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First, some context. Decades before the 2013 Robinson Township opinion, the Commonwealth Court in Payne v. Kassab, 312 A.2d 86 (Pa. Cmwlth. 1973), aff’d 361 A.2d 263 (Pa. 1976), established a three-part test that allowed the ERA to become “operational.” In applying the Payne test, a court could determine whether a state action violates the ERA by determining whether there was compliance with all applicable statutes and regulations; reviewing the record for evidence of a reasonable effort to reduce environmental incursions; and determining whether the environmental harm of the challenged action clearly outweighs the benefits to be derived. These criteria gave legal meaning and structure to the otherwise amorphous ERA, which incorporates aspirational language: the people’s right to “clean air and pure water” as well as the right to the natural, scenic, historic, and esthetic values of the environment (individual rights); and the “common ownership by the people of the commonwealth’s public natural resources” (the public’s rights).
Second, some history. Although the 2013 Robinson Township plurality opinion—which addressed an ERA challenge to Act 13, Pennsylvania’s Oil and Gas Act—acknowledged that the Payne test “answered the call for guidance on substantive standards in this area of law” and was “easy to apply,” the court nevertheless found it to be an inappropriate benchmark for assessing ERA compliance “in all but the narrowest category of cases, i.e., those cases in which a challenge is premised simply upon an alleged failure to comply with statutory standards … .” The test, the court reasoned, is narrower than what the ERA provides as to rights, and as a result, minimizes the constitutional duties of the executive agencies and judicial branch. In lieu of the Payne test, the court seized upon the public trust aspect of the ERA, and the commonwealth’s duty to prevent degradation and depletion of our natural resources as trustee for the people. A plurality of the court ultimately invalidated certain portions of Act 13, under the ERA, finding that those portions of the act failed to prevent degradation and depletion of our public natural resources in violation of the ERA.
Since the court’s opinion in Robinson Township, the Commonwealth Court has repeatedly refused to apply its holding to subsequent ERA claims, noting that because the decision was a mere plurality, it was only binding on the parties to that case. Instead, courts continued to apply the familiar Paynetest in evaluating ERA claims. See, e.g., Pennsylvania Environmental Defense Foundation v. Commonwealth, 108 A.3d 140 (Pa. Cmwlth. 2015); Feudale v. Aqua Pennsylvania, 122 A.3d 462 (Pa. Cmwlth. 2015); Funk v. Wolf, 144 A.3d 228 (Pa. Cmwlth. 2016); Delaware Riverkeeper Network v. R.E. Gas Development, 2017 Pa. Commw. Unpub. LEXIS 415 (Pa. Cmwlth. 2017). In short, the Robinson Township decision had minimal impact on cases involving ERA challenges.
Third, fast forward to 2017. In fairly sweeping language, the court in a 5-1 opinion “rejected the Payne test developed by the Commonwealth Court as the appropriate standard for deciding ERA challenges.” The court reiterated its 2013 criticism of the Payne test, calling it “ill-fitted” to the language of the ERA, and stated that it “strips the constitutional provision of its meaning.” The court further reviewed and reiterated the lengthy analysis in the 2013 Robinson decision, observing that the ERA was adopted to prevent further destruction of the commonwealth’s natural resources (following deforestation, endangerment of certain species through hunting, etc., and coal production). It must be remembered, though, that this decision emanated from unique facts: a challenge to a fiscal code provision that, in essence, diverted funds from the Oil and Gas Lease Fund to the State General Fund.
Fourth, moving forward. The court announced vague principles to be considered when assessing ERA claims—at least those claims based upon an alleged violation of the public trust. First, courts are to be guided by the text of the ERA itself. Second, courts are to apply the underlying principles of Pennsylvania “trust law” in effect at the time of the ERA was adopted (1971). For companies engaging in energy development—a favorite target of some advocacy groups—the court’s decision and analysis offers little clarity on the scope and application of the ERA.
There have been suggestions by commentators that this opinion will serve as a major hurdle to important projects in the commonwealth; these prognostications are overblown. Indeed, theRobinson Township court itself noted that the ERA should not serve as an impediment to development, acknowledging that “The Environmental Rights Amendment does not call for a stagnant landscape; nor, as we explained below, for the derailment of economic or social development.” Thus, to interpret the court’s decision to mean that the ERA stifles economic development by creating an unreasonable hurdle would be an overreach.
