A litigant challenging the constitutionality of the act commonly known as the Clean Streams Law, for example, must sue the Pennsylvania Department of Environmental Protection, which daily takes executive action to grant or deny permits under authority of the Law. See Section 5 of the Clean Streams Law, 35 P.S. ยง 691.5; Concerned Citizens for Orderly Progress v. Department of Environmental Resources, 36 Pa.Cmwlth. 192;, 387 A.2d 989 (1978) (discussing, inter alia, Department's considerations under Clean Streams Law when issuing permits). To pursue a claim that a provision of the Clean Streams Law, or any state environmental law, violates a constitutionally protected right, an action could be initiated in this Court against the Department and the Secretary of Environmental Protection.
They assert that the EHB erred in concluding that Article I, Section 27 provided authority for its decision. Tri-County asserts that in Concerned Citizens for Orderly Progress v. Department of Environmental Resources, 387 A.2d 989 (Pa.Cmwlth. 1978), the Court stated that under Article I, Section 27 neither the Department nor the EHB had authority to require a private developer to prove benefits; that was the responsibility of the agency. As DEP points out, however, in context the Court's statement simply described the role of the agency in this pre-harms/benefits-test case in the course of carrying out balancing as described in Payne.
PTCA nevertheless argues that it may pursue the issue of the environmental impacts associated with the location of the plant at any stage of the permitting process because the Constitution of Pennsylvania and statutory authority give PTCA the right to do so. PTCA cites Concerned Citizens for Orderly Progress v. Department of Environmental Resources, 36 Pa. Commw. 192, 387 A.2d 989 (1978), for the proposition that, before issuing any permit under the Clean Streams Law, the department is statutorily required to consider the factors specified in sections 5(a)(1), (2), (3) and (5) of the Clean Streams Law, 35 P. S. ยง 691.5(a)(1), (2), (3), (5), and that those criteria necessitate a review of the location of the sewage treatment plant. Specifically, those sections state:
(Emphasis added.) See Concerned Citizens for Orderly Progress v. Department of Environmental Resources, 36 Pa. Commw. 192, 387 A.2d 989 (1978). DER contends that Mathies has waived its right to challenge the use of the mass balance equation to calculate the effluent limitations because it did not specifically do so below.
Id. at 506. Beitman was cited with approval by this Court in Concerned Citizens for Orderly Progress v. Department of Environmental Resources, 36 Pa. Commw. 192, 387 A.2d 989 (1978) wherein we reiterated that it was the duty of the permittee and the DER to convince the Board of the prudence of the permit. The natural resources of the Commonwealth are considered to be a public trust created for the benefit of all people, with the DER, acting for the Commonwealth here, as the trustee.
The Board, however, properly conducted its own examination of the exhaustive record and concluded that the environmental impact of the proposed projects would be negligible, while the social and economic benefits appeared to be significant. See, Concerned Citizens for Orderly Progress v. Department of Environmental Resources, 36 Pa. Commw. 192, 387 A.2d 989 (1978). Article I, Section 27 of the Pennsylvania Constitution states: