HARRISBURG, Pa. (AP) - Five days before Christmas, Franklin Kury stepped off Amtrak’s afternoon Keystone service in Middletown, one stop shy of Harrisburg, on a return trip from an eye doctor’s appointment in Philadelphia. It was cold, cloudy and dry. The snow that had fallen two days earlier was beginning to disappear and would be gone entirely if temperatures hit the predicted 70 degrees over the weekend.
As the 77-year-old former state legislator started the car, his thoughts were on the good report he received from the doctor - a report Kury looked forward to sharing with his wife Beth over dinner at home in Hummelstown.
Kury never suspected the afternoon would become one of the most memorable of his life.
Kury’s cellphone rang.
It was his friend John Dernbach, an environmental law professor at Widener University.
“Have you seen this?” Dernbach asked. “Franklin, you’ve got to read this!”
As Dernbach began to explain that the Pennsylvania Supreme Court had just issued a ruling in a case involving the pre-emption of local zoning ordinances, Kury learned for the first time that the recent and rapid expansion of drilling for natural gas in the Marcellus shale had produced for him a thoroughly unexpected gift.
“I have never been involved in oil and gas,” said Kury. “It was the first time I had any knowledge of the case.”
The case - Robinson Township v. Commonwealth of Pennsylvania - was already being trumpeted in a slew of press releases that afternoon as a great victory over the natural gas industry.
The lawsuit - which had been filed by an eclectic group of environmentalists and local government officials from around the state, including Washington County’s Robinson Township - challenged key portions of Act 13 of 2012, the predominantly Republican legislation that was supposed to address both environmental and gas industry concerns over drilling in the Marcellus shale.
Act 13 updated the state’s oil and gas laws to increase some restrictions on the drilling industry, and it extended the legal no-drilling zones around rivers, streams and wetlands.
But the law also pre-empted local zoning to allow drilling activity in all areas, all across the state.
That one-size-fits-all zoning scheme, the Supreme Court said, amounted to a “blanket accommodation of industry,” and - in a landmark decision - the court ruled Act 13’s zoning provisions unconstitutional.
The Supreme Court ruling upended the balance of power away from the natural gas industry and toward environmental protection advocates, eager to better regulate how shale gas is extracted in the Keystone State.
The ruling overturned 40 years of what had been considered settled case law and opened up a whole new world of environmental litigation that did not really exist in Pennsylvania before.
Drillers and environmentalists alike are still dissecting the court’s decision to see what impact it may really have on Pennsylvania, traditionally one of the most business-friendly states in the nation.
But Kury had no role in the anti-drilling campaign or the flurry of press releases that afternoon. He got the call from Dernbach because the ruling was, in fact, about much more than the gas industry.
It was a tectonic shift in the constitutional landscape of Penn’s Woods.
And it was a reaffirmation - a vindication even - of Kury’s greatest achievement as a legislator, for Kury is the man who in 1969 wrote Article 1, Section 27 of the Pennsylvania Constitution, popularly known as the Environmental Rights Amendment.
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Pennsylvania is one of only three states (with Montana and Rhode Island) to place citizens’ environmental rights on par with their political rights in a Constitutional Declaration or Bill of Rights.
Though it eventually was affirmed in natural gas, Pennsylvania’s Environmental Rights Amendment was born of coal.
Kury grew up in coal country. Two of his grandfathers - one of whom would die of black lung - were deep anthracite coal miners.
As a child, Kury played next to culm banks; as a young lawyer in Sunbury he saw firsthand the damage coal companies had done, and as a candidate for the state House in 1966, he pledged to clean up that damage with a platform “For Clean Streams and Clean Politics.”
Kury’s victory that year in a majority-Republican district rested largely on two facts: local streams ran red and sometimes black from pollution with massive fish kills a common occurrence even in the Susquehanna, and the long-time Republican incumbent was one of just six legislators who had voted the year before against making coal companies fully subject to regulation.
For more than a century, the coal industry had no regulation at all.
Worse, the industry often had active license to pollute.
