ELR Citation: ELR 20876
No(s). 365 (Pa. Oct 3, 1973)

Article 1, §27 of the Pennsylvania Constitution, which makes the state a trustee of the public's natural resources with the duty to conserve the "natural, scenic, historic and esthetic values of the environment," is not self-executing, and the governor cannot seek injunctive relief against a private company's construction of an observation tower near the Gettysburg Battlefield without additional authority from the Legislature. Section 27, which was adopted in 1971, grants undefined trustee powers to the Commonwealth without either specifying which branch of government should exercise them or adequately defining the environmental values to be protected. Therefore, in order to avoid serious questions concerning equal protection and due process §27 requires implementing legislation to define the state's powers and establish procedures for the regulation of private property in the interest of the environment. Because of its disposition of the case, the court finds it unnecessary to rule on the lower court's decision that the proposed tower will not irreparably harm the environment.

A vigorous dissent contends that the majority's decision emasculates a clearly self-executing constitutional mandate requiring the state through its executive branch to maintain in trust the natural, scenic, historic and esthetic values of its environment. The dissenters argue that the evidence adduced at trial requires a reversal of the lower court's ruling concerning the tower's lack of adverse effects on those values, and that construction should be enjoined under the unambiguous authority of §27.

Counsel for Plaintiffs
Israel Packel Attorney General
David Kurtz Deputy Attorney General
Rm. 1, Capitol Annex
Harrisburg, PA 17120

Counsel for Defendants
Jerome H. Gerber
Handler, Gerber & Widmer
301 Market Street, Suite 500
Harrisburg, PA 17101

Counsel for Amicus Curiae State of New York
Louis J. Lefkowitz Attorney General
80 Center Street
New York, NY 10013

Mr. Chief Justice Jones fioled a dissenting opinion in which Mr. Justice Eagen joins.

Mr. Justice Roberts filed a concurring opinion in which Mr. Justice Manderino joins.

Mr. Justice Nix concurs in the result.