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?

Cautious Optimism As Distinguished Professor Returns From UN Conference on Sustainable Development

“Sustainability involves our duty to others, including future generations,” says Distinguished Professor and Environmental Law Center Co-Director John C. Dernbach, adding, “The growth in that understanding is one of the reasons I come away from Rio more hopeful than I might otherwise.”

Dernbach spent eleven days in Rio de Janeiro, Brazil beginning June 12th for events related to the United Nations Conference on Sustainable Development, Rio+20. The conference brought together world leaders and thousands of participants from governments, the private sector, non-governmental organizations, and other groups to discuss and examine sustainability and mark the 20th anniversary of the 1992 United Nations Conference on Environment and Development in Rio de Janeiro and the 10th anniversary of the 2002 World Summit on Sustainable Development in Johannesburg.

Professor Dernbach attended a number of side events related to the conference that focused on how to accelerate the transition to sustainability that were consistent with the findings in his recently published book, Acting as if Tomorrow Matters: Accelerating the Transition to Sustainability. In addition to positive feedback on the book, he was pleased to observe that every side event he went to focused on the question of how to accelerate that transition, saying, “My book title captures the question that everyone was asking.”

Noting that his book argues for “an American movement for sustainability” and “that we cannot rely on government to do it,” Professor Dernbach adds that he got the sense from many of the attendees from business or non-governmental organizations that they agreed that such a development was necessary “not only in the United States, but around the world.”

“In the United States, we’ve made a little progress in a lot of areas. We are building more certified green buildings. Colleges and universities are doing a better job teaching sustainability,” he says, also noting that many corporations have made strides in reducing their negative impacts by reducing water use and cutting pollution.
However, he also stresses that the problems sustainability is intended to address are large, and he says, “The response that we have provided in the United States to this point is not consistent with the challenge or the opportunity.”

Succinctly phrasing his overarching impression of where the struggle for sustainability stands, he observed, “We have made more progress toward a goal that is increasingly distant.”

“More and more people are coming to understand that sustainability is not just a policy question or a good idea or something that we need to do for the environment. It is also an ethical, moral, and religious question,” Dernbach concludes.

Professor Dernbach shared some of his thoughts about the conference on the Environmental Law Center’s blog, including a general post about the history behind the Rio+20 conference and a post about the role that lawyers can play in the quest for sustainability. More information about his new book, Acting as if Tomorrow Matters: Accelerating the Transition to Sustainability, can be found at the website for publisher Island Press.

Law for Sustainability: A View from Rio de Janeiro

What role can law and lawyers play in the quest for sustainability?  That question has been discussed in a wide variety of side events here, including a Colloquium on Environmental Law and Justice at the Supreme Court of the State of Rio de Janeiro, a World Meeting of Environmental Lawyers at the Rio de Janeiro Botanical Garden, a conference on Legal Frameworks for Sustainable Development at Fundação Getulio Vargas (a teaching and research institution), and a World Congress on Justice, Governance, and Law for Environmental Sustainability at the Portobello Resort and the State Supreme Court of Rio de Janeiro.

A simple summary of what was said at these events is impossible, but two themes emerge.  First, environmental law matters a great deal.  It protects what would otherwise not be protected, prevents and punishes the worst behaviors, and sets a level playing field for business and industry.  Recent amendments to Brazil’s new forestry law, which provide amnesty to some who have unlawfully cut the country’s rainforests, were subject to a lot of criticism for weakening the country’s regulatory regime.

On the other hand, the Environmental Law Institute in Washington, D.C. has trained more than 1,000 judges in 20 countries on environmental and natural resources law, and many judges, including Justice Antonio Benjamin of Brazil’s Supreme Court, expressed support for expansion of ELI’s work.

Access to justice is also an important issue.  Environmental pollution and degradation hurt not only the environment but also other people.  And so the availability of lawyers who are willing to represent ordinary citizens was often emphasized.

