Litigation seeking to broaden the application of Pennsylvania’s Environmental Rights Amendment, Pa. Const. art. I, §27 (“ERA”) was rejected on August 6, 2021, when the Commonwealth Court of Pennsylvania dismissed an amended petition for review filed by the Pennsylvania Environmental Defense Foundation (“PEDF”) challenging the Pennsylvania Department of Conservation and Natural Resources’ (“DCNR”) State Forest Resource Management Plan (“SFRMP”).  Pennsylvania Environmental Defense Foundation (“PEDF”) v. Commonwealth, No. 609 M.D. 2019 (Pa. Cwmlth. 2021).

PEDF sought declaratory relief regarding DCNR’s SFRMP published in 2016.  Specifically, PEDF asked the Commonwealth Court to: (1) declare certain statements made by DCNR in the SFRMP in violation of the ERA, and (2) compel DCNR to amend the SFRMP to make it comport with DCNR’s responsibilities to manage the resources consistent with its duties as a trustee under the ERA.  According to PEDF, in 2016, DCNR amended its SFRMP to support management decisions based on economic principles.  PEDF also raised issues related to DCNR’s mission statement regarding extraction and sale of oil and gas for the benefit of DCNR and the Commonwealth.  Additionally, PEDF asked the Commonwealth Court to require DCNR to include an evaluation of the degradation of resources caused by past and present oil and gas development in the SFRMP, and to implement measures into the SFRMP that remedy the alleged degradation.

The Commonwealth Court granted DCNR’s preliminary objections and dismissed all counts.  With respect to the requests by PEDF to declare DCNR is in violation of the ERA based on specific statements in the SFRMP, the Commonwealth Court held that the SFRMP does not create legal requirements or regulations, meaning DCNR is not mandated to take any actions by the SFRMP.  Therefore, the Commonwealth Court found declaratory judgment would be inappropriate.  Similarly, the SFRMP lacked “concreteness” with respect to whether PEDF’s claims were ripe for review.  As such, PEDF’s claims would bring the court into “the realm of speculation and conjecture.”  Finally, the Commonwealth Court determined that the relief seeking general pronouncements of law with respect to DCNR’s statements runs against the proscription against advisory opinions, because there was no justiciable dispute or controversy within the meaning of the Declaratory Judgments Act.  42 Pa.C.S. §§7531-7541.

Notably, the Commonwealth Court declined to undertake any ERA analysis with respect to DCNR’s SFRMP, opting instead to dismiss the case on justiciability grounds.  The ERA guarantees the public a “right to clean air, pure water, and the preservation of the natural, scenic, historic and esthetic values of the environment,” and requires Pennsylvania, through the DCNR, to “conserve and maintain” the resources for the current and the future generations.  Pa. Const. art. I, §27.  Litigation involving the ERA increased after the Pennsylvania Supreme Court’s plurality opinion of Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013), which rejected the historical three-prong test for analysis under the ERA. In 2017, the Pennsylvania Supreme Court’s decision in PEDF v. Commonwealth, 161 A.3d 911 (Pa. 2017) affirmed a new test to determine when Commonwealth action violates the ERA by requiring courts to employ private trust principles in their analyses.

However, while PEDF may appeal the Commonwealth Court’s decision to the Pennsylvania Supreme Court, the decision is an example of the potential limit of the ERA’s reach into Commonwealth agency policy, and the Commonwealth Court’s hesitation to review nonbinding agency policy, generally.