Experts in a variety of fields assembled at Widener Law’s Harrisburg campus on Friday, September 27th for a global symposium to examine the sustainable development implications of deep shale horizontal hydraulic fracturing (known as “fracking,” “fracing,” or “HF.”) called “Marcellus Shale Development and Pennsylvania: What Lessons for Sustainable Energy?” Topics explored during the program examined the practice of hydraulic fracturing and its impact from environmental, community, public health, energy and climate change, and governance perspectives, in the context of sustainability.

Following Dean Linda Ammons’ welcome, Distinguished Professor John C. Dernbach, the codirector of Widener Law’s Environmental Law Center and the conference’s principal organizer, framed the discussion for the day with an overview of just how important and far-reaching the developments in Pennsylvania are for energy, security, and the economy. He observed that the rest of the world can learn from Pennsylvania’s experiences about the prospects of “fostering sustainability of shale gas production.”

The symposium was a collaboration between the campuses sponsored by the Widener Environmental Law Center, and featured the expertise of the Center’s faculty from both campuses. Professor and Environmental Law Center co-director and symposium co-chair James R. May then provided an overview of the myriad technical and legal issues associated with fracking. Center Professors Eggen, Family, Hodas and Kristl also served as panel moderators and/or participants. Law student Timothy Bishop also delivered a lunchtime presentation based on his the 2012-13 Widener Law Journal Best Student Article.article, “North to the Future: Modeling Pennsylvania’s Development of Natural Gas After Alaska’s Permanent Fund Dividend.”

Other speakers on the opening panel included Diana Stares (Center for Energy Policy & Management, Washington & Jefferson College), and Scott Perry (Pennsylvania Department of Environmental Protection)

The first substantive panel addressed Public Health and fracking. Panelists included Bernie Goldstein (University of Pittsburgh School of Public Health); Dean Lynn Goldman (George Washington University School of Public Health) (via Skype); and Dean Patricia Salkin (Touro Law School) and Professor Pam Ko (Sage College).

The second panel addressed fracking and Environmental Sustainability. Panelists included moderator Tim Lambert (WITF); Elizabeth Bjerke (University of Pittsburgh School of Public Health); Alan Krupnick (Resources for the Future); Tom Beauduy (Susquehanna River Basin Commission); and John Quigley (John H. Quigley LLC).

The topic of the third panel was Community Sustainability. Panelists included Professor Ross Pifer (Penn State University Law School); Professors Jonathan Williamson and Bonita Kolb (Lycoming College); and Elam Herr (Pennsylvania State Association of Township Supervisors).

Panel 4 examined Governance and Sustainability. Panelists included George Bibikos (K&L Gates LLP); Tom Merrill (Columbia University Law School); Professor David Spence (McCombs School of Business, University of Texas); Terry Bossert (Range Resources-Appalachia LLC), and, Andrew Place (Center for Sustainable Shale Development)

The final panel addressed Energy, Climate Change, and Ethics. Panelists included John Hanger (Eckert Seamans LLC); Don Brown (Widener University Law School); and, John (“Skip”) Laitner (Economic and Human Dimension Research Associates).

Widener Law commends all of the speakers for sharing their expertise on this important topic, and thanks all those who attended – whether in person or via the live webcast!

By Prof. John Dernbach

What is Agenda 21 and why does it matter?

Agenda 21 is a comprehensive public strategy for achieving sustainable development. It was endorsed by the U.S. (under the presidency of George H.W. Bush) and other countries at the U.N. Conference on Environment and Development in 1992. Agenda 21 stands for two broad propositions: 1) environmental goals and considerations need to be integrated into all development decisions, and 2) governments and their many stakeholders should work out the best way to integrate environment and development decisions in an open and democratic way.

Agenda 21 contains an almost encyclopedic description of the best ideas for achieving sustainable development that existed in 1992. On land use, it specifically counsels respect for private property. It contains a detailed description of the role that many nongovernmental entities, including business and industry, farmers, unions, and others, should play in achieving sustainability.

Ironically, Agenda 21 was never taken seriously as such in the United States; there has never been much enthusiasm here for following international agreements. It is not a legally binding treaty; it contains no provisions for ratification, for example. Agenda 21 also says nothing about new ideas like green building, smart growth, and smart meters. But sustainable development as an idea— achieving economic development, job creation, human wellbeing, and environmental protection and restoration at the same time—is gaining traction.