For all its value, however, environmental law is a blunt instrument.  It does not—and probably cannot—require companies and other actors to do their best in furthering environmental, social, and economic goals at the same time.  So the second theme–creation of the “law of sustainability”–is both essential and challenging.  Examples from these side events:

  • Throughout Brazil, landowners (many with low incomes) are being paid for the environmental services that their land provides to others, including protection of biodiversity, carbon storage, scenic beauty, and watershed protection.  Of course, they must engage in specified conservation practices to be paid.
  • Norway and other countries are moving toward “green fiscal reform,” which involves taxation of environmental pollution, often in return for reductions in other taxes, including income taxation.
  • In trade law, the European Union is moving toward sustainability by subjecting bilateral trade agreements to sustainability impact assessment and also by facilitating liberalization of trade in green goods and services.
  • Intellectual property rules, particularly patent law, often discourage innovation for environmental sustainability, including renewable energy, by discouraging new entrants to the field.  To be successful at fostering sustainability, these rules need to be revised.
  • Mexico’s new climate change law, which requires the development of a national plan to reduce greenhouse gas emissions, is also intended to promote a green economy by, among other things, fostering innovation in renewable energy and energy efficiency.
  • In the United States, as I explained at two of these side events, much of the progress toward energy efficiency, renewable energy, organic food production and other sustainable development activities over the past two decades has come about because of laws that are intended to foster those forms of economic development.  (see http://www.actingasiftomorrowmatters.com/)
  • The list of innovative measures for sustainable development has become so extensive—and the demand for knowledge about these measures so great—that the International Development Law Organization has prepared a compendium of legal best practices for a green economy.

These are only examples of the emerging law of sustainability.  My friend and colleague, Ann Powers, who teaches at Pace Law School, has a nice explanation for how we can create more of these examples.  Law for sustainability, she said, requires “not only analytical skills but also creativity, imagination, and innovation.”  How can we do a better job of teaching, encouraging, and practicing these things?

The U.N. Conference on Sustainable Development—A Tale of Two Narratives

The U.N. Conference on Sustainable Development here in Rio de Janeiro is occurring on the 20th anniversary of the famous 1992 Earth Summit, also in Rio de Janeiro.  At the Earth Summit, heads of state did not just say that sustainable development is a good idea.  They also, and more importantly, pledged to make it happen in their own countries.  One of those heads of state was U.S. President George H.W. Bush.

Twenty years later, a great many heads of state (or, for the United States, Secretary of State Hillary Clinton), will gather to focus on two particular implementation issues—greening the economy to achieve sustainability and eradicate poverty, and creating institutions for sustainability.  But the conference is also intended to reinvigorate the amazing energy that existed at the Earth Summit 20 years ago, when I took a week off from my job at the Pennsylvania Department of Environmental Resources and attended as an observer.  While the formal conference runs from June 20-22, a variety of side events and meetings related to the conference have already been going on more than a week.

Two stories or narratives about the conference are developing—both quite different, and each containing a good bit of truth.

On one hand, a great many nongovernmental organizations, corporations, local, state, provincial, and national governments are sharing what they have achieved in the past two decades, and what they hope to achieve.  They have taken actions to move toward sustainability for a variety of reasons—to satisfy customers and investors, to improve quality of life, to save money, and to protect the future for their grandchildren.  They see that making their environmental, social, and economic goals work together (the essence of sustainability) provides more benefits than business as usual.

A new book about sustainability in the United States—Acting as if Tomorrow Matters: Accelerating the Transition to Sustainability—recounts a great many such stories of sustainability in the United States—in local, state, and even national governance; at colleges and universities; and among corporations.  (I am the principal author of that book; see http://www.actingasiftomorrowmatters.com/.)

Here I have heard similar stories from around the world.  The head of Quebec’s government spoke the other night about Plan Nord, a sustainable development plan for the northern two-thirds of the province that will protect from development an area the size of France and provide for sustainable development of the rest.  The plan protects the First Nations (or native) people of Quebec as well as an enormous part of the province’s boreal forest (which is an important area for storing carbon dioxide).  Kenya and Mexico have adopted laws to reduce greenhouse gas emissions and adapt to climate change.

