Current Litigation

Please see Home Page for summary of Current Litigation

Lawsuit against the
Commonwealth of Pennsylvania and Governor Tom Wolf

$61,291,000 of 2017 State Appropriations Bill Unconstitutional!?

July 5, 2017: Backed by the June 20, 2017 Supreme Court Opinion, PEDF attorney John Childe has filed in Commonwealth Court "Petitioner's Application for a Declaration that Part XVI of the Appropriations Act of 2017, Entitled Oil and Gas Lease Fund Appropriation Is Unconstitutional and Invalid." To read this document, please click here.

Terracing in the Loyalsock State Forest, Kurtis Sensenig, KurtisFilms.com

Destruction of State Forest land for Marcellus Shale gas extraction. Can this mountain ever be restored? Will there ever be a forest here again to be "conserved and maintained"?

Only 20% of currently leased State Forest land has been developed for gas.

June 29, 2017: In followup to the Supreme Court's remand to Commonwealth Court, John Childe filed "Petitioner's Motion for Determination That Lease and Bonus Payments for Oil and Gas Extraction Are Part of the Public Trust." To read this document, please click here. To read former DCNR Secretary John Quigley's referenced affidavit, please click here.

July 22, 2015, the Governor and the Republican Caucuses of the General Assembly (Appellees)
filed a Joint Brief in Opposition to PEDF's Appeal to the Supreme Court.
Below are highlights of PEDF's Reply Brief filed by attorney John Childe.
The entire text of PEDF's brief can be found by clicking here.

Highlights of PEDF's Reply Brief
August 26, 2015

INTRODUCTION
PEDF addresses the Governor’s and the Republican Caucuses of the General Assembly’s issues/arguments that the Supreme Court should affirm the Commonwealth Court’s decision of January 7, 2015 in PEDF’s case, including the following:

I. Need for Clear Decision on Public Trust Provisions of Article I § 27
PEDF’s purpose in bringing action for declaratory relief: to clarify the role of the Governor as trustee and the rights of the people as beneficiaries of the public trust under Article I § 27; and to stop the Governor from taking actions that mandate leasing of State Parks and Forests for oil and gas extraction solely to raise money for general state government spending, actions contrary to public trust provisions. Cites a) the need to clarify the divisive roles between the Governor and the Department of Conservation and Natural Resources (DCNR) created by the Commonwealth Court decision, b) the need to clarify through a majority opinion the intervening Supreme Court plurality opinion in Robinson Twp. v. Commonwealth (Robinson Twp.), and c) the need to overturn the Commonwealth Court’s refusal to render declaratory judgment or decree on any of PEDF’s allegations on these issues.

II. Constitutional Duty of the Judicial Branch under Article I § 27
The Commonwealth Court’s failure to consider PEDF’s Article I § 27 claims violates its own duty as trustee under Article I § 27 (Franklin Twp. v. Commonwealth). The courts must meet this duty by deciding issues based on the plain language of Article I § 27. Cites Hartford Accident and Indem. Co. v. Ins. Comm’r and Robinson Twp.

III. Commonwealth Court Reliance on General Assembly Actions
There is need to overturn the Commonwealth Court decision that the three-pronged test of Payne v. Kassab (Payne) is still the applicable test for determining whether actions of the Commonwealth are in compliance with Article I § 27. The Payne v. Kassab test requires that the General Assembly must enable the meaning of the Amendment by legislation. That decision continues to give the General Assembly control over the meaning of the constitutional amendment. PEDF believes that the constitutional amendment is clear on its face, and that the plain language of the Environmental Rights Amendment is the only basis for determination of compliance.

IV. Commonwealth Court’s Creation and Resolution of Issues Not Raised by PEDF to Avoid Consideration of PEDF’s Actual Claims
Both the Governors’ attorneys and the Republican Caucuses of the General Assembly urge the Supreme Court to continue avoiding PEDF’s Article I § 27 issues by adopting the Commonwealth Court’s strategy of creating and then resolving issues that PEDF did not raise. PEDF asserts that the Commonwealth Court did not deal with the issues because it is looking for a Supreme Court majority opinion providing precedential authority. The Amici Republican Caucuses also want the Commonwealth Court decision to stand because it gives them control over how Article I § 27 is implemented.

