Jeremy A. Mercer
The Pennsylvania Supreme Court recently expanded the definition of “Commonwealth” in the Pennsylvania Constitution to include local governments but without any reasoned support. See Pa. Envtl. Def. Found. v. Commw., 161 A.3d 911, 931 n.23 (Pa. 2017) (“PEDF”). In a footnote, which arguably is dicta, the Supreme Court said that the trustee referenced in the “Natural Resources and the Public Estate” provision of Pennsylvania’s Constitution (Article I, Section 27) includes local governments despite the Constitution’s express selection of the “Commonwealth” as the trustee.
Trustee obligations are not vested exclusively in any single branch of Pennsylvania’s government, and instead all agencies and entities of the Commonwealth government, both statewide and local, have a fiduciary duty to act toward the corpus with prudence, loyalty, and impartiality.
PEDF, 161 A.3d at 931 n.23.
And what did the Supreme Court use as support for that statement? The Court’s prior decision in Robinson Township v. Commonwealth, 83 A.3d 901, 956-57 (Pa. 2013). But, the problem comes in when you look at that prior decision and the support (or lack thereof) for that decision.
Robinson Township was only a plurality decision. See PEDF, 161 A.3d at 930 (noting Robinson Township to be a plurality decision). But beyond that, the conclusion in Robinson Township itself lacks credible support. It made a broad pronouncement as to the definition of “trustee” and then cited only one case for support.
The Commonwealth is named trustee and, notably, duties and powers attendant to the trust are not vested exclusively in any single branch of Pennsylvania’s government. The plain intent of the provision is to permit the checks and balances of government to operate in their usual fashion for the benefit of the people in order to accomplish the purposes of the trust. This includes local government.
Robinson Twp., 83 A.3d at 956-57 (citing Franklin Twp. v. Commw., 452 A.2d 718, 722 & n.7 [sic] (Pa. 1982)). There are at least two problems with relying on that statement in Robinson Township, though, for the conclusion that “trustee” includes local government.
First, the Franklin Township decision, upon which Robinson Township relies, was a plurality decision. Of the seven justices on the Court, only three signed onto the main opinion. Two justices concurred as to the result only and then focused on a discussion of the Solid Waste Management Act. See Franklin Twp., 452 A.2d at 723 (concurrence by Justice Roberts, joined by Justice O’Brien). Justice Hutchinson wrote a separate concurrence specifically to “disassociate myself from any inference … that article I, section 27 of our Constitution grants local governments, creatures of the sovereign, a right to enforce the duties that section imposes on the sovereign.” Franklin Twp., 452 A.2d at 724. Finally, Justice Nix dissented. See Franklin Twp., 452 A.2d at 724-25.
Second, the Franklin Township case does not state clearly that local governments wield power as a trustee. The language from Franklin Township on which PEDF relies is: “Indeed, it [Article I, Section 27] is a constitutional charge which must be respected by all levels of government in the Commonwealth.” Franklin Twp., 452 A.2d at 722 (emphasis added). Simply put, Franklin Township stands for the unremarkable proposition that all levels of the government have to respect that “[t]he people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.” Pa. Const. art. I, § 27. If the Court had wanted to include all levels of government in the definition of “trustee,” though, it would have written that the provision was a “constitutional charge which must be [enforced by / protected by / conserved by] all levels of government.”
Beyond those problems, the Supreme Court’s pronouncement in the PEDF case ignores Constitutional interpretation principles. Under Pennsylvania law, when “constru[ing] a provision of our Constitution, ‘[o]ur ultimate touchstone is the actual language of the Constitution itself.’” Jubelirer v. Rendell, 953 A.2d 514, 528 (Pa. 2008) (citation omitted; first brackets added). Plus, “‘because the Constitution is an integrated whole, effect must be given to all of its provisions whenever possible.’” Id. (citation omitted). Applying those principle here undercuts the PEDF pronouncement.
The actual language of the provision at issue says that the “Commonwealth” is the trustee: “As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.” Pa. Const. art. I, § 27. Using the actual language as the touchstone, the role of trustee should be limited to the Commonwealth. And looking at the Constitution as an integrated whole, when it wants to differentiate between government at the statewide level (e.g., the Commonwealth) and local government, it does so by using different language:
- “Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right.” Pa. Const. art. I, § 26 (emphasis added).
- “The legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.” Pa. Const. art. II, § 1.
- “[T]he General Assembly may enact laws which provide that the findings of panels or commissions … shall be binding upon all parties and shall constitute a mandate to the head of the political subdivision which is the employer, or to the appropriate office of the Commonwealth if the Commonwealth is the employer … .” Pa. Const. art. III, § 31 (emphasis added).
- “The Executive Department of this Commonwealth shall consist of a Governor, Lieutenant Governor, Attorney General, Auditor General, State Treasurer, and Superintendent of Public Instruction and such other officers as the General Assembly may from time to time prescribe.” Pa. Const. art. IV, § 1.
- “No exemption nor special provision shall be made under this clause with respect to taxes upon the sale or use of personal property, and no exemption from any tax upon real property shall be granted by the General Assembly under this clause unless the General Assembly shall provide for the reimbursement of local taxing authorities by or through the Commonwealth for revenue losses occasioned by such exemption.” Pa. Const. art. VIII, § 2(b)(ii) (emphasis added).
- “Payment to the Commonwealth of gross receipts taxes or other special taxes in replacement of gross receipts taxes by a public utility and the distribution by the Commonwealth to the local taxing authorities of the amount as herein provided … .” Pa. Const. art. VIII, § 4.
- “The Commonwealth shall not assume the debt, or any part thereof, of any county, city, borough, incorporated town, township or any similar general purpose unit of government unless such debt shall have been incurred to enable the Commonwealth to suppress insurrection or to assist the Commonwealth in the discharge of any portion of its present indebtedness.” Pa. Const. art. VIII, § 9.
- “[T]he Commonwealth may be authorized by law to create a debt and issue bonds [to provide financial assistance to] political subdivisions and municipal authorities of the Commonwealth of Pennsylvania … .” Pa. Const. art. VIII, § 16.
Moreover, there is an entire Article of the Pennsylvania Constitution devoted to “Local Government.” Pa. Const. art. IX.
Given the lack of support for the conclusion and the contrary text in the Constitution, we can hope that, in the appropriate case, the Court will recognize its error and correct it so that the Constitution is interpreted to mean what it actually says.
 Article I, Section 27 of the Pennsylvania Constitution, entitled “Natural Resources and the Public Estate” (but colloquially known as the “Environmental Rights Amendment”), provides:
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.
 It is apparent the footnote citation should be to footnote 8 as footnote 7 does not discuss the Constitutional provision at issue and precedes page 722 whereas footnote 8 is on page 722 and contains the text of the Constitutional provision at issue. And while beyond the scope of this post, the Court’s conclusion as to the “plain intent” of the provision at issue is not plain or apparent from that provision.