On the other hand, there is considerable skepticism here about the formal outcome of the conference.  The official document—entitled “The Future We Want,” is better than many feared, but not as good as many had hoped.  The difficulty in finding common ground among all of the world’s diverse nations feeds a narrative that nothing much has happened here.  That is an easy narrative, of course, in a time when there is already considerable skepticism about government.

However one feels about the official outcome, the important work of sustainability will continue—by the private sector, individual governments, and nongovernmental organizations all over the world.

–John Dernbach, Distinguished Professor of Law, Co-Director, Environmental Law Center

Environmental Law Center Features Distinguished Speaker Series

The Environmental Law Center was pleased to feature three speakers in AY 2011-12.

On November 8, 2011, Professor Amy Sinden from Temple Law spoke on, Formality and Informality in Cost-Benefit Analysis: Lessons from Entergy v. Riverkeeper. She discussed how the Supreme Court’s decision in Entergy v. Riverkeeper and the EPA’s subsequent reaction to it reveal important lessons for the larger academic debate over the use of cost-benefit analysis (CBA) in environmental decisionmaking. “In particular, the opinion and its aftermath highlight the distinctions between formal and informal CBA and the importance of distinguishing between the two,” she said. Sinden is a Professor at Temple University Beasley School of Law and a member scholar of the Center for Progressive Reform.

On April 19, 2012, the Center hosted Professor Lisa Heinzerling, who spoke on “Climate Change at EPA”

In Massachusetts v. EPA, the Supreme Court held that the Environmental Protection Agency has the authority to regulate greenhouse gas emissions under the federal Clean Air Act. “Since that ruling, EPA has taken several important steps toward developing a regulatory program for greenhouse gases,” Heinzerling said.

Heinzerling is Professor of Law at Georgetown University. From January 2009 to July 2009, Heinzerling served as Senior Climate Policy Counsel to the Administrator of the Environmental Protection Agency and then, from July 2009 to December 2010, she served as Associate Administrator of EPA’s Office of Policy. In 2008, she served as a member of President Obama’s EPA transition team. While at Georgetown, Professor Heinzerling has continued to litigate cases in environmental law. Most prominently, she served as lead author of the winning briefs in Massachusetts v. EPA, in which the Supreme Court held that the Clean Air Act gives EPA the authority to regulate greenhouse gases.
As part of our Earth Day Celebration, on April 24, 2012 the Center hosted a talk by Dean and Professor Patricia Salkin of Albany Law. Salkin spoke about “”Beyond Environmental Review: Integrating Health Impact Assessment into Local Land Use Decision Making.”

Health impact assessments (HIAs) outside of the United States have long been used to hone in on the public health impacts of certain government decision making. “While health impacts have been considered to a lesser degree through environmental impact review in the United States, recent findings suggest that HIAs can be very helpful in analyzing proposed development and redevelopment projects,” she said. Salkin’s talk reviewed the history of the HIA movement internationally and then examined the differences between HIA and EIR to explore whether or not HIAs and EIRs should be combined in the land development process.

Salkin is Associate Dean and Director of the Government Law Center of Albany Law School where she is also the Raymond & Ella Smith Distinguished Professor of Law.

Environmental law professor contributes to national report on sustainability for EPA

Widener Law Distinguished Professor John C. Dernbach has contributed to a new report from the National Research Council that presents a framework for incorporating sustainability into the U.S. Environmental Protection Agency’s principles and decision-making. It was requested by the EPA and is intended to help the agency better assess the social, environmental, and economic impacts of various options as it goes forward.

The report, “Sustainability and the U.S. EPA,” was released Tuesday, Aug. 2. It is the work of the Committee on Incorporating Sustainability in the U.S. Environmental Protection Agency, a 12-member group that includes Dernbach. He teaches on Widener’s Harrisburg, Pa. campus and began his work with the committee in December.

