Clean water is a fundamental right –Delaware Riverkeeper Network vindicated in court

Courts in other states should affirm or institute the “sea-change” the Pennsylvania Supreme Court just upheld:

PEDF vs. Pennsylvania, J-35-2016 “…the people’s rights to clean water and air and the preservation of a healthy environment are on par with our other fundamental rights and freedoms…”

Delaware Riverkeeper Network, press release, 20 June 2017, Pennsylvania Supreme Court Upholds Constitutional Environmental Rights in Milestone Case,

Delaware Riverkeeper Network [logo]

For Immediate Release
June 20, 2017

Contact: Jordan Yeager, Attorney, Curtin and Heefner Law Firm, 267.898.0570
Maya van Rossum, the Delaware Riverkeeper, 215.369.1188 x 102

Pennsylvania Supreme Court Upholds Constitutional Environmental Rights in Milestone Case

Middle District, Supreme Court of Pennsylvania — Today the Supreme Court of Pennsylvania issued an opinion in PEDF v. Commonwealth of Pennsylvania that upheld and affirmed the applicability of the environmental rights provision of the Pennsylvania Constitution over the misappropriation and exploitation of our natural resources.

As stated by the Court: “The Commonwealth (including the Governor and General Assembly) may not approach our public natural resources as a proprietor, and instead must at all times fulfill its role as a trustee. Because the legislative enactments at issue here do not reflect that the Commonwealth complied with its constitutional duties, the order of the Commonwealth Court with respect to the constitutionality of 1602-E and 1603-E is reversed, and the order is otherwise vacated in all respects. The case is remanded to the Commonwealth Court for further proceedings consistent with this Opinion. Justices Todd, Dougherty and Wecht join the opinion. Justice Baer files a concurring and dissenting opinion. Chief Justice Saylor files a dissenting opinion. Former Justice Eakin did not participate in the consideration or decision of this case.”

“This decision affirms the self-executing nature of the Environmental Rights Amendment of the Pennsylvania Constitution and affirms that the people’s rights to clean water and air and the preservation of a healthy environment are on par with our other fundamental rights and freedoms, as concluded by the Supreme Court in 2013 in Robinson, Delaware Riverkeeper Network v. the Commonwealth. With this decision, there can be no doubt that the Court upholds these rights as a matter of law, essential to executing the full meaning and power of our constitutional environmental rights,” said Maya van Rossum, the Delaware Riverkeeper. Delaware Riverkeeper Network and Maya van Rossum were original petitioners in the challenge to the Commonwealth’s Act 13 which resulted in the 2013 Supreme Court landmark decision in which the Court declared the fundamental provisions of Act 13 unconstitutional and recognized the indefeasibility of environmental rights under Pennsylvania’s Declaration of Rights (Article 1, Section 27).

“Since 2013, industry’s representatives have been saying that the Delaware Riverkeeper Network’s victory in the Act 13 litigation — which gave life to the Pennsylvania Constitution’s Environmental Rights Amendment — should be ignored. Today’s decision is a complete vindication for Delaware Riverkeeper Network and for the residents of Pennsylvania. It reaffirms what we secured in the Robinson decision: the right to a healthy environment is inherent and indefeasible and no branch or agency of government can take any action that would deprive us of this right,” said Jordan Yeager. Mr. Yeager was a lead attorney in Robinson, Delaware Riverkeeper Network v. Commonwealth of Pennsylvania, and who submitted an amicus brief to the Supreme Court in the PEDF case on behalf of the Delaware Riverkeeper Network

As stated by Justice Baer: “Through today’s decision, this Court takes several monumental steps in the development of the Environmental Rights Amendment, Article I, Section 27 of the Pennsylvania Constitution. I agree with many of the Majority’s holdings, including Part IV.A.’s dismantling of the Commonwealth Court’s Payne1 test, which stood for nearly fifty years, the confirmation that the public trust provisions of the amendment are self-executing in Part IV.C., and the recognition in footnote 23 that all branches of the Commonwealth are trustees of Pennsylvania’s natural resources.2 These holdings solidify the jurisprudential sea-change begun by Chief Justice Castille’s plurality in Robinson Township v. Commonwealth, 83 A.3d 901, 950-51 (Pa. 2013) (plurality), which rejuvenated Section 27 and dispelled the oft-held view that the provision was merely an aspirational statement. With this, I am in full agreement.”

