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

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