Agency statutory authority and the Pennsylvania environmental rights amendment

• Pages: 1-60
• Date: 01 July 2024
• Published date: 01 July 2024
• Author: John C. Dernbach,Robert B. McKinstry, Jr.

ARTICLES

Agency Statutory Authority and the Pennsylvania

Environmental Rights Amendment

JOHN C. DERNBACH*

John C. Dernbach is Professor Emeritus, Widener University Commonwealth Law School; Founding

Director, Environmental Law and Sustainability Center. He can be reached at jcdernbach@widener.edu.

The authors are grateful to Sage Lincoln and Charley McPhedran for assistance in preparing this Article.

Thanks also to Bruce Ledewitz, Kacy Manahan, Margaret Murphy and John Quigley for comments on an

earlier draft. © 2024, John C. Dernbach and Robert B. McKinstry, Jr.

& ROBERT B. MCKINSTRY, JR.†

Robert B. McKinstry, Jr. is the principal of Robert B. McKinstry, Jr. Environmental and Climate

Law and Consulting. He can be reached at

†

robert.mckinstry@gmail.com or bobby@robertbmckinstryjr.

com. The authors submitted amicus briefs in support of the Commonwealth’s RGGI Regulation

discussed in this Article and entered appearances pro bono on behalf of intervenors before the

Pennsylvania Public Utility Commission in the remand following Township of Marple v. Pa. Pub. Util.

Comm’n, 294 A.3d 965 (Pa. Commw. Ct. 2023). This decision is also discussed in this Article.

ABSTRACT

Deteriorating global environmental conditions, especially the accelerated

warming of the atmosphere, have prompted a growing interest in constitutional

environmental protection in the United States and around the world. Four states

have incorporated judicially enforced environmental rights into their state consti-

tutions and two of these states, Pennsylvania and Hawaii, have also made public

natural resources the subject of a constitutional public trust. This Article focuses

on the Pennsylvania Environmental Rights Amendment (ENRA), a key impedi-

ment to its full implementation, and the opportunities that overcoming this

impediment present for addressing the existential challenge of climate change.

A major impediment to implementation by state agencies of Pennsylvania’s

ENRA is the erroneous view that their authority to carry it out is more limited

than it really is. They argue that the ENRA does not expand what an agency

can do under its existing statutory authority. As a result, all too often, they do

not even recognize the ENRA as part of the law they must implement.

This Article’s basic premise is that state agencies are essential to the effec-

tive implementation of the ENRA. It is not enough for citizens and nongovern-

mental organizations to f‌ile lawsuits to protect rights guaranteed by the ENRA.

State agencies, too, must be guarantors of these rights.

Agency failure to implement the ENRA is an enormous impediment to the full

realization by Pennsylvanians of their constitutionally protected environmental

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rights. It means that individual citizens and nongovernmental organizations are

obliged to f‌ight, on a case-by-case basis, for protection of their environmental

rights, with little or no support from the state. Integration of the ENRA into

state agency decision-making processes would put greater government resour-

ces in support of the ENRA and better protect the public’s constitutional envi -

ronmental rights. As recent litigation has shown, this is particularly true for

climate change. Signif‌icantly, other constitutional rights in Pennsylvania are al-

ready integrated into the day-to-day activities of state agencies. Environmental

rights should be no different.

In this Article, we discuss three broad ways in which Pennsylvania state

agencies can and should apply the ENRA, consistent with their existing statu-

tory authority. First, agencies should employ the ENRA as a constraint on gov-

ernment action and agency action in particular. Second, agencies should use

the ENRA as a tool for statutory construction to strengthen their authority to

protect and preserve the values and resources identif‌ied in the ENRA. Third,

agencies (and the courts) should carry out their aff‌irmative duty to implement

the public trust clause of the ENRA—to conserve and maintain public natural

resources for the benef‌it of present and future generations.

