Weaponizing State Constitutions with An Environmental Rights Amendment - The Impact-Part II

    

"It ought to be second nature. I mean the places that we live. Let's talk about this sensibly. We are not insensitive. I know progress has no patience. But something's got to give."

Rush: Second Nature.

"Don't let the past remind us of what we are not now."
Crosby, Stills, Nash.

"However, within a few short years, the Amendment was essentially relegated to a policy statement via judicial decisions that sidelined the plain language of the Amendment, and instead relied on judicially-created tests that largely equated the Amendment with statutes and regulations."

"Robinson Township, Delaware Riverkeeper Network v. Commonwealth involved a constitutional challenge3 to Act 13 of 2012, which imposed a one-size-fits-all zoning scheme for oil and gas operations across the entire Commonwealth of Pennsylvania. The challenge was brought by the Delaware Riverkeeper Network, Maya van Rossum-the Delaware Riverkeeper, multiple municipalities, two municipal officials, and a physician." 

https://forthegenerations.org/wp-content/uploads/sites/8/2019/02/FTG-Resources-GreenAmendmentFunctions.pdf

These cases are NOT designed to create a cleaner environment. They are designed simply to sue for money. The public was sold a bill of goods,. The New York case bears this out:

https://insideclimatenews.org/news/03062024/new-york-landfill-letitia-james-green-amendment/

In oral arguments before a Fourth Department panel May 20, Assistant Attorney General Brian Lusignan said High Acres plaintiffs were trying to circumvent existing state laws and rules governing solid waste facilities.

“There’s no evidence the Legislature (when it enacted the Green Amendment) wanted to allow private parties to bypass all that regulatory infrastructure and go directly to courts to litigate on a case-by-case basis whether a particular landfill should be shut down,” Lusignan said.

Attorney Alan Knauf countered for the plaintiffs, arguing that the state’s voters intended to “go beyond” existing law. 

“They thought (the Green Amendment) meant that the state was going to be forced to do something more than what was on the books,” Knauf said.

  Who funds all of this?
    If these groups are putting people in place to advocate for this Amendment state by State that would imply there are a lot of Benjamins greasing the wheels. I reached out to Maya Rossum on her website. As of this writing I have yet to receive a reply.
    So, this means I have to do the digging myself. There is an old axiom in investigations; follow the money.
    The trick here with these cases is that one utilizes the State. Let the taxpayers foot the bill. These are not lawsuits from some John Doe Company against another, or soccer moms gathered together to pool their money and hire a Pro-bono lawyer fresh out of Yale, no. These are cases brought about by legislation and therefore put under the purview of the Attorney General.
    So, we the taxpayers fund these actions.
    I highly doubt Maya Rossum and her advocates are on the hook to some corporate law firm to litigate these cases. In fact, it doesn't take much to file a lawsuit. Put together an affidavit, make it look official with a letterhead, file it appropriately with a court and clerk and all it cost was gas money to drive there. From there the State takes up the case. 
    Your work is done.

Enter Pennsylvania:

https://www.law.com/thelegalintelligencer/2022/09/01/is-the-pa-high-court-deciding-the-most-helpful-environmental-rights-amendment-cases/?slreturn=20240718210954

Earlier this month, the Pennsylvania Supreme Court issued another opinion in the long-running PEDF litigation about the public trust provisions of the Environmental Rights Amendment to the Pennsylvania Constitution. See Pennsylvania Environmental Defense Foundation v. Commonwealth, No. 65 MAP 2020 (Pa. Aug. 5, 2022)(PEDF VI). PEDF challenged several years’ appropriation of proceeds from oil and gas leasing under state forest and park land. 

   The Pennsylvania Supreme Court issued ANOTHER opinion in The Long-running PEDF litigation....
    Just WTF is going on here?

    Is the Green Amendment about real action or just jamming up the courts with litigious bullshit? How does suing companies clean up the environment?
    I will tell you how. The companies they sue go belly up. They close up shop!
 What happens to the employees? Does the Green Amendment take into effect that outcome? What happens to the property? Who cleans that up once the company is broke and leveraged out?
    Does the Green Amendment offer anything to displaced employees? What about their "rights"? The Amendment guarantees clean air, water and soil. Does the displaced employee get a 40-acre parcel of land and a mule somewhere free of any pollution? Are they not covered under the Green Amendment to be allowed this? 
    And just where does this Utopia exist?

