COMMONWEALTH of Pennsylvania, Appellant, v. Charles E. LUTZ, Appellee.
Supreme Court of Pennsylvania.
Argued March 7, 1986. Decided Oct. 17, 1986.
516 A.2d 339
James E. DePasquale, Elash, Miller & DePasquale, Samuel M. Pontier, Pittsburgh, for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, MCDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
HUTCHINSON, Justice.
The Commonwealth directly appeals a Westmoreland County Common Pleas’ order dismissing several criminal charges filed against appellee. He was charged with violating
In a pre-trial motion, appellee challenged the validity of the charges on constitutional grounds. He claimed that the warrantless search provisions of the Act were unconstitutional.2 Common Pleas agreed and dismissed those charges because it believed appellee was entitled to prevent an unconstitutional search.3 The Commonwealth appealed to Commonwealth Court. That court transferred the case to us pursuant to
On analysis of the statute and relevant case law, we conclude that the warrantless inspection provisions of the Act, in the current absence of a regulation defining the circumstances under which such inspections of non-hazardous waste will be conducted, violates the Fourth Amendment of the United States Constitution. We also believe that the “open fields” doctrine, developed under the Fourth Amendment, does not apply in this case. The lands here were used for commercial activities which, because of a strong public interest, requires extensive and pervasive regulation and the attempted search involved an actual physical intrusion. See Dow Chemical Co. v. United States, --- U.S. ---, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986). The order of Common Pleas is affirmed.
In January of that year, appellee took some oily waste from a spill site in Westmoreland County. In that same month, the Department attempted to search his property to determine whether that material had been illegally dumped on it. Appellee refused to admit them. The Department then contacted appellee‘s attorney to arrange a consensual search of the property. It was agreed that the Department‘s agents would identify themselves to the Lutz family before actually searching the property. Appellee‘s attorney testified at the hearing in this case that he believed that this procedure would be followed whenever the Department wished to search his client‘s property. The Department‘s attorney stated that the procedure was intended only for the search in January. The Department did in fact follow the procedure at that time.
On April 22, 1982, two Department agents attempted to conduct a search of appellee‘s property without either obtaining a search warrant or attempting to contact appellee before conducting the search. The agents had been told by an anonymous informant that solid waste was on appellee‘s property. Appellee refused to allow the agents to carry out their search, confiscated a camera and empty sample bottles and ordered the agents off his property. The agents com
The Department, as appellant, claims that the Solid Waste Management Act allows it to conduct warrantless searches for all solid wastes. Section 608 of the Act provides:
§ 6018.608. Production of materials; recordkeeping requirements; rights of entry
The department and its agents and employees shall:
(1) Have access to, and require the production of, books and papers, documents, and physical evidence pertinent to any matter under investigation.
(2) Require any person or municipality engaged in the storage, transportation, processing, treatment or disposal of any solid waste to establish and maintain such records and make such reports and furnish such information as the department may prescribe.
(3) Enter any building, property, premises or place where solid waste is generated, stored, processed, treated or disposed of for the purposes of making such investigation or inspection as may be necessary to ascertain the compliance or noncompliance by any person or municipality with the provisions of this act and the rules or regulations promulgated hereunder. In connection with such inspection or investigation, samples may be taken of any solid, semisolid, liquid or contained gaseous material for analysis....
The stated legislative policy of the Act is to “provide a flexible and effective means to implement and enforce the provisions of this act.”
Section 608, quoted above, empowers the Department to have materials produced and records kept and affords it a right of entry5 where solid waste is generated or otherwise managed. This section provides that the Department shall enter such facilities. Shall is ordinarily construed as an imperative. Commonwealth v. Garland, 393 Pa. 45, 142 A.2d 14 (1958). Thus, while Section 608 is silent on the question of a warrant, we believe that it was the intent of the legislature to authorize warrantless searches pursuant to Section 608(3).6
Furthermore, Section 610, which proscribes certain conduct, provides in pertinent part:
It shall be unlawful for any person or municipality to:
....
