PA's Environmental Rights Amendment: A Note of Thanks

"Go to the source" is a cardinal rule for reporters, investigators, and researchers of all stripes. For lawyers, it sometimes involves the laborious process of digging up a law's "legislative history" — events occurring during the process of enacting the law that might inform the search for its meaning.

It is a pleasant surprise when someone else does that hard legwork and brings the sources to you.

Such room service recently was delivered by the Widener University School of Law's Environmental Law Center in the form of "A Legislative History of Article 1, Section 27 of the Constitution of the Commonwealth of Pennsylvania." Article 1, Section 27 is better known as the "Environmental Rights Amendment."

The Legislative History was compiled by Distinguished Professor of Law John C. Dernbach and Reference and Government Documents Librarian Edmund J. Sonnenberg. The two did the hard work of tracking down all of the primary source documents, from the first House Bill to the proclamation signed by Governor Shapp confirming that the amendment had become part of the Pennsylvania Constitution on May 18, 1971.

In between are excerpts from the House and Senate Legislative Journals tracking the progress of the amendment through two legislative sessions, the text of the ballot question presenting the amendment to the public for adoption, and the tallies of the popular vote on that question and four others appearing on the same ballot.

Perhaps of greatest interest, however, are Professor Robert Broughton's legal analysis of the proposed amendment, which was entered into the House Legislative Journal in 1970, and the set of questions and answers distributed to the public during the run-up to the 1971 public referendum by the primary sponsor of the amendment, then Representative (and later Senator) Franklin L. Kury.

Even if you have no special interest in constitutional or environmental law, the compilation offers a fascinating glimpse into a piece of Pennsylvania history, as well as a lesson in bi-partisanship.

As Dernbach and Sonnenberg note, interest in Article 1, Section 27 among attorneys and the public skyrocketed last year with Pennsylvania Supreme Court's decision in the Robinson Township case. In explaining the meaning and effect of the amendment, Chief Justice Castille's plurality opinion in Robinson Township relied on several of the documents found in the Widener compilation. As current and future cases explore the contours of the Environmental Rights Amendment, attorneys and judges alike will benefit from having these sources conveniently assembled in one place.

We are certain that we are not alone in saying thank you, Professor Dernbach and Mr. Sonnenberg.

But our greatest thanks go to the original source — Senator Kury. The "Legislative History of Article 1, Section 27" is a reminder of his remarkable efforts, without which there would be no Environmental Rights Amendment to discuss.

Another victory for local land use control

In what amounts to a victory for local land use control, administrative law judges (ALJ's) from the Pennsylvania Public Utility Commission (PUC) issued an initial decision that, if finalized, would deny petitions filed by Sunoco Pipeline, LP, seeking exemptions to local zoning ordinances for pump stations and valve control stations proposed in thirty-one locations across the state as part of Sunoco’s Mariner East pipeline. The stations help facilitate flow through the pipeline.

A municipality may apply its zoning ordinances to a public utility building unless the PUC determines that the building is reasonably necessary for the convenience or welfare of the public. Sunoco asked the PUC to find that the proposed facilities for its Mariner East pipeline fall into this category and are therefore exempt from local zoning ordinances.   

In considering the petitions, the first question the PUC must answer is whether the buildings in question are being used as part of a “public utility service.” Considering objections made by Clean Air Council, Delaware Riverkeeper Network, Concerned Citizens of West Goshen Township, and Mountain Watershed Association, the PUC’s ALJ's determined that Sunoco’s Mariner East pipeline is not a public utility service.

The ALJs reasoned in part that in proposing its project, Sunoco is acting not as a public utility making its products available to any members of the public who may require them, but instead as a common carrier serving its limited customer base. As a result, the administrative law judges determined that the buildings constructed as part of that project are not exempt from local zoning ordinances.

Assuming the initial decision is upheld, this case would stand as the second significant win for local land use control in the last year. Last December, a plurality of the Pennsylvania Supreme Court upheld municipalities’ right to regulate the location of drilling wells under the Environmental Rights Amendment to the Pennsylvania Constitution. As the Supreme Court affirmed in that case, the obligations placed on government by the Environmental Rights Amendment “bind all government, state or local, concurrently.” These decisions empower local governments to act in their citizens’ interest to protect the environmental resources entrusted to them under the Pennsylvania Constitution. 

PennFuture's law staff contributed to this post.