The potential meanings of a constitutional public trust.

• Author: Dernbach, John C.
• Position: I. Introduction through III. The Supreme Court's Robinson Township Decision, p. 463-485 - Developments in the Public Trust

1. INTRODUCTION II. LEGAL LANDSCAPE PRIOR TO ROBINSON TOWNSHIP A. Article I, Section 27As Written B. Article I, Section 27 As Applied by Pennsylvania Courts Before Robinson Township III. THE SUPREME COURT'S ROBINSON TOWNSHIP DECISION IV. EXPLICIT CONSTITUTIONAL OBLIGATIONS AND AN IMPLIED DUTY TO CONSIDER IMPACTS A. Explicit Constitutional Obligations 1. Duty to Conserve and Maintain Public Natural Resources 2. Duty to Refrain from Impinging upon Public Environmental Rights B. Duty to Consider Impacts on Public Rights Before Making a Decision C. End of the Payne Test? 1. Challenges to Legislative Acts 2. Challenges to Administrative Actions D. The Role of Balancing V. PRIVATE TRUST DUTIES THAT APPLY TO PUBLIC TRUST A. Duty of Prudence B. Duty of Loyalty C. Duty of Impartiality Toward Beneficiaries D. Duty to Provide an Accounting E. Limited Delegation Authority for Trustee Duties VI. MODIFICATION OF GOVERNMENTAL AUTHORITY VII. CONCLUSION I. INTRODUCTION

   On December 19, 2013, the Pennsylvania Supreme Court held several provisions of the state's recently adopted Marcellus shale gas legislation, known as Act 13, (1) to be unconstitutional. (2) A plurality of the court based its decision on article I, section 27 (section 27) of the state's constitution, (3) the Environmental Rights Amendment (Amendment). Section 27 creates two public rights in the environment. (4) One is a right to clean air, pure water, and the preservation of certain environmental values. (5) The other is a right, as beneficiaries of a public trust in "public natural resources," to have those resources conserved and maintained for the benefit of present and future generations. (6) This case, Robinson Township v. Commonwealth of Pennsylvania (Robinson Township), represents the first time since the Amendment was adopted in 1971 that any Pennsylvania com!--even a plurality--has used section 27 to hold legislation to be unconstitutional. (7) Section 27 had been so thoroughly buried by earlier court decisions that Pennsylvania lawyers, even lawyers deeply experienced in environmental law, are now looking at the Amendment as if "for the first time." (8)

   The Robinson Township case is already--and properly--being described as a landmark decision. (9) Not only did Chief Justice Ronald Castille's plurality opinion resurrect the virtually dormant Amendment; it did so using conventional tools of constitutional interpretation--its text and purpose. (10) The plurality also focused on something that judges and lawyers had overlooked for decades: the Amendment is in article I of the Pennsylvania constitution--the Declaration of Rights, which is Pennsylvania's version of the U.S. Constitution's bill of rights. (11) More broadly, the explanation of the constitutional basis of environmental rights is more detailed, comprehensive, and thorough than perhaps any other judicial decision to date. That means its persuasive value, both in and out of Pennsylvania, and even outside the United States, could be substantial. In an interview shortly before he left the court, Chief Justice Castille described Robinson Township as his legacy decision. (12)

   At the same time, Robinson Township is a plurality decision, not a majority decision. (13) While a fourth justice provided the basis for the holding that parts of Act 13 are unconstitutional, that justice based his reasoning on substantive due process, not environmental rights. (14) Moreover, only one of the three original justices who signed the plurality opinion was still on the court at the beginning of 2015. (15) Chief Justice Castille left the court at the end of 2014 because he had reached Pennsylvania's mandatory retirement age. (16) Another justice who joined that opinion retired early due to a scandal. (17) Plurality opinions can, of course, provide the basis for majority opinions in future cases. But then again, they might not.

   Yet in a small but significant number of cases, the Robinson Township decision is already being used to challenge a variety of state or local decisions. (18) Pennsylvania is thus experiencing an important constitutional moment. The potential for a more robust use of environmental rights and public trust is so near at hand as to be within reach, tangible, and capable of being pictured and understood in specific cases. Yet cynics say that this potential is perhaps still impossibly far away, and that the Amendment is destined to be buried again. (19) It is more likely that this potential will be realized to some degree over time as different cases raising different issues are decided.