Kury points to a 1905 deed he discovered while doing a title search in the early days of his law practice in Sunbury. The deed reserves the right “to discharge into any streams and tributaries thereof passing through the above described lands, mine-water, culm coal-dirt, slate and refuse generally” - making the owner forever immune from “all suits, claims, demands and damages whatsoever.”
The coal companies “didn’t give a damn,” said Kury.
There were 10 state hospitals in the coal region, he notes, because the coal companies wouldn’t provide for employees. The taxpayers had to. “That’s how damned brazen they were.”
The coal industry left in its wake literal mountains of mining refuse, some of which would occasionally catch fire, some of which would occasionally collapse into a nearby stream killing everything in it for miles downstream.
Highly acidified water drained out of old mines, turning nearby streams red with oxidate and rendering them devoid of life.
Large stretches of the landscape were scarred with strip mining pits.
In 1959, the Knox Coal Company had its employees dig under and then up to within six feet of the bottom of the Susquehanna River, which broke through and disappeared into the Pittston coal vein in a great whirlpool. Twelve were killed, and it took three days of dumping everything from railroad cars to hay bales into the hole to plug it.
Three years later, in 1961, fish went belly-up for some 50 miles along the Susquehanna as the Glen Alden Coal Company began pumping millions of gallons of highly acidic water out of its mine and into the river, causing the largest fish kill in Pennsylvania history.
The following year, the coal seam beneath the town of Centralia caught fire, and continues to burn today.
Simply to resolve the problem of abandoned coal mines, it is predicted the state would have to spend more than $15 billion.
By the time Kury got to Harrisburg, the pro-coal tide had turned.
Republicans and Democrats alike were interested in cleaning up the environment and making sure the disasters past didn’t happen again.
Between 1965 and 1971, the Legislature passed more environmental laws than in the rest of the state’s history combined. Kury had an active hand in many of those laws.
While the environmental tide was high, Kury decided it was time to enshrine environmental protection in the Constitution itself.
Kury knew the pendulum would swing the opposite direction eventually, and he knew it would be relatively easy for future legislatures to change those laws.
It’s not nearly so easy to change the Constitution.
Make clean air and pure water a right, just like free speech.
Make the state trustee of its public natural resources and responsible for conserving them for generations yet unborn.
Kury’s plan became a strong bipartisan effort - Republicans and Democrats in both the House and the Senate joined not once, but twice to pass the amendment unanimously.
It then was approved 4 to 1 by Pennsylvania voters and became Section 27 of Article 1, the state Constitution’s declaration of rights.
It reads:
“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 of 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.”
Kury had won.
And yet, over time, the pendulum did swing back, and the environmental flame slowly guttered.
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The Supreme Court’s December ruling in Robinson Township v. Commonwealth of Pennsylvania - specifically the plurality opinion written by Republican Chief Justice Ronald Castille - is a landmark opinion that is getting international attention.
For the first time ever, the court used Kury’s amendment to strike down a law, and for the first time ever, the court explained the amendment’s importance and purpose.
As Franklin Kury pored over the 162 pages of the plurality opinion, he saw - to his great satisfaction - the court got it right as far as the constitution was concerned.
“They understood where we were coming from,” said Kury. “How you apply it is a different question, and I leave that to the lawyers in the case. That’s lawyers’ business.”
To fully understand the ruling’s significance, one must understand what had become of Kury’s constitutional amendment.
A court test shortly after the amendment was adopted “led to a series of cases that say the amendment only applies when the legislature says so,” explained Dernbach, Distinguished Professor of Law at Widener University’s Harrisburg campus and co-director of Widener’s Environmental Law Center.
“You would never ever say the right to free speech only applies when the legislature says so,” he noted, but nevertheless that was how the Environmental Amendment was interpreted, despite the fact it is in the same constitutional “Declaration of Rights” as the protection of free speech.
Another early 1970s case established a three-part balancing test for when the amendment did apply, but Dernbach explained the three-part test “has nothing to do with the text of the amendment” and has in fact been used as a substitute for the amendment.