V. Article I § 27 “Conserve and Maintain” Standard for Judicial Review
Appellees and Amici assert that PEDF has not presented a standard by which the Supreme Court can determine compliance or non-compliance with Article I § 27. On the contrary, PEDF has consistently maintained that the standard is the plain language of the public trust provision itself. The section continues by stating how the plain language of Article I § 27 provides the standard, and PEDF’s consistency in this regard. Robinson Twp. is cited.

VI. No Absolute Prohibition of Leasing State Parks and Forests
PEDF has never asserted that Article I § 27 prohibits leasing our State Parks and Forests for natural gas and oil extraction. The CNRA incorporates the public trust principles and allows for such leasing. Reference is made to DCNR’s 1995 strategic plan Penn’s Woods, Sustaining Our Forests. Governors Rendell and Corbett ignored both the CNRA and Penn’s Woods plan and, without any independent substitute analysis, mandated further leasing with no consideration to Article I § 27.

VII. Fundamental Fiduciary Duty to Comply with Trust Purposes
While Appellees and Amici agree that the Commonwealth must comply with the basic principles of prudence, loyalty and impartiality, they attempt to apply them without considering the purpose of the public trust. Robinson Twp., however, does make this connection.

The Governor does not cite or analyze the limitations on the trustee’s use of the assets (e.g. natural gas) of the trust. Since natural gas is part of the trust corpus, leasing and selling natural gas for General Fund revenue is not one of the purposes of the trust.

VIII. The Governor’s Reasonableness Standard Flawed
The Governor proposes that the Supreme Court apply a standard of “reasonableness” to determine whether the Commonwealth may regulate the people’s rights to clean air, pure water and the preservation of the natural, scenic, historic, and esthetic values of the environment under the first sentence of Article I § 27. However, no language in the amendment limits the rights of the people to what might be “reasonably” allowed by the Governor or General Assembly. Cites Robinson Twp.

IX. Article I § 27 Rights Not Limited by State Interest in Economic Development
Contradicting themselves, the Governor and the Republican Caucuses assert both that the people’s rights under Article I § 27 are inviolate and that the Supreme Court in Robinson Twp. imposes an obligation to accommodate economic development by applying a “reasonableness” standard.

PEDF contests the Commonwealth Court’s opinion on this issue as follows:

The people’s inalienable constitutional rights under Article I cannot be limited by a governmental “interest” in economic development. The rights of the people under Article I § 27 are as enforceable as any other Article I right of the people. Article I § 25 states that everything in Article I is excepted from the government’s general powers and is to remain inviolate. Cites Robinson Twp.

References the Declaration of Rights: that the rights of the people articulated in Article I are inherent in man’s nature and are preserved by rather than created by the constitution. The Declaration of Rights limits the power of state government. Desire for economic development must be carried out within the limits on the government established by all Article I provisions.

Nothing in the legislative history of Article I § 27 supports the notion that the people’s rights are to be balanced against economic development. The Commonwealth is the trustee of these public lands and resources and not the proprietor of them. By leasing State Park and Forest land for General Fund purposes, the Governor is treating both the land and the gas being extracted as Commonwealth property, not as trust property.

The California Case National Audubon, supra, has been misapplied in construing the constitutional trust established by Article I § 27. Cites Robinson Twp. PEDF asserts that the Supreme Court failed to recognize that California does not have, as does Pennsylvania, a constitutional provision in its Declaration of Rights that gives the people of California the inalienable right to common ownership of California’s public natural resources, or that establishes those resources as the corpus of a specific trust and names the beneficiaries of that trust. Common law of any state cannot override the plain meaning of the constitution. Cites Illinois Central railroad Company v. Illinois.

Appellees do not articulate what constitutes “unreasonable” degradation and how such degradation will comply with the purposes of Article I § 27.

X. Article I § 27 Creates a “De Facto Trust”

      A. Plain Language of Article I § 27
Appellees and Amici do not address any of PEDF’s arguments regarding the Article I § 27 clear provisions that the public’s natural resources are the property of the people and not the property of the government.   It follows that any money obtained from the conversion of resources also belongs to the people and must be used for trust purposes.

The Appellees do not address the statutory requirements of the Oil and Gas Lease Fund Act that require moneys from leasing to remain with DCNR. The Appellees agree with the Commonwealth Court’s opinion that the only limit on the use of the money is that it be “for the benefit of the people” in a general sense. PEDF asserts that this interpretation takes “for the benefit of the people” out of the clear context of Article I § 27.

