David Mandelbaum.

The Pennsylvania appellate courts decided about two dozen cases that one could call “environmental” last year. A brief review follows that necessarily gives short shrift to some of these opinions. This review may also omit some cases, for which I apologize.

Environmental Rights Amendment

The second and third sentences of Article I, Section 27, of the Pennsylvania Constitution (ERA) establishes a trust of “public natural resources” held by the commonwealth for the benefit of “all the people.” In Pennsylvania Environmental Defense Foundation v. Wolf, 161 A.3d 911 (Pa. 2017), the Supreme Court held that the ERA required proceeds from sale of the trust corpus (oil and gas leases in state forests) to be returned to the trust, and not appropriated to the General Fund. The court endorsed the plurality opinion in Robinson Township v. Pennsylvania Public Utility Commission, 83 A.3d 901 (Pa. 2013), and disapproved the analysis under Payne v. Kassab, 312 A.2d 86, 94 (Pa. Commw. 1973), aff'd 361 A.2d 263 (Pa. 1976). The court made some statements not necessary to the decision to the effect that the first sentence of the ERA calls for agencies of the commonwealth to conduct an environmental review before taking any action, and to refrain from acting if the adverse impacts on the environment would be unreasonable. Further, the court said that the duties of the commonwealth as trustee were those of a private trustee.

The Commonwealth Court has been more hostile to ERA claims. Delaware Riverkeeper Network v. Middlesex Township Zoning Hearing Board, No. 1229 C.D. 2015 (Pa. Commw. June 7, 2017), rejected an ERA and due process challenge to adoption of a land use ordinance permitting oil and gas activities in certain zones. Indeed, prior to the June decision in Pennsylvania Environmental Defense Foundation (PEDF), the Supreme Court agreed that the Commonwealth Court had properly sustained preliminary objections to a lawsuit by minors seeking a mandamus to require the commonwealth to establish a greenhouse gas emission regulatory scheme, as in Funk v. Wolf, 144 A.3d 228 (Pa. Commw. 2016), aff'd mem., 158 A.3d 642 (Pa. 2017).

Before PEDF, the Commonwealth Court avoided decisions on the merits in: Clean Air Council v. Department of Labor & Industry, 165 A.3d 1056 (Pa. Commw. 2017), denying standing to an environmental group seeking to challenge under the ERA the decision not to adopt energy efficiency standards in building code guidance; Baker v. Department of Environmental Protection, No. 633 C.D. 2016 (Pa. Commw. Mar. 2, 2017), denying as waived a third-party challenge to release of a surface mining bond under the ERA because not raised in the Environmental Hearing Board; and United Refining v. Department of Environmental Protection, 163 A.3d 1125 (Pa. Commw. 2017), denying as waived a third-party ERA challenge to an oil and gas well permit.