Thinking Anew About the Environmental Rights Amendment: An Analysis of Recent Commonwealth Court Decisions

In landmark decisions in 2013 and 2017, the Pennsylvania Supreme Court revitalized the Environmental Rights Amendment (Article I, Section 27) to the state constitution. It did so by rejecting a three-part test that the Commonwealth Court articulated in 1973 as a substitute for the text of the Amendment. The new standard of review, the Supreme Court said, is based on “the text of [a]rticle I, [s]ection 27 itself as well as the underlying principles of Pennsylvania trust law in effect at the time of its enactment.”This Article is an analysis of the Commonwealth Court’s 13 Environmental Rights Amendment decisions in the first four years after the Supreme Court revitalized the Amendment. The Commonwealth Court plays a critical role in shaping the law of the Amendment because it is a specialized intermediate appellate court that decides questions of public law, including constitutional questions. These 13 decisions involve a variety of permitting, zoning, and related cases that are quite different from the two Supreme Court decisions, which involved the constitutionality of statutes under Section 27. They thus provide a sense of the wide variety of contexts in which Section 27 can apply. This Article describes these cases and draws seven key themes from them about the Commonwealth Court’s approach to Environmental Rights Amendment jurisprudence during this four-year period