Pennsylvania and the Ongoing Battle for Environmental Personhood Georgetown Environmental Law Review

PA RiverPennsylvania and the Ongoing Battle for Environmental Personhood

By: Elizabeth Hood, Staff Contributor

Natural gas, the cheap alternative to oil and coal, has helped to revive many a dwindling local and state economy, and the Commonwealth of Pennsylvania is no exception.[1] However with a widely pro-fracking, pro-corporate Republican-led legislature, Pennsylvania has had little success in enacting sufficient regulatory provisions to protect against the harmful effects and consequences of natural gas exploration and drilling.

In Pennsylvania, local efforts to control, regulate, or prohibit such activity have fallen on deaf ears. Grant Township, in Indiana County, Pennsylvania, however, is not backing down.

On June 3, 2014, the people of Grant Township adopted what they called, a “Community Bill of Rights Ordinance in Grant Township,” the purpose of which was to protect residents’ rights to local self-government.[2] However, the ordinance refers not only to the rights of human residents, but those rights of the natural communities and ecosystems within Grant Township, including but not limited to, rivers, streams, and aquifers, and their rights to exist, flourish and evolve naturally.[3]

The Community Bill of Rights (“CBR”) expressly prohibits any corporation or government from “engag[ing] in the depositing of waste and oil and gas extraction” and invalidates “any permit, license, privilege, charter, or other authority issued by any state or federal entity which would violate [this prohibition] or any rights secured by [the Bill of Rights].”[4] The CBR also holds that laws adopted by the State legislature and rules adopted by any State agency shall be the law of Grant Township, but only to the extent that they do not violate the rights or prohibitions of this Ordinance.[5]

However, the most compelling rights enumerated in the CBR are the enforcement provisions found in Section 4, which not only allows any resident to bring a cause of action to enforce the CBR itself, but that said actions shall be brought in the name of the ecosystem or natural community.[6]

While Pennsylvania has never recognized environmental personhood, it does in fact recognize the existence of environmental rights, as seen in Article 1, Section 27 of the state constitution. Article 1, Section 27, otherwise known as the Environmental Rights Amendment, guarantees “clean air, pure water, and the preservation of the natural, scenic, historic and esthetic values of the environment.”[7]

In late 2013, the Environmental Rights Amendment was cited to by the state Supreme Court in Robinson Township, Washington County v. Commonwealth, in which it struck down several contentious sections of the infamously pro-fracking Act 13 of 2012.[8] Act 13, passed in February 2012, had called in part for the express preemption of local zoning rules relating to oil and gas development, and a requirement that municipalities allow oil and gas development in all zoning areas. Both provisions were stuck down as being contrary to the Environmental Rights Amendment,[9] thereby alluding to a right to local environmental protection enforcement.

Just eight months after Robinson Township was decided, on August 8, 2014, Pennsylvania General Energy Company (“PGE”) filed suit against Grant Township arguing, in part, that CBR’s ban on injection of waste from oil and gas extractions is an impermissible exercise of police power, and its power to exclude legal activities was voidable under Pennsylvania law.[10] PGE further alleged that Section 4, allowing a cause of action to be brought on behalf of the ecosystem, was unenforceable. PGE argued that as a Second Class Township, Grant Township is only entitled to posses those powers granted to it by the Pennsylvania General Assembly, and the statute does not authorize Grant Township to create any cause of action in itself, its residents, or on behalf of an ecosystem. In addition to filing and answer in the case, residents of Grant Township also filed a motion requesting that the Little Mahoning watershed be allowed to intervene in the case, as per the CBR.[11]

 Despite acknowledging local municipalities rights to manage their own zoning regulations for the safety of the community, and the ongoing precedent established by Robinson Township, on October 14, 2015, the Western District of Pennsylvania ruled in favor of PGE.[12] The Court held in part, that because the ordinance was de jure exclusionary to a legal act permitted by the state of Pennsylvania, the ordinance was invalid.[13] Furthermore, the Court agreed with PGE’s argument against the environmental personhood enforcement provisions of Section 4 of the CBR. The Court held that “[b]ecause local governments only posses the power “expressly granted” to them by state government…and because there is no authority for Grant Township to create a cause of action for its residents to enforce an ordinance written on their behalf, Section 4(b) and (c) are beyond the scope of the Grant Township’s legislative authority. Accordingly, these sections are invalid and unenforceable.[14]

 Thus, despite recognition of “the right of citizens to clean air and water,”[15] Pennsylvania local municipalities must allow natural gas drilling and waste within their borders, and municipalities are without power to create causes of action on behalf of natural ecosystems to ensure the protection of these natural systems, or the communities around them. The Environmental Rights Amendment, though it obligates the government to refrain from unduly infringing upon or violating the peoples’ right to a healthy environment,[16] was not enough to allow the citizens of Grant Township to establish legal causes on behalf of their beloved ecosystem.

