A broader interpretation & step back for Pennsylvania Oil and Gas

Freedom of speech, freedom to bear arms, freedom to have certain environmental rights…Uhh, what?  Do you normally think of that last one when you think of the Pennsylvania Constitution?  Probably not.  As of late June 2017, the PA Supreme Court decided on what most proponents of oil and gas would see as a broad interpretation of Article 1, Section 27, or the Environmental Rights Amendment (“The ERA”).  The quite narrow 3-prong test has been in place since the 70’s.  Without going into the *snore* law of the 3-prong test.  Here’s what The ERA stated.

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.

So, plan on bringing a claim against maybe a permit or a pooling unit, how about a right-of-way or water issues, that you feel has negative effects on the environment, based on The ERA?  I mean, you can always try.  You may not win, however.  Environmental attorneys are hopeful.  Alternatively, when reading the majority of the Court’s opinion, the focus isn’t necessarily on an individual’s claim as suggested in my example, but moreso, the Commonwealth acting as a Trustee to protect the Commonwealth’s environment on behalf of its citizens.  In a practicality sense, before the ruling, the Governor could use the money from the proceeds of leasing places like the State Game Lands, into a general fund, whereas now, the money will revert back to environmental conservation efforts.

Let me know what you think.   Do you feel the Court should have forgone the 30+ years using the 3-prong test vary narrowly or more broadly to incorporate the Commonwealth’s ability as a trustee on behalf of its citizens.  If the latter, do you feel you have a constitutional environmental conservation claim based on this? Let’s discuss!

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