Nevertheless, for any company or individual planning a project, one can expect increased scrutiny of requested governmental approvals at all levels, from the local land use authorizations to Pennsylvania Department of Environmental Protection (PADEP) environmental permits. Why? Not only will the government entities feel the impact of this opinion, but they will be under a microscope from NGOs waiting in the wings to use this decision to delay and stop all types of energy projects by filing legal challenges to permits and approvals. As a result, companies will need to work closely with counsel, as well as government and communications, permitting strategy and technical experts. Consultations should be done early and often in the project development phase to build a record that, if scrutinized, would pass muster under the revised ERA test.
Obtaining and complying with all applicable permits, and establishing a close relationship with environmental regulators and local communities, will be paramount. Companies should emphasize the environmental and economic benefits that will be advanced by a particular project. For example, companies seeking to enhance gas production and improve transportation and distribution infrastructure should highlight the environmental benefits of a project, such as a reduced emissions of carbon, sulfur dioxide, nitrogen oxide, and particulate emissions from natural gas, while likewise emphasizing all efforts to mitigate any disruptions. In this regard, it is important to note that increased natural gas production in the United States and its use has contributed to a 27-year low in national greenhouse gas emissions. The ERA aspires to preserve environmental quality for future generations. These projects are critical to achieving that goal and thus are entirely consistent with the ERA.
Postscript: We may not need to wait much longer to see how Pennsylvania courts will interpret the ERA in the wake of PEDF. In an appeal filed last week before the Environmental Hearing Board, Fair Shake Environmental Legal Services on behalf of its client objected to the DEP’s approval of a brine spreading plan on dirt roads in Warren County, claiming, among other things, violations of the ERA due to potential water and air quality degradation, see Docket No. 2017-051. Additionally, in June 2016, the court granted an appeal from the Commonwealth Court’s decision permitting oil and gas development in residential agriculture (RA) districts, see Gorsline v. Board of Supervisors of Fairfield Township, 123 A.3d 1142 (Pa. Cmwlth. 2015), appeal granted 139 A.3d 178 (Pa. 2016). The Commonwealth Court dismissed claims that a gas well installed in an RA district violated the ERA because the record did not support the underlying presumption that the proposed use was incompatible with uses in an RA district, and that such uses would cause environmental harm. Companies engaging in energy and infrastructure projects should keep a close eye on this case for additional guidance on ERA compliance in this new legal landscape.
This article was originally published in The Legal Intelligencer on July 13, 2017. Click here to read the article online.
Next Next post: You Made Your Bed, Now Lie in It: Samson Exploration, LLC v. T.S. Reed Properties, Inc.

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The Federal Trade Commission has issued regulations requiring financial institutions and creditors to develop and implement written identity theft prevention programs by November 1, 2009, under the Fair and Accurate Credit Transaction Act of 2003 (FACTA). Municipal utilities are subject to these requirements, and the City Councils of all cities that operate utilities must adopt programs that meet the requirements of FACTA.
Below is a presentation explaining Red Flags rule requirements for municipalities.
These identity theft prevention programs must provide for the identification, detection, and response to patterns, practices, or specific activities – known as “red flags” – that could indicate identity theft.
“Covered accounts” include accounts that financial institutions or creditors offer or maintain primarily for personal, family, or household purposes, that involve or are designed to permit multiple payments or transactions, such as a credit card account, mortgage loan, automobile loan, margin account, cell phone account, utility account, checking account, or savings account. The term “covered accounts” also includes any other account that the financial institution or creditor offers or maintains for which there is a reasonably foreseeable risk to customers or to the safety and soundness of the financial institution or creditor from identity theft, including financial, operational, or litigation risks. Because “covered accounts” specifically include utility accounts, municipalities deferring payment for services such as water, electric, or garbage collection must comply with FACTA.
How do I comply with FACTA?
FACTA requires that municipalities, as creditors, develop a written Identity Theft Protection Program that is appropriate for the size and complexity of the municipality. The Program must include elements to identify, detect, and respond to Red Flags. In addition, the Program must provide for a periodic updating process to reflect changes in risks to the creditor’s customers.