The Commonwealth Court contradicts itself by stating first that a) “there is neither a mandate within nor an expectation created by (Article I § 27) that state-owned lands or natural resources . . . would be leased or sold for reasonable economic development,”
and by determining next that b) the money from the sale of these resources is not part of the public trust, and the Oil and Gas Lease Fund is not a de facto trust fund.

      B. Principles of Trust Law
While the Commonwealth Court states that Section 27 does not command that moneys derived from natural resources be restricted per PEDF’s claims, Appellees rely on Illinois Central, where state sale of real property to private interests did not interfere with public commerce. This assertion is contrary argument and ignores the fact that the decision in Illinois Central was based on the common law. In PEDF’s case, the constitutional amendment of Article I § 27 changes the ownership of the public natural resources to the people, not the Commonwealth, and designates the Commonwealth as not the proprietor but instead the trustee of the public’s natural resources.

XI. Self-Enabling Public Trust
Amici Republican Caucuses of Pennsylvania’s General Assembly argue that Article I § 27 is only a statement of policy and that it is up to the General Assembly to determine how to implement that policy. In its January 7, 2015 Opinion, the Commonwealth Court agrees with the Republican Caucuses by finding that their opinion in Payne v. Kassab holds that the General Assembly can define the meaning of “benefit of the people,” and by not finding that the Governor or the General Assembly are solely trustees of our public natural resources.

Furthermore, a settled rule of constitutional construction is that prohibitive or restrictive provisions are self-executing and may be enforced by the courts independently of any legislative action (Robinson Twp.). As analyzed by the Supreme Court, Pennsylvania’s Article I § 27 is unique in this regard compared to other states’ public trust provisions.

XII. Appellees/Amici Allege Little or No Harm from Leasing
PEDF has established undisputed evidence of the degradation to our State Parks and Forests from shale gas extraction.

      A. Shale-Gas Monitoring Report
This DCNR 2014 Report targets current impacts of unconventional gas development on State Forests.

      B. Water Quality
Appellees state that DCNR’s monitoring program found no significant impacts on water quality from shale gas development, but the 2014 Shale-Gas Monitoring Report states that this data are primarily for establishing baseline water quality conditions.

       C. Air Quality
Appellees state a “marked decrease” in several air pollutant levels in Pennsylvania since 2008, but the decreases do not relate to monitoring on State Forest land. DCNR is not conducting any air quality monitoring on State Forest land and is relying on the Department of Environmental Protection (DEP) to do so. However, none of DEP’s studies appear to be located on State Forest land.

        D. Testimony of Dr. Grace
Appellees state that Dr. James Grace only speculated about future potential harms at the public hearing, which is not true. He articulated numerous harms including noise, emissions, and the clearing of vast tracts of forest and native vegetation for gas industry infrastructure, influencing habitat and recreational values for years to come.

         E. Impacts to Wildness of State Forest
The 2014 Shale-Gas Monitoring Report is again referenced, stating forest conversion, loss of wild character, forest fragmentation, and restoration.

          F. Forest Fragmentation Impacts
References the 2014 Shale-Gas Monitoring Report, which documents fragmentation of large core blocks of forest that can lead to altered forest health. In Pennsylvania, the Tiadaghton and Tioga State Forests have been most impacted to date.

         G. Severed Rights Impacts Not Part of Monitoring Report
The 2014 Shale-Gas Monitoring Report states that current and potential impacts from gas industry development on State Forest and Park lands where the mineral rights are privately held are not included in the report.

         H. Testimony and Affidavits
Appellees state that the only data and conclusive impacts in the record that are attributable to Marcellus Shale leasing activities in the State Forest come from the 2014 Shale-Gas Monitoring Report. This is not true, evidenced by PEDF member affidavits, testimony, and photographic evidence of the changes to the forest.

XIII. Other Issues Raised by Appellees and Amici

         A. Public Natural Resources Are the Common Property of the People
Amici argue that the public natural resources are not the property of the people. The Supreme Court has determined in numerous cases that the resources are the common property as voted upon by the people in Article I § 27. Cites Robinson Twp.

