Decisions on two major gas drilling cases are now in the hands of the Pennsylvania Supreme Court. Oral arguments were heard Wednesday in Philadelphia.
One case includes unresolved issues from the 2013 Supreme Court decision on Robinson v. Commonwealth—the controversial and wide-ranging environmental ruling that struck down parts of the state’s oil and gas law, Act 13. Pennsylvania Environmental Defense Foundation (PEDF) v. Commonwealth involves drilling on state forest land and whether the legislature can use the proceeds for the general fund—instead of environmental protection, as set forth in the oil and gas lease fund.
A decision on the PEDF case could have widespread impacts on cases that weigh economic development against environmental protection. That’s because the argument against channeling money from the oil and gas lease fund to the general fund relies on the Environmental Rights Amendment—Article 1, section 27 of the state constitution.
Enacted in the 1970s, the Environmental Rights Amendment remained an obscure section of the constitution until 2013. That’s when the Supreme Court overturned parts of the new gas drilling law. In doing so, some justices pointed to the constitutional right to “clean air, pure water, and to the preservation of the natural, scenic, historic and aesthetic values of the environment.”
But a plurality of three justices only put forth in that decision that some is important. And the author of the Robinson decision, then Chief Justice Ron Castille, no longer sits on the court. In fact, the Supreme Court has three new members since Robinson was decided.
The Robinson Township decision was both surprising and controversial, celebrated by environmentalists, and derided by industry attorneys. Industry attorneys say the environmental rights amendment is too broad and could stop good, necessary projects from getting built—or put too much power in the hands of the judiciary.
Environmentalists, on the other hand, want that constitutional guarantee of clean air and clean water to be a clear matter of law.
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