Each creditor is required to obtain approval of the initial written Program from either its board of directors or an appropriate committee of the board, i.e., the City Council. The board of directors, a committee of the board, or an employee at the level of senior management must be assigned the duties of oversight, development, implementation, and administration of the Program. Further, staff must be trained appropriately and must oversee service providers providing services relating to the Act. Staff should prepare a report at least annually for the person specifically responsible for oversight of the program. This report should include an evaluation of the effectiveness of the Program with respect to opening accounts, existing covered accounts, service provider arrangements, significant incidents involving identity theft and responses, and recommendations for changes to the Program.
Notices from customers, victims of identity theft, law enforcement, or other persons regarding identity theft in connection with covered accounts held by the creditor.
FACTA does not allow for private enforcement of the Red Flag regulations. However, the regulations are enforced by the Federal Trade Commission. If the creditor fails to develop and implement a Program, the Federal Trade Commission may enforce the failure as an unfair or deceptive act or practice in commerce. The consequences may include a cease and desist order from the Federal Trade Commission after a hearing and civil penalties not to exceed $2,500 per violation.
What Type of Program Must I Adopt?
Attached you will find a sample program that the City Council may adopt. It is important to remember, however, that the Red Flag Guidelines were designed to provide flexibility to the individual utility in adopting their Program. Because the process used to open new accounts and monitor existing accounts will vary by utility, not every Red Flag will be applicable to each utility. For example, the utility may not use credit reporting, and therefore, will not encounter Red Flags relating to consumer reports. Thus, the goal is to be aware of the Red Flags, remain vigilant in detecting those Red Flags that are applicable to a particular utility, and notify the Finance Director of the City if a Red Flag is encountered.
As most cities will readily observe, the Red Flags have little relevance to the billing practices of city utilities. The Federal Trade Commission, responsible for enforcement of FACTA, offers no guidance on how city utilities can implement these policies other than to suggest “common sense.” There is obviously little common sense in designating City utilities as “creditors” subject to FACTA. Implementing proactive measures to detect identity theft, such as comparing the names of all persons paying utility bills to the owners of property served, can be highly disruptive and costly to city operations. The recommended program minimizes costs as much as possible and is comparable to programs adopted throughout the country. More may be required of cities as court opinions and federal regulations further clarify the responsibilities of city utilities.
 16 C.F.R. § 681.2(b)(5) (2008); 15 U.S.C. § 1681a(r)(5) (2006); 15 U.S.C. 1691a(e) (2006).
 Federal Trade Commission, FTC Business Alert, New “Red Flag” Requirements for Financial Institutions and Creditors Will Help Fight Identity Theft, June 2008, available at http://www.ftc.gov/bcp/edu/pubs/business/alerts/alt050.shtm.
 16 C.F.R. § 681.2(b)(5) (emphasis added).
 16 C.F.R. § 681.2(b)(4); 15 U.S.C. 1681a(r)(5); 15 U.S.C. 1691a(d).
 16 C.F.R. § 681.2(b)(3)(i) (emphasis added).
 16 C.F.R. app. § 1681 A(VI)(b)(1).
 16 C.F.R. Supplement A to App. § 1681 A.
 16 C.F.R. app. § 1681 A(IV).
 15 U.S.C. § 1681m(h)(8); see also Perry v. First Nat’l Bank, 459 F.3d 816, 819-20 (7th Cir. 2006).
 15 U.S.C. § 1681m(h)(8)(B); 15 U.S.C. § 1691s(a)(1).
 15 U.S.C. § 45(a)(1); § 45(b); § 1681s(a)(2)(A).
This entry was posted on October 8, 2009 at 4:54 am and is filed under Red Flags Rule. You can subscribe via RSS 2.0 feed to this post's comments.	Both comments and pings are currently closed.


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The German version of our data privacy statement is authoritative.
We only collect and use personal data of our users insofar as it is necessary to provide a functional website as well as our contents and services. The collection and use of our users' personal data is only carried out with the user's consent. An exception applies in those cases where prior consent cannot be obtained as a matter of fact and the processing of the data is permitted by law.