(7) Refuse, hinder, obstruct, delay, or threaten any agent or employee of the department in the course of performance of any duty under this act, including, but not limited to, entry and inspection under any circumstances.
Against this construction appellee argues that the Act provides a procedure whereby the Department may obtain a search warrant.
Thus, the Department may obtain a warrant if it anticipates a landowner‘s refusal of a warrantless search. It also has the authority to obtain a warrant, without a full court hearing, after such a refusal. Section 609 gives the Department the flexibility it needs without requiring the issuance of a warrant in all cases. Nonetheless, although the Act authorizes warrantless searches by the Department, mere statutory authorization of this conduct is not enough. Any such search is still subject to constitutional limitations.
The United States Supreme Court has analyzed the constitutionality of similar statutes allowing administrative searches of commercial operations under the federal constitution. In 1967, that Court determined that Fourth Amendment protections do indeed apply to commercial property. See See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); Camara v. Municipal Court, supra. On several occasions it has held that certain warrantless administrative searches without probable cause may be constitutional:
The greater latitude to conduct warrantless inspections of commercial property reflects the fact that the expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual‘s home, and that this privacy inter-
est may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections.
Donovan v. Dewey, 452 U.S. 594, 598-99, 101 S.Ct. 2534, 2537-38, 69 L.Ed.2d 262 (1981). The Court summarized the cases on this issue by stating:
These decisions make clear that a warrant may not be constitutionally required when Congress has reasonably determined that warrantless searches are necessary to further a regulatory scheme and the federal regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.
Id. at 600, 101 S.Ct. at 2539. By this analysis, the Court in Dewey upheld a warrantless inspection under the Mine Safety and Health Act of 1977, 30 U.S.C. §§ 801-962. In doing so, the Court seemingly relied on the pervasive regulation of mining, the regularity of the inspections and the strong federal interest in protecting persons employed in the mining industry.
In Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), the Court also held that, because of its history of pervasive regulation, the alcoholic beverage industry was subject to warrantless searches to promote federal interests in the control of the sale of alcohol. Likewise, in United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), the Court held that warrantless searches under the Gun Control Act of 1968, 18 U.S.C. §§ 921-929, were justified because there was a comprehensive inspection scheme, a strong federal interest in gun control, and only a limited threat to the privacy of the gun dealer.
However, in Marshall v. Barlow‘s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), the Court invalidated a warrantless inspection under Section 8(a) of the Occupational Safety and Health Act, 29 U.S.C. § 657(a). Because the OSHA provisions covered all businesses engaged in inter-
In each of these cases, the United States Supreme Court balanced the need for warrantless regulatory searches against the business owner‘s expectation of privacy. In so doing, it looked at four factors: first, whether the business operator is on notice that he is engaged in activity which may subject him to warrantless searches; second, whether the regulation of the industry is pervasive and regular, considering the history of the regulatory scheme as a factor in this determination; third, whether there is a strong governmental interest in the search; and fourth, whether there are reasonable legislative or administrative standards governing the search.8
We believe that the fourth requirement is not satisfied on the record before us. The Dewey Court, in analyzing the provisions of the Mine Safety and Health Act, noted that it provided inspections at least four times per year for underground mining, and at least twice a year for surface mining operations. The Solid Waste Management Act does not set up any specific schedule of inspections. The Department is merely given the power to conduct inspections at any reasonable time. Thus, there is no legislative determi-
However, the Department has failed to properly and publicly set forth any further definition. The regulations adopted by the Department and published in the Pennsylvania Code,
The trial court in the case before us held that Dewey, supra, required legislative or administrative periodicity for searches in all cases. We do not believe this is an accurate reading of Dewey.10 In Colonnade Catering, supra, Congress gave extremely broad powers to the Treasury Department to conduct searches for liquor violations. The United
In industries where the governmental interest is special, either because of a long history of pervasive regulation, as in the case of alcohol, Colonnade Catering, or firearms, Biswell, or because of the nature of the risks involved, as in the nuclear power industry, see Dewey, supra, 452 U.S. at 606, 101 S.Ct. at 2542 (quoted below), warrantless searches with minimal restrictions are permitted because operators who engage in such businesses are on notice that they will be subject to them. Thus, the operators’ expectation of privacy is reduced and such searches are constitutional because they must reasonably be expected by the persons in those businesses.