    The Green Amendment Group is demanding a Constitutional Right. If you close down a company and displace employees, where does your Amendment protect the 'rights' of others affected by your law? 

    It is called the Perilous Effect:

   You can pass all the wonderful laws and rules you want thinking you are helping society...
    But somewhere along the way someone, some way, somehow, or groups, businesses, people are negatively affected by your good intentions. 
    They are impacted and have to pay for it. In many cases they become victims of your altruistic ideas.

   Nowhere in the history of man has government law or rule, no matter how altruistic, has not had a negative effect upon individuals in society attuned to, or in rejection of said law or rule.

     But the Green Amendment people through the Pennsylvania Environmental Defense Fund soon learned to cash in.

 "...in direct control over the fund was not facially unconstitutional because the statute directed consideration of the Environmental Rights Amendment obligations when appropriating the money..." 

           

https://www.law.com/thelegalintelligencer/2022/09/01/is-the-pa-high-court-deciding-the-most-helpful-environmental-rights-amendment-cases/?slreturn=20240718210954


FTG-Resources-GreenAmendmentFunctions.pdf (forthegenerations.org)

"Id. at 951–52 (plurality). Further, the plurality clarified that, just as governmental entities must consider in advance whether an action may violate, for instance, free speech rights, or property rights, they must do the same for environmental rights:"

"Thus, the Environmental Rights Amendment restrains government from pursuing actions or approving projects that infringe on the people’s protected rights. Such action could be leasing state lands for fracking, or approving a permit for a high pollution activity that would rise to the level of constitutional violation. "
 

    Don't think things got improved.  Penn is till drilling gas and oil. Only it now costs you more. And while the language in the Amendment seems confusing, one thing is blatantly missing from the decision: What about the rights of business owners and property owners?

"Id. at 952 (plurality). The last sentence was significantly earth-shattering because it affirmed that the Environmental Rights Amendment – like all other constitutional provisions – stood above statutes and regulations. Until this case, the Environmental Rights Amendment had been lowered to the level of statutes and regulations, at best."

     The companies drilling for oil and natural gas in the Marcellus Shale region pay the Pennsylvania Department of Conservation and Natural Resources leasing fees. With the finding in the court case DCNR can basically do whatever they want with the money. What that is exactly is anyone's guess.
    And what benchmark is being used to determine if an activity is rising to "the level of constitutional violation?"
    None of these questions are considered in the PDF noted in this segment. How the Pennsylvania Environmental Defense Fund got the money to set up shop and begin the sue happy chuck wagon and just how they strong armed the Legislature is something I am still digging for.
    And where were the Republicans? Where were the Constitutional Lawyers?

    And then there is this question of "rights". Rights are inherent. They cannot be manufactured through a demand that something happen, or be accomplished, let alone litigated. The right to clean air, water, soil is not an inherent right.

    What if a volcano explodes and destroys hectares of land, soil, water, air? Do we sue the volcano, or the state it resides in? A few weeks back in Connecticut we had devastating rain and floods that took out entire bridges, dams and roads. I am sure the soil and water suffered. Who do we sue? What about forest fires? Hell, what about ANY fire? Doesn't that produce noxious fumes? Do we sue the poor homeowner who lost everything because the air quality in your neighborhood was affected?
    A right that has to be legislated demands government intrusion. The rights that are codified in our state (and national) constitutions are natural.

 That is why they are codified in our constitutions!
    

    But one thing is for certain. With the Pennsylvania case under their belt The Green Amendment now has a test bed and a blueprint to bring litigation to other states.

From the PDF:

II. A GREEN AMENDMENT – BUILDING ON THE PENNSYLVANIA EXPERIENCE TO BRING FUNDAMENTAL RIGHTS PROTECTIONS TO OTHER STATES

• The provision should mention specific environmental values to be protected such as pure water, clean air, ecologically healthy habitats, etc., while also being clear about when courts are not to limit themselves to the items listed in the amendment.

