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It Only Hurts When I Use It: The Payne Test and Pennsylvania’s Environmental Rights Amendment

July 2016

Citation: ELR 10594

Author: Kenneth T. Kristl

Article I, §27 of the Pennsylvania Constitution creates public rights in natural resources, and tasks the Commonwealth government with conserving and maintaining them for the benefit of all. The section’s expansive language was restricted by the 1973 Payne decision, which created a three-part test focusing on statutory compliance, efforts to reduce environmental effects, and a balancing of harms and benefits; under that test, most §27 claims have failed. In 2013, a plurality of the Pennsylvania Supreme Court in Robinson Township v. Commonwealth of Pennsylvania questioned Payne’s continued viability. This Article analyzes and develops the judicial and scholarly criticisms of the Payne test, and concludes that it cannot be salvaged. The author develops a new test based on the principles articulated by the Robinson Township plurality, arguing that it would allow Commonwealth agents and judges to ensure that §27 plays a vital role in protecting the environment.

Kenneth Kristl is Associate Professor of Law and Director of the Environmental and Natural Resources Law Clinic at Widener University Delaware Law School.

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