In response, a well organized campaign against Agenda 21, spread by the Tea Party, Glenn Beck, and the John Birch Society, is attacking sustainability by making false statements about Agenda 21. They say that Agenda 21 is opposed to democracy, freedom, private property, and development, and would foster environmental extremism. Far-fetched, you say? Well, consider this: in 2012, Alabama adopted legislation that prohibits the state or political subdivisions from adopting or implementing policies “that infringe or restrict private property rights without due process, as may be required by policy recommendations originating in, or traceable to ‘Agenda 21’” (Ala. Code § 35-1-6). Similar bills have been introduced elsewhere, and should be opposed.

“I believe that global environmental problems have to be understood as ethical problems,” says Center Scholar in Residence for Sustainability Ethics and Law Don Brown. Brown previously served as Associate Professor of Environmental Ethics, Science, and Law at the Pennsylvania State University where he taught interdisciplinary courses on climate change and sustainable development and also acted as Program Director of the Collaborative Program on the Ethical Dimensions of Climate Change. He also served as director of the Pennsylvania Environmental Research Consortium, which comprises 56 Pennsylvania colleges and universities working on sustainability issues.

Observing that Widener is “gaining a reputation for having a very productive environmental law faculty,” Brown says that he has been following the development of the school’s Environmental Law Center over the last several years. Brown and Distinguished Professor and ELC co-director John C. Dernbach were colleagues at the Pennsylvania Department of Environmental Protection in the past and have collaborated on a number of projects.

Mr. Brown has written extensively on climate change and sustainability issues in more than 30 countries with a focus on the need to integrate environmental ethics with science, economics, and law in environmental policymaking. He is the author of American Heat, Ethical Problems with the US Response to Global Warming and a new book to be published in October, Navigating the Perfect Moral Storm, Climate Ethics. CNN and Time Magazine called ClimateEthics.org, his previous blog, as one of the best 15 websites on any environmental issue in the United States. At Widener, he will be continuing to write at EthicsandClimate.org.

Professor and Center Co-Director Jim May said, “it is a real privilege to welcome someone of Don’s caliber as our Scholar in Residence. We look forward to working with him on a variety of projects.”

Mr. Brown began blogging on the subject of ethics and climate change law “as a way of participating in policy discussions as they unfold in real time,” and “to raise ethical questions that weren’t being talked about in the United States.”

“I’m hoping to help Widener expand upon what its already doing successfully, and that is become a place of excellence in sustainability and environmental law,” concludes Brown, adding, “I’m obviously interested in legal issues that are emerging because of increased globalization in economics and environmental law – a place like Widener can help people in the United States understand what’s going on in the larger world.”

Two members of the Center recently spoke at an international gathering about the ethics of reducing greenhouse gas emissions. “It is increasingly clear that the ambitiousness of the international effort to reduce greenhouse gas emissions depends on the extent to which countries perceive the final result as fair,” said Distinguished Professor and Center CoDirector John C. Dernbach as he spoke at “Asking Governments Questions about Their Positions on Justice and Equity: Linking Ambition to Equity,” a side event held at the Qatar National Convention Centre in Doha, Qatar on December 5th during the annual conference of the parties to the U.N. Framework Convention on Climate Change.

The U.S. is one of the 194 parties to the UN Convention on Climate Change, which sets a goal of stabilizing atmospheric concentrations of greenhouse gases at a level that prevents dangerous human interference with the climate system.

In order to achieve the Convention’s ultimate goal of limiting climate change, the participating countries need to agree on how much each country can emit.

“A national commitment to reduce greenhouse gas emissions is implicitly a commitment to a particular atmospheric stabilization level. It is also implicitly a statement about what that country’s fair share of emissions is. Both of these have deep ethical implications because they affect the level of harm that people will experience from climate change,” said Widener Law Scholar in Residence Donald Brown, who specializes in ethics and climate change. Brown presented fifteen questions that should be asked of governments about the ethical basis for their position regarding greenhouse gas emissions. The questions covered subjects such as equity, duties and obligations to vulnerable nations, and historical emissions.

To see a complete list of the questions, read Qatar: Questions That Governments Should Be Asked About Their Positions on Equity and Justice on Brown’s blog, Ethics and Climate.

