Austin Langon[1]

On November 3, the people of Pennsylvania will be asked to elect their newest justices for the Supreme Court of Pennsylvania. With the plurality decision of Robinson Twp. v. Commonwealth at risk of being altered, the following information is presented to voters to serve as guide on where prospective justices stand. This past spring, the League of Women Voters presented candidates with two questions:

  1. Do you agree with the plurality opinion’s interpretation of Article 1, Section 27 of the state constitution as stated in the Robinson Township case of December 2013? If not, why not?
  2. Do you agree that the plain English language meaning of the amendment should be the basis for construing it?

Here are the candidates’ responses to these questions.


Christine Donohue—Pittsburgh, Allegheny Co.

    • Education: 1974, East Stroudsburg University, B.A.; 1980, Duquesne University School of Law, J.D.
    • Occupation: Superior Court Judge.
  • Answer to Questions: In my opinion the Robinson Township plurality’s discussion of the Environmental Rights Amendment is well-researched and based upon a convincing recitation of the historical basis for its passage. Because the analysis is the basis of a three-justice plurality decision and the author and one of the joining justices are no longer on the court on which I hope to serve, it would be improper for me to express my agreement or disagreement with the analysis. This is by definition an open question of the law, which is likely to again be presented to the Supreme Court.
  • Question 2: For the reasons stated in my first answer, I do not believe that I can respond to this question. I note, however that it is well established in the law that the “touchstone” of constitutional interpretation is the actual language of the constitution and it must be interpreted in its popular sense. As the Robinson Township plurality opinion explains, the ultimate goal of constitutional interpretation is to determine the intent of the voters who ratified the constitutional provision.

Kevin M. Dougherty—Newtown, Philadelphia, PA

    • Education: 1985, Temple University, B.A.;1987, Antioch School of Law, J.D.
    • Occupation: Administrative Judge of the Philadelphia Court of Common Pleas Trial Div.
  • Answer to Questions: I agree with the plurality opinion’s interpretation of the Environmental Rights Amendment to the Pennsylvania Constitution. I agree with the determination that this legal dispute, in essence, sought vindication of the citizens’ rights to the quality of life on their properties and in their communities, and that insofar as the broadly granted zoning rights to the oil and gas industry attendant to Act 13 threatened the quality of air and water, as well as the health and safety of citizens and the quiet enjoyment of their own private property, the challenged sections of the Act violated the Environmental Rights Amendment.
  • Question 2: Yes, the plurality opinion makes clear that the Court employed the plain language of the Amendment as the basis for construing its provisions. The plurality correctly determined that the Amendment granted individual citizens the environmental rights to clean air and pure water, and to the preservation of natural, scenic, historic and esthetic values of the environment. The plurality properly held that the people, including generations to come, hold common ownership of public natural resources, which the state holds in trust. The plurality properly reviewed the legislative history to conclude that the Amendment’s provisions were intended to be broadly applicable.

David Wecht—Pittsburgh, PA Indiana Township

    • Education: 1984, Yale University, B.A., summa cum laude, Phi Beta Kappa; 1987 Yale Law School, J.D.
    • Occupation: Judge, Pennsylvania Superior Court (elected January 2011)
    • Administrator; Allegheny Register of Wills (1998-2003); Vice Chair, Pennsylvania
  • Answer to Questions: I believe that laws are neither static, nor talismanic. While a reasonable jurist must read the text of the amendments to the Pennsylvania Constitution plainly and with common sense, I believe that laws, and more specifically judicial interpretation of those laws, must be allowed to evolve within our common law system.


Anne Covey, New Hope, PA—Upper Makefield

    • Education: 1984, Widener University School of Law, J.D.; 1981, University of Delaware, B.A.
    • Occupation: Judge of the Commonwealth Court
  • Answer to Questions: Judges should follow the Pennsylvania and United States Constitutions faithfully. The legislative and executive branches enact the laws and judges interpret those laws. I believe we must strike a balance between local control and uniform policy across the state. We must also work for a healthy environment while allowing for investment and job creation. Developing the policies to achieve these aims is the responsibility of the legislative and executive branch, not the judiciary.
  • Question 2: I believe in interpreting the law as written and ensuring all amendments are consistent with our fundamental Constitutional rights.

