Thursday, June 11, 2015

Dernbach on the Public Trust Doctrine

DernbachJohn Dernbach (Widener) has posted The Potential Meanings of a Constitutional Public Trust (Environmental Law) on SSRN.  Here's the abstract:

The Pennsylvania Supreme Court’s 2013 decision in Robinson Township v. Commonwealth (Robinson Township) has lawyers looking at the state’s constitutional Environmental Rights Amendment (Amendment) — including its public trust provision — as if it magically appeared in the state constitution on the date of the decision. The Amendment had been so thoroughly buried by judicial decisions that most lawyers had never given the text much thought. This Article describes the origin of the Amendment, the two primary cases decided shortly after it was adopted that effectively buried the Amendment, and the Robinson Township decision. It then surveys the wide range of issues that have arisen in the courts and other adjudicatory bodies in the immediate aftermath of Robinson Township and provides suggestions for how some of them should be resolved. Taken together, these cases provide a glimpse of what constitutionally protected environmental rights, including a constitutional public trust, could mean if the Pennsylvania courts continue to treat the Amendment as constitutional law.

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