PA Chamber Hits Back at NIMBYs and Carpetbagging PovertyKeeper

cost of renewables - Tom ShepstoneTom Shepstone
Natural Gas NOW


The Pennsylvania Chamber of Business and Industry (PA Chamber) has filed a brief in Commonwealth Court opposing the carpetbagging Delaware PovertyKeeper.

The Delaware PovertyKeeper a/k/a Riverkeeper and its radical lawyer have been out carpetbagging in Western Pennsylvania for some time. Though their pretend mission is the Delaware River, their real assignment is to fight oil and gas everywhere and advance an Environmental Rights Amendment that would help turn much of Pennsylvania into a gentry class wilderness playground. That’s why they are way out in Western Pennsylvania, 200 milew outside the Delaware still fighting an endless case in Middlesex Township, Butler County, of all places. The PA Chamber is speaking up against this legal abuse.

PA Chamber

The PA Chamber, in fact, has filed an amicus brief with the Commonwealth Court on a remand to the latter from the Supreme Court. The case is about a lawsuit the PovertyKeeper brought arguing Middlesex Township had no right to allow more oil and gas development because it was somehow obligated, under the Environmental Rights Amendment to the Pennsylvania Constitution (Article I § 27), to zone out such activity if anyone, anyone at all including both human and non-human species, objected. I exaggerate a bit, of course, but damned little.

Why the PA Supremes remanded, other than the fact, it has become a very political and very politically correct court, is unclear, but I have my suspicions and a desire to advance protection of natural rights as opposed to rights of nature is not among them. Regardless, the PA Chamber has, thank goodness, seen fit to intervene with an amicus brief. The PA Chamber recognizes what a deep and dark threat an irresponsible interpretation of the Environmental Rights Amendment represents in the hands of agenda driven special interests.

The brief, a highlighted copy of which may be found here is remarkably lucid and speaks in the tone of common sense as well as the law. Here are the killer points (emphasis added):

  • A person’s expectations that the neighborhood will always stay the same are not protected by the constitution. Concluding otherwise trivializes Pennsylvania’s Declaration of Rights and ensures endless litigation grounded in perceived constitutional grievances.
  • Does Article I, § 27 obligate municipalities to adopt zoning ordinances? If this Court finds that the Ordinance violates Article I, § 27, then it has necessarily concluded that the answer is yes. This is because, in the absence of constitutional obligation to zone, an ordinance that is insufficiently restrictive cannot violate Article I, § 27. [This is my favorite. If there is no legal obligation to zone at all, then how can a township be obligated to zone property in a particular way? Says it all.]
  • In this regard, Article I, § 27 should not be interpreted to create or reallocate private property rights. It should not be read to take away a landowner’s right to make otherwise lawful use of his private property so that the neighbor can realize some type of individual, environmentally-focused benefit.
  • If Article I, § 27 were interpreted as the Riverkeeper advocates, it would raise serious concerns that it had effectuated an uncompensated taking of private property, in violation of the Fifth Amendment to the U.S. Constitution. The Court should reject an interpretation of Article I § 27 that necessarily engenders a taking of private property rights, which cannot be the result intended when Pennsylvanians adopted the amendment.
  • While Pennsylvania’s courts have recognized that property owners have a constitutionally protected right to enjoy “their property,” no court has held that neighbors have constitutional protection against changes in treatment of adjoining tracts of property under properly-adopted land use ordinances. That is, no court has held that neighbors have a constitutionally-protected right in their “expectations” about how someone else’s private property is, or should be, zoned.
  • The Riverkeeper’s Article I, § 1 challenge to the Ordinance is, at bottom, premised upon nothing more than a reliance on the continued existence of the existing township zoning ordinance coupled with a mere expectation that no change would be made to that ordinance that the Riverkeeper does not like.
  • Based on the principles discussed above, our Supreme Court has held that a property owner has no vested right in a municipality’s maintenance of zoning restrictions on his neighbor’s property.
  • The Riverkeeper suggests that the concept of vested rights gives a neighboring landowner a right to prevent the use by other owners of their property for such purposes as are legally permissible, including for example a new land use that is authorized in an existing zone.
  • The Riverkeeper has no vested right in preventing the township’s zoning ordinance from being amended so as to allow oil and gas development to be located on other peoples’ properties, where such development may not have been allowed before.
  • Simply put, there is nothing in the text of Article I, § 27 or a proper interpretation of the text that suggests local government units are “the state” for purposes of preserving any rights or carrying out any duties regarding the Commonwealth’s public natural resources.
  • Courts may not use Article I, § 27 as vehicle to legislate environmental policy in Pennsylvania, and to impose that policy on the legislative branch (or the executive branch).
  • It is difficult to imagine a judicial act more coercive upon the legislative branch than to supplant existing statutes with the court’s own formulation of policy, and preclude future legislative discretion on the same issue. By claiming that the Ordinance violates Article I, § 27, the Riverkeeper is, effectively, asking the Court to do away with the legislative process entirely on the issue of “public natural resources” on the theory that the legislative branch is not doing enough. If “not doing enough” were the standard for judicial action, individual judges would regularly be asked to substitute their individual judgment for the collective judgment of the legislative branch, which should strike this Court as a singularly bad and undemocratic idea.
  • Along similar lines, even if this Court could somehow discern, without violating separation of powers principles, that the General Assembly was “not doing enough” to regulate air or water, it lacks the authority to mandate the enactment of legislation in this arena. As this Court explained, in rejecting a request for it to order certain members of the General Assembly “to pass appropriate legislation to provide compensation for plaintiff’s claim [of false imprisonment] and to establish a board to hear moral claims against the Commonwealth,” there would be a “complete negation” of separation of powers principles if it mandated the enactment of legislation.
  • The provisions of Article I of the Pennsylvania Constitution protect the citizens of the Commonwealth from the State and not from each other.
  • If a person uses his or her property in a way that unlawfully invades his neighbor’s property, he may be liable to his neighbor under the common law. But there is no “state action” and, as a consequence, Article I is not implicated.
  • It is important to note, in this regard, that Article I, § 27 cannot be interpreted to create or reallocate private property rights. It cannot be construed to take a landowner’s private property rights and give them to his neighbor, in the name of securing the neighbor’s right to clean air, pure water, or the enjoyment of the natural, scenic, historic, or esthetic values of the environment. It cannot, in other words, be read to take away the landowner’s right to make an otherwise lawful (i.e., non-trespassory and non-nuisance-creating) use of his private property and transfer it to his neighbor so that the neighbor can realize some type of individual, environmentally-focused benefit.
  • Again, if Article I, § 27 were interpreted that way, it would raise serious concerns that it had effectuated an uncompensated taking of private property, in violation of the Fifth Amendment to the U.S. Constitution.
  • The argument, therefore, that a local zoning ordinance, or a decision that a local official makes under it, can be declared unconstitutional because it permits a private property owner to do something that he has an inherent right to do anyway is fundamentally flawed. To conclude otherwise is to contend that the Commonwealth and its political subdivisions have a constitutional obligation to exercise their police power to zone and adopt ever-more restrictive property-use regulations. That flawed argument is precisely the one that the Riverkeeper is making in this case. This Court should reject it.

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