A decision rendered last month by the Supreme Court of Pennsylvania reinterpreted the commonwealth’s obligations under Article I, Section 27 of the Pennsylvania Constitution, known as the Environmental Rights Amendment (ERA). The Supreme Court sided with the appellant, Pennsylvania Environmental Defense Foundation (PEDF), in PEDF v. Commonwealth of Pennsylvania, 10 MAP 2015, and held that the commonwealth had violated the fiduciary duty imposed on it by the ERA. Pursuant to this decision, Pennsylvania and its agencies must prohibit the degradation of public natural resources resulting from state or private activity, and must act affirmatively by passing legislation intended to protect the environment. These duties do not, however, prohibit outright the commonwealth from utilizing its public property in ways that promote the general welfare of its citizens. Included in the commonwealth’s fiduciary duty is the duty of prudence, requiring it to “exercise such care and skill as a man of ordinary prudence would exercise in dealing with his own property.” This duty tempers—somewhat unclearly—an interpretation of the ERA requiring preservation of Pennsylvania’s public natural resources to the exclusion of their reasonable use.

Incorporated into the Pennsylvania Constitution in 1971, the Environmental Rights Amendment establishes two separate rights. First, the people of Pennsylvania have rights in the environment—rights “to clean air, pure water, and to preservation of natural, scenic, historic and aesthetic values of the environment.” Second, the ERA establishes a public trust composed of the natural resources of the commonwealth, of which the commonwealth must serve as trustee, for the benefit of “all the people including generations yet to come.” PEDF addressed the scope of this second right and the nature of this public trust.

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