Because Kury’s amendment gave environmental rights constitutional parity with property rights, it strengthened environmental enforcement by state agencies such as the Department of Environmental Protection.
But citizen - and sometimes even state - challenges to specific projects rarely succeeded because the courts’ “balancing test” judged a project on whether or not it complied with existing regulations, whether an attempt had been made to mitigate environmental damage and whether that damage so clearly outweighed any benefits that proceeding would be “an abuse of discretion.”
It rarely did.
Kury was gratified that his amendment “had a broad and subtle impact,” fundamentally altering the regulatory landscape in Pennsylvania and requiring developers to consider environmental impact before breaking ground.
But he was also aware that his amendment was popularly regarded as having no teeth in court.
Kury was optimistic nonetheless. In his 2011 memoir “Clean Politics, Clean Streams,” he wrote: “There is always the potential for a future court to apply the amendment in ways that we cannot now imagine.”
And so one did.
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The 40-year status quo is perhaps best captured by the court’s summary of the Attorney General’s defense of Act 13: “In short, the Commonwealth’s position is that the Environmental Rights Amendment recognizes or confers no right upon citizens and no right or inherent obligation upon municipalities; rather, the constitutional provision exists only to guide the General Assembly, which alone determines what is best for public natural resources, and the environment generally, in Pennsylvania.”
Dernbach said, “All of that was upended by the Supreme Court’s decision.”
Chief Justice Castille’s opinion puts Article 1, Section 27 back in the context for which it was intended - and with the force intended.
Castille’s opinion says the right to clean air and pure water delineated in Kury’s amendment “is on par with, and enforceable to the same extent as, any other right reserved to the people in Article 1.”
Those rights include the right to life, liberty, property and the pursuit of happiness, freedom of speech, freedom of religion, the right to trial by jury and the right to bear arms.
What’s more, the opinion notes, “The Environmental Rights Amendment speaks of the rights of ’the people.’
“The only other constitutional provision similarly formulated is interpreted to guarantee a constitutional right personal to each citizen: ’The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures.’”
Castille wrote: “The right articulated is neither meaningless nor merely aspirational.”
According to Castille’s opinion, “By any responsible account, the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction. The litigation response was not available in the nineteenth century, since there was no Environmental Rights Amendment. The response is available now.”
In using the Environmental Rights Amendment to strike down Act 13, Castille wrote: “This court has an obligation to vindicate the rights of its citizens.”
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Several months have now passed since that momentous afternoon, and Kury has had time to put it all in perspective.
He’s modest.
“I feel really good about it,” he said.
Castille’s opinion cites the legal analysis Kury placed in the record before the amendment was ratified. It cites his statement before the vote. It cites the question and answer sheet he sent to the media in advance of the public vote. It even cites his memoir.
“The Court did a lot of homework on this,” he said.
Castille’s opinion - declaring that “the past is the necessary prologue” to the present case - eloquently recites the environmental horrors left in the wake of 19th- and early 20th-century industry’s short-sighted exploitation of the environment, and it quotes Kury, saying: “We uglified our world and called it progress.”
The opinion says history threatens to repeat itself with the gas industry’s exploitation of Marcellus shale - but for the fact of Kury’s Environmental Rights Amendment.
Kury himself is ambivalent about the specifics in the fight over drilling for natural gas, but he did say that a one-to-one comparison of the gas industry to the coal industry is not entirely appropriate in his opinion.
“The coal industry had no regulations,” said Kury. “Gas and oil are under a lot of regulation. Is it adequate? That’s a different question. But they are regulated. We should have been so lucky with the coal industry.
“They’re also much more public conscious than the coal companies ever were,” said Kury. “The coal companies just didn’t give a damn.”
Many of the implications of the Supreme Court ruling remain uncertain.
Kury said that’s fine - that’s the job for lawyers.
But one thing is certain: going forward, the Environmental Rights Amendment will have the clout intended.
It took more than 40 years, but Kury said, “I’m glad to be able to see it.”
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Online:
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Information from: The Patriot-News, https://www.pennlive.com/patriotnews
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