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Court Weighs In on the ERA After 'Robinson Township'

On July 26, the Commonwealth Court denied a petition seeking declaratory and mandamus relief to require the Pennsylvania Public Utility Commission (PUC) and a group of executive government officials to regulate greenhouse gases consistent with Article I, Section 27, of the Pennsylvania Constitution in Funk v. Wolf, No. 467 M.D. 2015 (Pa. Commw. Ct. July 26, 2016). Article I, Section 27, is commonly referred to as the Environmental Rights Amendment (ERA).

The ERA contains three sentences. The first sentence provides that the people of the commonwealth have a right to clean air and water, and to the preservation of certain environmental values. The second and third sentences establish that the public natural resources are held in trust for the benefit of all people, including future generations, and the commonwealth is designated the trustee of those resources. It follows that the ERA has been interpreted to provide a citizen rights to the resources held in trust as well as a government obligation to conserve and maintain Pennsylvania's public natural resources.

In Funk, petitioners sought affirmative action by respondents, rather than constitutional restraint. That is, petitioners challenged the government's failure to affirmatively act in accordance with the government's trusteeship duties under the second and third sentences of the ERA. In denying the petition, the court doubled down on its prior finding that the court is not bound by the plurality opinion in Robinson Township, Washington County v. Pennsylvania Public Utilities Commission, 83 A.3d 901 (Pa. 2013), regarding judicial review of government decisions that implicate the ERA. The Robinson Township plurality had found that the traditional three-prong test for examining the ERA fell short in carrying out the purpose of the ERA.

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