In 1971, Pennsylvania voters approved the Environmental Rights Amendment to the Pennsylvania Constitution. The effort to adopt this amendment was led by then-Representative Franklin L. Kury. Article I, Section 27 provides:
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.
On this page, the Environmental Law and Sustainability Center is making available relevant legal resources concerning Article I, Section 27. This is particularly appropriate after the Pennsylvania Supreme Court’s decision in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013), which held three sections of the state’s Oil and Gas Act to be unconstitutional. Chief Justice Castille’s plurality opinion relied on Article I, Section 27 as the basis for its decision, and described in some detail what the Environmental Rights Amendment means and how it should be applied. It was the first time that Article I, Section 27 had ever been used—even by a plurality—to hold a statute unconstitutional.
The Robinson Township decision has brought renewed attention to Article I, Section 27, including judicial attention, and fostered an active conversation among lawyers, judges, policy makers, and the public about the Environmental Rights Amendment. This page is intended to help inform that conversation.
Amendments to the state constitution must be approved by each house of the General Assembly in two successive legislative sessions, and then approved by a majority of voters in a public referendum. Article I, Section 27 was agreed to in the 1969-1970 and 1971-72 sessions of the General Assembly, and approved by the state’s voters on May 18, 1971. The history of its passage through the legislature, including amendments made to Article I, Section 27 prior to adoption, thus provides insight into its meaning and applicability.
John C. Dernbach & Edmund J. Sonnenberg, A Legislative History of Article 1, Section 27 of the Constitution of the Commonwealth of Pennsylvania, Showing Source Documents (2014). We have attempted to put in one place all of the bills and other documents that represent its passage through this process. More than 40 years after its adoption, many of these documents are relatively hard to find. This legislative history is based on photocopies of the source documents themselves. This version is for readers who want to see the original sources.
John C. Dernbach & Edmund J. Sonnenberg, A Legislative History of Article 1, Section 27 of the Constitution of the Commonwealth of Pennsylvania, 24 Widener L.J. 181 (2015). This is the same legislative history as that above, but showing only material directly relevant to Article I, Section 27 instead of the source documents. Many individual pages in the source documents are from the legislative journals, and contain material that is both relevant and not relevant to Article I, Section 27. This version is more readable in many ways than the source documents version.
Franklin L. Kury, Clean Politics, Clean Streams: A Legislative Autobiography and Reflections (2011). This highly readable and informative book describes Kury’s experience as a state legislator and highlights his work in drafting and advocating Article I, Section 27.
Pennsylvania House of Representatives, Bipartisan Management Committee, Oral History Project Interview with the Honorable Franklin L. Kury, former State Representative, 108th District of Pennsylvania (interview conducted May 17, 2006). http://www.pahouse.us/bmc/archives/transcripts/Kury.pdf.
Franklin L. Kury, Natural Resources and the Public Estate: A Biography of Article I, Section 27 of the Pennsylvania Constitution (1985).
John C. Dernbach, James R. May, & Kenneth T. Kristl, Robinson Township v. Commonwealth of Pennsylvania: Examination and Implications, 67 Rutgers Law Review 1169 (2015). This article describes the Robinson Township decision, explains some of its immediate implications in Pennsylvania, and also explains its importance for public environmental rights and environmental constitutionalism elsewhere.
John C. Dernbach & Marc Prokopchak, Recognition of Environmental Rights for Pennsylvania Citizens: A Tribute to Chief Justice Castille, 53 Duquesne Law Review 335 (2015). This article is based on remarks made at a Special Session of the Pennsylvania Supreme Court at Duquesne University on October 7, 2014 in honor of Chief Justice Ronald Castille. This article explains why Robinson Township is likely to have staying power even though it did not command a majority of Pennsylvania’s Supreme Court. This article also collects and summarizes 79 judicial and administrative tribunal decisions applying or considering the three-part Payne v. Kassab balancing test as a substitute for the text of the amendment, and demonstrates that the challenging party has almost never prevailed under that test.
Kenneth T. Kristl, It Only Hurts When I Use It: The Payne Test and Pennsylvania’s Environmental Rights Amendment, 46 Environmental Law Reporter 10594 (2016). This Article analyzes and develops the judicial and scholarly criticisms of the Payne test, and develops a new test based on the principles articulated by the Robinson Township plurality, arguing that it would allow Commonwealth agents and judges to ensure that §27 plays a vital role in protecting the environment.
Richard Rinaldi, Dormant for Decades, the Environmental Rights Amendment of Pennsylvania’s Constitution Recently Received a Spark of Life from Robinson Township v. Commonwealth, 24 Widener L.J. 435 (2015). This article, by a graduate of Widener University Commonwealth Law School, suggests a potentially vast sea-change in the way future courts assess claims under the Environmental Rights Amendment, namely that the plurality’s textual interpretation of the Amendment may revitalize its promise as a true constitutional right to environmental protection.
John C. Dernbach, The Potential Meanings of a Constitutional Public Trust, 45 Environmental Law 463 (2015). This Article describes the origin of the Environmental Rights Amendment, the two primary cases decided shortly after it was adopted that effectively buried the Amendment, and the Robinson Township decision. It then surveys the wide range of issues that have arisen in the courts and other adjudicatory bodies in the immediate aftermath of Robinson Township and provides suggestions for how some of them should be resolved. Taken together, these cases provide a glimpse of what constitutionally protected environmental rights, including a constitutional public trust, could mean if the Pennsylvania courts continue to treat the Amendment as constitutional law.
John C. Dernbach, Natural Resources and the Public Estate, in The Pennsylvania Constitution: A Treatise on Rights and Liberties (Ken Gormley, et al. eds., Bisel 2004). This book chapter summarizes the jurisprudence under Article I, Section prior to the Robinson Township decision.
John C. Dernbach, Taking the Pennsylvania Constitution Seriously When It Protects the Environment: Part I—An Interpretative Framework for Article I, Section 27, 103 Dickinson Law Review 693 (1999). Part I of this Article suggests an interpretative framework for understanding the Amendment that is based on its text, legislative history, and purposes. It was cited by the Pennsylvania Supreme Court in the Robinson Township decision.
John C. Dernbach, Taking the Pennsylvania Constitution Seriously When It Protects the Environment: Part II-Environmental Rights and Public Trust, 104 Dickinson Law Review 97 (1999). This article outlines ways in which Article I, Section 27 should be applied and argues, among other things, that the public trust and environmental rights provisions of the environmental amendment are self-executing against the government. This article also was cited by the Pennsylvania Supreme Court in the Robinson Township decision.
Franklin L. Kury, The Environmental Amendment to the Pennsylvania Constitution: Twenty Years Later and Largely Untested, 1 Villanova Environmental Law Journal 123 (1991).