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Maya Strikes Out in Court Again; On Environmental Rights Amendment

natural gas now - Tom Shepstone ReportsTom Shepstone
Shepstone Management Company, Inc.

The Delaware Povertykeeper a/k/a Riverkeeper has gotten mowed over in court again; this time is a defeat for Maya’s cherished Environmental Rights Amendment.

Ever since the Delaware Riverkeeper conned a soon to retire Pennsylvania Supreme Court Chief Justice into using the Commonwealth’s environmental rights amendment for legacy building street cred with his Philadelphia pals. Maya van Rossum, the Delware Riverkeeper in the flesh as she is prone to remind anyone within earshot, has been trying to build on the amendment as if she was the author. She’s, in fact, written a book on the subject and gone to New York to try to sell the concept there, all of this financed by elitist special interests such as the William Penn Foundation.

Maya and radical Attorney Jordan Yeager, together with her frcativist sister shill, the Clean Air Council, having been trying bootstrap the amendment into some sort of super poverty-keeping, de-growthing, job-killing machine. She wants to be known as the Secretariat of extremist environmentalists or, at least as the Joan of Arc of the Hundred Years’ War to make a wilderness of the Delaware River Valley. Her dream of using the Pennsylvania Environmental Rights Amendment as the sword to do so, though, just died with a D.C. Circuit Court of Appeals decision in yet another case Maya foolishly initiated.

This was a case about the PennEast Pipeline. The Delaware Povertykeeper took FERC to court over its decisions with respect to the project. Maya and her ex-Lawyers Guild attorney Jordan Yeager, together with the Clean Air Council, both being arms of the William Penn Foundation, took an appeal to the D.C. Circuit Court of Appeals, the second most important court in the nation, challenging FERC on multiple fronts. They lost on every score and the decision is analyzed in brief here. A copy of the decision with the relevant portions highlighted may be found here.

environmental rights amendment

The news story, though, misses perhaps the most important part of the decision, which effectively destroyed the Environmental Rights Amendment in Federal court. This is very important. Why? Because Pennsylvania’s Supreme Court is now more political then ever and might be tempted to follow Maya’s lead in some future case. This decision makes that problematic. It speaks for itself in that regard and here are the key excerpts (emphasis added):

In 1971, the Pennsylvania Environmental Rights Amendment inserted into the state constitution certain protections for the environment. The Amendment states:

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. 

Riverkeeper contends that this right to clean air, pure water, and preservation of the environment creates a protected liberty or property interest as a matter of federal due process. It further contends that this right constrains FERC in its administration of federal law. The district court rejected these contentions, as do we. 

To begin, the Environmental Rights Amendment creates no federally protected liberty interest. The Amendment bears no relationship to the quintessential liberty interest—“freedom from bodily restraint.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 572 (1972) (quotation marks omitted). Nor does it protect activities that have been held to constitute federally protected liberty interests, such as “the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized as essential to the orderly pursuit of happiness by free men.” Id. (quotation marks and ellipses omitted). Riverkeeper believes that “a healthy environment” is a “necessary backdrop” for such rights to be “truly meaningful.” Appellants’ Br. 23. Perhaps so, but that hardly suggests that the right to a healthy environment can itself fairly be described as a “liberty” interest. Under Roth, it cannot.

As for property interests, they “are not created by the Constitution.” Roth, 408 U.S. at 577. Instead, “their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005) (quotation marks omitted). But despite these “state-law underpinnings,” the question whether the asserted interest “rises to the level of a ‘legitimate claim of entitlement’ protected by the Due Process Clause” is ultimately one of “federal constitutional law.” Id. at 756–57 (quoting Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9 (1978)). 

The Supreme Court has established several guideposts bearing on when a state-created right or benefit qualifies as “property” for due-process purposes. For one thing, “‘a person clearly must have more than an abstract need or desire’ and ‘more than a unilateral expectation of [the benefit]. He must, instead, have a legitimate claim of entitlement to it.’” Town of Castle Rock, 545 U.S. at 756 (quoting Roth, 408 U.S. at 577). Even for entitlements, “[t]he hallmark of a protected property interest is the right to exclude others,” which is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 673 (1999) (quotation marks omitted). Moreover, the Due Process Clause does not protect rights that are vague or indeterminate—a person cannot be “safely deemed ‘entitled’ to something when the identity of the alleged entitlement is vague.” Town of Castle Rock, 545 U.S. at 763. Furthermore, “an entitlement must have ‘some ascertainable monetary value’ in order to ‘constitute a “property” interest’” for due-process purposes. Roberts v. United States, 741 F.3d 152, 162 (D.C. Cir. 2014) (quoting Town of Castle Rock, 545 U.S. at 766). Finally, courts consider the extent to which the right “resemble[s] any traditional conception of property.” Town of Castle Rock, 545 U.S. at 766. 

Under these principles, the state-created right to clean air, pure water, and preservation of the environment does not qualify as a federally protected “property” interest. 