Hazardous waste poses severe public health risks not only to those working in the industry but to the public at large. It is the type of business that can be reasonably subjected to warrantless searches with minimal definition. This is so, even though the special dangers of hazardous waste and its consequent separation from other solid waste for special regulatory treatment is recent. As the Court said in Dewey:
Under [the view that there must be a longstanding regulatory scheme in all cases], new or emerging industries, including ones such as the nuclear power industry that pose enormous potential safety and health problems could never be subject to warrantless searches even under the most carefully structured inspection program simply because of the recent vintage of regulation.
452 U.S. at 606, 101 S.Ct. at 2542. By definition, the interests of the public at large must predominate when hazardous waste is involved. Our statute categorizes as
(1) cause or significantly contribute to an increase in mortality or an increase in morbidity in either an individual or the total population; or
(2) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of or otherwise managed.
We do not believe the same is true with respect to non-hazardous solid waste, the material involved in this case. The Act covers all waste, including municipal, residual or hazardous wastes. It specifically defines agricultural waste, food processing waste, hazardous waste (discussed, supra), municipal waste, and residual waste. While we recognize an important public interest in controlling non-hazardous waste, it does not rise to the same level of concern as hazardous waste. Although certainly unpleasant at times, ordinary solid waste does not pose the same danger to public health as hazardous waste. Since the public interest is less vitally affected and the industry itself has fewer of the special characteristics that would put an operator on notice of random regulatory searches, we believe that warrantless searches for ordinary solid waste cannot withstand constitutional scrutiny absent proper adoption by the Department of a flexible inspection schedule or a reasonable definition of the circumstances under
Alternately, the Department argues that the search should be upheld under the “open fields” exception to the Fourth Amendment.12 That exception, first set out by the United States Supreme Court in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), and recently reaffirmed in Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), states that there can be no reasonable expectation of privacy in areas beyond the traditional curtilage surrounding one‘s home.
The United States Supreme Court has just addressed a question similar to that presented here: the applicability of the open fields doctrine to outdoor commercial property. In Dow Chemical Co. v. United States, --- U.S. ---, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986), the Court analyzed whether the Environmental Protection Agency could lawfully take aerial photographs of Dow‘s chemical processing plant. That plant, because of the size of its facility and the dangers of conducting the activity in closed spaces, left much of its equipment exposed to the elements. The plant was subject to extremely stringent security precautions to protect its trade secrets.
The Court held that taking aerial photographs of the plant did not violate the Fourth Amendment because the pictures were of items that could ordinarily be seen in the air. The Court did note the limited nature of its holding:
Admittedly, Dow‘s enclosed plant complex, like the area in Oliver, does not fall precisely within the “open fields” doctrine. The area at issue here can perhaps be seen as falling somewhere between “open fields” and curtilage, but lacking some of the critical characteristics of both.
Dow‘s inner manufacturing areas are elaborately secured to ensure they are not open or exposed to the public from the ground. Any actual physical entry by EPA into any enclosed area would raise significantly different questions, because “[t]he businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property.” See v. City of Seattle, supra [387 U.S. 541], at 543 [87 S.Ct. at 1739]. The narrow issue raised by Dow‘s claim of search and seizure, however, concerns aerial observation of a 2,000-acre outdoor manufacturing facility without physical entry.
106 S.Ct. at 1825-26 (footnotes omitted). The Court also noted, in limiting the application of this case, that it was not addressing any question of general “business curtilage.” 106 S.Ct. at 1827 n. 7.
We believe that the case before us is distinguishable from Dow. The Department attempted actual entry onto private land that was not visible from any public area. Dow‘s holding is expressly limited to aerial searches. The implication of the above-quoted language is that physical entry into the enclosed plant complex, even the outdoor portions of that area, would not be permissible because that area is not an open field.
