Pa. citizens have constitutional right to clean air, pure water

JOHNSTOWN — “We have met the enemy and they is us,” said the comic character Pogo.

Both political parties sponsored candidates for governor who accepted campaign money from the gas drilling industry – an industry they would be required to regulate if elected.

The Republican candidate, Tom Corbett, received more than $1 million from 15 or more gas drillers and was elected. He then appointed an owner of a drilling company to head his transition team and has appointed his own man as secretary of the Department of Environmental Protection.

He has said he intends to reopen state forests and parks to more gas drilling, reversing the decision of his predecessor. The DEP’s website says that the department wants to be a “partner” with those it regulates. (Imagine an IRS examiner telling a taxpayer he wants to be a “partner,” or the building inspector telling the building contractor, whose work he inspects, that he wants to be a “partner.”)

Pennsylvania is said to be the only state that does not tax the gas drilling industry, the only state that permits gas drilling frack waste (said to be one of the most dangerous substances on Earth) to go into municipal sewage treatment plants – that cannot treat the highly toxic rock-dissolving chemicals and acids – which is then discharged to rivers and streams, and is anticipating more than 50,000 new gas wells in the next 20 years.

People of both parties must demand more than simply victory at the polls. Pennsylvania deserves better. Political leaders and the political process have failed to provide ethical, responsible government.

The New York Times, in a recent Sunday front page story titled “Regulation Lax as Gas Well’s Tainted Water Hits Rivers,” reveals that Environmental Protection Agency scientists warn that drilling waste is a threat to drinking water in Pennsylvania. The Times has learned that the level of radioactivity in frack wastewater is many hundreds or thousands times the maximum allowed by federal standards for drinking water, and that there is no testing for radioactivity at water treatment plants or sewage treatment plants.

Drinking water intakes are often downstream from sewage treatment plants.

The Times calls Pennsylvania “ground zero” and said the state is “overwhelmed and under-prepared.” The Times quotes Corbett’s reason for not taxing the drilling industry, “Regulation (of the gas drilling industry that has been charged with polluting wells, streams, rivers and water tables) has been too aggressive.”

The governor’s webpage lists housing, family services, jobs, economic development, education and senior care – all of which are valid concerns but none of which are constitutional law requirements of the governor’s office.

Environmental protection is the only constitutional mandate of the governor, and it is omitted from the webpage.

Pennsylvania is one of four states that have an Environmental Bill of Rights adopted as amendments to their constitutions. The others are Illinois, Montana and Hawaii.

Pennsylvania’s Environmental Bill of Rights was approved by bipartisan majority vote of two successive sessions of the Legislature and was overwhelmingly approved by the citizens. It became law on May 18, 1971. Gas drilling with fracking is the biggest environmental threat since.

Article I, Section 27 of the Pennsylvania Constitution provides: “The people have a right to clean air, pure water, and to the preservation of the natural scenic, historic and aesthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As Trustees of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.”

This amendment was adopted because Pennsylvania citizens, who still live with the mining impact of 100 years ago, believed that destruction of the environment was an unacceptable price for economic gain. It still is. The intent of the amendment was to prevent environmental harm – not measure and manage it.

When Corbett took the oath of office on Jan. 18, 2011, and became the 46th governor of Pennsylvania, he said, “I do solemnly swear that I will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that I will discharge the duties of my office with fidelity.”

As a lawyer and former attorney general, he understands the oath and duty. So do legislators and judges.

John C. Dernbach, a professor at Widener University’s School of Law and constitutional researcher, points out that Pennsylvania’s environmental constitutional amendment makes environmental protection part of the constitutional purpose of state government. The environment is given the same legal protection afforded to individual property rights and, balanced against those rights, is directed toward environmentally sustainable development.

The public trust part obliges the state to conserve and maintain public natural resources for the benefit of all people. The state is obligated to ensure that consideration and protection of constitutional values concerning the environment are made part of all state decision-making.

Constitutional law is there to prevent environmental degradation.

State officials, especially the governor, have a moral, ethical, legal and fiduciary responsibility, as trustees of state resources, to protect those resources for the beneficiaries – and that is the highest duty under the law.

Pennsylvania citizens, and future generations, are the beneficiaries – not foreign gas drilling companies, their stockholders or those they fund. A fiduciary is legally bound to act within the law in the best interests of the beneficiaries. Citizens are entitled to a state government that accepts, as its first responsibility, the duty to carry out constitutional law.

Natural resources are the common property of all the people, now and forevermore. The governor’s legal constitutional duty is to conserve and maintain those resources for all – not just for the gas drilling industry.

Pennsylvania is not for sale.

March 21, 2011
Ed Smith of Jackson Township is a retired city and county manager.

http://tribune-democrat.com/editorials/x449496875/Pa-citizens-have-constitutional-right-to-clean-air-pure-water