In a majority decision issued June 20, 2017, with a complement of new Justices, the Pennsylvania Supreme Court issued a ruling placing further emphasis on the importance of Article I, Section 27 of the PA Constitution.  The decision was in PA Environmental Defense Foundation v. Commonwealth of PA, and it addressed how the Commonwealth is allowed to spend the money received through oil and gas leasing of state land.

Article I, Section 27 is the constitutional provision declaring:  “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.”  It also contains language requiring the Commonwealth to act as trustee of the public’s natural resources.

Of importance to real estate developers is the fact that Article I, Section 27 can be used by those challenging PADEP permits through appeals of final actions to the PA Environmental Hearing Board.  In cases challenging DEP approvals, the third party appellants and environmental groups allege that DEP acted arbitrarily, capriciously or contrary to law, and they generally have thrown in allegations that PADEP’s action violated Article I, Section 27.  For many years, the law was that if the General Assembly adopted the applicable regulations in an effort to protect the environment, then acting in conformance of those regulations would comply with Article I, Section 27.  That was until a plurality decision of the PA Supreme Court in 2013, known as the Robinson Township case, in which the court found that the prior test, known as Payne I, stripped all meaning from the constitutional provision.  As a plurality decision, the Robinson Township decision could only go so far in changing the prior law.

Since 2013, several new justices have been elected to the court, and now those justices have weighed in on the import of Robinson Township, and they have wholly endorsed the law as stated in that plurality decision.  What does that mean?  The most important sentence in the decision for me is the one finding that Article I, Section 27 “places a limitation on the state’s power to act contrary” to the rights expressed therein, and “while the subject of this right may be amenable to regulation, any laws that unreasonably impair the right are unconstitutional.”  As I read that, the Court is clearly saying that PADEP actions not only have to comply with the regulations, but more may be required to satisfy Article I, Section 27 to prevent the action from being unconstitutional.

It’s unclear if this decision will cause PADEP to act differently, since the decision mostly related to oil and gas leases and DCNR funding, but I think it’s now clear where the PA Supreme Court stands on Article I, Section 27 and state action.  Anyone seeking a permit from PADEP will need to be mindful that complying with PADEP regulations may no longer be enough, and that additional actions may be needed to go above and beyond the regulatory requirements, in order to ward off any constitutional challenges to PADEP’s action based on Article I, Section 27.