In 1971, the Pennsylvania General Assembly (the legislature of the U.S. commonwealth of Pennsylvania) altered the state constitution to include an Environmental Rights Amendment (ERA):
“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.” Constitution of the Commonwealth of Pennsylvania, Article 1 §27.
This marked the first instance of a state granting its citizens an affirmative right to a healthy environment. The creation and adoption of this amendment followed decades of environmental degradation throughout Pennsylvania; as the state’s economy swelled from coal and steel production, its water and air quality suffered. This, along with the national movement towards environmental activism after the inaugural Earth Day in 1970, motivated the Pennsylvania General Assembly to pass the ERA. In fact, the amendment passed with unanimous bipartisan support!
A year later, in 1972, Montana followed Pennsylvania’s example and adopted an ERA. While a handful of other states have written environmental protections into their constitutions, Pennsylvania and Montana were the only two states to include it in their Bill of Rights for nearly 50 years. This changed when, in 2021, New York adopted an ERA in its Constitution’s Bill of Rights. The language in New York’s ERA is similar to that in the Pennsylvania and Montana amendments, but the scope of its application will depend upon how NY state courts interpret the ERA in future litigation. This was true of Pennsylvania’s ERA which did not prove to bear significant weight until 2013, 42 years after the General Assembly adopted it into Pennsylvania’s Bill of Rights.
Two years after its passage, Pennsylvania’s ERA came up in two cases: Commonwealth v. National Gettysburg Battlefield Tower (Battlefield Tower) and Payne v. Kasaab (Payne). The courts’ decisions in these instances minimized the scope of the ERA. In Battlefield Tower, the court found for a private developer wanting to construct an observation tower alongside Gettysburg battlefield, focusing on how the ERA creates an affirmative right against the government, not private parties. In Payne, the court found for the Pennsylvania Secretary of Transportation, Pennsylvania Department of Transportation, the City of Wilkes-Barre, etc. responsible for a road-widening project that protruded into a public park. In its conclusion, the court established a 3-part test for applying the ERA in a way that controls development rather than preclude it. This test reduced the impact that the ERA could have because it watered down the language and purpose of the amendment.
After these initial cases, Pennsylvania’s ERA lay mostly untouched—ignored, even—by the courts. Until, in 2013, the Pennsylvania General Assembly replaced the PA Oil and Gas Act with a statutory framework allowing oil and gas companies increased power in where and when they could frack for resources. In Robinson Township v. Commonwealth (Robinson), community members challenged the statutory scheme, arguing that it violated their rights protected under the ERA. The case went all the way to the Pennsylvania Supreme Court and, in a plurality opinion, the court, firstly, determined that the community members had standing to bring a case under the ERA and, secondly, held certain parts of the statute to be unconstitutional. This was significant because, in doing so, the court narrowed the applicability of Payne’s 3-part test and bolstered the government’s obligation towards the public under the ERA. This case laid the foundation for an increased judicial, legislative, and executive respect for the ERA and its importance to Pennsylvanian citizens.
In Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania (PEDF), four years after the Robinson Township decision, the PA Environmental Defense Foundation (PEDF) brought a case against the Commonwealth, alleging a violation of the ERA. In this case, the PA Department of Conservation and Natural Resources had leased land for the extraction of natural gas. The PA General Assembly then decided to limit the percentage of these profits going towards conservation efforts and allocated the remaining funds to the Commonwealth’s general fund. Here, the Pennsylvania Supreme Court found that the Commonwealth’s distribution of funds violated its obligation as trustee under the ERA. The court dissolved the 3-part test from Payne, concluding that it “strips the [Pennsylvania ERA] of its meaning.” It held that “the Commonwealth (including the Governor and General Assembly) may not approach our public natural resources as a proprietor, and instead must at all times fulfill its role as a trustee.”
This decision marked a substantial turning point for Pennsylvania’s ERA because it not only upheld, but also built upon the decision in Robinson, setting precedent for state courts addressing ERA cases in the future. In this way, Pennsylvania also provides an important framework for other states aiming to adopt ERAs into their respective Bill of Rights. To be clear, Pennsylvania is far from perfect; however, it is fair to hope that the scope of Pennsylvania’s ERA will continue to widen, further protecting the state’s natural resources and building a healthier environment for its citizens. In light of SCOTUS’ decision in West Virginia v. EPA (read more about it here), it is critical that individuals, communities, and states drive the fight against the climate crisis.
Pennsylvania’s ERA was the first of its kind and, ideally, it eventually becomes one of many ERAs across the United States. Hopefully, New York’s adoption of an ERA into its constitution’s Bill of Rights signals a momentum in the right direction, but only time will tell. Climate change impacts everyone, but not equitably. States should indicate a commitment towards all of their citizens by enshrining the affirmative right to a healthy environment in their respective constitutional Bill of Rights.
By Rita Flanagan, Fair Shake Legal Intern
