Another title for this post could have been “Are my cows violating your constitutional rights?” In less than two years, the Pennsylvania Courts have made two rulings that greatly affect all environmental issues in the State. Although the Courts did not specifically talk about farming, it is likely these decisions will impact farming projects.
In Robinson Township v. Commonwealth of Pennsylvania, the Pennsylvania Supreme Court made a landmark decision about how governmental entities look at environmental issues. Robinson Township was a challenge to Act 13 of 2012, which gave overwhelming rights to oil and gas companies, particularly in the Marcellus Shale regions. Article I, § 27 of the Pennsylvania Constitution provides that:
The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and aesthetic 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.
The Pennsylvania Supreme Court started by saying that this section of the Constitution is “inherent in man’s nature and preserved rather than created by the Pennsylvania Constitution.” This means that environmental rights are comparable to your freedom of speech, or your right to pursue happiness.
The most important decision of the Court was something new. The Court decided that all state and local governments are responsible to “conserve and maintain” the State’s natural resources and to “prevent and remedy the degradation, diminution, or depletion of our public natural resources.”
This is potentially a huge problem for agricultural projects. Based on Robinson Township, townships, boroughs and zoning hearing boards are required to consider the “degradation, diminution, or depletion of public natural resources” before giving any permit or approval. I can envision opponents of controversial projects arguing that municipalities are required to deny projects because of their environmental impact, even though the project might meet all other state and local requirements. Actually, I do not need to imagine this. I recently spoke with an attorney who regularly represents neighborhood groups to oppose concentrated animal operations. He was excited to tell supervisors and zoning hearing boards that they should reject applications based on Robinson Township.
With most landmark cases like Robinson Township, the Courts spend the next few years deciding what the original case really meant. Robinson Township is going through the same process. This January, the Commonwealth Court gave more guidance on the government’s responsibilities for environmental issues. This case, Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania, is good news for agricultural projects.
In PEDF, the Commonwealth Court explained Robinson Township. In Robinson Township, the Supreme Court said that local governments need to refrain from giving permits for projects that are “actual or likely” to “degrade, diminish or deplete public natural resources.” The Supreme Court did not give applicants or municipalities any instruction on how to determine if a project is “actual or likely” to cause harm. Thankfully, PEDF gave governments instructions on how to make this decision, by giving a test to apply. PEDF told governments to use the test of Payne v. Kassab, a three-part test to determine if a government action violates Article I, § 27. Municipalities are required to answer the following three questions:
- Was there compliance with all applicable statutes and regulations?
- Is there a reasonable effort to reduce the environmental harms from the project?
- Does the environmental harm so clearly outweigh the benefits of the project that approval would be an abuse of discretion?
If the applicant passes this test, the municipality can give the permit and still perform its duty to protect the environment.
For every project where there is even loosely organized opposition, opponents are very likely to bring up all of the arguments based on Robinson Township that I raised above. The applicant will need to counter these opponents by showing how the project meets the Payne test. Unfortunately, I do not think this is something that an applicant can say once and be done with. An applicant will need to be prepared to counter every opponent’s environmental arguments with this strategy. This is going to require patience and preparation by the applicant and its consultants. But at least now there is a strategy to address environmental issues and receive local approvals required for agricultural or land development projects.