Dinah L. Shelton
“Environmental Rights in the Jurisprudence of Human Rights Bodies”

Dinah Shelton holds the Manatt/Ahn Professorship in International law at the George Washington University Law School, where she has taught since 2004. She is the author of Protecting Human Rights in the Americas, Remedies in international Human Rights Law, and the 3-volume Encyclopedia of Genocide and Crimes against Humanity. In 2006, Shelton was awarded the Elisabeth Haub Prize for Environmental Law. She is a member of the Inter-American Human Rights Commission, for which she has served as president since 2010.

David Hunter
“The Future of the International Climate Change Regime: A Tale of Two Approaches”

David Hunter is Professor of Law, Director of the International Legal Studies Program and Director of the Program on International and Comparative Environmental Law at American University’s Washington College of Law. He currently serves on the Boards of Directors of the Environmental Law Alliance Worldwide-US, EarthRights International, the Project on Government Oversight, and the Center for Progressive Reform.

Donald A Brown
“How U. S. Domestic Climate Law Needs to Respond to Emerging International Climate Law”

Donald Brown is Scholar in Resident for Sustainability Ethics and Law, Widener School of Law. He has been an Associate Professor of Environmental Ethics, Science, and Law at Penn State, an environmental lawyer for the states of Pennsylvania and New Jersey, and Program Manager for UN Organizations.

On December 19, in Robinson Township v. Commonwealth of Pennsylvania, the Pennsylvania Supreme Court held unconstitutional major parts of Pennsylvania’s “Act 13”—a 2012 oil and gas law designed to facilitate the development of natural gas from Marcellus Shale.  In so doing, the Court breathed new life into Article I, Section 27 of  Pennsylvania’s constitution, which requires the state to “conserve and maintain” public resources “for the benefit of all the people.”  The implications of this decision will be felt for years, perhaps decades.

Act 13

Act 13 grew out of the rapid and intensive development of Marcellus Shale.  It is intended to foster shale gas development by, among other things, limiting the role of local governments in reviewing and regulating shale gas operations.  Act 13 constitutes a major revision to the state’s longstanding Oil and Gas Act, prompted by differences between conventional oil and gas drilling and new unconventional gas development from deep shale plays, known as “horizontal hydraulic fracturing,” or “hydrofracturing.”

Act 13 establishes a system for collecting and allocating impact fees from hydrofracturing, as well as requirements for permitting these operations by the state Department of Environmental Protection (DEP).  And, of central importance to this litigation, Act 13 limits the ability of local governments to regulate these operations through traditional zoning and planning.

Three provisions of Act 13 are central to this litigation.  First, section 3303 declares that state environmental laws “occupy the entire field” of oil and gas regulation, “to the exclusion of all local ordinances.  Section 3303 also “preempts and supersedes the local regulation of oil and gas operations” regulated under the state’s various environmental laws.

Second, section 3304 requires “all local ordinances regulating oil and gas operations” to “allow for the reasonable development of oil and gas resources.” In so doing, it imposes uniform rules for hydrofracturing in the state, prohibits local governments from establishing more stringent rules, and establishes limited time periods for local review of proposals.

Last, section 3215(b) prohibits drilling or disturbing area within specific distances of streams, springs, wetlands, other water bodies. But Section 3215(b)(4) requires DEP to waive these distance restrictions if the permit applicant submits “additional measures, facilities or practices” that it will employ to protect these waters. That provision states: “The waiver, if granted, shall include additional terms and conditions required by [DEP] to protect the waters of this Commonwealth.”

Commonwealth Court

Robinson Township and others filed a lawsuit against the state in Commonwealth Court, claiming that Act 13 violated various provisions of the Pennsylvania Constitution. In its July 2012 decision, Commonwealth Court dismissed most of the petitioners’ claims but held Section 3215(b)(4) and Section 3304 to be unconstitutional. President Judge Dan Pellegrini wrote for the four-judge majority; Judge Kevin Brobson and two other judges dissented.

The Commonwealth Court upheld Section 3303 against a claim that it violated Article I, Section 27 of the Constitution. Article I, Section 27 has been part of the Pennsylvania Constitution since 1971, when the state’s voters approved the amendment by a four-to-one margin.  Article I, Section 27 provides:

“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.”