If processing is necessary to protect legitimate interests of our company or a third party and if the interests, fundamental rights and freedoms of the data subject do not outweigh the first-mentioned interest, Art. 6 para. 1 lit. f GDPR serves as the legal basis for processing.
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All data collected by us to send the media distribution list is stored on the servers of MailChimp. The data is used by MailChimp for sending and evaluating the newsletter. Furthermore, MailChimp can use the data to optimize its own service (e.g. display of newsletters, to determine from which countries the recipients come, etc.). However, MailChimp does not use the data to write to the recipients themselves or to forward the data to third parties.
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This data is used to technically improve the service.
In addition, the "web beacons" determine whether the media distribution lists have been opened, when they were opened, and which links were clicked on. It is possible to assign the data to individual users, but neither we nor MailChimp want to observe the individual users. Only the reading habits of the users should be recognized in order to adapt the contents to the users. Different contents should be sent according to the interests of our users.
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The legal basis for the processing of data transmitted in the course of sending an e-mail is Art. 6 para. 1 lit. a GDPR, as it is based on the consent of the interested user. If the e-mail contact aims at the conclusion of a contract, then additional legal basis for the processing is Art. 6 exp. 1 lit. b GDPR.
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Bismuth-doped materials show fascinating near-infrared (NIR) photoluminescence (PL) properties. However, synthesizing Bi-doped, NIR-luminescent, nanometer-sized materials with high PL quantum yields remains challenging. Here, Bi-doped CsPbI3 perovskite nanocrystals (NCs) with an average size less than 10 nm and showing a superbroad NIR PL covering the telecommunication and second biological optical windows were achieved. The NIR PL quantum yield of these NCs is up to 7.17% with the Bi doping concentration of 0.074%. Additionally, efficient energy transfer from the semiconducting CsPbI3 to bismuth-related active center can be realized. We anticipate that the developed systems may find applications in optoelectronic and photonic devices as well as biological imaging. This work enriches the bank of Bi-doped luminescent materials, and might stimulate research interest for synthesizing other classes of Bi-activated nanomaterials.
H.-T. Sun, J. Zhou, and J. Qiu, Prog. “Recent advances in bismuth activated photonic materials,” Prog. Mater. Sci. 64(10), 1–72 (2014).
B. B. Xu, S. F. Zhou, D. Z. Tan, Z. L. Hong, J. H. Hao, and J. R. Qiu, “Multifunctional tunable ultra-broadband visible and near-infrared luminescence from bismuth-doped germanate glasses,” J. Appl. Phys. 113(8), 083503 (2013).
I. Razdobreev, H. El Hamzaoui, V. Y. Ivanov, E. F. Kustov, B. Capoen, and M. Bouazaoui, “Optical spectroscopy of bismuth-doped pure silica fiber preform,” Opt. Lett. 35(9), 1341–1343 (2010).
H.-T. Sun, F. Shimaoka, Y. Miwa, J. Ruan, M. Fujii, J. Qiu, and S. Hayashi, “Sensitized superbroadband near-IR emission in bismuth glass/Si nanocrystal superlattices,” Opt. Lett. 35(13), 2215–2217 (2010).
A. N. Romanov, E. V. Haula, Z. T. Fattakhova, A. A. Veber, V. B. Tsvetkov, D. M. Zhigunov, V. N. Korchak, and V. B. Sulimov, “Near-IR luminescence from subvalent bismuth species in fluoride glass,” Opt. Mater. 34(1), 155–158 (2011).
B. Xu, D. Tan, S. Zhou, Z. Hong, K. N. Sharafudeen, and J. Qiu, “Enhanced broadband near-infrared luminescence of Bi-doped oxyfluoride glasses,” Opt. Express 20(27), 29105–29111 (2012).
B. Xu, J. Hao, S. Zhou, and J. Qiu, “Ultra-broadband infrared luminescence of Bi-doped thin-films for integrated optics,” Opt. Express 21(15), 18532–18537 (2013).
O. Laguta, H. E. Hamzaoui, M. Bouazaoui, V. B. Arion, and I. Razdobreev, “Anti-Stokes photoluminescence in Ga/Bi co-doped sol-gel silica glass,” Opt. Lett. 40(7), 1591–1594 (2015).
