In addition to his writing on climate change and sustainable development, Dernbach has written book chapters and articles that fall within the domain of traditional environmental law. These book chapters and articles tend to explore issues or aspects of issues that had previously received little attention.
- Recognition of Environmental Rights for Pennsylvania Citizens: Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania, 70 Rutgers University Law Review 803 (2018) (with Kenneth T. Kristl & James R. May). In 2017, in the landmark case of Pennsylvania Environmental Defense Foundation (PEDF) v. Commonwealth, the Pennsylvania Supreme Court held that the text of the Environmental Rights Amendment (Article I, Section 27) provides the legal basis for deciding environmental rights claims, not the judicially created test that had been employed for more than four decades. For many lawyers, judges, and citizens, the change is so dramatic that it is as if Section 27 was adopted in 2017, rather than the year it was adopted--1971. This article addresses a variety of issues about the interpretation and application of Section 27 after PEDF, and explains how this case is adding momentum to the growing use of constitutional environmental amendments in other states and countries.
- Applying the Pennsylvania Environmental Rights Amendment Meaningfully to Climate Disruption, 8 Michigan Journal of Environmental and Administrative Law 49 (2018) (with Robert B. McKinstry, Jr.). This article argues that a stable climate (a climate that has not been disrupted by anthropogenic emissions of GHGs) should be considered protected by the rights provided by the Pennsylvania Environmental Rights Amendment. It then argues that the Environmental Rights Amendment imposes on Pennsylvania a duty to reduce greenhouse gas emissions to net zero by midcentury, and advocates a cap-and-trade program to achieve that result.
- Lawyering as if Tomorrow Matters, 86 University of Missouri-Kansas City Law Review 759 (2018).. This Article argues that all lawyers, not just environmental lawyers, have a unique and important role to play in protecting life on earth, and suggests that we all need to consider doing more than we have already been doing. It then describes seven different approaches that lawyers can consider to respond constructively to climate change. These suggestions are intended to provoke discussion and reflection about the necessary role of lawyers at an exceptionally important moment in human history.
- Sustainable Development in Law Practice: A Lens for Addressing All Legal Problems, 95 Denver Law Review 123 (2017). This article, which is based on interviews with 26 lawyers who practice or have practiced law related to sustainability, provides a first assessment of what this work actually entails. It describes what these lawyers understand sustainability or sustainable development to mean — both as defined and as applied. It explains who their clients are and what they do for them, and provides insight into the dynamics of attorney-client conversations related to sustainability. It describes key personal and professional qualities of these lawyers — how they became interested, and what they like and do not like about doing work related to sustainability. Finally, by exploring what these lawyers see as obstacles to sustainability and where the jobs are in sustainability-related law, it sheds light on the future of sustainability in law practice.
- Teaching Applied Sustainability: A Practicum Based on Drafting Ordinances, 4 Texas A&M Journal of Property Law (with Jonathan D. Rosenbloom). This article describes and explains a sustainability law practicum class that is now taught in only two law schools, but which has considerable teaching and practical value. It also explains how this class is consistent with, and furthers, the growing demand for experiential, skills-based legal education employing formative assessment. The class uses a real world setting to provide students with skills they will need to help clients meet their sustainability goals.
- Asking the Right Questions About the Future of Shale Gas, 49 John Marshall Law Review 377 (2016). This Article explains that policy makers and others need to ask instead 1) whether the use of shale gas is consistent with the scale and pace of required greenhouse gas emissions, 2) how much energy we need, and 3) how the benefits of shale gas compare with the costs and benefits of alternatives, especially energy efficiency and conservation.
- A Legislative History of Article 1, Section 27 of the Constitution of the Commonwealth of Pennsylvania, (24 Widener Law Journal 181 (2015), with Edmund J. Sonnenberg). The Pennsylvania Supreme Court’s decision in Robinson Township v. Commonwealth has prompted enormous interest in the history and text of Article I, Section 27 of the Pennsylvania Constitution. Amendments to the state constitution must be approved by each house of the General Assembly in two successive legislative sessions, and then approved by a majority of voters in a public referendum. Article I, Section 27 was agreed to in the 1969-1970 and 1971-72 sessions of the General Assembly, and approved by the state’s voters on May 18, 1971. This version of the legislative history shows the bills and other documents that represent its passage through this process, but does not contain any of the extraneous material contained in many of the source documents.