 • The provision should include a broad holistic perspective on the values of protecting a healthy environment.

    Courts are not to limit themselves to the items listed in the Amendment? The provision should include a broad holistic perspective? Is that like "..invite novel environmental protection litigation claims" like they did in New York?
    The PDF lumps the Environmental Rights Amendment on par with political rights and property rights except (of course) if you own land and you want to lease it for shale oil or sell the timber.

The PDF expands upon this interesting approach:

• It should also be clear from the legislative history, the language of the Amendment, and/or the case law on interpretation of state constitutional provisions that state trust law supply additional standards that can supplement the standards that flow from the plain language of the Amendment.

    The Green Amendment isn't about "rights". It is about litigation. It is about compliance and the threat of governmental force to impose that compliance.

Are you as confused as I am? Well, hang on it gets worse.

    In an article written August 2nd by Environmental Attorney David Mendelbaum he tries to flesh out the details of this case:

Mandelbaum August 2024 Intervention and the Environmental Rights Amendment (1).pdf

"Last month, the Pennsylvania Supreme Court held that environmental groups could intervene in litigation to use the Environmental Rights Amendment of the Pennsylvania Constitution to support a regulation even though the Department of Environmental Protection had declined to make that argument. See Shirley v. Pennsylvania Legislation Reference Bureau, No. 85 MAP 2022 (Pa. July 18, 2024). Because the courts have not fleshed out all the nuances of what the Environmental Rights Amendment means, this superficially procedural decision may have important implications for how that constitutional jurisprudence develops."

       The decision by the Penn, SC is one of a few so far in this regard. The language is still being debated even though the Legislature has passed the Bill. Well, leave it to politicians to go along to get along and let the chips fall as they may.. Gee
 thanks! 
    Mendelbaum goes on to explain about carbon credits and how various power plants, gas and oil drilling can buy/sell credits. It gets very confusing but there appears to be some sort of "auction" that goes on where companies can bid for credits or bid to sell their credits.

It is all about the money.

"That initial auction of rights creates revenue for the RGGI states. Most RGGI states earmark that revenue, or part of it, for further measures to mitigate or to adapt to climate change, or to protect the environment generally. Even so, money is, of course, fungible. Funds raised by the auction fee general revenues to be appropriated elsewhere."

        This amounted to a tax which both houses of the Penn. Assembly rejected, Governor Wolf vetoed that decision. Then, it turned into this whole legal wrangling because the decision was not published in time. The state EPA sued and the Green Amendment people came in to support them on entirely different grounds.
(I know, it IS confusing).

    "The environmental group intervenors sought to defend the regulation by asserting that the allowance system was not a tax because the Environmental Rights Amendment—Article I, section 27 of the Constitution—would require all of the proceeds of the allowance auction to be used to improve air quality."

How?

    Thankfully the court declared: 

"The Commonwealth Court denied the environmental group’s petition to intervene, along with others. It also preliminarily and then permanently enjoined the regulation as an unconstitutional tax."

        If you read into the language and the arguments of the case you soon come to realize that this entire thing is to hamstring companies. The Green Amendment people present the facade of "rights" while at the same time demanding restrictive laws, regulations and monetary demands. Even though the states I listed in the first segment have adopted the Amendment many of the agencies involved are handing it to the state Supreme Courts and telling them, 'you guys figure this s**t out'.
    And it appears Pennsylvania did just that.

 "We usually do not consider permits to be conveyances of rights to use a public trust asset. If we did, then there would have to be compensation to the trust for that use. Instead, we ordinarily think of regulatory approvals as mechanisms to allow parties to create general economic and other benefits using public resources in a reasonable way. The economy and the regulatory environment would look quite different if there were a constitutional obligation to charge a pollution fee for every permit"
 © 2024 Greenberg Traurig, LLP www.gtlaw.com 

    And finally, Mendelbaum exits with this gem:

"The ERA creates rights against the government. It makes development of that law less straightforward if the contours of those rights can be litigated from the government’s side of a lawsuit, but without the government’s concurrence. Whether that is a feature or a bug remains to be seen."

....And That Is The Diatribe....