The Supreme Court Ruling can be downloaded at: http://bit.ly/2sPyPij

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The entire legal decision is too long to include here, but this quote it includes form the drafters of the Pennsylvania Environmental Rights Amendment sounds eerily familiar:

We seared and scarred our once green and pleasant land with mining operations. We polluted our rivers and our streams with acid mine drainage, with industrial waste, with sewage. We poisoned our ‘delicate, pleasant and wholesome’ air with the smoke of steel mills and coke ovens and with the fumes of millions of automobiles. We smashed our highways through fertile fields and thriving city neighborhoods. We cut down our trees and erected eyesores along our roads. We uglified our land and we called it progress.

1970 Pa. Legislative Journal-House at 2270 (quoting anonymous 1698 description of Penn’s Woods air).

Pennsylvania passed its Environmental Rights Amendment almost fifty years ago:

With these events in the recent collective memory of the General Assembly, the proposed Environmental Rights Amendment received the unanimous assent of both chambers during both the 1969—1970 and 1971—1972 legislative sessions. Pennsylvania voters ratified the proposed amendment of the citizens’ Declaration of Rights on May 18, 1971, with a margin of nearly four to one, receiving 1,021,342 votes in favor and 259,979 opposed.

The decision to affirm the people’s environmental rights in a Declaration or Bill of Rights, alongside political rights, is relatively rare in American constitutional law. In addition to Pennsylvania, Montana and Rhode Island are the only other states of the Union to do so.

The Pennsylvania Supreme Court’s decision details how other states only protect environmental rights through directions to legislatures or state agencies to do something, for states that do anything at all.

As we know, Florida has various protections for state-owned lands such as Suwawnnee River State Park, and for Outstanding Florida Waters, including the Suwannee, Santa Fe, and Withlacoochee (south) Rivers, but enforcement seems to fall by the wayside when a pipeline comes through. The State of Florida’s one witness in WWALS vs. Sabal Trail & FDEP claimed her department had checked all the boxes on a seven-part list of test questions set forth in Florida law and rules.

Maybe Florida should read this: Susan Phillips, StateImpact Pennsylvania, 20 June 2017, Pa. Supreme Court upholds broad interpretation of Environmental Rights Amendment,

Writing the majority opinion, Justice Christine Donohue said the prior interpretation of the amendment, which included a 3-part legal test and was in place for four decades, “strips the constitution of its meaning.” The opinion clearly defines the role of the state as trustee, which the court said is associated with fiduciary responsibilities.

Maybe Florida should review its multi-part test regarding Outstanding Florida Waters.

Similarly, more than one Florida Water Management District took money from Sabal Trail for easements through state-owned lands, Such one-time payments would seem to show even less fiduciary responsibility than the ongoing lease payments that were the subject of the case just decided in Pennsylvania, as described by StateImpact Pennsylvania:

Each year the state brings in millions of dollars from leasing state forest land to drillers, which was directed back into environmental conservation programs. In 2009, former Governor Tom Corbett allowed some of that money to flow into the general fund. Commonwealth Court upheld the decision by the Corbett administration to divert royalty income from those leases to the general fund in 2015.

At least Pennsylvania got ongoing income before it diverted it; Florida didn’t even do that.

Justice Baer’s “sea-change” concurring and dissenting opinion is also online.

Finally, here is the text of the Environmental Rights Amendment, from the Pennsylvania Supreme Court ruling:

Among the “inherent and indefeasible” rights in Article I of the Pennsylvania Constitution are the rights set forth in the Environmental Rights Amendment, which we quote again for ease of discussion:

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.

Maybe somebody can explain to me why any state does not have these inherent and indefeasible rights in its constitution, or for that matter why it is not in the U.S. Constitution?

More from StateImpact Pennsylvania:

“Just like the government can’t take action that would deprive you of your free speech rights, or the right to bear arms, or private property rights, the same holds true for your environmental rights,” said Yeager.

What good are any of those other rights if we don’t have air to breath or water to drink that don’t make us ill?

 -jsq, John S. Quarterman, Suwannee RIVERKEEPER®

You can join this fun and work by becoming a WWALS member today!

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