Notwithstanding its bold pronouncements (or perhaps because of them), Article I, Section 27 was mostly marginalized by Pennsylvania courts from the outset.  In Payne v. Kassab, the Commonwealth Court substituted a three-part balancing test for the text of the amendment.  That test has since been used by courts in the overwhelming majority of cases involving Article I, Section 27.  Courts often have also taken the position that the legislature determines when Article I, Section 27 applies and does not apply.

Commonwealth Court made short work of the claim against Section 3303.  Because Act 13 relieved municipalities “of their responsibilities to strike a balance between oil and gas development and environmental concerns,” there was no cause of action under Article I, Section 27.

The other two provisions were invalidated on other grounds.  Concerning Section 3215(b)(4), the Pennsylvania constitution requires that “legislation must contain adequate standards that will guide and restrain the exercise of the delegated administrative functions.”  The Commonwealth Court held Section 3215(b)(4) violated that requirement because it “gives no guidance to DEP that guide and constrain its discretion to decide to waive the distance requirements from water body and wetland setbacks.”

The Commonwealth Court’s decision on Section 3304 was based on “substantive due process,” which derives from the property rights provisions of the Pennsylvania constitution.  For zoning requirements and other laws to satisfy the substantive due process requirement, Pennsylvania courts have previously ruled, they “must be directed toward the community as a whole, concerned with the public interest generally, and justified by a balancing of community costs and benefits.”   Section 3304 “violates substantive due process,” the Commonwealth Court ruled, because it allows incompatible uses in zoning districts and does not protect the interests of neighboring property owners from harm, alters the character of the neighborhood, and makes irrational classifications.”

The Commonwealth Court also enjoined implementation of these provisions as well as any other provisions that carry out Section 3304.  As the Supreme Court explained, the “effect of the injunction was to prohibit [DEP] from granting waivers of mandatory setbacks from certain types of waters…and to permit local government to enforce existing ordinances, and adopt new ordinances, that diverge from the Act 13 legal regime, without concern for the legal or financial consequences that would otherwise attend non-compliance with Act 13.”

Supreme Court

The Supreme Court affirmed the Commonwealth Court’s decision concerning the two provisions it held unconstitutional, and also held Section 3303 to be unconstitutional.  In a 162-page plurality opinion, Chief Justice Ronald Castille and two other justices, Debra McCloskey Todd and Seamus McCaffery, grounded their decision on Article I, Section 27 of the Pennsylvania Constitution.  A fourth justice, Max Baer, concurred in the decision but based his concurring opinion on substantive due process.  That provided a majority for this result.  Justice Thomas Saylor and Justice J. Michael Eakin wrote separate dissenting opinions.  Former Justice Orrie Melvin did not participate in the decision.

The state’s position on Article I, Section 27, Justice Castille wrote, is that the amendment “recognizes or confers no rights upon citizens and no right or inherent obligation upon municipalities; rather, the constitutional provision exists only to guide the General Assembly, which alone determines what is best for public natural resources, and the environment generally, in Pennsylvania.”  The Commonwealth Court’s decision on Section 3303 of Act 13, which said in effect that the legislation trumps Article I, Section 27, is consistent with the state’s position.

The three-justice plurality plurality took a much different view.  A substantial part of its opinion sets out “foundational principles” about Article I, Section 27 to guide future courts and decision makers.  The plurality explained that the Court had not previously had an opportunity to address how Article I, Section 27 restrains the exercise of governmental regulatory power, and therefore “has had no opportunity to address the original understanding of the constitutional provision.”  (Disclosure: my two-part 1999 article on Article I, Section 27 is cited extensively in the plurality opinion; for more information, see Part I and Part II.)

To begin with, the plurality wrote, constitutional interpretation must begin with the plain language of the Article I, Section 27 itself.  The first sentence establishes two rights in the people, Castille wrote.  The first is a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.  The second is “a limitation on the state’s power to act contrary to this right.”  The state as well as local governments are bound by these rights, the plurality said.   In addition, these rights are equal in status and enforceability to any other rights included in the state constitution, including property rights.