         B. DCNR Required to Lease
Appellees imply that DCNR decided to lease in 2009 and 2010. But after the 2008 lease sale, DCNR decided not to lease any more State Forest land until impacts from the existing leases could be evaluated. The 2009 and 2010 leases were mandated by the Governor to support general government spending and documented as such by DCNR.

         C. PEDF Has Not Challenged the Validity of the Leases
Commonwealth Court created the assertion that PEDF was challenging the validity of the 2008 – 2010 leases due to the failure to include indispensable parties to the leases. Appellees and Amici agreed with the Commonwealth Court. In fact, however, PEDF has not challenged the validity of these leases, only the actions of the Governor in requiring DCNR to lease, and taking revenue from leasing out of the public trust. DCNR and leasing parties are not named in the PEDF’s petition for review because PEDF is not challenging the leases themselves. The subject of leasing validity is not before the Supreme Court for review.

         D. Leases Do Not Constitute Compliance with Article I § 27
Appellees argue that they have complied with Article I § 27 because DCNR has acted prudently by implementing robust lease terms and pre-lease analysis. But the Commonwealth Court determined otherwise, saying that “DCNR must also consider whether even entering into further leasing would be in the best interest of the Commonwealth and consistent with the rights, duties, and obligations embodied in the Environmental Rights Amendment.” (emphasis added to Commonwealth Court statement)

         E. Statute of Limitations on Constitutional Challenges
Amici Caucuses of the General Assembly argue that PEDF challenges to the 2009 Fiscal Code amendments are barred by a two-year statute of limitations. PEDF maintains the Fiscal Code amendments are as unconstitutional in their use in 2014-15 as they were in 2009-10. No statute of limitations is expressed in the Declaratory Judgment Act. If a limitation did exist in this context, it would be the six years default limitation.

         F. Legislative Duty of Trustee
Appellees argue that legislation has not been enacted to protect Article I § 27 rights; therefore, the Commonwealth does not have to act to protect those rights. But PEDF shows that legislation has been enacted through the CNRA and deals specifically with the leasing of State Forest and Park lands, which is the subject of action.

CONCLUSION
PEDF respectfully requests the Supreme Court to grant its requests for declaratory relief, including:

Article I § 27 prohibits the Governor from making a decision to lease or to sell our public natural resources when that decision will result in the degradation, depletion or diminution of those resources;
Article I § 27 prohibits the Governor from making a decision to lease or to sell our public natural resources without first evaluating whether the decision will result in the degradation of those resources;
Article I § 27 prohibits the Governor from making a decision to lease or to sell our public natural resources contrary to the provisions of the Conservation and Natural Resources Act;
The Governor cannot use the revenue from leasing and sale of our public natural resources for purposes outside of the purpose of Article I § 27, i.e. a purpose other than conserving and maintaining our public natural resources;
Sections 1602-E through 1604-E of the Fiscal Code violate Article I § 27 because they cause degradation of our public natural resources, and neither the Governor nor the General Assembly evaluated the impacts of these Fiscal Code amendments on the public natural resources before approving them and taking actions based on their authority.

PEDF's Brief to Pennsylvania's Supreme Court
May 20, 2015

PLEASE NOTE: Tom Wolf, as governor, now automatically becomes the Respondent in PEDF's case. This does not mean that Wolf as governor is liable. Tom Corbett's name is not on PEDF's Brief because he is no longer governor.

Following is a synopsis of the Brief of Appellant filed to Pennsylvania’s Supreme Court in the case of PEDF (Appellant) v. Tom Wolf, Governor and Commonwealth of Pennsylvania (Appellees). Please click on the blue link to read the document in its entirety.

INTRODUCTION

The basic question raised in the case is whether Governors Rendell and Corbett violated their trustee duties under Article I § 27 of Pennsylvania’s Constitution by requiring the leasing of our State Parks and Forests for the sale and extraction of the state’s natural gas and oil to generate money for the General Fund, rather than for conserving and maintaining the public trust assets, and without prior evaluation of harm to said assets.

I. STATEMENT OF JURISDICTION

States the basis for the Supreme Court’s exclusive jurisdiction over this appeal of the final Opinion and Order of the Commonwealth Court, January 7, 2015.

II. ORDER IN QUESTION

States the five specific items of the Commonwealth Court’s Opinion and Order being appealed.

