Commonwealth v. National Gettysburg Battlefield Tower, Inc.

Concurring Opinion by

Mr. Justice Roberts:

I agree that the order of the Commonwealth Court should be affirmed; however, my reasons for affirmance are entirely different from those expressed in the opinion of Mr. Justice O’Brien (joined by Mr. Justice Pomeroy).

I believe that the Commonwealth, even prior to the recent adoption of Article I, Section 27 possessed the inherent sovereign power to protect and preserve for its citizens the natural and historic resources now enumerated in Section 27. The express language of the constitutional amendment merely recites the “inherent and indefeasible rights” of mankind relative to the environment which are “recognized and unalterably established” by Article I, Section 1 of the Pennsylvania Constitution.

Prior to the adoption of Article I, Section 27, it was clear that as sovereign “the state has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. . . .” Georgia v. Tennessee Copper Co., 206 U.S. 230, 237, 27 S. Ct. 618, 619 (1907). The proposition has long been firmly established that “[i]t is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted . . . , that the forests on its mountains, be they better or worse, and whatever domestic destruction they have suffered, should not be further destroyed or threatened . . . , that the crops and orchards on its hills should not be endangered . ...” Id. at 238, 27 S. Ct. *207at 619. Parldands and historical sites, as “natural resources”1 are subject to the same considerations.

Moreover, “it must surely be conceded that, if the health and comfort of the inhabitants of a state are threatened, the state is the proper party to represent and defend them. . . .” Missouri v. Illinois, 180 U.S. 208, 241, 21 S. Ct. 331, 344 (1901). Since natural and historic resources are the common property of the citizens of a state, see McCready v. Virginia, 94 U.S. 391 (1876), the Commonwealth can—and always could— proceed as parens patriae acting on behalf of the citizens and in the interests of the community,2 or as trustee of the state’s public resources.3

However, in my view, the Commonwealth, on this record, has failed to establish its entitlement to the equitable relief it seeks, either on common-law or constitutional (prior or subsequent to Section 27) theories. The chancellor determined that “[t]he Commonwealth has failed to show by clear and convincing proof that the natural, historic, scenic, and aesthetic values of the Gettysburg area will be irreparably harmed by the erection of the proposed tower at the proposed *208site.” I believe that the chancellor correctly denied equitable relief. The Commonwealth Court concluded that the chancellor’s findings should not be disturbed and that the Commonwealth was not entitled to relief.

I am unable, on this record, to find any error in either the chancellor’s determination or that of the Commonwealth Court. Moreover, I entertain serious reservations as to the propriety of granting the requested relief in this case in the absence of appropriate and articulated substantive and procedural standards. See Just v. Marinette County, 56 Wisc. 2d 7, 201 N.W. 2d 761 (1972).

Mr. Justice Manderino joins in this concurring opinion.

See Snyder v. Board of Park Comm’rs, 125 Ohio St. 336, 339, 181 N.E. 483, 484 (1932): “[We] are of opinion that, to the extent to which a given area possesses elements or features which supply a human need and contribute to the health, welfare and benefit of a community, and are essential for the well being of such a community and the proper enjoyment of its property devoted to park and recreational purposes, the same constitute natural resources.”

See Georgia v. Pennsylvania R.R. Co., 324 U.S. 439, 65 S. Ct. 716 (1945); Sparhawk v. Union Passenger Ry. Co., 54 Pa. 401 (1867).

See, e.g., Illinois Central R.R. Co. v. Illinois, 146 U.S. 387, 13 S. Ct. 110 (1892); Sax, the Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970); cf. Abel v. Girard Trust Co., 365 Pa. 34, 41, 73 A. 2d 682, 685 (1950); Restatement (Second) of Trusts §391 (1959); Broughton, The Proposed Pennsylvania Declaration of Environmental Rights, 41 Pa. B. Ass’n Q. 421, 422-23 (1970).