The second and third sentences, the plurality wrote, involve a public trust.  Public natural resources are owned in common by the people, including future generations.  Because the state is the trustee of these resources, it has a fiduciary duty to “conserve and maintain” them.  “The plain meaning of the terms conserve and maintain implicates a duty to prevent and remedy the degradation, diminution, or depletion of our public natural resources.”  The state has two separate obligations as trustee.  The first is “a duty to refrain from permitting or encouraging the degradation, diminution, or depletion of public natural resources.”  The second is a duty “to act affirmatively to protect the environment, via legislative action.”  These duties, the plurality said, foster “legitimate development tending to improve upon the lot of Pennsylvania’s citizenry, with the evident goal of promoting sustainable development.”

Pennsylvania’s history, Castille wrote, includes massive deforestation, the loss of game, and industrialization and coal mining. “It is not a historical accident that the Pennsylvania Constitution now places citizens’ environmental rights on par with their political rights,” the plurality said.      Constitutional provisions, he pointed out, are to be interpreted based on “the mischief to be remedied and the object to be attained.”

In light of this analysis, the plurality concluded, the “non-textual” balancing test in Payne v. Kassab “is inappropriate to determine matters outside the narrowest category of cases, i.e., those cases in which a challenge is premised simply upon an alleged failure to comply with statutory standards enacted to advance Section 27 interests.”  No Pennsylvania court has ever before articulated the “foundational principles” of Article I, Section 27 in this way, or at this level of detail.

The plurality then applied this framework to Sections 3303, 3304, and 3215(b)(4):

Section 3303, which preempted local regulation of oil and gas operations, violates Article I, Section 27 “because the General Assembly has no authority to remove a political subdivision’s implicitly necessary authority to carry into effect its constitutional duties.”  The Commonwealth is the trustee under the amendment, which means that local governments are among the trustees with constitutional responsibilities.

Section 3304, which requires “all local ordinances” to “allow for the reasonable development of oil and gas resources” and imposes uniform rules for oil and gas regulation, violates Article I, Section 27 for two reasons.  “First, a new regulatory regime permitting industrial uses as a matter of right in every type of pre-existing zoning district [including residential] is incapable of conserving or maintaining the constitutionally-protected aspects of the public environment and of a certain quality of life.”   Second, under Act 13 “some properties and communities will carry much heavier environmental and habitability burdens than others.”  This result is inconsistent with the obligation that the trustee act for the benefit of “all the people.”

Section 3215(b)(4), which requires DEP to waive setback distances to protect streams and other water bodies, violates Article I, Section 27 because the legislation “does not provide any ascertainable standards by which public natural resources are to be protected if an oil and gas operate seeks a waiver.”

In his concurring opinion, Justice Baer saw the primary argument of the petitioners to be based on substantive due process, and also viewed that approach as “better developed and a narrower avenue to resolve this appeal.”  In “a state as large and diverse as Pennsylvania, meaningful protection of the acknowledged substantive due process right of an adjoining landowner to quiet enjoyment of his real property can only be carried out at the local level.”  The challenged provisions, he said, “force municipalities to enact zoning ordinances” that “violate the substantive due process rights of their citizenries.”

Justice Saylor, in his dissenting opinion, took issue with the Article I, Section 27 and the substantive due process aspects of this case.  In his view, Act 13 provides a detailed system for regulating unconventional gas development.  The legislature “occupies the primary fiduciary role” under Article I, Section 27, and local governments have no “vested entitlement” to “dictate the manner in which the General Assembly administers the Commonwealth’s fiduciary obligation to the citizenry at large relative to the environment.”  Justice Eakin’s dissent expressed concern that the decision empowers municipalities at the expense of state decision-making authority.

This decision obviously has major consequences for Marcellus Shale development in Pennsylvania as well as Article I, Section 27.  Major parts of Act 13 will need to be rewritten by the General Assembly, and there may be another round of litigation after that.  But the revitalization of Article I, Section 27 may be of even greater import, even though it did command the votes of a majority.  The plurality treated Article I, Section 27 as actual constitutional law, and took the words of the amendment seriously.  It is also impressive that the plurality framed the amendment’s relationship with other provisions of the constitution in terms of sustainable development.

Late on December 19, I spoke with Frank Kury, who as a state legislator drafted and championed Article I, Section 27.   Still active in his 70s at the law firm Malady and Wooten, he was not involved in the case in any way.   “In terms of what we intended,” he said, the plurality “really got it right.”

Professors Dernbach, May, and Kristl have prepared a White Paper on the Robinson Township decision.  You can download a copy of the White Paper here.