Pennsylvania Question 3, Environmental Rights Amendment (May 1971)

Pennsylvania Question 3
Election date May 18, 1971
Topic Constitutional rights
Status a Approved
Type Constitutional amendment	Origin State legislature

Pennsylvania Question 3 was on the ballot as a legislatively referred constitutional amendment in Pennsylvania on May 18, 1971. It was approved.

A "yes" vote supported adding a right to clean air, clean water, and the preservation of the natural, scenic, historic, and aesthetic values of the environment to the Pennsylvania State Constitution, declaring the state's natural resources as "common property of all the people, including generations yet to come," and declaring the state government as the trustee of the state's natural resources.

A "no" vote opposed adding a right to clean air, clean water, and the preservation of the natural, scenic, historic, and aesthetic values of the environment to the Pennsylvania State Constitution, declaring the state's natural resources as "common property of all the people, including generations yet to come," and declaring the state government as the trustee of the state's natural resources.

Overview

The measure added Section 27 of Article 1 to the Pennsylvania Constitution. The measure provided for the following state constitutional rights:

• right to clean air;
• right to clean water; and
• right to the preservation of the natural, scenic, historic, and aesthetic values of the environment.

The measure declared the state's natural resources as "common property of all the people, including generations yet to come." The measure also declared the Commonwealth of Pennsylvania as the trustee of the state's natural resources, tasked with conserving and maintaining them for the benefit of the people.

Aftermath

Payne v. Kassab (1973)

In 1973, the Pennsylvania Commonwealth Court ruled against a group of residents and students of Wilkes-Barre, Pennsylvania, who said the Environmental Rights Amendment (ERA) protected the River Common, a 300-year old riverside public area, from being used for roads. The Pennsylvania Department of Transportation (PennDOT) wanted to use 0.5 acres of the 21.7-acre park to widen a road alongside the River Common. Although the Commonwealth Court concluded that the River Common was an "area with natural, scenic, historic and esthetic values within the contemplation of Article I, Section 27," the road project was "proper use of common lands." A three-part test was used to make this decision:

“

(1) Was there compliance with all applicable statutes and regulations relevant to the protection of the Commonwealth's public natural resources? (2) Does the record demonstrate a reasonable effort to reduce the environmental incursion to a minimum? (3) Does the environmental harm which will result from the challenged decision or action so clearly outweigh the benefits to be derived therefrom that to proceed further would be an abuse of discretion?

”

This three-part test became known as the Payne Test. Courts continued to use the Payne Test in making decisions about environmental issues.

Robinson Township v. Commonwealth (2013)

In 2013, the Pennsylvania Supreme Court ruled that Sections 3215(b)(4), 3215(d), 3303, and 3304 of Act 13 (2012), which related to fracking development from the Marcellus Shale, violated the ERA.

Section 3215(b)(4) allowed the Department of Environmental Protection (DEP) to waive the requirement that fracking wells be at a certain distance from water sources. The court said this section did not provide ascertainable standards to protect natural resources. Section 3215(d) gave DEP the option to receive comments from local governments in deciding whether to issue a well permit, and prohibited local governments and fracking operators from having a right to appeal the department's decision. This section, according to the court, resulted in the trustee state's "inequitable treatment of trust beneficiaries." Section 3303 preempted local regulation of oil and gas operations. Section 3304 required "local ordinances regulating oil and gas operations [to] allow for the reasonable development of oil and gas resources." The last two sections violated the local government's rule as a trustee of natural resources under the ERA.

The Commonwealth's (defendant) position, according to the plurality's writer Chief Justice Ronald Castille (R), on the ERA "recognizes or confers no right upon citizens and no right or inherent obligation upon municipalities; rather, the constitutional provision exists only to guide the General Assembly, which alone determines what is best for public natural resources, and the environment generally, in Pennsylvania." Castille said the state Supreme Court had not yet addressed the original understanding of the ERA as applied to government regulation. He also said "the Payne Test appears to have become, for the Commonwealth Court, the benchmark for Section 27 decisions in lieu of the constitutional text."

Chief Justice Castille said the ERA's text declaring the people's right to "clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment" limited the state's power to contradict this right.

