Newspaper article Pittsburgh Post-Gazette (Pittsburgh, PA)

A Constitutional Weapon:environmental Rights Re-Imagined in Pennsylvania Recent State Supreme Court Decisions Have People Testing the Boundaries of a 1970s State Constitutional Amendment

Newspaper article Pittsburgh Post-Gazette (Pittsburgh, PA)

A Constitutional Weapon:environmental Rights Re-Imagined in Pennsylvania Recent State Supreme Court Decisions Have People Testing the Boundaries of a 1970s State Constitutional Amendment

Article excerpt

There is no room for big ideas ? existential ideas ? at a water obstruction permit hearing.

But they come anyway, discussions in search of a forum.

"I'm here as a resident of Planet Earth," Susan Hoppe, a Pittsburgh-based internist, testified at a recent Department of Environmental Protection hearing on Shell Pipeline Co.'s proposed ethane pipeline.

That's relevant, she said, because the ethane that will flow through the pipeline will be used to make plastic at Shell's petrochemical complex in Potter Township. And plastic pollutes the oceans. To supply the pipeline, more fossil fuel will be extracted, and fossil fuels are a major driver of climate change. So that, too, is relevant in this discussion of whether Shell should be granted an earth disturbance and water encroachment permit, she said.

As two DEP officials sat silently for hours over the course of three hearings earlier this month, speaker after speaker urged them to look more broadly at the issue and gave them the cover to do so: Pennsylvania's environmental rights amendment, Article 1, Section 27.

Gail Murray began her testimony by taping the text of the amendment to the podium.

It read: "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."

Over the past year, the amendment has been trotted out at local zoning board meetings, in lawsuits, and at regulatory reviews.

John Walliser, senior vice president of legal and government affairs with the nonprofit Pennsylvania Environmental Council, said he has been to DEP advisory committee meetings at which an idea is kicked around, then runs into a regulatory road block and someone says, "Well, you know, you always have Article 1, Section 27."

The DEP has heard enough such arguments to launch a series of roundtables to ask environmental advocates and industry representatives "what these sectors expect and want to see from the DEP related to the environmental rights amendment," said spokesperson Neil Shader. More such meetings, hosted by the chief counsel's office, are on tap for later this year.

So far, there's no shift in policy, said its secretary, Patrick McDonnell. "I think everybody acknowledges that will end up settling out on a case by case over time," he said.

When big ideas like climate change creep into permit hearings, Mr. McDonnell said, they likely aren't something that regulators can act on.

"For pipelines, the thing that you're permitting is a construction activity and the impact of that activity on wetlands, streams," he said. "We don't get to regulate what is in the pipe."

Matt Mehalik would disagree.

"It's actually their responsibility to think more widely and to consider ? what it means to be entrusted with that resource," Mr. Mehalik, executive director of the Breathe Project, said.

In the coming months, when the DEP releases its responses to the Shell pipeline hearing comments, it will have to face the question head-on.

If Shell's pipeline permit is granted, Annie Regan, a program manager with environmental nonprofit PennFuture, has asked the DEP to "specifically address how this complies with Article 1, Section 27 of the Pennsylvania Constitution."

A weapon for citizens

How the amendment came about and why it has surfaced as the anthem of a movement against oil and gas development in Pennsylvania is a story with decades of dead air.

Ratified in 1971, the constitutional amendment breezed through the Pennsylvania Legislature and received the vast majority of citizens' votes.

It was a time of environmental awakening ? flames on the polluted Cuyahoga River in Ohio danced on the evening news; millions of people across the country showed up for the first Earth Day in 1970. …

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