On December 19, 2013, the Pennsylvania Supreme Court issued a divided opinion that may breathe new life into an ancient environmental law concept: the public trust doctrine. In Robinson Township, Washington County v. Commonwealth of Pennsylvania, __ A.3d __, 2013 WL 6687290 (Penn. Dec. 19, 2013), the state’s high court resolved constitutional challenges to Act 13 of 2012, an amendment to the Pennsylvania Oil and Gas Act. See 58 Pa. C.S. §§ 2301-3504. The Act established a state-wide land use regime to facilitate the state’s burgeoning development of unconventional oil and gas resources in the Marcellus Shale formation. Act 13 preempted local regulation of oil and gas operations and gave power of eminent domain to natural gas corporations.

The plurality agreed with local government plaintiffs that the Act ran afoul of a public trust provision in the state’s constitution, which directs the commonwealth to act as trustee of the state’s natural resources and conserve and protect them for the benefit of the state’s citizens. PA Const. art 1, § 27. Local governments are among the state’s natural-resource trustees, the court held, and by limiting their ability to regulate the well-known environmental impacts of oil and gas operations within their jurisdictions, Act 13 improperly interfered with local governments’ constitutional duties.

Although the Robinson Township decision specifically addresses the public trust doctrine as expressed in Pennsylvania law, most states, including Minnesota, recognize the doctrine in one form or another. (In Minnesota, much of the doctrine’s purposes have been codified in the Minnesota Environmental Rights Act, Minn. Stat. ch. 116B.) Particularly in the area of climate change, the public trust doctrine is experiencing somewhat of a resurgence. For example, since 2011, climate activists have filed lawsuits based on the public trust doctrine in 50 states and against the federal government to try and force action to address climate change. The so-called “atmospheric trust litigation” lawsuits were spearheaded by two groups: iMatter – Kids v Global Warming and Our Children’s Trust. The Pennsylvania Supreme Court’s broad interpretation of the public trust—as applying to a wide range of resources and imposing a fiduciary duty on all levels of government—will surely be cited by these groups and others wishing to expand the doctrine in other jurisdictions.

The Pennsylvania Court's decision will likely be cited by groups such as iMatter, who are invoking the public trust doctrine to fight climate change. (Source: www.imatteryouth.org)

The Pennsylvania Court’s decision will likely be cited by groups such as iMatter, who are invoking the public trust doctrine to fight climate change. (Source: http://www.imatteryouth.org)

For a fascinating read on modern applications of the public trust doctrine, check out the latest book by legal scholar Mary Christina Wood:  Nature’s Trust–Environmental Law for a New Ecological Age.

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