III. SCOPE AND STANDARD OF REVIEW

Reviews the Commonwealth Court’s denial of summary relief to PEDF and grant of summary relief to the Commonwealth, particularly with regard to resolution of all doubts. Emphasizes that the touchstone is the actual language of the Constitution itself as voted upon by the people.

IV. STATEMENT OF QUESTIONS INVOLVED

PEDF requests the Supreme Court to reverse the Commonwealth Court’s decision and rule in favor of PEDF on the following ten questions (suggested answer to all questions being Yes):

1. Did the Commonwealth Court fail to apply basic principles of constitutional and statutory construction to determine whether a particular action of a particular statutory provision violates Article I § 27?

2.   Did the Commonwealth Court err in allowing the balancing of the inalienable rights of the people under the public trust provisions of Article I § 27 against the interest of the government (Governor and General Assembly) in promoting economic development when determining whether the leasing of our State Forest and Park land for oil and natural gas extraction violates Article I § 27?

3. Does the designation of the Commonwealth as trustee under Article I § 27 impose trustee duties on all three branches of the government, including the Governor and Department of Conservation and Natural Resources ("DCNR") officials?

4. Did the Commonwealth Court err by taking the phrase “for the benefit of all the people” out of the context of Article I § 27, and finding this phrase to be a “general requirement” to be interpreted by the General Assembly without considering its meaning within the context and purpose of Article I § 27?

5. Did the Governors' decisions to require more leases of State Forest and Park lands in 2009, 2010 and 2014, and to require funds from these leases in the Oil and Gas Lease Fund to be transferred to the General Fund, violate Article I § 27 and the Governors' duties thereunder?

6. Before taking any action or making any decision that might or will impact the public natural resources, does the Governor have the duty, as trustee under Article I § 27, to evaluate the impacts of those actions or decisions to the public natural resources, the impacts to the people who own and use those public natural resources, and the impacts to DCNR’s ability to meet its statutory and constitutional duties to conserve and maintain these public natural resources for the benefit of the people?

7. Did the Governors' actions requiring DCNR to enter into new leases of State Forest and Park lands for oil and gas extraction and taking the rents and royalties from these leases violate the protections provided by the Conservation and Natural Resources Act to ensure compliance with Article I § 27?

8. Did the Commonwealth Court err in failing to recognize that the money obtained from leasing our State Forests and State Parks for oil and gas extraction is a public trust asset that remains part of the corpus of the public trust established by Article I § 27, and that the Oil and Gas Lease Fund into which this money is deposited is a de facto trust fund that must be used for trust purposes?

9. Did the Commonwealth Court err by failing to declare that Sections 1601-E through 1605-E of the Fiscal Code, as well as certain provisions of Act 13 of 2012 and the General Appropriations Acts enacted since 2009, violate Article I § 27 by authorizing the use of the Oil and Gas Lease Fund for purposes other than conserving and maintaining the people's public natural resources; and that the Governor violated his Article I § 27 duties by signing them into law before any evaluation of the impacts to the public trust was conducted?

10. Did PEDF raise a particular and concrete dispute that supports PEDF’s claims as justiciable and establishes PEDF's standing?

V. STATEMENT OF THE CASE

            A. Summary of Procedural History

Reviews all documents filed, Opinions and Orders given, hearing, and oral argument in PEDF’s case beginning March 6, 2012.

            B. Summary of Undisputed Facts

Reviews failure of Commonwealth Court to include important facts relating to the Governors’ actions and prior knowledge associated with decisions to lease additional State Forest and Park lands for oil and gas extraction. Reviews Commonwealth Court’s exclusion of PEDF’s evidence of immediate and long-term harm to State Forests and Parks caused by the leases, and the effect of this on the ability of the Department of Conservation and Natural Resources (DCNR) to fulfill its role in conserving the public’s natural resources, this evidence being central to PEDF’s requests for declaratory relief. PEDF then provides a summary of the relevant undisputed facts relating to these issues.

                        1. History of State Forest Oil and Gas Leasing

Reviews provisions of the 1955 Oil and Gas Lease Fund Act (OGLFA), the 1971 public trust amendment to Pennsylvania’s Constitution (Article I § 27), the 1995 Conservation and Natural Resources Act (CNRA), and the 1995 DCNR Bureau of Forestry’s strategic plan Penn’s Woods – Sustaining Our Forests. This section contains supporting testimony of Dr. James R. Grace (former State Forester and Deputy Secretary for Parks and Forests) and references testimony of Dan Devlin (current State Forester).

