GREENING THE TRUST: ENFORCING PENNSYLVANIA'S ENVIRONMENTAL RIGHTS AND DUTIES TO COMBAT CLIMATE CHANGE.

• Author: Sappey, Julia E.

TABLE OF CONTENTS Introduction 1693 I. GOING GREEN: THE HISTORY OF THE ENVIRONMENTAL RIGHTS Amendment 1697 II. CONTOURS OF SECTION 27: DEFINING RIGHTS AND DUTIES UNDER THE ENVIRONMENTAL RIGHTS AMENDMENT 1699 A. Return to the ERA's Text in Robinson Township and Pennsylvania Environmental Defense Foundation 1700 1. Robinson Township: Reviving the ERA 1700 2. Pennsylvania Environmental Defense Foundation: Defining the Commonwealth's Duties as Trustee 1703 B. The Environmental Rights Amendment and Climate Change 1706 1. Climate Change as a Threat to the People's Environmental Rights 1706 2. The Duty to Fight Climate Change 1707 III. CAPPING CARBON: THE REGIONAL GREENHOUSE GAS Initiative 1709 A. The Importance of Carbon Trading 1710 B. The Reality of RGGI in Other States 1711 C. Governor Wolf's Executive Order 1713 IV. WHERE CAN THE MONEY GO?: APPLYING TRUST PRINCIPLES TO A CAP AND TRADE PROGRAM 1713 A. Directing the Funds 1714 1. Allowance Auctions as Sales of Natural Resources 1715 2. Allowance Auctions as Trust Regulation 1716 B. Enforcing Section 27 Duties 1718 1. Performance Review for the Commonwealth 1718 2. Unconstitutional Legislation 1720 V. COUNTERARGUMENTS 1721 A. Concerns About Mandating Executive and Legislative Compliance 1721 B. How Can RGGI Fulfill the Commonwealth's Duties? 1724 CONCLUSION 1726 INTRODUCTION

Over the last century, humans have warmed the planet by approximately 1.0[degrees]C. (1) Pennsylvania's average temperature has risen 1.8[degrees]F in the last hundred years, and climate scientists predict it will warm an additional 5.4[degrees]F by 2050. (2) These rising temperatures create feedback loops, leading to warming that will eventually become irreversible.3 Warmer temperatures have already led to melting ice caps, rising sea levels, dangerous weather patterns, and food shortages. (4) Human-produced greenhouse gases (GHG) are the largest contributing factor to this warming. (5) The scientific community largely agrees that if humans do not reach carbon neutrality by 2050, damage to the climate will be irreparable. (6) Beyond that point, it will be nearly impossible for humans to mitigate, let alone prevent, the worst of climate change's impacts on the planet. (7)

For at least the last decade, scientists and environmental organizations have emphasized the need to take protective measures against climate change and have provided actionable steps for governments at every level. (8) Above all, these groups have stressed the importance of reducing carbon emissions and have proposed guidelines to achieve that goal. (9) These strategies include transitioning energy sources and industries to greener practices, investing in sustainable infrastructure and agricultural systems, and climate finance and carbon pricing programs. (10) Some countries have taken these proposals seriously and implemented significant policies and legislation to combat climate change. (11)

The United States, particularly at the federal level, has ignored many of these recommendations for combatting climate change. (12) Despite intense lobbying efforts and growing public support. Congress has failed to enact meaningful climate legislation. (13) In recent years, the executive branch has rolled back many protective regulations. (14) Constitutional jurisdiction requirements and the federal judiciary's reluctance to recognize environmental rights have thus far posed insurmountable barriers to rights-based climate litigation. (15)

In light of these challenges at the federal level and the dwindling time remaining to correct course, states, with fewer threshold barriers posed by jurisdictional requirements, are an increasingly attractive forum for enforcing environmental rights. (16) At the state level, officials can enact, implement, reinterpret, and amend policies, legislation, and constitutional provisions more quickly and with more flexibility than their federal counterparts. (17) States, particularly in recent years, have taken advantage of that flexibility. (18) As of 2011, twenty-two states have constitutional provisions that protect environmental concerns either as a civil right or as a general policy matter. (19) Despite these amendments, enforcing environmental rights has proven challenging in many states. (20)

In 1971. Pennsylvanians voted to ratify the Environmental Rights Amendment (ERA) in Article I. Section 27 of the Commonwealth's constitution. (21) Unlike other states, Pennsylvania enumerates environmental protections in its Declaration of Rights, placing them alongside other fundamental rights, such as the freedom of speech and religion. (22) Despite this elevation, early decisions from the Pennsylvania courts severely limited the ERA's power. (23) However, Pennsylvania courts have recently construed section 27 to protect Pennsylvanians' environmental rights and impose certain duties on the Commonwealth. (24) Pennsylvania's ERA jurisprudence offers helpful legal principles that other states can tailor to their own constitutional frameworks to address climate change at a subnational level.