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. The ENRA as a Constraint on Existing Agency Authority . . . . . . . . . . . 9

A. Rights As Constraints on Governmental Authority . . . . . . . . . . . . . 9

B. Environmental Rights and Public Trust Duties As Constraints

on Agency Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

C. Applications of the ENRA to Constrain Agency Action. . . . . . . . . 13

1. Requirement for Pre-decision Environmental Review . . . . . . . 13

2. Requirement to Exercise Fiduciary Duties in Applying Statutes

and Regulations........................................ 19

II. The ENRA as a Means of Supporting and Strengthening Existing

Agency Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

A. Precedents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

B. Case Sudies in How Agencies have Applied and Failed to Apply the

ENRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

1. The RGGI Rulemaking and Subsequent Litigation .......... 31

a. The RGGI Regulation. . . . . . . . . . . . . . . . . . . . . . . . . . 32

b. Challenge to the RGGI Regulation in Commonwealth

Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

c. The Commonwealth Court’s Failure to Consider Statutory

Authority and the ENRA. . . . . . . . . . . . . . . . . . . . . . . . 36

2 THE GEORGETOWN ENVTL. LAW REVIEW [Vol. 37:1

d. Pennsylvania Supreme Court Decision Based on Failure of

DEP to Invoke the ENRA in Support of the RGGI

Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

2. DEP’s Imposition of a Permit Condition to Control Noise. . . . 44

III. The ENRA as Creating a Duty for Agencies and the Legislature to Act . . 45

A. The ENRA recognizes a public trust with aff‌irmative duties. . . . . . 45

B. The Duty of the Courts As Trustees . . . . . . . . . . . . . . . . . . . . . . . 49

C. The Duty of Administrative Agencies As Trustees to Adopt

Regulations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

D. The Duty of the General Assembly As Trustee to Adopt Legislation 57

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

INTRODUCTION

Deteriorating global environmental conditions, and especially the accelerated

warming of the atmosphere and resulting climate disruption, have prompted a

growing interest in constitutional environmental protection in the United States

and around the world.

1

For example, Our Children’s Trust, a public interest law

f‌irm focused on vindicating the right of children to a safe climate,

2

OUR CHILDREN’S TRUST, Mission, https://perma.cc/8RCN-9WNW.

succeeded, at

the state supreme court level, when it brought an action under Montana’s environ-

mental rights amendment which resulted in a decision invalidating statutes that

prohibit the consideration of climate in state decision-making.

3

A similar action

based on Hawaii’s environmental rights amendment was settled on terms that com-

mit the state to develop and implement a plan to decarbonize the state’s transporta-

tion system by 2045.

4

Navahine F. v. Haw. Dep’t of Transp., No. 1CCV-22-0000631 (Haw. Cir. June 20, 2024) (joint

stipulation and order re: settlement), https://perma.cc/G9TW-WFBA. The 2045 date is the date on

which Hawaii is committed by statute to achieving zero greenhouse gas emissions. HAW. REV. STAT.

§ 225P-5.

Montana and Hawaii, along with New York and Pennsylvania

(the subject of this Article), are the only four U.S. states with judicially enforced

constitutional environmental rights.

5

The case law under these provisions pro-

vides a rich source of information about their effectiveness.

6

Although advocates

use these cases to argue for the great promise in these amendments,

7

others use

1. See, e.g., G.A. Res. A/76/L.75, The Human Right to a Clean, Healthy and Sustainable Environment

(July 26, 2022); JAMES R. MAY & ERIN DALY, GLOBAL ENVIRONMENTAL CONSTITUTIONALISM (2015).

2.

3. Held v. Montana, No. CDV-2020-307, at *101 (Mont. 1st Dist. Ct. Aug. 14, 2023) (Climate

Change Litigation Databases, U.S. Climate Litigation), aff’d, 560 P.3d 1235 (Mont. 2024) (holding that

Montana ENRA rights were “fundamental” requiring application of strict scrutiny).

4.

5. John C. Dernbach, The Value of Constitutional Environmental Rights and Public Trusts, 41 PACE

ENV’T L. REV. 153, 160-65 (2024).

6. See id. See also John C. Dernbach, The Environmental Rights Provisions of U.S. State

Constitutions: A Comparative Analysis, in ENVIRONMENTAL LAW BEFORE THE COURTS (Giovanni

Antonelli et al. eds., 2023).

7. MAYA VAN ROSSUM, THE GREEN AMENDMENT: THE PEOPLE’S FIGHT FOR A CLEAN, SAFE, AND

HEALTHY ENVIRONMENT 13-14 (2d ed. 2022).

2024] CONSTITUTIONAL ENVIRONMENTAL RIGHTS & STATUTORY AUTHORITY 3