   What is clear, however, is that the reinvigoration of section 27 raises a multitude of questions about the meaning and scope of environmental rights, including public trust. This Article surveys these issues, based on cases that have been brought, many of which have not been fully resolved. Its purpose is to provide a sense of what actual constitutional environmental rights could mean, based to some degree on real experience.

   Part II of this Article describes the legal landscape in Pennsylvania prior to Robinson Township. It provides an overview of the history and adoption of the Amendment as well as key court decisions decided shortly afterward that effectively buried it for decades. Part III explains the Robinson Township decision, with particular attention to how the plurality applied section 27 to the legislation that was challenged.

   Parts IV through VI explain three different ways in which the meaning and application of Robinson Township is being tested, particularly through litigation, as of early 2015. Part IV discusses litigation concerning the rights expressly stated in section 27, as well as the government's implied duty to consider impacts on those rights prior to making a decision. These issues are at the center of many current disputes. Part V discusses litigation in which public trust duties are being asserted, not based upon the text of section 27, but rather based upon private trust law. These include, for example, the trustee's fiduciary duties of loyalty, prudence, and impartiality toward the beneficiaries of the trust, as well as standing to demand trustee accounting. (20) Part VI discusses various supporting roles that section 27 has successfully played in litigation over the past four decades--confirmation and extension of the police power, guidance in statutory interpretation, and constitutional authority for laws whose constitutionality has been challenged on other grounds. These roles were not directly addressed in Robinson Township, but are likely to continue to be even more important in its wake.

   Taken together, these cases provide a sense of the broad range of potential applications of section 27. As between the two rights stated in section 27--broad environmental rights and rights as a public trust beneficiary--public trust is getting the most attention from both litigants and courts. (21) In these cases, most of the individuals and organizations challenging particular governmental actions are focused on the alleged adverse effects of the particular actions on the places where they live, work, and engage in outdoor recreation. The cases also suggest that while section 27 may occasionally play a major role in state policy, as it did in Robinson Township, it is also likely to play a role filling gaps in the state's environmental and land use statutes and regulations. One can also begin to glimpse another and broader role for section 27 as the results of specific cases get translated into new law and policy, particularly laws and policies fleshing out the government's duty to conserve and maintain public natural resources. The Amendment is likely to move from the periphery of state law and policy closer to the center. Finally, as lawyers and judges gain a better understanding of the history and the text of section 27, and how it applies, it will become increasingly implausible to return to the legal landscape that existed prior to Robinson Township.

   Understanding this range of potential applications is important for several reasons. While there is considerable literature on the importance of constitutional environmental law at the state and national levels, (22) the number of cases decided under those provisions is relatively small. (23) It is thus difficult to get a sense of the broad range of meanings that an environmental constitutional provision could have. For lawyers, judges, and decision makers in Pennsylvania, this sense of the bigger picture can provide context for understanding the effect of any particular situation or decision. For those in jurisdictions outside of Pennsylvania that also have constitutional environmental provisions, this sense can assist in providing legal advice or making decisions under those provisions. For those considering new or different environmental provisions in other jurisdictions, an understanding of the range of potential meanings can guide the way in which these provisions are drafted and explained. Because most of the cases being brought subsequent to Robinson Township involve the public trust clause of the Amendment, moreover, these cases provide an empirical basis for understanding how robust a constitutional public trust can be.

   In addition, Pennsylvania has had a sophisticated environmental regulatory program for several decades. (24) State officials have often been able to legitimately claim that particular Pennsylvania regulatory programs are among the most stringent or innovative in the country. (25) Pennsylvania thus provides a useful way of understanding how, and to what extent, constitutionally based environmental rights claims, including those based on public trust, can add value in a sophisticated and well-developed legal regime for environmental protection.

   Finally, the Robinson Township plurality emphasized that the Amendment, properly understood and applied, should have the effect of promoting sustainable development...