Pennsylvania Angler & Boater - May/June 2014 - 4

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Straight

TALK
by John A. Arway

Executive Director
Pennsylvania Fish & Boat Commission

Article 1, Section 27
On December 19, 2013, the Supreme Court of Pennsylvania
issued an opinion that held certain parts of our new Oil
and Gas Act (Act 13 of 2012) unconstitutional. Although
I am a biologist and not a lawyer, I have spent many hours
in court and on the witness stand as an expert witness
defending the rights of our aquatic resources; however, I
will not try to explain the implications of the decision to the
law. My primary interest in studying the decision focused
on the opinion of the three justices who explained their
concerns about how the law was inconsistent with Article 1,
Section 27 of our state constitution. Now, although the joint
opinion of three justices out of seven doesn't qualify for a
majority opinion, I am told that it does meet the definition
of a plurality, which is significant especially when the Chief
Justice agrees. The people in public referendum ratified
Article 1, Section 27, also known as the Environmental
Rights Amendment, on May 18, 1971 by a four to one
margin. I was in undergraduate school at the time, still
trying to figure out what I wanted to do in life and can
clearly remember voting for this amendment. In the voting
booth, it resonated with my personal philosophy about
public rights and trust in government and still does today.
After that 1971 vote, I didn't think much more about the
amendment until I began my career with the Pennsylvania
Fish Commission in 1980. Although I started fresh out of
graduate school as a semi-skilled laborer working on stream
habitat improvement projects, I soon became involved
in the review of mine drainage permit applications as a
rookie fisheries biologist and discovered that our Executive
Director Ralph Abele had a passion for clean water. He
started his career in state government as the executive
secretary of the Joint Legislative Air and Water Pollution
Control and Conservation
Committee of the House
Get questions answered.
and Senate in 1969. During
Share your ideas.
his tenure, he worked with
legislative champions like
Visit
legislators Franklin Kury and
John Laudadio in writing
Article 1, Section 27.

4
Pennsylvania Angler
www.fishandboat.com & Boater * May/June 2014

The early 1980s were days when a coal operator could
travel to Harrisburg and be back home mining coal in the
very same day. However, under Abele's leadership, we were
told to do our duty and fear no one when we applied the
new science to risk analysis with every permit we reviewed.
He would personally sign each permit application review
and include a copy of Article 1, Section 27 in our agency
submission to Department of Environmental Resources
(DER). I had Abele sign and date one of the original copies,
put it in a frame
and have had it
as a reminder to
duty above my
desk ever since.
As a result of
Abele's diligence,
Dr. Maurice
Goddard
called us the
environmental
conscience of
his DER.
Let's now
fast forward
to the present
and reflect upon some of the things that the plurality of
justices said in their opinion (www.pacourts.us/news-andstatistics/cases-of-public-interest/marcellus-shale-act-13)
that provides new meaning and relevance to the amendment.
The plurality spoke about certain constitutional guarantees
in Article 1 and conclude that the people knew what they
voted for in 1971, and it isn't up to any court, legislature or
administration to conclude otherwise. It is a "social contract
between government and the people" and the first section
affirms the inherent rights of the people of Pennsylvania.
The first clause of Section 27 deals with individual
environmental rights and requires all branches of
government to consider the "effect of any proposed action on
the constitutionally protected features." Furthermore, "The
right to "clean air" and "pure water" sets plain conditions by
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http://www.pacourts.us/news-and-statistics/cases-of-public-interest/marcellus-shale-act-13 http://www.pacourts.us/news-and-statistics/cases-of-public-interest/marcellus-shale-act-13 http://www.fishandboat.com

Pennsylvania Angler & Boater - May/June 2014

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