- A Legislative History of Article I, Section 27 of the Constitution of the Commonwealth of Pennsylvania, Showing Source Documents, (with Edmund J. Sonnenberg). This version of the legislative history puts in one place all of the bills and other material that represent the adoption of Article I, Section 27 of the Pennsylvania Constitution, showing the source documents in which these bills and other material are contained. This version should be particularly attractive to those who want to see the actual source documents.
- Robinson Township v. Commonwealth of Pennsylvania: Examination and Implications, 67 Rutgers Law Review 1169 (2015) (with James R. May and Kenneth T. Kristl). In Robinson Township v. Commonwealth of Pennsylvania, the Pennsylvania Supreme Court held unconstitutional major parts of Pennsylvania’s “Act 13” — a 2012 oil and gas law designed to facilitate the development of natural gas from Marcellus Shale. In so doing, the Court breathed new life into Article I, Section 27 of Pennsylvania’s constitution, which creates public rights in certain environmental amenities and requires the state to “conserve and maintain” public resources “for the benefit of all the people.” This paper describes the decision, explains some of its immediate implications in Pennsylvania, and also explains its importance for public environmental rights and environmental constitutionalism elsewhere.
- Recognition of Environmental Rights for Pennsylvania Citizens: A Tribute to Chief Justice Castille, (53 Duquesne Law Review 335 (2015) (with Marc Prokopchak). This article is based on remarks made at a Special Session of the Pennsylvania Supreme Court at Duquesne University on October 7, 2014 in honor of Chief Justice Ronald Castille. This article explains why his plurality opinion in Robinson Township v. Commonwealth (2013) concerning the Environmental Rights Amendment to Pennsylvania's constitution is likely to have staying power even though it did not command a majority of the state's Supreme Court. This article also collects and summarizes 79 judicial and administrative tribunal decisions applying or considering the three-part balancing test that has been used for decades as a substitute for the text of the amendment, and demonstrates that the challenging party has almost never prevailed under that test.
- The Potential Meanings of a Constitutional Public Trust, (45 Environmental Law 463 (2015)). The Pennsylvania Supreme Court’s 2013 decision in Robinson Township v. Commonwealth has lawyers looking at the state’s constitutional Environmental Rights Amendment (Amendment) — including its public trust provision — as if it magically appeared in the state constitution on the date of the decision. This Article describes the origin of the Amendment, the two primary cases decided shortly after it was adopted that effectively buried the Amendment, and the Robinson Township decision. It then surveys the wide range of issues that have arisen in the courts and other adjudicatory bodies in the immediate aftermath of Robinson Township and provides suggestions for how some of them should be resolved.
- Facing Down the So-Called Agenda 21 ‘Conspiracy:’ Lessons for Planners, (Planning, Feb. 2015, at 20). In the last several years, proposed land use decisions in the United States frequently have been subject to claims that they were influenced in undesirable ways by Agenda 21, the international strategy for sustainable development adopted at the U.N. Conference on Environment and Development in 1992. Those making these claims work from a bogeyman version of Agenda 21 created by a well-funded anti-government, pro-property rights cottage industry that portrays Agenda 21 in demonstrably false ways. Using a land use controversy in Mt. Gretna, Pennsylvania as a case study, this article explains how local planners and officials can address these claims when they are made.
- Can Shale Gas Help Accelerate the Transition to Sustainability? (Environment, Jan.-Feb. 2015, at 7 (with James R. May). The sudden and unexpected development of shale gas has the potential to accelerate or hinder the transition to sustainability, depending on how it is handled. Sustainable development is a useful evaluative framework for shale gas development. It would have us analyze its environmental, social, economic, and security dimensions at the same time, and look for ways to make all four dimensions mutually reinforcing. Analyzing a broad range of issues, this article asks, and suggests answers to, the question of whether, or how, shale gas production can help accelerate the transition to sustainability.
- Sustainability as a Means of Improving Environmental Justice, (19 Missouri Journal of Environmental and Sustainability Law 1 (2012) (with Patricia E. Salkin & Donald A. Brown). This article explains why environmental justice provides much of the foundation for sustainable development, and shows how sustainability can improve our ability to achieve environmental justice.
- Next Generation Recycling and Waste Reduction: Building on the Success of Pennsylvania’s 1988 Legislation, (21 Widener Law Journal 285 (2012) (with Widener University School of Law Seminar on Climate Change). This article reviews the effectiveness of Pennsylvania's landmark 1988 recycling legislation, and makes recommendations for improving its effectiveness.
- Environmental Laws and Sustainability: An Introduction, (3 Sustainability 531 (2011) (with Joel A. Mintz). This is an introduction to the special issue on environmental laws and sustainability of the on-line peer review journal, Sustainability. This introduction attempts to synthesize key lessons from the issue’s ten substantive articles.