PA Environmental Defense Fund v. Commonwealth (2017)

On June 20, 2017, the Pennsylvania Supreme Court rejected the Payne Test as stripping the ERA of the amendment's meaning. Justice Christine Donohue (D) wrote the majority's opinion in the case. Justices Kevin M. Dougherty (D), Debra Todd (D), and David N. Wecht (D) joined the opinion. Justice Max Baer (D) filed a concurring and dissenting opinion. Chief Justice Thomas Saylor (R) dissented.

The Pennsylvania Environmental Defense Fund (PEDF) brought the case forward, stating that revenue from oil and gas leases needed to be used for environmental conservation. In 1955, the state government passed a statute to create the Oil and Gas Lease Fund (OGLF), which was designed to receive rents and royalties from leases. Revenue in the OGLS was to be spent on conservation, recreation, dams, flood control, and matching related federal grants. Between 2008 and 2014, amendments were made to state code to appropriate $335 million from lease revenue to the general fund. PEDF said the appropriation violated the rights of citizens under the ERA.

The Pennsylvania Commonwealth Court addressed the case on January 7, 2015, concluding that the ERA "does not expressly command that all revenues derived from the sale or leasing of the Commonwealth’s natural resources must be funneled to those purposes and those purposes only." On February 10, 2015, PEDF appealed the case to the state Supreme Court.

Supreme Court Justice Donohue's order said the ERA established a public trust, with natural resources as the trust corpus, the state as the trustee, and the people as the beneficiaries. The majority's opinion examined state private trust law to form a conclusion. The ERA, according to Justice Donohue, imposed two duties on the state as trustee: (1) "to prohibit the degradation, diminution, and depletion of our public natural resources, whether these harms might result from direct state action or from the actions of private parties" and (2) to "act affirmatively via legislative action to protect the environment." As the trust assets (natural resources) sold are part of the corpus of the trust, revenue from the sale of oil and gas remain in the corpus of the trust.

Justice Baer, in his opinion, said that applying private trust law to a public trust, such as the state, imposed "principles that are absent from the constitutional language and tangential to the forces motivating the adoption of [the ERA].” He stated that the majority's opinion threatened "to override the delicate process required of the legislative and executive branches to achieve a constitutionally-mandated balanced and fair budget." Chief Justice Saylor's dissenting opinion also said that private trust law should not be applied to the ERA.

PA Environmental Defense Fund v. Commonwealth (2021)

On July 21, 2021, the Pennsylvania Supreme Court issued an opinion applying PA Environmental Defense Fund v. Commonwealth (2017) to bonus payments, rental fees, and penalties from oil and gas extraction operations. Justice Christine Donohue (D) wrote the majority's opinion, stating, "... we hold that the income generated from the revenue streams at issue must be returned to the corpus as a matter of trust law."

Election results

Pennsylvania Question 3
Result		Votes	Percentage
Yes		1,021,342	79.71%
No		259,979	20.29%

Results are officially certified.

Source

Text of measure

Ballot title

The ballot title for Question 3 was as follows:

“

Shall Article I of the Constitution be amended by adding a new section guaranteeing the people's right to clean air and pure water and the preservation and conservation, by the Commonwealth, of the State's natural resources for the people's benefit?

”

Constitutional changes

See also: Article I, Pennsylvania Constitution

The measure added Section 27 of Article 1 to the Pennsylvania Constitution. The following language was added:

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.

Path to the ballot

See also: Amending the Pennsylvania Constitution

The Pennsylvania General Assembly needed to pass Joint Resolution 3 by a simple majority vote of each chamber during two separate legislative sessions to refer the measure to the ballot for voter consideration.

In 1970, the amendment passed the Pennsylvania Senate on March 17. The vote was 39-0. On April 14, 1970, the Pennsylvania House of Representatives passed the amendment 188-0.

The amendment was reintroduced in 1971 on January 6. The state House passed the measure 199-0 on February 3, 1971. The state Senate passed the measure 45-0 on February 15, 1971.

See also

1971 Measures

• 1971 Measures
• Environment on the ballot
• Constitutional rights on the ballot
• 1971 legislative sessions

Pennsylvania

• Pennsylvania ballot measures
• Pennsylvania ballot measure laws

News and analysis

• Ballot measure lawsuits
• Ballot measure readability
• Ballot measure polls

External links

• Ballot Questions and Proposed Amendments to the Pennsylvania Constitution, 1958-1997