.

And yet, politicians still defend fracking, claiming the need for a bridge to get us to clean and renewable energy technologies. The truth is, we already have that bridge with solar, wind, geothermal, and other clean energy technologies.

So let’s put our politicians to the test. Here’s a list of environmental issues and the questions you can use when speaking with politicians to see where they stand.

1. Health and Safety: Thousands of individuals have seen their health deteriorate, their drinking water impacted, and/or their safety jeopardized because of fracking wells and fracked gas infrastructure.
Ask your politicians: What is your position on ensuring that people have a right to safe drinking water from their household faucets—water free of contamination and toxins from the shale gas industry?

2. Property Rights: Property owners are increasingly having their land forcibly taken by eminent domain (or with the threat of eminent domain as leverage) for construction of pipelines to carry fracked gas and gas liquids. They suffer property damage, loss of property value, degradation of the land, and living in fear that a pipeline explosion or accident could cause harm to their families or themselves.
Ask your politicians: Do you oppose the use of eminent domain for fracked gas pipelines and associated compressors or LNG facilities?

3. Methane Leakage and Climate Change: A growing number of studies are finding that the leakage of methane into the atmosphere is more pervasive and significant than had been believed, that drilling and fracking are a significant source of methane, and that methane is 86 times more powerful than CO2 over the first 20 years for its climate-changing impacts.
Ask your politicians: Given this evidence, do you agree that drilling and fracking for shale threatens the future safety of communities that will be adversely affected by the floods, drought, and other extreme events associated with climate change?

4. Trans-Pacific Partnership: There is strong opposition to the Trans-Pacific Partnership (TPP) trade proposal for a variety of reasons, one being it will allow companies to secure automatic approval for the export of fracked gas to foreign countries with free trade status. Another reason people oppose it is TPP will give corporations the power to challenge state and federal environmental protection laws (for example, local, state, or regional bans on fracking) that the companies claim impede their ability to make profits.

Ask your politicians: Do you support or oppose the TPP?

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