This story was first published on October 25, 2018
50 years ago, a young legislator named Franklin Kury wanted to guarantee Pennsylvanians the right to clean air and water. Working with other environmental advocates, he got Article 1, Section 27 amended to the state constitution in 1971. It 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.
For decades, the amendment was largely ignored.
But things are changing. As fracking transformed Pennsylvania’s rural landscapes, it’s unexpectedly led to a shift in the legal landscape, too.
Two recent state Supreme Court decisions dealing with natural gas drilling are breathing new life into the amendment.
The Environmental Rights Amendment is the subject of a documentary called “Generations Yet to Come: Enivronmental Rights in Pennsylvania” now available online.
On the latest episode of StateImpact’s podcast ‘energy, explained,’ host Reid Frazier sat down the documentary’s producer, Marie Cusick, talk about her reporting, the amendment and how it has gotten new life after all these years.
>>LISTEN to Reid Frazier’s entire conversation with Marie Cusick about the Environmental Rights Amendment HERE.
Reid Frazier: Tell us a little bit about Franklin Kury. Where did he grow up and how did that shape his views on this kind of environmental degradation?
MC: Franklin Kury is a really fascinating man. He grew up in the anthracite coal region of Pennsylvania. His grandparents’ house was a hundred yards from a huge comb bank, and in front was a stream that ran “black as the ace of spades.” These visual images and this visceral connection to the destruction of coal mining stuck with him. He ran for the state house at age 29 and his whole campaign was about clean streams and clean politics. He said he really wanted to make the state government the trustee of the resources and the guardian of our environment because he feels they were really accomplices to all this exploitation over the decades.
RF: This was when the Environmental Protection Agency was just coming into being; the first Earth Day was right around that time. So this was a time of awakening for environmental protection.
MC: Kury said as a student of history, he knew that this momentum of environmental protectionism wasn’t going to last forever. That’s why he wanted to get a constitutional amendment. Laws can easily be changed or undone, but he felt like firmly planting these rights in the state constitution was something quite different.
RF: And it’s not easy to pass a constitutional amendment in Pennsylvania. What did they have to do?
MC: It had to go through multiple legislative sessions, and then it went on the ballots to the citizens. At the same time, there was a constitutional amendment guaranteeing women equal rights. That only passed by a 2 to 1 margin, and Kury’s environmental rights amendment passed by a 4 to 1 margin. It was quite popular and supported by the legislature and supported by the citizens of Pennsylvania quite strongly.
RF: So it’s this big victory for environmental protection in Pennsylvania. But then what happens?
MC: As Franklin Kury says in the documentary, the constitution is only as good as the people who will support it. One of the first cases where the amendment was tested in courts was in 1973. There was a private developer on private land next to the Gettysburg National Battlefield who wanted to build this big observation tower.
The state attorney general sued the developer saying that this was an eyesore that would ruin the battlefield. The challenge was that this violates the scenic and aesthetic nature of the battlefield and thus violates the Environmental Rights Amendment. The court sided with the developer though and said no, it doesn’t. And the tower was up there for many years and was quite controversial. But the early cases just didn’t really go toward a strong interpretation of the amendment.
RF: We’re going to jump ahead to 2013, and the amendment becomes very relevant for a pretty prominent case. Can you tell us about that?
MC: There had been this huge surge of natural gas development in Pennsylvania’s Marcellus Shale. So the Legislature passed a new law, Act 13, that did all kinds of things to update Pennsylvania’s oil and gas laws. And among the changes the Legislature made was a very controversial provision that basically eliminated zoning requirements for oil and gas companies, saying wells could be placed almost anywhere in the state regardless of the zoning.
So a group of citizens, environmental groups, and local governments challenged. And one of the things they cited was that this violates Pennsylvania’s Environmental Rights Amendment. Pretty much everybody involved in the case was very surprised when the court agreed with that argument. The opinion came in late 2013, and it was the first time where a court had used the Environmental Rights Amendments to actually nullify parts of a state law. So some of those controversial provisions were actually struck down.
RF: This decision represented a big victory for environmental groups and municipalities that wanted to restrict fracking in their districts through zoning. But in your reporting, what has been the fallout from this decision? Has it put a damper on drilling in certain areas or just something that the gas industry has figured out a way to work around?
MC This is all still very dynamic and developing. But I wouldn’t say it put a damper on development because in a lot of very rural areas where Marcellus development is taking place, there was no zoning to begin with. And whether they’re drilling a lot or pulling back is more dependent on the price of the resource and not so much on what a particular local government might do.
RF: You talked to attorneys for the oil and gas industry who say there’s inevitably going to be some sort of conflict between the right to clean air and pure water and property rights. What’s their argument and how did they see this shaking out in the courts?
WATCH: Preview for “Generations Yet to Come”
MC: I think everyone sees this as a very dynamic area of law that’s still unfolding. The feeling is, if you’re a business and you’re trying to do gas development or something else, and you’re following all the regulations, and then suddenly somebody says, ‘well, there’s this extra level of protection that you have to give to people – a right to clean air and pure water.’ What does that actually mean? Does that mean you can’t put up any facility that pollutes? As humans, a lot of the things we do when we’re developing create environmental disruption for people and for nature. So I think everyone’s still trying to figure out what it means.
RF: Has the Environmental Rights Amendment been culturally or politically accepted in Pennsylvania?
MC: I actually don’t think a lot of people know about the Environmental Rights Amendment. We are very familiar with the federal Constitution and our Bill of Rights, in particular. The right to free speech, freedom of religion, second amendment — we talk about all of those a lot. I don’t think that people are as familiar with what their state constitution says.
And what’s so interesting about this amendment is that Pennsylvania really lead the world in these kinds of rights. And since the 1970s, about three quarters of the world’s countries have added some kind of mention of environmental quality in their national constitutions. The United States is actually in the minority of countries that does not mention the environment in its federal constitution.
This story is produced in partnership with StateImpact Pennsylvania, a collaboration among The Allegheny Front, WPSU, WITF and WHYY to cover the commonwealth's energy economy.