On Tuesday, June 20, 2017, the Supreme Court of Pennsylvania held in Pennsylvania Environmental Defense Fund v. Commonwealth, No. 10 MAP 2015 (June 20, 2017) (PEDF), that the longstanding Payne v. Kassab test initially adopted by the Commonwealth Court of Pennsylvania in 1973 was not “the appropriate standard for deciding” challenges under Article I, § 27 of the Pennsylvania Constitution (often referred to as the “Environmental Rights Amendment” or “ERA”). No. 10 MAP 2015, at 27-28. In doing so, the majority of the Supreme Court adopted the ruling of a plurality of the Supreme Court in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013) (plurality). Moreover, the Supreme Court held that “when reviewing challenges to the constitutionality of Commonwealth actions under [the ERA], the proper standard of judicial review lies in the text of [the ERA] itself as well as the underlying principles of Pennsylvania trust law in effect at the time of its enactment.” No. 10 MAP 2015, at 28.
PEDF initially filed the lawsuit in Commonwealth Court on March 19, 2012, arguing that the removal of funds generated from the leasing of public lands for oil and gas development from accounts maintained by the Department of Conservation and Natural Resources (DCNR) to general government funds violated the requirements of the ERA. The ERA states:
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.
Pa. Const. art. I, Section 27. In its underlying decision issued on January 7, 2015, the Commonwealth Court determined that the ERA did not preclude the transfer of the revenues from DCNR accounts to general government accounts. Pennsylvania Environmental Defense Fund v. Commonwealth, 108 A.3d 140 (Pa. Commw. Ct. 2015).
In its decision reversing the Commonwealth Court, the Supreme Court rejected the longstanding three-part test adopted by the Commonwealth Court in Payne v. Kassab, 312 A.2d 86 (Pa. Commw. 1973) (Payne) to determine a violation of the Environmental Rights Amendment. The three-part Payne test addressed the following questions:
- Was there compliance with all applicable statutes and regulations relevant to the protection of the Commonwealth’s public natural resources?
- Does the record demonstrate a reasonable effort to reduce the environmental incursion to a minimum?
- Does the environmental harm which will result from the challenged decision or action so clearly outweigh...