The conclusion that outdoor business areas are not open fields is consistent with the purpose of the open fields doctrine. The basic premise of the open fields doctrine, that there can be no reasonable expectation of privacy in an open field, is at times incompatible with the idea that a business owner has a reasonable expectation of privacy in his property. This is especially true where the business must, by its nature, be conducted outside. See, e.g., United States v. Swart, 679 F.2d 698 (7th Cir.1982) (used car dealer‘s parking lot was part of the “business curtilage” and was not subject to warrantless search after business hours); Allinder v. Ohio, 614 F.Supp. 282 (N.D. Ohio 1985), appeal pending, No. 85-3664 (6th Cir.) (open fields doctrine cannot
Thus, because the Court in Oliver, supra, required a balancing of governmental intrusion against the societal values protected by the Fourth Amendment, 104 S.Ct. at 1743, we believe that in this case the legitimate expectation of privacy, protected by the provisions of the Act and the decisions of the United States Supreme Court discussed in the first portion of this opinion, renders the open fields doctrine inapplicable to this property. The Department cannot rely on it to justify its search of appellee‘s property. Because we can find no constitutional exception to the requirement of a warrant in this case, we would affirm the dismissal of the charges.
The order of the Court of Common Pleas of Westmoreland County is affirmed.
FLAHERTY, J., joins in the opinion announcing the judgment of the Court and files a concurring opinion.
NIX, J., files a concurring opinion.
LARSEN, J., files a dissenting opinion in which MCDERMOTT and PAPADAKOS, JJ., join.
FLAHERTY, Justice, concurring.
I join the opinion announcing the judgment of the Court authored by Mr. Justice Hutchinson, although I am compelled to express the view that the discussion regarding hazardous waste is unnecessary and goes beyond the issue in this case.
NIX, Chief Justice, concurring.
The appellant, the court below and my brethren on this Court have focused upon the constitutionality of the “warrantless search provisions” provided for in the Enforcement and Remedies sections of Article VI of the Solid Waste Management Act, Act of July 7, 1980, P.L. 380, No. 97, 35 P.S. §§ 6018.601-6018.617 (Supp.1986). Yet nowhere in
It should not be necessary to remind the members of this Court that it is a cardinal rule of statutory construction that it be assumed that the legislature did not intend to violate the Constitutions of the United States and of this Commonwealth. 1 Pa C.S. § 1922(3); Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (1986); Hospital Utilization Project v. Commonwealth, 507 Pa. 1, 487 A.2d 1306 (1985); Krenzelak v. Krenzelak, 503 Pa. 373, 469 A.2d 987 (1983); Wajert v. State Ethic Commission, 491 Pa. 255, 420 A.2d 439 (1980); Triumph Hosiery Mills v. Commonwealth, 469 Pa. 92, 364 A.2d 919 (1976); Devlin v. Osser, 434 Pa. 408, 254 A.2d 303 (1969); Philadelphia v. Depuy, 431 Pa. 276, 244 A.2d 741 (1968); Bentman v. Seventh Ward Democratic Committee, 421 Pa. 188, 218 A.2d 261 (1966); Milk Control Commission v. Battista, 413 Pa. 652, 198 A.2d 840 (1964); Commonwealth v. McCoy, 405 Pa. 23, 172 A.2d 795 (1961); Baker v. Retirement Board of Allegheny County, 374 Pa. 165, 97 A.2d 231 (1953); Spigelmire v. North Braddock School District, 352 Pa. 504, 43 A.2d 229 (1945). This is particularly true where one must strain to reach the unconstitutional meaning, Consumer Party of Pennsylvania v. Commonwealth, supra; Philadelphia Housing Authority v. Commonwealth, Pennsylvania Labor Relations Board, 508 Pa. 576, 499 A.2d 294 (1985); Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982); Commonwealth v. College, 497 Pa. 71, 439 A.2d 107 (1981); In Re: Estate of Baker, 496 Pa. 577, 437 A.2d 1191 (1981); Commonwealth v. Mumma, 489 Pa. 547, 414 A.2d 1026 (1980); Stegmaier Estate, 424 Pa. 4, 225 A.2d 566 (1967); Davis v. Sulcowe, 416 Pa. 138, 205 A.2d 89 (1964), which in my judgment is the case here.
