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Note: The Intersection of Reason and Risk: How Article I, Section 27 of the Pennsylvania Constitution Can Protect Environmental Justice Communities From State-Sanctioned Pollution and Cumulative Impacts


In 1970, the Commonwealth of Pennsylvania ratified an amendment in Article I, Section 27 of its state constitution. Coined the “Environmental Rights Amendment,” Section 27 outlined two public rights for Pennsylvania citizens: the individual right to clean air, pure water, and the preservation of environmental values, and the right to ownership of public natural resources conserved and maintained by the Commonwealth for the benefit of the public and future. For decades, the state courts hindered Section 27’s applicability by making it dependent on the state legislature. The tide changed in 2013, when the Supreme Court of Pennsylvania decided Robinson Township v. Commonwealth.

At the same time, society has begun to recognize that minority, low-income communities have historically and systematically endured a disproportionate amount of environmental harms, culminating in what the law calls “cumulative impacts.” However, Section 27 and environmental justice have hardly interacted or worked in tandem. Based on the holdings from Robinson Township and subsequent cases, the first clause of Section 27 seems to prohibit Commonwealth actions that unreasonably impair citizens’ environmental rights. Whether an action does cause or will constitute “unreasonable” impairment, therefore, should be evaluated in light of tort law doctrines which require courts to evaluate reasonableness in consideration of risk.

Risk should be evaluated holistically—with an emphasis on whether a community deals with a disproportionate amount of environmental harms that exacerbates the risk and how the public perceives the risk. This stray from traditional, comparative risk evaluation may provide a more viable avenue for environmental justice communities to challenge the Commonwealth’s actions that do or propose to add pollution to their already-overburdened communities. Ultimately, this reading of Section 27 may incentivize industry members to invest in sustainable methods of development that do not increase the pollution they add to a community.