By Paul Bruder, Jr., Mette, Evans & Woodside

The past decade has seen the re-emergence of Article I, Section 27 of the Pennsylvania Constitution, known as the Environmental Rights Amendment, or “ERA” as a stand-alone cause of action for challenges to actions of the Pennsylvania Department of Environmental Protection, and other federal and state agencies and commissions.

What had not been analyzed until recently is WHO exactly can bring such claims.  In other words, who has standing to bring challenges to government action under the ERA.

Recent decisions from both the Environmental Hearing Board and [Federal] Eastern District squarely hold that a state legislator does not have “trustee standing” under the ERA.

The ERA states: 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.  Pa. Const. Article. I, Section 27

Prior to the [Pennsylvania] Supreme Court’s decision in Robinson Township, Delaware Riverkeeper Network v. Commonwealth, 83 A.3d 901 (Pa. 2013), claims under the ERA had very little teeth without a supporting claim of a violation of some other statutory or regulatory provision, and an ERA claim often served as strongly worded bluster without any substance.

The Robinson Township decision, and later Pa. Envtl. Defense Fund. v. Commonwealth, 161 A.3d 911 (Pa. 2017), both of which have been well-analyzed by legal pundits, put some muscle on the bones of the ERA, with the decisions confirming that Article. I, Section 27 is self-executing (i.e. it requires no further governmental action to be effective) and that Pennsylvanians can bring actions to enforce the Amendment’s prohibitions on government authority.

Clauses 2 and 3 of the ERA establish a trust framework in which “public natural resources” (e.g. water, soil, air, as well as fish and wildlife and natural resources) are the body of the trust and the common property of all Pennsylvanians, including future generations.

Further, the Commonwealth (i.e. state government) is set as the trustee and must “conserve and maintain” those resources “for the benefit of all the people.”

The law of standing is well-established, particularly with respect to the Environmental Hearing Board and the ability of individual appellants, citizens’ groups or business entities to challenge DEP actions. 

To have standing, one must be aggrieved, and the Department action must have a direct, immediate and substantial impact on the person or entity bringing the appeal. 

In terms of standing before the Board, that standard has been fairly liberally applied, with potential impacts to recreation and aesthetic enjoyment of the environment being recognized on several occasions as being sufficient to confer individual standing.

Recently however, several elected officials have challenged governmental actions under the ERA, claiming that their roles as members of the Pennsylvania State Senate make them “trustees” per the language of the ERA, and therefore an appropriate party to challenge these actions.

State Senators Gene Yaw (23rd District) and Lisa Baker (20th District) commenced a lawsuit against the Delaware River Basin Commission (DRBC) challenging the DRBC’s fracking ban within the Delaware River Watershed.[1] 

Similarly, Senator Katie Muth (44th District) filed an appeal before the EHB, challenging a DEP discharge permit issued for an operation in Susquehanna County, many miles from her own district.[2] 

Both alleged that the ERA conferred upon them standing as a “trustee” under the ERA given their roles as an elected state senator.

The ERA’s plain language nowhere deals with standing, nor does it confer standing to anyone on its own, including individual government officials.

What the ERA does do is to charge all branches of Commonwealth government with collective fiduciary responsibility.

“Trustee obligations are not vested exclusively in any single branch of Pennsylvania’s government, and instead all agencies and entities of the Commonwealth government, both statewide and local, have a fiduciary duty to act toward the corpus with prudence, loyalty, and impartiality.” Pennsylvania Envtl. Def. Found. v. Commonwealth, 161 A.3d 911, 932 n. 23 (2017) (quoting Robinson Township, Washington County v. Commonwealth of PA, 83 A.3d 901, 956–57 (Pa. 2013)) (citing Pa. L. Journal, 154th General Assembly, No. 118, Reg. Sess., 2269, 2271 (1970)).

The corporate (and not individual) nature of the trusteeship is further reflected by the Supreme Court’s statement that “the Commonwealth has a duty to act toward the corpus of the trust—the public natural resources—with prudence, loyalty, and impartiality.” Id.

A member of the Pennsylvania General Assembly has no special standing to bring suit or take appeals under the ERA beyond that of any individual not serving in the legislature.

The U.S. District Court for the Eastern District of Pennsylvania, in considering Senators Yaw and Baker seeking a declaration “that the Delaware River Basin Commission exceeded its authority by imposing a moratorium on fracking in the Delaware River Basin,” rejected the Senators’ assertion of standing on Pennsylvania state law grounds.[3]

The Court contrarily held that the Senators were “not ERA trustees because they are individual legislators, not Commonwealth agencies or entities.”[4]

The 3rd Circuit Court of Appeals affirmed, albeit for slightly different reasons.  The 3rd Circuit focused more on the “injury” aspect of standing, and opined that, “even if we assume that all of the Plaintiffs-Appellants are ERA trustees under Pennsylvania law, they have failed to show that the ban on fracking is causing them, or will imminently cause them, a concrete injury-in-fact in connection with that role.”

The Environmental Hearing Board subsequently followed suit, holding that “Article I, Section 27 conveys no special standing on members of the General Assembly to bring an appeal as a trustee of the Commonwealth’s natural resources.”

The Board agreed with the logic of the Eastern District in holding that the ERA contains no authority for individual legislators to act as trustees of the Commonwealth’s natural resources, and provides no standing for them to challenge an action of DEP in their capacity as individual legislators, stating, “A member of the General Assembly has no special standing to bring an appeal under the Environmental Rights Amendment beyond that of any Pennsylvania citizen. Were that the case, it would greatly expand the traditional doctrine of standing. Indeed, it could lead to legislators acting as private attorneys general challenging actions across the state.”

The Board went on to describe the “chaotic results” that could stem from such a ruling, including how far to extend such standing, potentially to the “tens of thousands of other state employees.”  

Allowing standing under those circumstances would essentially eliminate the need for standing for any of those tens of thousands of state employees who wish to challenge an action of the Department under the ERA.

In deciding a related question in the Muth matter, the Board affirmed its prior holdings that an elected official does not enjoy “representational standing” to bring a challenge to a DEP action on behalf of his or her constituents, absent some evidence of individual standing.

The EHB and Eastern District opinions are available.

-- Muth v. DEP and Eureka MTD Opinion

-- YAW v. DRBC – EDPA Dismissal Opinion

Paul Bruder represented Eureka Resources LLC in the Muth v. DEP and Eureka matter. Paul can be reached at 717-232-5000 or pjbruder@mette.com.

Footnotes:

[1] Yaw v. Delaware River Basin Comm’n, CV 21-119, 2021 WL 2400765, *1 (E.D. Pa. June 11, 2021)

[2] Muth v. DEP and Eureka Resources, EHB Docket No. 2022-015.

[3] CV 21-119, 2021 WL 2400765, *1

[4] Id. at *8

[Posted: November 17, 2022]

11/21/2022