In 1971, the citizens of Pennsylvania overwhelmingly approved a proposed amendment to the Commonwealth of Pennsylvania’s Constitution’s Declaration of Rights, now known as the “Environmental Rights Amendment” (ERA). The amendment provides:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic, and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

On June 20, 2017, the Supreme Court of Pennsylvania, in Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania and Governor Tom Wolf, held , in a 4 to 32 ruling, that two 2009 fiscal laws passed by the legislature were facially unconstitutional under the ERA because they did not provide that all funds generated by royalties from the leasing of state lands for the exploration and production of oil and gas were wholly directed to the protection and preservation of the Commonwealth’s public natural resources.

Considerable oil and gas deposits can be found on state lands, and they have generated many millions of dollars in royalty revenue and, with the Commonwealth facing a fiscal crisis, a large percentage of these royalties were placed in the general revenue accounts.

According to the Court, the ERA grants two separate rights to the people of Pennsylvania: (a) the right to clean air and pure water, and to the preservation of these natural resources; and (b) the right of common ownership by the people to these public natural resources, including the oil and gas located in these state lands.  Finally, the third clause of the ERA establishes a public trust, and the Commonwealth is the trustee whose fiduciary duties are subject to the Commonwealth’s trust law.

The contrary ruling of the lower court was rejected, and the case was remanded for further proceedings.