Commonwealth Must Consider in Advance Environmental Impacts of its Decisions Under the Environmental Rights Amendment

By John Dernbach •

A newly filed amicus brief in the Pennsylvania Supreme Court argues that the state’s Environmental Rights Amendment requires the Department of Environmental Protection to consider in advance the environmental impacts of its decisions.

This is a case about a proposed quarry located next to a site contaminated with hazardous substances. The company applied to the Department of Environmental Protection (DEP) for a mining permit, and DEP issued the permit. DEP, it should be said, has a separate program for the cleanup of contaminated sites like this one.

Environmental Hearing Board

On appeal, the Environmental Hearing Board (EHB) overturned the issuance of the permit.

The EHB found that DEP, in its review of the permit application, did not consider how mining would affect groundwater contamination from the hazardous substance site. In fact, the EHB found that mining would likely make groundwater contamination worse.

The EHB then held that DEP violated its duties under both the mining law and the Environmental Rights Amendment (ERA) to the state’s constitution. The ERA requires the Commonwealth to conserve and maintain public natural resources for the benefit of present and future generations.

Commonwealth Court

The Commonwealth Court reversed the EHB decision. On the ERA issue, the Commonwealth Court dismissed the EHB’s detailed analysis with a single paragraph based on speculation about future cleanup of the site.

Supreme Court

The Supreme Court has decided to hear an appeal in this case. The brief is on the ERA issue. We argue:

  1. DEP has a duty under the ERA to consider in advance the environmental impacts of its decisions, even when they are impacts involving another DEP program,
  2. the EHB properly decided the DEP failed comply with its ERA duty to consider groundwater pollution impacts from the nearby contaminated site, and
  3. the Commonwealth Court’s opinion on the ERA issue is inconsistent with the Supreme Court’s prior ERA decisions and unsupported by the record.

The brief was filed on behalf of the Environmental Law and Sustainability Center at Widener University Commonwealth Law School (where I teach), Citizens for Pennsylvania’s Future (PennFuture), Delaware Riverkeeper Network, Green Amendments for the Generations, and the Clean Air Council. I was privileged to work with Jessica O’Neill, Emma Bast, Kacy Manahan, and Paul Cohen on this brief.

The case is Gibraltar Rock, Inc. v. Pennsylvania Department of Environmental Protection, which has two docket numbers. There is an identical brief for each document number, and they can be found here and here.