S. Gu, B. Zhou, W. Luo, L. Wang, W. Jiang, W. Jiang, and J. Ballato, “Near-infrared broadband photoluminescence of bismuth-doped zeolite-derived silica glass prepared by SPS,” J. Am. Ceram. Soc. 99(1), 121–127 (2016).
S. Lin, X. Zhang, P. Zhang, D. Tan, J. Xu, W. Li, and K. Chen, “High-efficiency near-infrared emission from Bismuth-doped SiO0.73 thin films fabricated by ion implantation technology,” Opt. Lett. 41(3), 630–633 (2016).
A. G. Okhrimchuk, L. N. Butvina, E. M. Dianov, N. V. Lichkova, V. N. Zagorodnev, and K. N. Boldyrev, “Near-infrared luminescence of RbPb2Cl5:Bi crystals,” Opt. Lett. 33(19), 2182–2184 (2008).
H.-T. Sun, A. Hosokawa, Y. Miwa, F. Shimaoka, M. Fujii, M. Mizuhata, S. Hayashi, and S. Deki, “Strong ultra-broadband near-infrared photoluminescence from bismuth-embedded zeolites and their derivatives,” Adv. Mater. 21(36), 3694–3698 (2009).
L. Su, J. Yu, P. Zhou, H. Li, L. Zheng, Y. Yang, F. Wu, H. Xia, and J. Xu, “Broadband near-infrared luminescence in γ-irradiated Bi-doped α-BaB2O4 single crystals,” Opt. Lett. 34(16), 2504–2506 (2009).
J. Xu, H. Zhao, L. Su, J. Yu, P. Zhou, H. Tang, L. Zheng, and H. Li, “Study on the effect of heat-annealing and irradiation on spectroscopic properties of Bi:α-BaB2O4 single crystal,” Opt. Express 18(4), 3385–3391 (2010).
L. Su, H. Zhao, H. Li, L. Zheng, G. Ren, J. Xu, W. Ryba-Romanowski, R. Lisiecki, and P. Solarz, “Near-infrared ultrabroadband luminescence spectra properties of subvalent bismuth in CsI halide crystals,” Opt. Lett. 36(23), 4551–4553 (2011).
L. Su, H. Zhao, H. Li, L. Zhang, X. Fan, X. Jiang, H. Tang, G. Ren, J. Xu, W. R-Romanowski, R. Lisiecki, and P. solarz, “Near-infrared photoluminescence spectra in Bi doped CsI crystal: Evidence for Bi-valence conversions and Bi ion,” Opt. Mater. Express 2(6), 757–764 (2012).
C. Li, Z. Song, J. Qiu, Z. Yang, X. Yu, D. Zhou, Z. Yin, R. Wang, Y. Xu, and Y. Cao, “Broadband yellow–white and near infrared luminescence from Bi-doped Ba10(PO4)6Cl2 prepared in reductive atmosphere,” J. Lumin. 132(7), 1807–1811 (2012).
A. A. Veber, A. N. Romanov, O. V. Usovich, Z. T. Fattakhova, E. V. Haula, V. N. Korchak, L. A. Trusov, P. E. Kazin, V. B. Sulimov, and V. B. Tsvetkov, “Luminescent properties of Bi-doped polycrystalline KAlCl4,” Appl. Phys. B 108(4), 733–736 (2012).
B. M. Liu, Z. G. Zhang, K. Zhang, Y. Kuroiwa, C. Moriyoshi, H. M. Yu, C. Li, L. R. Zheng, L. N. Li, G. Yang, Y. Zhou, Y. Z. Fang, J. S. Hou, Y. Matsushita, and H. T. Sun, “Unconventional luminescent centers in metastable phases created by topochemical reduction reactions,” Angew. Chem. Int. Ed. Engl. 55(16), 4967–4971 (2016).
H.-T. Sun, Y. Sakka, M. Fujii, N. Shirahata, and H. Gao, “Ultrabroad near-infrared photoluminescence from ionic liquids containing subvalent bismuth,” Opt. Lett. 36(2), 100–102 (2011).