Section 608(3), the subsection said to authorize a “warrantless entry,” simply provides that the Department and its agents and employees shall:
(3) Enter any building, property, premises or place where solid waste is generated, stored, processed, treated or disposed of for the purposes of making such investigation or inspection as may be necessary to ascertain the compliance or noncompliance by any person or municipality with the provisions of this act and the rules or regulations promulgated hereunder. In connection with such inspection or investigation, samples may be taken of any solid, semisolid, liquid or contained gaseous material for analysis. If any analysis is made of such samples, a copy of the results of the analysis shall be furnished within five business days to the person having apparent authority over the building, property, premises or place.
This subsection merely defines the Department‘s obligations to perform on-site investigations and inspections. It does not authorize any entry that would be violative of existing law. This is clearly evident because the very next paragraph, section 609, provides for an administrative search warrant,1 which clearly would satisfy constitutional standards, for the carrying out of the responsibilities imposed under subsection 608(3). The obvious question that is raised by an interpretation that would read section 608(3) as providing a blanket authority for warrantless investigations
It is also argued that subsection 610(7) is conclusive proof that subsection 608(3) was intended to authorize a warrantless entry. Section 610(7) provides:
It shall be unlawful for any person or municipality to:
....
(7) Refuse, hinder, obstruct, delay, or threaten any agent or employee of the department in the course of performance of any duty under this act, including, but not limited to entry and inspection under any circumstances.
To argue that this provision embraces any entry, whether lawful or not, would again violate fundamental concepts of statutory construction. The obvious meaning of the use of the word “entry” in the last clause of the above quoted subsection is an “entry” permitted under the provisions of the Act. That would therefore require the entry to be either consented to by the landowner or pursuant to a warrant secured under section 609.
I therefore agree with appellee that subsection 608(3) did not implicitly provide for a warrantless entry and since the entry was unauthorized the criminal charges against appellant were properly dismissed. For that reason I would affirm the order of the court below.
LARSEN, Justice, dissenting.
In my opinion, the warrantless inspection provisions of the Solid Waste Management Act (the “Act“), section 608,
In Donovan v. Dewey, the United States Supreme Court stated:
[U]nlike searches of private homes, which generally must be conducted pursuant to a warrant in order to be reasonable under the Fourth Amendment, legislative schemes authorizing warrantless administrative searches of commercial property do not necessarily violate the Fourth Amendment.
...
The greater latitude to conduct warrantless inspections of commercial property reflects the fact that the expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual‘s home, and that this privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections....
The interest of the owner of commercial property is not one in being free from any inspections. Congress has broad authority to regulate commercial enterprises engaged in or affecting interstate commerce, and an inspection program may in some cases be a necessary component of federal regulation.
* * * * * *
These decisions make clear that a warrant may not be constitutionally required when Congress has reasonably determined that warrantless searches are necessary to further a regulatory scheme and the federal regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.
452 U.S. at 598-99, 601, 101 S.Ct. at 2538-39 (citations omitted; emphasis added).
The majority seems to hold that the warrantless inspections authorized by the Act are almost valid under the
ordinary solid waste does not pose the same danger to public health as hazardous waste. Since the public interest is less vitally affected and the industry itself has fewer of the special characteristics that would put an operator on notice of random regulatory searches, we believe that warrantless searches for ordinary solid waste cannot withstand constitutional scrutiny absent proper adoption by the Department of a flexible inspection schedule or a reasonable definition of the circumstances under which such searches will be conducted.
Majority op. at 204.
The majority‘s attempt to distinguish this case from ”Colonnade-Biswell exception” cases because this case involves “ordinary solid waste” is unpersuasive, for two reasons.
