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By Jenna Anderson, Staff Writer
Did you know you have a right to clean air and water, and a healthy environment?[1] These rights are guaranteed in Article I, Section 27 of the Pennsylvania Constitution. Pennsylvania’s environmental amendment is the oldest and most robust in the nation. Today, states like New Jersey and New Mexico are seeking to enshrine environmental rights in their own constitutions, while others are testing their limits in court.[2]
Section 27 was the first state constitutional right that is inalienable (meaning it is located within Article 1, our Commonwealth’s analogue to the federal Bill of Rights) and self-executing (meaning parties can challenge an action under it without a legislative or regulatory grant of additional authority). Further, Section 27 has been strengthened by a recent string of Pennsylvania Supreme Court decisions.
Up until the mid- 20th century, polluting industries were largely unregulated at the state level—there were few dumping rules, reporting requirements, and agency oversight.[3] Section 27 was introduced and approved during a time of unprecedented environmental activism.[4] Section 27’s drafter, a young legislator and lawyer named Franklin Kury, formed a bipartisan coalition to pass the amendment in consecutive legislative sessions, and Pennsylvania voters overwhelmingly approved the amendment in 1971.[5]
A year after Pennsylvania adopted Section 27, Montana adopted a similar amendment. In the years since, dozens of states have added environmental rights to their constitution, but only New York, whose version passed in 2021, place environmental rights as a fundamental right like Pennsylvania and Montana.[6]
Despite the strong ideals and swift support behind Section 27, the amendment was initially interpreted as a mere statement of policy, rather than an enforceable entitlement. Pennsylvania courts applied what became known as the Payne factors to analyze state actions challenged under Section 27.[7] In the nearly four decades where the Payne factors were applied, litigants failed in all but one of the twenty-four challenges brought under Section 27.[8]
This changed in 2013, when the Pennsylvania Supreme Court began interpreting Section 27 more broadly in a series of fracking-related decisions. In Robinson Township v. Commonwealth, the plurality of the court held key provisions of Act 13 were incompatible with Section 27. The court recognized Pennsylvanian’s right to clean air, water and natural preservation wholistically, and found the Commonwealth had a fiduciary duty to act as trustee of these resources.[9]
Broader interpretation of Section 27 was further developed in 2017 and 2022 in the Pennsylvania Environmental Defense Foundation (“PEDF”) decisions, which involved the leasing of public lands for fracking and the improper reallocation of the funds that results. The PEDF majority decisions expanded Robinson’s holding to apply to a different context, and held Section 27 created a private trust relationship where the Commonwealth had responsibly to use the funds for their stated purpose.[10],[11]
In 2021, New York became the third state to pass an unalienable and self-executing “green” amendment.[12] New Yorkers’ environmental rights are now housed in Section 19 of their state constitution. As of this writing, there are at least ten legal actions based on the amendment, and one case is pending appeal by the state appellate court.[13]
Today the group “For the Generations,” which was co-founded by Delaware Riverkeeper advocates from Pennsylvania, supports those who want to place environmental protections in their own state constitutions or argue the text of their state constitution explicitly or implicitly protects the environment.[14] As environmental justice concerns and litigation increases across the country, Pennsylvania’s Section 27 highlights how “green” state constitutional amendments can expand and evolve with time.
[1] PA. CONST. art. 1, § 27.
[2] Sam Jones, What a “Green Amendment” Can Do for Environmental Justice, Yes Magazine, Sep. 2, 2022.
[3] Michele Smith, Pennsylvania Clean Streams Law: The Liability Imposed, 28 Duq. L. Rev. 757 (1990).
[4] Chesapeake Bay Foundation, Two Jars of Water, and a Lasting Environmental Legacy for Pennsylvania. Chesapeake Bay Foundation, Oct. 14, 2022.
[5] Commonwealth of Pennsylvania Joint State Government Commission, Ballot Questions and Proposed Amendments to the Pennsylvania Constitution 23 (1998).
[6] Franklin L. Kury, The Constitutional Question to Save the Planet: The Peoples’ Right to a Healthy Environment, 112 (2021).
[7] Payne v. Kassab, 468 A.2d 226 (Pa. 1976).
[8] John C. Dernback, Kenneth Kristl & James R. May. Recognition of Environmental Rights for Pennsylvania Citizens: Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania. 70 Rutgers Univ. Law Rev. 803, 813 (2018).
[9] Robinson Twp. v. Commonwealth, 623 A.3d 564, 901 (Pa. 2013).
[10] Pa. Envtl. Def. Found. v. Commonwealth, 640 A.3d 55, 91 (Pa. 2017).
[11] Pa. Envtl. Def. Found. v. Commonwealth, 279 A.3d 1194 (Pa. 2022).
[12] Abe Musselman, How New Yorkers Won the Right to a Healthful Environment. Sierra, Nov. 29, 2021.
[13] Rick Karlin, NY Green Amendment case over massive landfill is under appeal. Olean Times Herald, Dec. 28, 2023.
[14] Green Amendments for the Generations. https://forthegenerations.org.