Alas, several hurdles still stand in the way of recognizing locally governed environmental protection, and specifically, recognition of environmental personhood. Whether or not enforcement power need come from the General Assembly or if it is already inherently present in the Environmental Rights Amendment, as well as the issue of a municipality’s exclusionary power, are just two of several issues Grant Township has alluded to fighting on appeal.[17] In the meantime, the legitimacy of local environmental protection enforcement is decidedly questionable, and the question of environmental personhood still remains unanswered.

 

[1] Marie Cusick, Has natural gas transformed Pennsylvania’s economy?, State Impact Pa. (Oct. 25, 2013), https://stateimpact.npr.org/pennsylvania/2013/10/25/has-natural-gas-transformed-pennsylvanias-economy/.

[2] Grant Township, Indiana County, Pa., Community Bill of Rights Ordinance (June 3, 2014).

[3] Id. at § 2(d).

[4] Id. at § § 3 (a) and (b).

[5]  Id. at § 5(b).

[6] Id. at § 4(c). (Emphasis added). The CBR also holds that damages “shall be measured by the cost of restoring the ecosystem or natural community to its state before the injury, and shall be paid to the Township to be used exclusively for the full and complete restoration of the ecosystem or natural community.” Id.

[7] PA. CONST. art. I, § 27.

[8] Robinson Tp., Washington County v. Com., 623 Pa. 564, 584, 83 A.3d 901, 913 (2013).

[9] Id. The Court noted that “the General Assembly can neither offer political subdivisions purported relief from obligations under the Environmental Rights Amendment, nor can it remove necessary and reasonable authority from local governments to carry out these constitutional duties.” Id. at 689, 977.  As such, the Act 13 prohibition against local zoning prohibitions on fracking ignores municipalities’ obligations under The Environmental Rights Amendment, and “further directs municipalities to take affirmative actions to undo existing protections of the environment in their localities. The [State’s] police power, broad as it may be, does not encompass such authority to so fundamentally disrupt these expectations respecting the environment. Accordingly, we are constrained to hold that, in enacting this provision of Act 13, the General Assembly transgressed its delegated police powers which, while broad and flexible, are nevertheless limited by constitutional commands, including the Environmental Rights Amendment.” Id. at 690, 978.

[10] Pa. Gen. Energy Co., LLC v. Grant Twp., 2015 U.S. Dist. LEXIS 139921 (W.D. Pa. 2015); Pl.’s Comp. Count VII and VIII.

[11] See Susan Philips, Indiana County township claims ecosystem has legal rights, State Impact Pa. (Dec. 1, 2014) https://stateimpact.npr.org/pennsylvania/2014/12/01/indiana-county-township-claims-ecosystem-has-legal-rights/.  The court eventually refused to rule on the issue of the Little Mahoning watershed’s standing to intervene in the case, stating instead that “the watershed’s interests were already well represented by the township.” Susan Philips, Federal court rejects township’s waster water disposal ban, State Impact Pa. (Oct. 16, 2015), https://stateimpact.npr.org/pennsylvania/2015/10/16/federal-court-rejects-townships-waste-water-disposal-ban/.

[12] Pa. Gen. Energy Co., LLC v. Grant Twp., 2015 U.S. Dist. LEXIS 139921 (W.D. Pa. 2015)

[13] Id. at 15. “Pennsylvania law requires that a municipality authorize all legitimate uses somewhere within its boundaries. Beaver Gasoline Co. v. Osborne Borough, 285 A.2d 501, 503-504 (Pa. 1971) (‘The constitutionality of a zoning ordinance which totally prohibits legitimate uses or failrs to provide for such uses anywhere within the municipality should be regarded with particular circumspect.’) Although an ordinance is presume valid, the presumption disappears when an ordinance is de jure exclusionary. Id. at 504-505.” Id.

[14] Id. at 17.

[15] PA. CONST. art. I, § 27.

[16] Robinson, 623 Pa. at 648-49, 83 A.3d at 952-53 (“the right to ‘clean air’ and ‘pure water’ sets plain conditions by which government must abide.”)

[17] Press Release, Community Environmental Defense Fund, Grant Township, PA: The People Left Out of Court Decision (Oct. 15, 2015), http://celdf.org/2015/10/press-release-grant-township-pa-the-people-left-out-of-court-decision/.

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