The Pennsylvania Supreme Court recently expanded the definition of “Commonwealth” in the Pennsylvania Constitution to include local governments but without any reasoned support. See Pa. Envtl. Def. Found. v. Commw., 161 A.3d 911, 931 n.23 (Pa. 2017) (“PEDF”). In a footnote, which arguably is dicta, the Supreme Court said that the trustee referenced in the “Natural Resources and the Public Estate” provision of Pennsylvania’s Constitution (Article I, Section 27) includes local governments despite the Constitution’s express selection of the “Commonwealth” as the trustee.[1]
Trustee obligations are not vested exclusively in any single branch of Pennsylvania’s government, and instead all agencies and entities of the Commonwealth government, both statewide and local, have a fiduciary duty to act toward the corpus with prudence, loyalty, and impartiality.
And what did the Supreme Court use as support for that statement? The Court’s prior decision in Robinson Township v. Commonwealth, 83 A.3d 901, 956-57 (Pa. 2013). But, the problem comes in when you look at that prior decision and the support (or lack thereof) for that decision.
Robinson Township was only a plurality decision. See PEDF, 161 A.3d at 930 (noting Robinson Township to be a plurality decision). But beyond that, the conclusion in Robinson Township itself lacks credible support. It made a broad pronouncement as to the definition of “trustee” and then cited only one case for support.
The Commonwealth is named trustee and, notably, duties and powers attendant to the trust are not vested exclusively in any single branch of Pennsylvania’s government. The plain intent of the provision is to permit the checks and balances of government to operate in their usual fashion for the benefit of the people in order to accomplish the purposes of the trust. This includes local government.
Robinson Twp., 83 A.3d at 956-57 (citing Franklin Twp. v. Commw., 452 A.2d 718, 722 & n.7 [sic] (Pa. 1982)).[2] There are at least two problems with relying on that statement in Robinson Township, though, for the conclusion that “trustee” includes local government.
First, the Franklin Township decision, upon which Robinson Township relies, was a plurality decision. Of the seven justices on the Court, only three signed onto the main opinion. Two justices concurred as to the result only and then focused on a discussion of the Solid Waste Management Act. See Franklin Twp., 452 A.2d at 723 (concurrence by Justice Roberts, joined by Justice O’Brien). Justice Hutchinson wrote a separate concurrence specifically to “disassociate myself from any inference … that article I, section 27 of our Constitution grants local governments, creatures of the sovereign, a right to enforce the duties that section imposes on the sovereign.” Franklin Twp., 452 A.2d at 724. Finally, Justice Nix dissented. See Franklin Twp., 452 A.2d at 724-25.
Second, the Franklin Township case does not state clearly that local governments wield power as a trustee. The language from Franklin Township on which PEDF relies is: “Indeed, it [Article I, Section 27] is a constitutional charge which must be respected by all levels of government in the Commonwealth.” Franklin Twp., 452 A.2d at 722 (emphasis added). Simply put, Franklin Township stands for the unremarkable proposition that all levels of the government have to respect that “[t]he people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.” Pa. Const. art. I, § 27. If the Court had wanted to include all levels of government in the definition of “trustee,” though, it would have written that the provision was a “constitutional charge which must be [enforced by /...
