On January 8, 2019, Pennsylvania Gov. Tom Wolf (D) cited the state’s Environmental Rights Amendment (ERA), passed in 1971, in an executive order establishing the GreenGov Council, which was designed to work with state agencies to reduce greenhouse gas emissions. The governor’s order wasn’t the first time that he cited the ERA when explaining a decision. In June 2017, he vetoed a bill to preempt the local regulation of plastic bags, saying the bill was inconsistent with the ERA.
Voters approved the ERA as a ballot measure on May 18, 1971. The ERA provided for state constitutional rights to clean air; clean water; and the preservation of the natural, scenic, historic, and aesthetic values of the environment. The constitutional amendment also declared the state’s natural resources as “common property of all the people, including generations yet to come” and declared the state government as the trustee of the state’s natural resources.
Courts interpreted the ERA through a three-part balancing test until 2017. The test asked whether the benefits of an action outweighed any harm to the environment. In 2017, the Pennsylvania Supreme Court rejected this test, with the court’s opinion saying the test stripped the ERA of its meaning. Justice Christine Donohue (D), who wrote the opinion, said the ERA established a public trust, with natural resources as the trust corpus, the state as the trustee, and the people as the beneficiaries. Justices Max Baer (D) and Thomas Saylor (R) dissented, saying the court interpreted the ERA’s description of the state as a public trust through the lens of private trust law.