Monday, March 7, 2016

Fracking and Fundamental Environmental Rights Before the PA Supreme Court

On March 9, Pennsylvania's highest court will hear arguments about fracking and fundamental environmental rights—rights affirmed in Article I, Section 27 of Pennsylvania’s constitution, the “Environmental Rights Amendment.”

The case on appeal was originally filed by the Pennsylvania Environmental Defense Foundation in March 2012. It focuses on a series of short sighted government decisions to address state budget gaps by converting public natural resources into quick cash. More specifically, through an unprecedented expansion of the state's oil and gas leasing program, Pennsylvanians lost nearly a tenth of their state forests to private fracking interests, which gained rights to both public minerals and public lands—for decades.

PEDF is now asking the Pennsylvania Supreme Court to judge whether the Governor and DCNR, as trustees for public natural resources under the Environmental Rights Amendment, complied with the same when they leased so much public minerals and lands without first assessing how much the public would lose, and what it would take to make the public whole again.

The government has already conceded that it has fiduciary duties under the state constitution to “conserve and maintain” public natural resources. [1] Or, as the plurality of Pennsylvania Supreme Court justices put it in Robinson, “to prevent and remedy the degradation, diminution, or depletion of our public natural resources.”[2]

Moreover, the record shows DCNR—the agency charged with leasing decisions—wanted to stop leasing to the fracking industry because it did not have a good handle on the impacts, but then, under political pressure, leased more and more public minerals and forestlands anyway.

As a result, "pipeline infrastructure build-out" alone "will impact communities and the environment in every county in Pennsylvania," according to the government’s own projections. [3]

On Wednesday, John Childe will argue for PEDF that—before any decision to lease the “common property of all the people”[4]—the government should have completed a comprehensive study of fracking's impacts with special attention to present and future generations' fundamental environmental rights affirmed in the Environmental Rights Amendment. Further, PEDF will argue leasing should have proceeded only to the extent that the government could show, on the record, compliance with the constitutional “conserve and maintain” standard. This is a commonsense look before you leap argument, and it is firmly rooted in the text of the Environmental Rights Amendment.

Similarly, Pennsylvanians have asked the government many times to take its constitutional duties seriously. To put people before profits, and hard won environmental protections before stopgap budget measures.

In fact, like PEDF here, Pennsylvanians have specifically asked the Governor and his administration to take the constitutionally required hard look at the foreseeable impacts of the Marcellus Shale boom, including not only the impacts of leased public minerals and lands but all the associated pipelines, compressor stations, and other industrial fracking infrastructure that will cut through wild places and endanger homes and businesses.[5]

Yellow dots indicate wells in violation of regulations.
Yet the government keeps dragging its heels. That’s why Sierra Club, Delaware Riverkeeper Network, PennFuture, and the Pennsylvania Land Trust Association filed a friend of the court brief in this case to urge the Pennsylvania Supreme Court to give meaning to the text of the Environmental Rights Amendment. The brief is available here.


[1] Pa. Const. art. I, § 27.

[2] Robinson Township. v. Commonwealth, 83 A.3d 901, 957 (Pa. 2013) (plurality).

[3] Governor’s Pipeline Infrastructure Task Force Report, at 5 (Feb. 2016) [emphasis added] available at

[4] Pa. Const. art. I, § 27.

[5] See, for example, joint comments by 12 public interest organizations to Pennsylvania Department of Environmental Protection Secretary Quigley (Dec. 29, 2015)available at; see also State Impact, “Citizen’s Marcellus Shale Commission Wants to Slow Down Drilling” (Oct. 24, 2011) available at; Citizens Marcellus Shale Commission, "Marcellus Shale: A Citizens View" (Oct. 2011) (urger government to take hard look at fracking's impacts and protect public natural resources) available at