Pennsylvania’s Environmental Rights Amendment Grows Some Teeth

After decades of irrelevance, two court decisions uphold people’s right to “clean air, pure water,” hearten activists to push for more.

By Donna Morelli, Bay Journal

This story is republished with the permission of the Bay Journal

For all of its natural bounty, Pennsylvania has environmental woes aplenty. Take your pick — 19,000 miles of impaired streams, 5,500 of them from abandoned coal mines; state environmental agencies and programs starved of funds as Pennsylvania fails to do its part to maintain safe drinking water and clean up the Chesapeake Bay; and state forests carved up by drilling pads and pipelines.

But the state does have an Environmental Rights Amendment. Since 1971, Pennsylvania’s constitution has guaranteed that the people have a right to clean air, pure water and the preservation of the natural, scenic, historic and esthetic values of the environment. The amendment also says that the state’s natural resources are the common property of all the people, including generations yet to come, and that the state shall conserve and maintain them.

Until lately, those high-sounding words have been just that, without any real impact on what happens in the state. But twice in the last four years, Pennsylvania’s Supreme Court has rendered decisions putting teeth in the environmental rights amendment — first, in a lawsuit over whether communities have the power to bar hydraulic fracturing and, later, over how the legislature is spending revenue derived from leasing state forestland for “fracking,” as the controversial natural gas extraction method is known.

The high court’s rulings, in 2013 and 2017, have generated buzz among lawyers and elected officials, as well as heartened environmental activists used to losing political scraps with the state’s powerful extractive industries. The full import of the court’s decisions has yet to play out, with more litigation in the works. But already, some activists have been emboldened to push to expand its application in Pennsylvania — and to spread similar green amendments nationwide.

“These decisions have empowered people,” said George Jugovic, director of legal affairs for the environmental group, PennFuture. “People are talking about it and asking questions: ‘How does this affect my life? How does this affect the resources that are important to me?'”

Pennsylvania is one of nearly two dozen states with language about environmental protection in their constitution. Advocates say the Keystone State’s provision is more potent than most because it’s been enshrined among the “Declaration of Rights” enumerated at the beginning of the state’s governing document.

The amendment grew out of an earlier era of environmental depredation of the state by the coal industry, when thousands of acres of forest were destroyed by strip mines and streams were rendered lifeless by acid drainage.

“People were sick and tired of seeing dead fish and dirty water in the streams and rivers after coal companies would dump their waste,” recalled Franklin L. Kury, the former state legislator who drafted the environmental rights amendment.

Campaigning on a platform of “clean streams and clean politics,” Kury won election to the state House of Representative in 1966 and wrote the words to Article 1, Section 27 in 1969. The legislature had already responded to the growing environmental concerns being expressed nationwide by passing new environmental regulations and revising its Clean Streams law to include the coal industry. But Kury thought more was needed.

“I wanted to write a law with broad basic principles that would last for time,” he said. The year after the nation’s first Earth Day, Pennsylvania voters approved the amendment by a margin of nearly four to one.

For the next four decades, though, it proved pretty toothless, defanged by a 1973 Commonwealth Court ruling that applied a circuitous logic to what it meant. Basically, government just had to show that the benefits of whatever project was being challenged were greater than the environmental damage likely to be caused. In nearly all cases, the government won.

Then, the right case came along with the right argument. It grew out of the backlash in Pennsylvania to the explosion of fracking across the state. As some townships tried to zone fracking away from schools and populated areas, the industry succeeded in getting state legislators to pass a law saying only the state could regulate fracking.

The Delaware Riverkeeper and nine Pennsylvania municipalities took on the new law, led by Robinson Township, a mid-size suburb of Pittsburgh. The case, Robinson v. Commonwealth, went all the way to Pennsylvania’s Supreme Court, which in a landmark decision declared the green amendment trumped parts of that law. It upheld the rights of a local community to say no to fracking.

“All these years, nothing that I’ve done legally and personally moved me as much as that court decision,” Kury said of the 2013 ruling.

A second, more recent environmental rights ruling — also tied to fracking — is more complicated, but potentially just as far-reaching. Since 2008, Pennsylvania’s governors and lawmakers have been using revenues earned from leasing state forest lands for fracking to balance the state budget. The Pennsylvania Environmental Defense Foundation, a nonprofit founded in 1986, decided to challenge that practice.

Pennsylvania awarded its first oil and gas lease on public lands in 1947 and by 1955 the state created the Oil and Gas Lease Fund. Until 2008, the Department of Conservation and Natural Resources, which manages Pennsylvania’s vast network of public lands, was the sole beneficiary of the fund. From 1947 to 2008, according to court documents, oil– and gas-leasing revenue totaled $165 million. But the explosion of shale gas drilling brought in $167 million in 2009 alone. State officials decided to divert most of that revenue into the general fund, leaving the DCNR an amount up to $50 million a year.

