In the early 20th century, Pennsylvania suffered from extreme environmental pollution. Suffering from orange streams, black snow, and other problems, Pennsylvania realized that it needed to take steps to combat pollution. In the 1970s, the federal government began taking steps to deal with the problem by passing the National Environmental Policy Act of 1970 and the Water Pollution Control Act of 1972. The Pennsylvania Department of Environmental Resources was created in 1970, and in 1971, Pennsylvania voters supported the ratification of the Environmental Rights Amendment, which was passed May 18, 1971. Article 1, Section 27, part of the Pennsylvania Bill of Rights, states that “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.” According to the Pennsylvania Commonwealth Court, the Environmental Rights Amendment prevents the Pennsylvania state government and local governments from infringing upon the rights to clean water, pure air, and the preservation of the environment.
A legal challenge brought under the Environmental Rights Amendment may proceed if the plaintiff alleges that the state government has infringed upon his or her rights or has failed in its obligation as trustee over natural resources in Pennsylvania. The Environmental Rights Amendment does not prohibit development; it merely requires the economic opportunities to be weighed against the welfare of the people. Payne v. Kassab established the three-fold test to determine whether the Environmental Rights Amendment has been violated. Under the Payne test, the government complies with the Environmental Rights Amendment when it complies with all statutes and regulations relevant to protecting Pennsylvania’s natural resources, when it demonstrates a reasonable effort to reduce environmental incursion, and when it determines that the economic harm does not so outweigh the benefits that it would constitute an abuse of discretion. The Pennsylvania Supreme Court ruled in June 2017 that the Payne test was no longer valid, declaring that the test rendered the constitutional amendment meaningless. The Pennsylvania Supreme Court also held that that the Environmental Rights Amendment is a self-effectuating provision that must be adhered to and that the Environmental Rights Amendment creates an automatic right to seek enforcement against government action that harms the environment.
The Environmental Rights Amendment does not guarantee an automatic right to relief, but it does establish a standing to sue, under the Pennsylvania Constitution, against state action when the action damages the environment. It is assumed for purposes of standing that the action is contrary to law, but the person who files suit must have been adversely affected by the action. The Pennsylvania Commonwealth Court states that a “person is sufficiently aggrieved under Pennsylvania’s prudential standing requirement if he can establish that he has a substantial, direct, and immediate interest in the outcome of the litigation.” A substantial interest in the outcome of the litigation is established if the person’s interest surpasses the desire of all citizens to have people follow the law. There must be an immediate causal connection between the action and the harm. The Environmental Rights Amendment gives a Pennsylvania citizen standing to sue when that citizen alleges that he or she uses the area and his or her aesthetic or recreational value in the area would be lessened. This is possible because the Environmental Rights Amendment protects the right to not be harmed by environmental degradation.
Satisfying standing does not mean that the plaintiff will automatically win the case on the merits, but because of the Environmental Rights Amendment, the plaintiff would meet his or her burden for standing, allowing the court to proceed to the next step. Provided the plaintiff alleges that he or she had some aesthetic or recreational use of the property that will be environmentally damaged, the Environmental Rights Amendment gives that plaintiff standing to challenge any state action that infringes on the plaintiff’s rights to clean water, pure air, and the preservation of the environment.
Sources:
Jan Jarrett and Matt Stepp, Pennsylvania’s History with Water Pollution, PennFuture (June 27, 2017), https://www.pennfuture.org/Blog-Item-Pennsylvanias-History-with-Water-Pollution-Policy.
Pa. Const. Art. I, § 27.
Funk v. Wolf, 144 A.3d 228, 232 (Pa. Cmwlth Ct.2016).
Payne v. Kassab, 361 A.2d 263 (Pa. 1976).
Pennsylvania Environmental Defense Foundation v. Commonwealth, 161 A.3d 911, 930 (Pa. 2017).