Deteriorating global environmental conditions, especially the accelerated warming of the atmosphere, have prompted a growing interest in constitutional environmental protection in the United States and around the world. Four states have incorporated judicially enforced environmental rights into their state constitutions and two of these states, Pennsylvania and Hawaii, have also made public natural resources the subject of a constitutional public trust. This Article focuses on the Pennsylvania Environmental Rights Amendment (ENRA), a key impediment to its full implementation, and the opportunities that overcoming this impediment present for addressing the existential challenge of climate change.

A major impediment to implementation by state agencies of Pennsylvania’s ENRA is the erroneous view that their authority to carry it out is more limited than it really is. They argue that the ENRA does not expand what an agency can do under its existing statutory authority. As a result, all too often, they do not even recognize the ENRA as part of the law they must implement.

This Article’s basic premise is that state agencies are essential to the effective implementation of the ENRA. It is not enough for citizens and nongovernmental organizations to file lawsuits to protect rights guaranteed by the ENRA. State agencies, too, must be a guarantor of these rights.

Agency failure to implement the ENRA is an enormous impediment to the full realization by Pennsylvanians of their constitutionally protected environmental rights. It means that individual citizens and nongovernmental organizations are obliged to fight, on a case-by-case basis, for protection of their environmental rights, with little or no support from the state. Integration of the ENRA into state agency decision-making processes would put greater government resources in support of the ENRA and better protect the public’s constitutional environmental rights. As recent litigation has shown, this is particularly true for climate change. Significantly, other constitutional rights in Pennsylvania are already integrated into the day-to-day activities of state agencies. Environmental rights should be no different.

In this Article, we discuss three broad ways in which Pennsylvania state agencies can and should apply the ENRA, consistent with their existing statutory authority. First, agencies should employ the ENRA as a constraint on government action and agency action in particular. Second, agencies should use the ENRA as a tool for statutory construction to strengthen their authority to protect and preserve the values and resources identified in the ENRA. Third, agencies (and the courts) should carry out their affirmative duty to implement the public trust clause of the ENRA—to conserve and maintain public natural resources for the benefit of present and future generations.

Continue reading Agency Statutory Authority and the Pennsylvania Environmental Rights Amendment.