The report’s recommended sustainability approach both incorporates and goes beyond an approach based on assessing and managing the risks posed by pollutants that has largely shaped environmental policy since the 1980s. Although risk-based methods have led to many successes and remain important tools, the committee said, they are not adequate to address many of the complex problems that put current and future generations at risk, such as depletion of natural resources, climate change, and loss of biodiversity. Moreover, sophisticated tools are increasingly available to address cross-cutting, complex, and challenging issues that go beyond risk management.

The report recommends that EPA formally adopt as its sustainability paradigm the widely used “three pillars” approach, which means considering the environmental, social, and economic impacts of an action or decision. Health should be expressly included in the “social” pillar, the committee recommended. The report also maintains that the EPA should articulate its vision for sustainability and develop a set of sustainability principles that would underlie all agency policies and programs.

Dernbach ‘s 2009 book “Agenda for a Sustainable America” is a comprehensive assessment of recent American sustainability efforts based on contributions from academic and other experts from around the country. It also contains recommendations for the next five to 10 years. Dernbach approached the project with the intention of providing a broad framework for moving the United States toward sustainability.

Dernbach teaches and writes in the areas of environmental law, property, international environmental law, climate change, and sustainability and the law. He was quoted prominently in Thomas L. Friedman’s latest book “Hot, Flat, and Crowded: Why We Need a Green Revolution – and How it Can Renew America.” He joined the Widener Law faculty in 1993. Dernbach codirects the Widener Environmental Law Center with Professor Jim May.

Widener Students, Alumnus Revive Publication for Environmental and Energy Lawyers

Pennsylvania attorneys who specialize in environmental and energy law have a new way to stay up to date on their area of practice, thanks to the work of an ambitious Widener Law alumnus and three students who are supported by the school’s Env Law Center and the Pennsylvania Bar Association Environmental & Energy Law Section.

The group launched the online Environmental & Energy Law Section Newsletter in early April. The newsletter is intended to provide section members with relevant information about their
practice area, help them be better attorneys and give them a platform to communicate with other members on relevant topics. It is distributed to roughly 500 attorneys. The newsletter is the work of 2009 Harrisburg campus graduate Brandon J. Pierce, who serves as editor in chief, and current Harrisburg campus students Jon Johnson, Matt McDonnell and Mark Wieder, who serve as staff members.

The project began after Pierce, who is the judicial law clerk to Common Pleas Court Judge John Thompson Jr. in York County, contacted Distinguished Professor John C. Dernbach, director of the Environmental Law Center, and asked about environmental-law-related projects he could assist. He learned the newsletter had gone defunct over the last decade, and was invited to help revive it.

The newsletter is available only online, in a format that is both cost- and environmentally friendly. It also allows the staff to include links to outside relevant content that would be difficult
to include on paper. The first issue went live April 4 and was highlighted two days later at an annual meeting for environmental attorneys in Pennsylvania.

“We’re definitely very thankful to both the Pennsylvania Bar Association’s Environmental & Energy Law Section and Widener’s Environmental Law Center for the opportunity to
put this together,” Pierce said. “We hope to continue putting out a high-quality publication.” Dernbach also said Widener’s Environmental Law Center is pleased to provide institutional support to the effort. Johnson, McDonnell and Wieder have all expressed interest in environmental law issues, and work on the newsletter provides them an opportunity to work on matters of importance in that area – as well as begin making connections in the legal community.

Widener Issues White Paper: Next Generation Recycling & Waste Reduction

A Widener University law professor made public a new research report intended to strengthen recycling and waste reduction in Pennsylvania. The report includes recommendations for
ways an expansion of the practice can help create jobs and spur the Commonwealth’s economy – ideas that provide a platform for a serious conversation about the future of Pennsylvania’s
recycling program.

