On June 20, the Pennsylvania Supreme Court issued a significant and potentially far-reaching opinion in Pennsylvania Environmental Defense Foundation (PEDF) v. Commonwealth of Pennsylvania, 2017 Pa. LEXIS 1393, No. 10 MAP 2015 (June 20, 2017). While initial attention has been paid to the decision’s potential monetary impact via the use of oil and gas lease funds, a more detailed analysis reveals that the longer lasting impact of PEDF will be found in its pronouncements on the scope of judicial review of government actions and, perhaps, implicating the separation of powers among the three branches of the government.

Background

On its face, the case involved the challenge by PEDF to the Legislature’s transfer of certain funds from the Oil and Gas Lease Fund to general governmental purposes. PEDF argued that those transfers were unconstitutional as being contrary to the commonwealth’s duties as a trustee under the Environmental Rights Amendment (ERA), (Pa. Envtl. Def. Found., 2017 Pa. LEXIS 1393 at *26). The ERA 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.

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