Most importantly, the Environmental Rights Amendment creates no right to exclude—or anything like it. To the contrary, its first sentence vests the single “right” at issue collectively in “[t]he people,” its second sentence confirms that “Pennsylvania’s public natural resources are the common property of all the people,” and its third sentence requires the Commonwealth to conserve and maintain environmental resources “for the benefit of all the people.” Pa. Const. art. I, § 27 (emphases added). Moreover, although the Supreme Court of Pennsylvania has held that the Amendment is judicially enforceable by private individuals, it has also confirmed that the right the Amendment creates is shared equally by all Pennsylvanians. See Penn. Envtl. Def. Found. v. Pennsylvania, 161 A.3d 911, 931 (Pa. 2017); Robinson Twp. v. Pennsylvania, 83 A.3d 901, 951 & n.39 (Pa. 2013) (plurality opinion). In other words, no Pennsylvanian may exclude any other from the right to clean air, pure water, and a preserved environment. So, the Amendment protects not private property rights, but public goods. In that respect, it is like “the right that we all possess to use the public lands”—which for due-process purposes “is not the ‘property’ right of anyone.” Coll. Sav. Bank, 527 U.S. at 673. 

The Amendment is also too vague and indeterminate to create a federally cognizable property interest. As the Pennsylvania Supreme Court has acknowledged, the Amendment articulates only “broad” and “relative” principles, so “the courts generally defer to agency expertise in making a factual determination whether the benchmarks [of theAmendment] were met.” Robinson Twp., 83 A.3d at 949, 953. To be sure, that Court also believes itself “equipped” to apply and enforce the Amendment in individual cases. See id.at953. But for federal due-process purposes, the question whether the Amendment is too vague to create a property right is a federal constitutional question. See Town of Castle Rock, 545 U.S. at 763. In this case, moreover, Riverkeeper invokes nothing more than the bare text of the Amendment. Without further guidance on what constitutes sufficiently clean air, sufficiently pure water, and sufficient preservation of natural, scenic, historic and aesthetic environmental values, we cannot say that a FERC decision to authorize the construction of a natural-gaspipeline, as required by its view of the public convenience and necessity, implicates any federally protected property right.1

The Amendment is unlike traditional or even new property in yet other respects. For one thing, the right to a preserved environment cannot be bought or sold—and thus has no “ascertainable monetary value,” as the Supreme Court’s “property-as-entitlement cases have implicitly required.”Town of Castle Rock, 545 U.S. at 766 (quotation marksomitted). Moreover, environmental quality depends on many factors beyond Pennsylvania’s control—including acts of other governments, acts of millions of private parties, and natural phenomena ranging from catastrophic events to ordinary weather patterns

Finally, the rights created by the Amendment bind only state and local government, not the federal government. The Amendment appears within the Declaration of Rights of the Pennsylvania Constitution, which sets forth a “social contract” between the Commonwealth of Pennsylvania and its people. See Robinson Twp., 83 A.3d at 947. The Declaration’s various provisions—many of which track the federal Bill of Rights—thus confer rights specifically as against the Commonwealth. See, e.g., Pa. Const. art. I, § 3 (religious freedom); id. art. I, § 6 (trial by jury); id. art. I, § 7 (freedom of press and speech). Riverkeeper cites no precedent even remotely suggesting that these state constitutional rights purport to impose substantive obligations on the federal government. To the contrary, the Pennsylvania Supreme Court repeatedly has described the Declaration of Rights as limiting only the power of “state government,” Robinson Twp., 83 A.3d at 948; see also Penn. Envtl. Def. Found., 161 A.3d at 930–31, and the Amendment likewise as binding only “state or local” government, Robinson Twp., 83 A.3d at 952; see also Penn. Envtl. Def. Found., 161 A.3d at 931. 

For all of these reasons, we conclude that the Environmental Rights Amendment does not create federally protected liberty or property interests, much less ones that FERC could infringe.

That’s pretty definitive. The court says “state-created right to clean air, pure water, and preservation of the environment does not qualify as a federally protected “property” interest.” This means the Federal courts are the place to go assert what are Federally protected due process rights, which are almost always involved when environmental special interests set to make wildernesses.

The Environmental Rights Amendment and similar vagaries cannot be used to deprive landowners of those due process rights. Environmental extremists have imagined they have a claim on lands by merely gazing upon and admiring the beauty of those lands (or speculating on threats to those lands). When they now go to court to steal those lands through bans, moratoriums and the like, based on such vague assertions of interests and rights, they may find it rough going. Thank you, Maya!

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4 thoughts on “Maya Strikes Out in Court Again; On Environmental Rights Amendment

  1. We should have a pizza party!!!
    This is good news, the villains are losing ground scientificly and definitely,

  2. “The US is virtually the only shale producer because it is the only country that combines the many critical inputs which include: the right geology, existing infrastructure, skilled labor force, adequate fresh water, access to capital, technological expertise, and perhaps most importantly private owned mineral rights.”

    Simon Lack

  3. Perhaps instead we should quietly enjoy the fact of being right for once. No need for a victory lap for what we already have.

  4. Why can’t this same logic be applied to New York State where I am but 15 miles from Tioga County Pennsylvania and here I sit on 200+ acres of Marcellus Shale where I am FORBIDDEN to drill by Governor Cuomo and the deep pockets of Manhattan.

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