The report, “Next Generation Recycling and Waste Reduction:  Building on the Success of Pennsylvania’s 1988 Legislation” is the work of Distinguished Professor John C. Dernbach director of the school’s Environmental Law Center, and five students who took his spring 2010 Harrisburg-campus seminar on climate change law.

Dernbach and his students did a comprehensive study of the Commonwealth’s recycling law in observance of its 20th anniversary. The result is a 46-page document that is part report card, part blueprint for the future of Pennsylvania recycling. It contains an ambitious set of recommendations to expand recycling and waste reduction in ways that would benefit Pennsylvania environmentally and economically.

Their findings indicate that Pennsylvania’s recycling program is “rudderless and drifting.” It is clear from the report that the amount of materials recycled under the law is much greater
now than in 1988, when the legislation was first signed. However, in the last decade, the Commonwealth has not reported its recycling data in a way that Dernbach, his students, or the general public can draw conclusions on whether recycling has increased or decreased. The report goes on to state that Pennsylvania’s claim to national leadership “is fading as other states
continue to improve and strengthen their programs.”

The report has been delivered to key lawmakers, including Gov. Tom Corbett, Secretary of the Department of Environmental Protection Michael Krancer and members of House and Senate Environmental Resources and Energy committees. Corbett served as general counsel to Waste Management Inc. in the 1990s.

The students in Dernbach’s seminar were in elementary school when the mandatory provisions of Pennsylvania’s recycling law took effect. Recycling has been a way of life for them. The
students each researched a different facet of the law, its impact and ways Pennsylvania could improve or grow. Dernbach supervised the research and molded their findings into the report
he spent the fall 2010 semester writing and the first part of this year polishing.

“Recycling creates jobs and economic development and it does more of that than landfills do,” Dernbach said. “Widener’s Environmental Law Center would be happy to participate in a
conversation with Commonwealth  officials and others about what we should do next to improve recycling and waste reduction.”

Environmental Law Center Looks at Sustainability Record of Pennsylvania Candidates for Governor and U.S. Senate

“The motto for the Environmental Law Center is Law for Sustainability,” says Distinguished Professor John C. Dernbach, adding, “Governors and Senators make a lot of decisions that

create and implement law.” With that in mind, Professor Dernbach has worked closely with some of his students to provide information on the Environmental Law Center’s blog about the

positions that the candidates for Governor and U.S. Senator in Pennsylvania hold on sustainability issues.

“We’ve framed the issue in terms of sustainability, which is a broader term than environmental regulation,” says Professor Dernbach. Calling the effort a public service, he noted, “Sustainable development would make Pennsylvania more livable, healthy, secure, and prosperous. Policies that promote sustainability would help grow our economy, create jobs, improve quality of life in our communities, make us healthier, reduce risks to our national security, and improve the lives of the poorest among us.” The Sustainable Pennsylvania – Election 2010 pages will provide a detailed side-by-side comparison of the sustainability positions of gubernatorial candidates Tom Corbett (R) and Dan Onorato (D). The positions of Senate candidates Joe Sestak (D) and Pat Toomey (R) are similarly compared. Categories include Green Jobs & Green Business,   Investment in Environmental Infrastructure, Clean Energy, and Sustainable Communities.

Despite the importance of addressing sustainability, the Environmental Law Center’s Sustainable Pennsylvania – Election 2010 page appears to be one of the only efforts of its kind in

the nation to focus on sustainability issues.

“Green business and jobs cannot be created by regulation alone. You need regulation to protect the environment and public health, but you also need tax incentives, infrastructure, and supportive laws to create green businesses and jobs,” Professor Dernbach said. The students working on the project are all in their second year of law school–Daniel Minium (of Camp Hill, Pa.), Bret Wiest (of Fredericksburg, Pa.), and Matthew McDonnell (of Hatboro, Pa.). “They’re learning a lot and doing very good work,” Dernbach said.

Visit the Sustainable Pennsylvania-Election 2010 web page.