H.-T. Sun, Y. Sakka, H. Gao, Y. Miwa, M. Fujii, N. Shirahata, Z. Bai, and J.-G. Li, “Ultrabroad near-infrared photoluminescence from Bi5(AlCl4)3 crystal,” J. Mater. Chem. 21(12), 4060–4063 (2011).
E. M. Dianov, “Bismuth-doped optical fibers: a challenging active medium for near-IR lasers and optical amplifiers,” Light Sci. Appl. 1(5), e12 (2012).
H. T. Sun, J. Yang, M. Fujii, Y. Sakka, Y. Zhu, T. Asahara, N. Shirahata, M. Ii, Z. Bai, J. G. Li, and H. Gao, “Highly fluorescent silica-coated bismuth-doped aluminosilicate nanoparticles for near-infrared bioimaging,” Small 7(2), 199–203 (2011).
B. Saparov and D. B. Mitzi, “Organic-inorganic perovskites: structural versatility for functional materials design,” Chem. Rev. 116(7), 4558–4596 (2016).
Y. Zhou, Z. J. Yong, K. C. Zhang, B. M. Liu, Z. W. Wang, J. S. Hou, Y. Z. Fang, Y. Zhou, H. T. Sun, and B. Song, “Ultrabroad Photoluminescence and Electroluminescence at New Wavelengths from Doped Organometal Halide Perovskites,” J. Phys. Chem. Lett. 7(14), 2735–2741 (2016).
Y. Zhou, Z.-J. Yong, W. Zhang, J.-P. Ma, A. Sadhanala, Y.-M. Chen, B.-M. Liu, Y. Zhou, B. Song, and H.-T. Sun, “Ultra-broadband optical amplification at telecommunication wavelengths achieved by bismuth-activated lead iodide perovskites,” J. Mater. Chem. C Mater. Opt. Electron. Devices 5(10), 2591–2596 (2017).
Y. Zhou, D.-D. Zhou, B.-M. Liu, L.-N. Li, Z.-J. Yong, H. Xing, Y.-Z. Fang, J.-S. Hou, and H.-T. Sun, “Ultrabroad near-infrared photoluminescence from bismuth doped CsPbI3: polaronic defects vs. bismuth active centers,” J. Mater. Chem. C Mater. Opt. Electron. Devices 4(12), 2295–2301 (2016).
X. Li, Y. Wu, S. Zhang, B. Cai, Y. Gu, J. Song, and H. Zeng, “CsPbX3 Quantum Dots for Lighting and Displays: Room Temperature Synthesis, Photoluminescence Superiorities, Underlying Origins and White Light-Emitting Diodes,” Adv. Funct. Mater. 26(15), 2435–2445 (2016).
D. Mocatta, G. Cohen, J. Schattner, O. Millo, E. Rabani, and U. Banin, “Heavily doped semiconductor nanocrystal quantum dots,” Science 332(6025), 77–81 (2011).
J. C. de Mello, H. F. Wittmann, and R. H. Friend, “An Improved Experimental Determination of External Photoluminescence Quantum Efficiency,” Adv. Mater. 9(3), 230–232 (1997).
Fig. 1 Characterization of doped and undoped CsPbI3 NCs. (a) XRD patterns of undoped and Bi-doped CsPbI3 NCs with different Bi doping concentrations. The red vertical lines at the bottom correspond to the diffraction peaks of the cubic CsPbI3. TEM images and statistical distributions of the edge length of undoped (b/c) and 2%-doped (d/e) CsPbI3 NCs.
Fig. 2 (a) Absorption and PL spectra of Bi doped and undoped CsPbI3 NCs. The PL spectra were obtained under 450 nm excitation. (b) Visible PL decay curves of Bi-doped and undoped CsPbI3 NCs.
Fig. 3 (a) NIR PL excited by 450 nm and PLQY of Bi-doped CsPbI3 NCs with different nominal Bi concentrations. (b) NIR PL decays of Bi-doped CsPbI3 NCs. The monitored wavelength is 1145 nm. (c) Schematic illustration of the electronic transition in doped NCs. The thick and thin red lines represent the direct excitation of CsPbI3 NCs and nonradiative decay from the conduction band to the in-gap state, respectively. The violet line represents the NIR emission.

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