The Marcellus Shale gas play took off just as the economy plunged into a recession; and like many states, Pennsylvania’s budget had a huge hole to fill. In a cash-strapped state where raising taxes was — and is — political poison, it was too tempting to keep using the millions of dollars from state forest leases as a cash cow.

Last June, in a decision built on the logic of its earlier 2013 ruling, the high court decreed in Pennsylvania Environmental Defense Foundation v. Commonwealth that the money raised by leasing the state’s natural resources must be used solely to restore and maintain those resources.

It’s too early to tell what the latest decision will mean. What is clear, is that there will be more lawsuits — and the wait shouldn’t be long. The Pennsylvania Environmental Defense Foundation has gone back to court, asking a judge to declare parts of the 2018 budget legislation unconstitutional because it relies on transfers from the oil and gas fund.

“We have state forest that is significantly degraded,” said John Childe, the foundation’s attorney. “DCNR is not able to deal with the impacts to plants and animals and forest fragmentation. We’re losing funding for the restoration of the forests. If you can’t balance the budget, create new funds; don’t take it from our state forests. You can’t rob Peter to pay Paul.”

The Commonwealth Court, an intermediate appeals court, is still weighing how that money must be spent, Childe said. If the foundation is successful, the cumulative $1.1 billion in lease revenue will be reserved exclusively to restore the state forests. The state may have to repay money already spent elsewhere.

It’s complicated how the money is spent now; some is siphoned off for the general fund and some goes to the DCNR and is granted to communities for projects — and expenses. About $20 million annually goes to Growing Greener, a program established in 1999 that distributes grants to deal with a broad array of environmental needs, from sewer upgrades to farmland preservation. The program once had a dedicated source of funding — tipping fees on trash hauling — but in recent years has relied on borrowed money. The $20 million will be zeroed out if the Environmental Defense Foundation wins in court.

Some activists worry that the case could take scarce state funding away from Growing Greener and other needy environmental initiatives. “I’m concerned as a Pennsylvanian; I want to see the environment funded,” said Andrew Heath, executive director of the Growing Greener Coalition, a coalition of environmental groups supporting the fund. “But when I put my executive director hat on, my job is to see as much money go into the program as possible.”

So far, the amendment hasn’t seemed to guarantee that lawmakers will provide adequate funding for Bay restoration, drinking water protection or other environmental protections.

The most recent state budget left the Department of Environmental Protection with no new money, despite receiving warning letters from the U.S. Environmental Protection Agency about Pennsylvania’s lagging performance in reducing nutrient pollution to the Susquehanna River and the Chesapeake Bay, and the state’s shortcomings in ensuring public drinking water safety.

But David Hess, a former DEP secretary who is now a lobbyist, said he believes the latest court ruling has the potential to force a much-needed reform in the state’s anemic funding for environmental preservation and protection.

The state’s lawmakers have been balancing the budget with “bubble gum and baling wire” for the last 13 years, Hess said. And the money from gas leasing is just part of the problem. Environmental agencies are cut, and special funds tend to be viewed as easy marks for diversion.

“The General Assembly isn’t going to change unless they are forced to,” Hess said. “They are loath to raise taxes, and they are loath to raise new revenue. They want the easy way out, and the easy way out is to patch together whatever they can steal where they can.”

Every year, as expenses climb, a group of legislators insists it won’t raise taxes or fees for any purpose whatsoever. But revenues from income and sales tax are down since the recession. With four-fifths of the budget devoted to health, human services and education, that leaves a diminishing share for everything else, including the environment.

The court ruling on the oil and gas fund could wreak major change, but Rep. Kate Harper, a Republican from Montgomery County, predicted it will take some time for her colleagues to take the environmental rights amendment seriously. She suggested that “strategic lawsuits will change their mind.”

Some activists see a brighter green road ahead. Maya K. van Rossum, the Delaware Riverkeeper, hopes to turn the court victories into a movement. The Delaware Riverkeeper Network, a co-plaintiff in the Robinson case, launched an initiative in 2014 aiming for an environmental rights provision in every state’s constitution. Rossum wrote a book last year on the topic, The Green Amendment.

Environmental laws aren’t protecting anyone, van Rossum contended. “The green amendment is right up there with our rights for freedom of religion and our freedom to own guns,” she said.

John Childe, a Pennsylvania Environmental Defense Foundation lawyer who argued the recent funding case, sees the environmental rights amendment as an essential bulwark against the grinding down of precious natural resources. “It’s the only hope for our planet,” he said.