Taking the Pennsylvania Constitution Seriously When it Protects the Environment: Part II - Environmental Rights and Public Trust

Abstract

The first part of this Article suggests a framework for understanding Article I, Section 27 of the Pennsylvania constitution. This second and final part of the Article outlines ways in which that framework should be applied.

The Article argues that the environmental rights and public trust provisions of Article I, Section 27 are self-executing against the government. The public trust clause requires an understanding of the trust corpus (publicly-owned natural resources), the trustee (state), the beneficiaries (the public, including future generations), and the substantive obligations of the trustee (to conserve and maintain these resources). Because the state's obligation to conserve and maintain public natural resources for the benefit of all the people is stated in the Amendment itself, this obligation should be the basic benchmark against which state decisions concerning management of these resources are judged. Courts should read the environmental rights clause to prohibit the state, including any state agency or municipality whose decisions affect these resources or values, from interfering with their protection.

In addition to its substantive application, Article I, Section 27 has also been used by the courts to reinforce the application of other rules or principles. Article I, Section 27 confirms and extends the application of the police power to environmental matters, provides guidance in statutory interpretation, and supports the constitutionality of laws whose constitutionality has been challenged on other grounds.

Finally, the public trust clause suggests the need for judicial recognition of several subsidiary rules that reinforce the state's substantive obligations. In private trust law, the trustee is obliged to keep track of the trust corpus, to report to the beneficiary at the beneficiary's request on the status of the trust corpus, and to permit third-party auditing of the trustee's accounts. Such obligations would reinforce the state's substantive obligations under Article I, Section 27 and would also force the state to deal with its trust responsibilities in a more holistic manner.

Keywords: environmental law, property rights, constitutional law, state constitutional law, Pennsylvania, sustainable development, public trust doctrine, environmental rights

JEL Classification: k32, K11, K19, K39, Q01