Pennsylvania Supreme Court Invalidates Test for Constitutionality of Commonwealth Environmental Actions and Applies Private Trust Law, Leaving Many Unanswered Questions

Abstract

On June 20, 2017, the Pennsylvania Supreme Court in Pennsylvania Environmental Defense Foundation v. Commonwealth, 161 A.3d 911 (Pa. 2017) (“PEDF”), injected substantial uncertainty into environmental jurisprudence in Pennsylvania for the foreseeable future. For 44 years, Commonwealth courts and administrative bodies, including the Environmental Hearing Board, evaluated the constitutionality of Commonwealth actions under a three-part test established in Payne v. Kassab, 312 A.2d 86. The Payne Test has been under attack in recent years as groups challenged the constitutionality of various Commonwealth acts under Article I, Section 27 of the Pennsylvania Constitution (the Environmental Rights Amendment or “ERA”). Recent challenged acts include PADEP decisions to issue drill permits, ESCGP-2 permits and NPDES permits; municipal decisions to permit oil and gas development activity; and, at issue in PEDF, the broader use of royalties and other proceeds derived from leasing Commonwealth property for oil and gas development.