December 30, 2013

What does it mean to have a "right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment"?

By Jonathan Wood Attorney

The Pennsylvania Supreme Court recently had to address that question to determine whether the state’s law encouraging oil and gas drilling violated the state constitution’s “Environmental Rights Amendment.” That amendment declares:

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.

Laudable as some of those sentiments may be, enforcing the literal terms of the amendment could prove disastrous. If there is a right to clean air, how clean? And, if all natural, scenic, historic and esthetic values must be preserved, can anything in the state ever be changed?

Consider the results if the plain meaning of this text were applied in a world where water, light, and exhalation are considered pollutants. Must a court prevent any and all such pollution? Of course, the only rational answer can be no. But what of the amendment? It should be obvious that the voters who enacted it were voting based on sentiment, without regard to the consequences of their sentiments becoming law. Should the court follow Chief Justice Roberts’ approach that it is not the judge’s “job to protect the people from the consequences of their political choices”?

In an exceedingly long opinion, a fractured court construed the amendment broadly to prohibit the government from allowing the “actual or likely degradation of … our air and water quality.” It attempts to cabin the effects of this interpretation by allowing for the possibility that “reasonable” degradation may be allowed.

[W]e do not perceive [the environmental rights amendment] … to deprive persons of the use of their property or to derail development leading to an increase in the general welfare, convenience, and prosperity of the people. But, to achieve recognition of the environmental rights enumerated in the first clause of [the amendment] as “inviolate” necessarily implies that economic development cannot take place at the expense of an unreasonable degradation of the environment. As respects the environment, the state’s plenary police power, which serves to promote said welfare, convenience, and prosperity, must be exercised in a manner that promotes sustainable property use and economic development.

But whatever the Court’s hedging, its analysis may prove difficult for it to back out of later in a more controversial case. For example, it declares one part of the oil and gas law unconstitutional simply because it shifted responsibility for regulating this industry from local governments to the state. It declared another section unconstitutional because it created one state-wide standard for the industry and was inconsistent with local governments’ reliance on zoning. And another provision is declared unconstitutional because it places the burden of proof of demonstrating that an activity will harm the environment on the government.

The opinion gives some indication that the judges were concerned that this law gave an improper preference to the oil and gas industry. Better that the court had based its decision on this ground. Then perhaps its ruling would have disfavored arbitrary or unjustified favoritism. Instead, by declaring uniform standards and any presumptive right to use property contrary to the environmental rights amendment, the decision fosters arbitrary decision-making by requiring case-by-case regulation. And, what’s worse, the decision’s language invites judicial interference with other constitutional rights, like the right to use and develop private property, because it interprets the right to clean air, pure water, and other environmental values so broadly.

As the dissent explains:

[E]very form of industry essential to the Commonwealth’s economic longevity and growth does the same, in some manner and to some degree. Thus, the State’s constitutional obligation to “conserve and maintain” simply cannot mean that Pennsylvania’s natural resources may not be responsibly disturbed and utilized.

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