Mike George, Gettysburg, PA—Cumberland Township

    • Education: 1981, Washington & Jefferson, B.A.; 1985, Dickinson School of Law, J.D.
    • Occupation: President Judge, 51st Judicial District Court of Common Pleas (Adams Co.)
  • Answer to Questions: As my interpretation of Article 1, Section 27 of the Pennsylvania Constitution based upon the factual scenario present in the Robinson Township case involves issues which may, in the future, be revisited by the Supreme Court, I believe I am ethically prohibited from direct comment on your specific question. Personally, I am concerned with the language in the plurality opinion’s interpretation which improperly elevates the Court to a legislative and policy making body.
  • Question 2: The amendment should be interpreted based upon its actual language as understood by those at the time of adoption.

Judy Olson, Wexford, PA—Franklin Park

    • Education: 1979, St. Francis University, B.A. Magna Cum Laude; 1982, Duquesne University School of Law, J.D. (Class Rank-2/91)
    • Occupation: Judge, Superior Court of Pennsylvania
  • Answer to Questions: As a sitting judge, I do not believe that it is appropriate for me to comment on whether I agree or disagree with a decision rendered by the Pennsylvania Supreme Court, especially since there may be future litigation involving the Act at issue.
  • Question 2: I believe that a judge must always strictly construe the plain language of constitutional amendments and statutes in interpreting the law.


Hon. Paul P. Panepinto—Philadelphia, PA

  • Education: B.A. and M.A. Villanova University 1976; J.D. Widener University School of Law
  • Occupation: Judge Philadelphia Court of Common Pleas
  • Answers: N/A


All information was gathered from and

[1] Class of 2016, Widener University Commonwealth Law School.

Widener Law Professor’s Work Cited in Major Pennsylvania Supreme Court Opinion

The Pennsylvania Supreme Court has extensively quoted the work of Distinguished Law Professor John C. Dernbach in a high-profile decision that significantly affects the state’s booming oil and gas industry.

The case, Robinson Township v. Commonwealth of Pennsylvania, decided Dec. 19, 2014 cites Dernbach in seven instances throughout the 162-page plurality decision. The court ruled that significant parts of Act 13, Pennsylvania’s Marcellus Shale drilling law, are unconstitutional.

“It’s a very important decision,” Dernbach said, after reading the court’s four opinions, including the plurality opinion by three justices, another by a fourth justice who concurred under a different line of legal reasoning, and two separate dissents by other justices. Two more justices did not participate in the decision. “I am also gratified that members of the court found my work helpful.”

The court held unconstitutional significant parts of Act 13, a 2012 law enacted to foster gas extraction from Pennsylvania’s Marcellus Shale reserves. Several parts of the law limited local governments’ abilities to review and approve gas operations under their planning and zoning laws. Another part of the law allowed the Department of Environmental Protection to waive mandatory distance limits between gas operations and water bodies like streams and wetlands.

The three-justice plurality opinion, written by Chief Justice Ronald E. Castille and joined by Justice Debra McCloskey Todd and Seamus P. McCaffery, held these provisions unconstitutional under Article I, section 27 of the Pennsylvania Constitution. Justice Max Baer concurred under a different line of legal reasoning, and would have struck the law as violative of substantive due process.

The opinion cited multiple Dernbach publications, including two articles published in 1999 in the Dickinson Law Review. They include “Taking the Pennsylvania Constitution Seriously When it Protects the Environment: Part I – An Interpretative Framework for Article I, Section 27,” and “Taking the Pennsylvania Constitution Seriously When it Protects the Environment: Part II – Environmental Rights and Public Trust.” The plurality also cited a chapter he authored for “The Pennsylvania Constitution: A Treatise on Rights and Liberties,” published in 2004.

Dernbach said the implications of the decision will be felt for years, or even decades. He was impressed with the depth of legal reasoning that went into the opinion. “The plurality treats Article I, Section 27 as actual constitutional law, and treats its text seriously,” he said. “It begins to free the amendment from decades of judge-made limits on its meaning and applicability.”