In October of 2019, Pennsylvania Governor Tom Wolf signed Executive Order 2019-07, which directed the Commonwealth's Department of Environmental Protection (DEP) to produce a plan by July 2020 to reduce Pennsylvania's carbon emissions by either joining the Regional Greenhouse Gas Initiative (RGGI), a greenhouse gas cap and trade program, or establishing its own carbon emission reduction scheme. (25) As participants in RGGI's cap and trade system, nine states in the Northeast and mid-Atlantic region limit GHG emissions by selling carbon allowances in quarterly auctions, the proceeds of which are returned to participating states. (26) In early 2020, the DEP presented its preliminary proposal for implementing a cap and trade program and has since continued through the regulatory rulemaking process. (27) Despite this progress, the Commonwealth has not yet articulated how it will use the funds generated from RGGI's allowance auctions. (28) This Note argues that the Commonwealth not only has a duty to combat climate change by reducing carbon emissions but also has a duty under the ERA to invest the funds it earns through carbon allowance auctions into the conservation and protection of Pennsylvania's environment.

Part 1 examines the ERA's purpose and early history. Part II analyzes recent court decisions that have established both the contours of Pennsylvanians' environmental rights and the Commonwealth's duties under the ERA. Part III explains the functionality of cap and trade systems generally and how RGGI currently operates. Part IV discusses how the Commonwealth's duties under the ERA inform the administration of a cap and trade program and how Pennsylvania courts can enforce the fulfillment of those duties. Part V anticipates and addresses potential counterarguments regarding enforcement in light of separation of powers concerns and the sufficiency of RGGI in fulfilling the Commonwealth's duties.

1. GOING GREEN: THE HISTORY OF THE ENVIRONMENTAL RIGHTS AMENDMENT

   For a commonwealth named after its woods, Pennsylvania has a long record of abusing its natural resources. (29) The Commonwealth's history of environmental mistreatment from the eighteenth through the mid-twentieth centuries has been summarized as follows: "We seared and scarred our once... pleasant land with mining operations. We polluted our rivers.... We poisoned our 'delicate, pleasant and wholesome' air... with the fumes of millions of automobiles....

   We uglified our land and we called it progress." (30) This Part provides a brief history of the ERA's ratification and early court decisions that marked a departure from the intended purpose of the amendment.

   In 1971, the Pennsylvania General Assembly amended the Commonwealth's Declaration of Rights to add section 27, which 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. (31) Proponents introduced the amendment on the first Earth Day, April 14, 1970, as part of a movement toward environmental awareness and protection. (32) Both houses of the General Assembly passed the amendment unanimously in 1971 and Pennsylvanians overwhelmingly voted in support of it in a referendum that spring. (33) With this amendment, advocates intended to give Pennsylvanians a constitutional basis to object to environmental abuse and to "force those who would adversely affect the environment to consider the impact of their actions before acting." (34)

   However, early judicial decisions in ERA cases departed from both the ERA's text and purpose. (35) In Payne v. Kassab, the Pennsylvania Commonwealth Court established a test that set a low bar for adherence to the ERA and had little to do with the actual text of the amendment.(36) The analysis only required compliance with applicable regulations and legislation designed to protect the environment, a showing of "reasonable effort to reduce" environmental impact. and a demonstration that the benefits from the action outweigh the environmental harm. (37) At first blush, the language of the analysis suggests that the test would provide robust protection for the environment. In reality, however. Payne did little to defend either the commonwealth's natural resources or Pennsylvanians' environmental rights. (38) The Payne test remained the standard of review for government action under the ERA for over four decades. (39) In that time, only one case successfully raised a section 27 challenge. (40)

2. CONTOURS OF SECTION 27: DEFINING RIGHTS AND DUTIES UNDER THE ENVIRONMENTAL RIGHTS AMENDMENT

   For the forty years following Payne, adherence to section 27...