First, the majority‘s factual assumption is wrong—we do not know what kind of waste the Department of Environmental Resources’ inspectors would have found on April 22, 1982, because the inspectors were not able to take samples that day after they were ordered off the property by
The second flaw in the majority‘s distinction is that, even if there had only been non-hazardous, “ordinary solid waste” involved in this case, the legislature has determined that the risk to the public health, safety and welfare, and to the environment, posed by “improper and inadequate solid waste practices,” both hazardous and non-hazardous, necessitates the warrantless inspection procedures authorized by
There is a strong and fundamental presumption that the legislature has acted within constitutional bounds. Commonwealth v. Zettlemoyer, 500 Pa. 16, 58-60, 454 A.2d 937, 959 (1983), cert. denied 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983); American Trucking Associations, Inc. v. Scheiner, 510 Pa. 430, 452, 509 A.2d 838, 849 (1986); Commonwealth v. Mikulan, 504 Pa. 244, 247, 470 A.2d 1339, 1340 (1983). Consequently, one challenging the constitutionality of a legislative enactment bears the heavy burden of demonstrating that it clearly, plainly and palpably violates some specific mandate or prohibition of the constitution. Id. Snider v. Thornburgh, 496 Pa. 159, 166, 436 A.2d 593, 596 (1981).
In considering the constitutionality of the Solid Waste Management Act, we must also bear in mind that it was enacted to implement the will of the people as expressed in Article I, section 27 of the Pennsylvania Constitution, which provides:
Natural resources and the public estate
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 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.
Adopted May 18, 1971.
See
...
The Legislature hereby determines, declares and finds that, since improper and inadequate solid waste practices create public health hazards, environmental pollution, and economic loss, and cause irreparable harm to the public health, safety and welfare, it is the purpose of this act to:
(1) establish and maintain a cooperative State and local program of planning and technical and financial assistance for comprehensive solid waste management;
(2) encourage the development of resource recovery as a means of managing solid waste, conserving resources, and supplying energy;
(3) require permits for the operation of municipal and residual waste processing and disposal systems, licenses for the transportation of hazardous waste and permits for hazardous waste storage, treatment, and disposal;
(4) protect the public health, safety and welfare from the short and long term dangers of transportation, processing, treatment, storage, and disposal of all wastes;
(5) provide a flexible and effective means to implement and enforce the provisions of this act....
While hazardous waste is subject to perhaps more stringent regulation,
The risks these substances pose to the public, coupled with the commercial operator‘s knowledge of those risks, justify warrantless searches of sites where they are kept. The nature of the business and its narrow definition justify the search as indicated when Dewey is compared to [Marshall v. Barlow‘s, Inc., 436 U.S. 307 [98 S.Ct. 1816, 56 L.Ed.2d 305] (1978)]. In short, such searches are a reasonable means of ameliorating the great risk these materials pose to the general public.
Majority 204 (in reference to risks of hazardous waste only).
As this Court recently stated in Commonwealth v. Parker White Metal Co., 512 Pa. 74, 515 A.2d 1358 (1986):
[The] presumption [of constitutionality] is further strengthened in this case by the explicit purpose of the Act to implement Article I, section 27 of the Pennsylvania Constitution, a remarkable document expressing our citizens’ entitlement and “right to clean air, pure water, and—to the preservation of the natural, scenic, historic and esthetic values of the environment.” The courts of this Commonwealth, as part of a co-equal branch of government, serve as “trustees” of “Pennsylvania‘s public natural resources,” no less than do the executive and legislative branches of government.... As one of the trustees of the public estate and this Commonwealth‘s natural resources, we share the duty and obligation to protect and foster the environmental well-being of the Commonwealth of Pennsylvania. Failure to act with vigilance “so as best to achieve and effectuate the goals and purposes” of the Solid Waste Management Act would be detrimental to the public health, safety and welfare, and would be a breach of the public trust.
For the foregoing reasons, I would uphold the validity of section 608 of the Act and its authorization of warrantless inspections of appellee‘s property in this case.
MCDERMOTT and PAPADAKOS, JJ., join this dissenting opinion.
Notes
[I]mproper and inadequate solid waste practices create public health hazards, environmental pollution, and economic loss, and cause irreparable harm to the public health, safety and welfare....Section 102, 35 P.S. § 6018.102. In addition, Article I, Section 27 of the Pennsylvania Constitution provides that there is a right to clean air and pure water, thus giving constitutional implications to environmental protection measures.