The Real Story of the (In)famous Snail Darter Case

In its 1978 decision in Tennessee Valley Authority v. Hill, the U.S. Supreme Court held that the Endangered Species Act prohibited the closure of a dam on the Little Tennessee River.   The absence of free flowing water, the Court decided, would jeopardize the continued existence of the snail darter, a small fish that lived only in that part of the river.   But the citizens and farmers–who brought the case to protect their livelihoods against a public works boondoggle–still lost.

Professor Zygmunt Plater, professor of law at Boston College who was the lead lawyer in the case, told the story at Widener’s Harrisburg, Pennsylvania campus on April 8.  His memorable presentation was at times moving, humorous, and sobering.  A recording is available here.

Congress subsequently amended the law to provide that a special “God Committee” could let the project go ahead if it were important enough to justify the eradication of the species.  But the Committee found that even the remaining costs of the project (it was mostly completed at the time) exceeded its total benefits.  Then, because of a late-night amendment to appropriations legislation, Congress subsequently exempted this project from the act altogether, and the dam was closed.     Project advocates framed the case  as “little fish vs. big dam” and environmental extremism, and the media bought into those frames.

Professor Plater, who is also the author of the recently published book, The Snail Darter and the Dam: How Pork-Barrel Politics endangered a Little Fish and Killed a River (Yale University Press 2013), pointed out that this is not the first or only time when the facts didn’t count in the public debate over an environmental issue.  Climate disruption is another example.  The recently released reports of the Intergovernmental Panel on Climate Change and the National Climate Assessment, which provide the most sobering account of climate change yet, may or may not prompt a greater public demand for action.  Still, one thing is clear from his story: an engaged citizenry doesn’t guarantee victory, but victory is impossible without it.   His story is a tribute to perseverance and principle in the face of daunting odds, and he and his clients nearly won.

Symposium Examines Sustainable Development Implications of Deep Shale Horizontal Hydraulic Fracturing

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!

Agenda 21: A Guide for the Perplexed

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.

Scholar in Residence Donald Brown focuses on ethics of climate change

“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, 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

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.”

Professors Discuss Climate Change Ethics at International Gathering in Qatar

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.

Environmental Law Center Series Welcomes 3 Distinguished Speakers

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.

The Pennsylvania Supreme Court’s Robinson Township Decision: A Step Back for Marcellus Shale, A Step Forward for Environmental Rights and the Public Trust

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.

Climate Change and Sustainable Development: A Perspective from Britain

Cambridge, United Kingdom—Stars and a full moon covered the sky over this city on the night that the eye of Hurricane Sandy crossed over my house in Pennsylvania. And, at the end of BBC’s all-night coverage of the presidential election, Mitt Romney gave his concession speech just as the sky began to lighten. Such is what it means to spend part of my sabbatical at the University of Cambridge.

The U.S. election and Hurricane Sandy obscured other developments that are also important. I took my sabbatical here to see what Britain is doing on sustainable development and climate change. My most recent book on U.S. sustainability, Acting as if Tomorrow Matters: Accelerating the Transition to Sustainability, was published in June.

The United Kingdom provides an important reference point for the United States because of our common language and history as well as the similarity of our legal systems and culture. Americans have stronger ties with few other countries than they have with Britain. While Britain is far from perfect, it is considerably ahead of the U.S. on sustainability and climate change.

Some snapshots:

• People here generally understand that climate change is an issue that needs to be taken seriously. The media in this country noted New York City Mayor Michael Bloomberg’s endorsement of Barack Obama because of climate change, and Obama’s reference to global warming in his victory speech. But they were also critical of the near-total avoidance of this issue during the campaign by both candidates. Climate change denial is not as significant in Britain’s political landscape as it is in the United States.

• The United Kingdom adopted its basic climate change legislation in 2008, while George W. Bush was president. The law commits Britain to reducing its greenhouse gas emissions by 34% by 2020 and 80% by 2050 (from 1990 levels). The country is using five-year carbon budgets to meet these objectives. An independent body called the Committee on Climate Change is both advising the government and reporting on progress. There is no comparable law in the U.S., though Congress came close in 2009 and 2010.

• In 2008, the UK Government created the Department of Energy and Climate Change to ensure that climate change and energy issues are addressed together. A government department with climate change in its name also has considerable political significance. The U.S. simply has a Department of Energy, with real but limited ability to address climate change.

