November 01, 2017

The abandonment and restoration of Pennsylvania’s constitutional public trust

John C. Dernbach

In 1971, the voters of Pennsylvania overwhelmingly adopted an amendment to article I of the state constitution, which is the state’s Declaration of Rights. 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.

This article describes how the public trust provisions of section 27—its second and third sentences—were abandoned and restored. It also highlights some key issues section 27 raises for lawyers and policy makers.

Abandonment

In Payne v. Kassab, 312 A.2d 86 (Pa. Commw. Ct. 1973), citizens and others challenged a street-widening project, claiming that the loss of 0.59 acres of public park, less than 3 percent of the park’s total acreage, violated the public trust provisions in the second and third sentences of section 27. The facts in this case helped convince the court that section 27 could be used to stop all development. Stating that judicial review under section 27 “must be realistic and not merely legalistic,” the Commonwealth Court adopted a three-part balancing test as a substitute for the text of section 27:

  1. Was there compliance with all applicable statutes and regulations relevant to the protection of the Commonwealth’s public natural resources?
  2. Does the record demonstrate a reasonable effort to reduce the environmental incursion to a minimum?
  3. Does the environmental harm which will result from the challenged decision or action so clearly outweigh the benefits to be derived therefrom that to proceed further would be an abuse of discretion?

This test, not section 27, was applied for more than four decades, even though it says nothing about the public trust. And according to research by a former student, the test was so easy to satisfy that claimants raising section 27 claims almost never won.

A glimpse at restoration

In Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013), the Pennsylvania Supreme Court held unconstitutional several provisions of Pennsylvania’s 2012 shale gas legislation. Chief Justice Ronald Castille’s groundbreaking opinion relied on section 27 and provided a detailed explanation of what section 27 means and why its location in Article I matters. That opinion garnered only three of the court’s seven votes, however; a fourth justice based his decision on substantive due process. Still, Pennsylvania lawyers began to read the text seriously and think about what it might actually mean.

Restoration

Pennsylvania Environmental Defense Foundation (PEDF) v. Commonwealth, 161 A 3d 911 (Pa. 2017), also involves shale gas. The state had run a modest oil and gas leasing program on state forests and parks since 1947. Then the Marcellus Shale boom and economic recession happened—at the same time. The state expanded drilling on state lands, bringing in hundreds of millions of dollars, and transferred much of that money to the General Fund to help balance the budget. PEDF sued, claiming the legislative diversion of gas leasing funds for purposes other than conservation violated section 27’s public trust provisions.

On June 20, 2017, a majority of the Pennsylvania Supreme Court agreed—in a sweeping endorsement of the text of section 27 that substantially tracked Robinson Township. The court categorically rejected the Payne test, saying it “is unrelated to the text of Section 27 and the trust principles animating it.” Instead, the court said, “the proper standard of judicial review lies in the text of Article I, Section 27 itself as well as the underlying principles of Pennsylvania trust law in effect at the time of its enactment.”

The second and third sentences create a public trust in “public natural resources” that requires the commonwealth (including the governor, the General Assembly, state agencies, and local governments) to “conserve and maintain” those resources for the benefit of both present and future generations. The corpus or body of the trust, the court said, includes state parks and forests, as well as the oil and gas they contain.

The Commonwealth has two public trust duties under section 27, the court said. The first is to “prohibit the degradation, diminution, and depletion of our public natural resources, whether these harms might result from direct state action or from the actions of private parties.” The second is to “act affirmatively via legislative action to protect the environment.”

The court said that private trust law is to be used to help determine the meaning of section 27. It identified as important the private trust law duties of loyalty (administering the trust for the benefit of the people), impartiality (managing the interests of all beneficiaries, including the interests of current and future generations), and prudence (exercising “reasonable care, skill, and caution”).

The court then held that diversion of oil and gas revenues to the general fund violates the public trust, thus impacting more than $400 million in funds previously diverted to nonconservation purposes.

Many remaining issues

The PEDF decision raises many legal issues. On remand, the Commonwealth Court must decide how moneys received from oil and gas leasing on state land can actually be used. The Department of Environmental Protection, which issues hundreds of permits every year, is considering how a now-revitalized section 27 affects permit decisions. Pennsylvania’s 2,562 local governments are beginning to ask what it means to be a trustee. And there is also a question of what the decision means for the first sentence of section 27.

Conclusion

At long last, Pennsylvania courts are taking the constitutional public trust seriously. And there is certainly more to come.

Widener University Commonwealth Law School has published a listing of available section 27 resources with links.

John C. Dernbach

John C. Dernbach is Commonwealth Professor of Environmental Law and Sustainability at Widener University Commonwealth Law School in Harrisburg, Pennsylvania, and director of its Environmental Law and Sustainability Center.