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37 Geo. Env't L. Rev. 1 (2024-2025)

handle is hein.journals/gintenlr37 and id is 1 raw text is: ARTICLES Agency Statutory Authority and the Pennsylvania Environmental Rights Amendment JOHN C. DERNBACH* & ROBERT B. MCKINSTRY, JR.t ABSTRACT Deteriorating global environmental conditions, especially the accelerated warming of the atmosphere, have prompted a growing interest in constitutional environmental protection in the United States and around the world. Four states have incorporated judicially enforced environmental rights into their state consti- tutions and two of these states, Pennsylvania and Hawaii, have also made public natural resources the subject of a constitutional public trust. This Article focuses on the Pennsylvania Environmental Rights Amendment (ENRA), a key impedi- ment to its full implementation, and the opportunities that overcoming this impediment present for addressing the existential challenge of climate change. A major impediment to implementation by state agencies of Pennsylvania's ENRA is the erroneous view that their authority to carry it out is more limited than it really is. They argue that the ENRA does not expand what an agency can do under its existing statutory authority. As a result, all too often, they do not even recognize the ENRA as part of the law they must implement. This Article's basic premise is that state agencies are essential to the effec- tive implementation of the ENRA. It is not enough for citizens and nongovern- mental organizations to file lawsuits to protect rights guaranteed by the ENRA. State agencies, too, must be guarantors of these rights. Agency failure to implement the ENRA is an enormous impediment to the full realization by Pennsylvanians of their constitutionally protected environmental * John C. Dernbach is Professor Emeritus, Widener University Commonwealth Law School; Founding Director, Environmental Law and Sustainability Center. He can be reached at jcdembach@widener.edu. The authors are grateful to Sage Lincoln and Charley McPhedran for assistance in preparing this Article. Thanks also to Bruce Ledewitz, Kacy Manahan, Margaret Murphy and John Quigley for comments on an earlier draft. © 2024, John C. Dernbach and Robert B. McKinstry, Jr. t Robert B. McKinstry, Jr. is the principal of Robert B. McKinstry, Jr. Environmental and Climate Law and Consulting. He can be reached at robert.mckinstry@gmail.com or bobby@robertbmckinstryjr. com. The authors submitted amicus briefs in support of the Commonwealth's RGGI Regulation discussed in this Article and entered appearances pro bono on behalf of intervenors before the Pennsylvania Public Utility Commission in the remand following Township of Marple v. Pa. Pub. Util. Comm'n, 294 A.3d 965 (Pa. Commw. Ct. 2023). This decision is also discussed in this Article. 1

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