• The United Kingdom and other members of the European Union have set a target of meeting 15% of their energy demand from renewable sources by 2020. (Renewables provided only 3% of the UK’s energy in 2009.) The country is on track to meet that target, in no small part because it leads the world in offshore wind energy. In fact, major energy companies, investment firms, and a respected former Conservative party leader (Michael Heseltine) are all saying that a stronger policy framework must be put in place to support the investment necessary to meet the country’s carbon reduction goals. Renewable energy already provides a quarter million jobs, and this could double in the years ahead. The U.S. has no comparable national commitment, though many states are increasing their use of renewable energy.

• As part of the country’s commitment to address climate change, Parliament adopted legislation at the end of 2011 to foster energy efficiency and a low-carbon economy. Among other things, that legislation creates a “Green Deal” for financing energy efficiency improvements in residential and commercial properties without up-front payments. A small surcharge on electric bills provides funding, and costs are to be repaid from reduced energy bills. In the United States, this kind of activity is occurring in many, but not all, states.

• Britain’s greenhouse gas emissions are decreasing; U.S. emissions are increasing, though at a slower pace than previously. The UK’s greenhouse gas emissions declined 23 percent between 1990 and 2010. They are projected to decline a further 25% from 2010 levels by 2025, primarily because of growing use of renewable energy and other changes in electricity production. By contrast, U.S. greenhouse gas emissions increased 10.5% between 1990 and 2010. In the absence of further regulation, U.S. greenhouse gas emissions are projected to increase by only 2% between 2010 and 2035, according to the Energy Information Administration, ”due to a combination of modest economic growth, growing use of renewable technologies and fuels, efficiency improvements, slow growth in electricity demand, and increased use of natural gas, which is less carbon-intensive than other fossil fuels.” Significantly, U.S. per capita emissions are about double those of the UK.

• The House of Commons in Parliament has an Environmental Audit Committee that monitors the country’s commitments and actions on behalf of sustainability and climate change. It is made of members of members of the Labour, Conservative, Liberal Democrat, and Green parties. It issues periodic reports making recommendations on embedding sustainability in the operations of government, on the green economy, and on sustainable food. It is also reviewing the Government’s 2013 budget, “focusing on how the Government should be supporting a green economy in the context of its intention to secure economic growth.” There is nothing like this committee in the U.S. Congress.

• In 1994, the United Kingdom became the first country to produce a sustainable development strategy to make its environmental, economic, security, and social goals work together. Revised strategies were issued in 1999 and 2005, although the coalition government that took power in 2010 has yet to issue a strategy. There was also a Sustainable Development Commission, which operated for a decade as an inspired force on behalf of sustainability in government and, in its later years, as a government watchdog. In what was allegedly a budget cutting move, the coalition government ceased funding the Commission in 2011. The Government has not issued a new sustainable development strategy, though the Department for Environment, Food and Rural Affairs (this country’s analogue to the Environmental Protection Agency) issues reports on what the government is doing on behalf of sustainability. The U.S. has never had a national sustainable development strategy.

• A fungus that is likely to be devastating to Britain’s ash trees, evidently introduced from continental Europe and originally from Japan, was first discovered in this country in February 2012. Its effects are now being seen in many places. The fungus (Chalara fraxinea) spreads by wind, and there does not appear to be any cure or treatment. The fungus has the potential to wipe out Britain’s 80 million ash trees. The fungus is raising many questions about how effectively the country protects its borders from plant diseases. Sadly, ash trees in the United States are threatened by the emerald ash borer, an Asian insect accidentally introduced in the 1990s.

• Prime Minister David Cameron, whose Conservative party runs the Government in a coalition with the Liberal Democrat Party, promised in 2010 that his would be the “greenest government ever.” There is skepticism about this claim, backed by some evidence (see above for examples, although it is not clear that his Government can fairly be blamed for the ash fungus). Still, it is remarkable that he made that statement at all, and that he continues to make it.

So a country very much like ours is in many ways treating sustainable development and climate change as opportunities to create jobs, improve security, strengthen its economy, and protect the environment. Could the better parts of this story be replicated in the United States?