- Environmental Laws and Sustainability, (special issue of on-line peer review journal, Sustainability (2011)) (edited with Joel A. Mintz). The ten articles in this special issue attempt to answer, in various ways, the question of how law can and should be used to achieve sustainability. They provide information, tools, and ideas that policy makers, practicing lawyers, and others can use to address the challenges and opportunities of sustainability.
- Making the States Full Partners in a National Climate Change Effort: A Necessary Element for Sustainable Economic Development, (40 Environmental Law Reporter 10,539 (2010) (with Robert B. McKinstry, Jr. and Thomas D. Peterson)). This article explains why states and localities need to be full partners in a national climate change effort based on federal legislation or the existing Clean Air Act. It also describes in detail a proposed state climate action planning process that would help make the states full partners.
- Natural Resources and the Public Estate in The Pennsylvania Constitution: A Treatise on Rights and Liberties, 683 (Ken Gormley et al., George T. Bisel Co., Inc., 2004). Dernbach's chapter (Chapter 29) explains the drafting history of the environmental amendment of the Pennsylvania Constitution (Article I, Section 27), and shows that the courts have used amendment to confirm and extend the state’s police power, as guidance in statutory interpretation, and as constitutional authority for laws whose constitutionality is challenged on other grounds.
- Taking the Pennsylvania Constitution Seriously When It Protects the Environment: Part I—An Interpretative Framework for Article I, Section 27, 103 Dickinson Law Review 693 (1999). This article suggests an interpretative framework for understanding Article I, Section 27 of the Pennsylvania Constitution that is based on its text, legislative history, and purposes.
- Taking the Pennsylvania Constitution Seriously When It Protects the Environment: Part II—Environmental Rights and Public Trust, 104 Dickinson Law Review 97 (1999). This article outlines ways in which Article I, Section 27 should be applied and argues, among other things, that the public trust and environmental rights provisions of the environmental amendment are self-executing against the government.
- The Unfocused Regulation of Toxic and Hazardous Pollutants, 21 Harvard Environmental Law Review 1 (1997). The article provides a comparative analysis of the actual pollutants that are regulated as toxic or hazardous under the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, the Emergency Planning and Community Right-to-Know Act, and the Occupational Safety and Health Act. A total of 1134 pollutants are regulated as toxic or hazardous under at least one of the five statutes, but only 49 are regulated under all five, and nearly 768 are regulated under only one. The article explains that these differences cannot be attributed to differences in risk or exposure, and proposes a solution.
- Out of Focus, Environmental Forum, Nov.-Dec. 1996, at 24. This essay explains how inconsistencies in the lists of toxic and hazardous pollutants limit the practical effectiveness of environmental protection and occupational health laws, and how the effect of these inconsistencies can be minimized.
- Implementation of the Surface Mining Control and Reclamation Act in Pennsylvania: Ten Years Later in Moving the Earth: Cooperative Federalism and Implementation of the Federal Surface Mining Act, (Uday Desai ed., Greenwood Press 1993). While the federal Surface Mining Control Act of 1977 succeeded in its first ten years largely by limiting state discretion, this chapter uses Pennsylvania’s experience to argue the federal government also needs to create conditions conducive to the environmentally responsible use of discretion by states.
- The Other Ninety-Six Percent, Environmental Forum, Jan.-Feb. 1993, at 10. This essay explains that federal hazardous waste laws regulate only four percent of all the waste generated by industrial facilities, leaving the rest to state regulation or, in many states, little or no regulation.
- Industrial Waste: Saving the Worst for Last? 20 Environmental Law Reporter 10,283 (1990). This article argues for federal oversight over industrial waste that is not legally hazardous under federal law, based on the immense volume of such waste as well as its toxicity.
- Pennsylvania’s Implementation of the Surface Mining Control and Reclamation Act: An Assessment of How “Cooperative Federalism” Can Make State Regulatory Programs More Effective, 19 University of Michigan Journal of Law Reform 903 (1986). This article explains the many ways in which the federal Surface Mining and Control Act of 1977 improved the effectiveness of Pennsylvania’s surface mining program—the very program on which the federal law was ostensibly modeled.
- Metallic Mining and Reclamation in Michigan: Environmental Management as a Gentler View, 10 University of Michigan Journal of Law Reform 323 (1977). This article critiques Michigan’s metallic mine reclamation statute, and makes reform recommendations based on the laws of other states.