46 ELR 10594 ENVIRONMENTAL LAW REPORTER 7-2016
It Only Hurts
When I Use It:
The Payne Test
and Pennsylvania’s
Environmental
Rights
Amendment
by Kenneth T. Kristl
Kenneth Kristl is Associate Professor of Law and Director
of the Environmental and Natural Resources Law
Clinic at Widener University Delaware Law School.
Article I, §27 of the Pennsylvania Constitution
creates public rights in natura l resources, and tasks
the Commonwealth government with conserving and
maintaining them for the benet of all. e section’s
expansive language was restricted by the 1973 Payne
decision, which created a three-part test focusing on
statutory compliance, eorts to reduce environmental
eects, and a balancing of harms and benets; under
that test, most §27 claims have failed. In 2013, a
plurality of the Pennsylvania Supreme Court in
questioned Payne’s continued viability. is Article
analyzes and develops the judicial and scholarly
criticisms of the Payne test, and concludes that it cannot
be salvaged. e author develops a new test based on
the principles articulated by the Robinson Township
plurality, arguing that it would allow Commonwealth
agents and judges to ensure that §27 plays a vital role
in protecting the environment.
In 1971, the citizens of Pennsylvania amended the
Commonwealth’s Constitution to create specic rights
and responsibilities in public natural resources.1 is
amendment—sometimes referred to as the Environmen-
tal Rights Amendment—added §27 to the articulation of
fundamental rights set forth in Article I of the Pennsylva-
nia Constitution. Section 27 states:
e people have a right to clean air, pure water, and to the
preservation of the natural, scenic, historic and es thetic
values of the environment. Pennsy lvania’s public nat u-
ral res ources a re the common property of a ll the people,
including generations yet to come. As trustee of these
resources, the Commonwealth shall conserve and main-
tain them for the benet of all the people.2
Although grand in its scope and promise, §27 was soon
signicantly restricted by judicial interpretations that lost
its origina l meaning, in a manner that “had the eect of
demonstrably and signicantly limiting” the public rights
set forth in the section.3 Just two years after §27’s passage,
the C ommonwealth C ourt’s decision in Payne v. Kassab4
articulated a three-part test for disposing of claims made
under §27 that focused on statutory compliance, eorts to
reduce environmental eects, and a balancing of environ-
mental harm against t he benets of the challenged action
1. For the details of how the amendment came about, see John C. Dernbach
& Edmund J. Sonnenberg,
, 24 W L.J. 181
(2015); Franklin L. Kury, e Environmental Amendment to the Pennsylvania
, 1 V. E. L.J.
123 (1990). Franklin Kury, the legislative author and champion of Article
I, §27, spoke about the history during a lecture at the Widener University
Commonwealth Law School. e talk can be seen at https://widenerenvi-
ronment.wordpress.com/speakers-and-conferences/speakerseries/.
2. P. C. art. I, §27.
3. John C. Dernbach & Ma rc Prokopchak , -
,
53 D . L. R . 335, 338 (201 5). This article provides a n analys is of
Pennsylva nia cou rt and admin istrative agency decisio ns in suppor t of
its con clusion.
(Pa. 1976).
unending encouragement, patience, and support. e author also
Funk v.
Wolf
and greenhouse
Pennsylvania Constitution. e legal strategy and arguments in that
Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