                        2. Leasing and Use of the Oil and Gas Lease Fund by Governor Rendell

Reviews the pressure on DCNR by the natural gas industry, the General Assembly, and Governor Rendell beginning in 2008 to lease additional acreage of State Forest for oil and gas development due to the unconventional techniques used to extract gas from the Marcellus Shale. This section includes supporting testimony from former DCNR Chief of Staff John Quigley and former DCNR Bureau of State Parks Director John Norbeck.

                        3. Harm to DCNR’s Ability to Conserve and Maintain Natural Resources

Reviews supporting documentation and testimony of former DCNR Secretary Michael DiBerardinis, including the statement, “Wholesale leasing will damage our State Forest landscape. It would scar the economic, scenic, ecological, and recreational values of the forest - especially the most wild, and remote areas of our state in the Pennsylvania Wilds.” Includes supporting testimony by Dr. James Grace and John Quigley. States actions taken by Governor Rendell to approve the leasing of State land and, through amendments to the Fiscal Code, transfer the monies from the Oil and Gas Lease Fund (OGLF) to the General Fund.

                        4. Leasing and Use of the Oil and Gas Lease Fund by Governor Corbett

Reviews actions by Governor Corbett and the General Assembly to force DCNR’s reliance on the OGLF instead of the General Fund for administrative operating expenses, action contrary to the provisions of the OGLFA. Reviews the effects of Act 13 of 2012 on the OGLF and its statutory provisions. Reviews Governor Corbett’s 2014-15 Executive Budget recommendations for further leasing of State land and transfer of monies from the leasing of this land from the OGLF to the General Fund. Includes testimony by Dan Devlin against these recommendations. Includes information from DCNR’s 2014 Shale-Gas Monitoring Report and Governor Corbett’s May 2014 Executive Order rescinding Governor Rendell’s moratorium on further leasing of State lands. Includes supporting testimony by Dr. James Grace and John Norbeck. Includes information on Governor Corbett’s 2014 General Appropriations Act and further amendments to the Fiscal Code, affecting the provisions of both the OGLF and DCNR’s General Fund appropriation.

                        5. Direct, Immediate, and Cumulative Long Term Harm to Pennsylvania’s Forests Documented by DCNR

From the DCNR Shale-Gas Monitoring Report, identifies direct, immediate and cumulative long-term harm and impacts to the State Forest in 2012, including: the unprecedented scale of industrial development; the clearing of approximately 1,500 acres of forests to construct well pads, roads, pipelines, and other infrastructure; the increase in invasive species; increased susceptibility of the forest to pest attack; potential impacts to exceptional and high quality streams; violations of environmental laws and regulations by gas companies; erosion and sedimentation control issues; stormwater control; unknown potential for air impacts; unknown wildlife impacts; impacts to hiking and snowmobile trails; decreases in recreational visitor experiences; scenic drive impacts from heavy traffic, noise and dust; noise from natural gas compression stations; impacts on timber management; fragmentation from pipeline and road construction and current and future gas well drilling; and loss of the wild character of the State Forest. Includes supporting testimony from Dan Devlin.

6. Harm to Pennsylvania’s Outdoor Recreational Tourist Economy

The CNRA states that State Forests and Parks are critical to the continued success of Pennsylvania’s tourism and recreation industry, the second largest industry in the state. DCNR supports this sustainable economic development through its Conservation Landscape Initiatives. One of these is the Pennsylvania Wilds, which encompasses a 12-county area in northcentral Pennsylvania and includes twenty-seven State Parks and eight State Forest districts. Includes supporting testimony by Cindy Dunn, former DCNR Deputy Secretary.

                        7. Harm to PEDF’s Members

Reviews the fourteen affidavits of PEDF members, both individuals and organizations, and states the harm to these members from the industrialized activity of Marcellus Shale natural gas extraction on the State’s public natural resources, particularly the State Forest.

VI. SUMARY OF ARGUMENT

States that Pennsylvania’s citizens, in amending the Constitution to include Article I § 27, declared themselves and future generations to be the owners of the Commonwealth’s public natural resources, establishing a trust to conserve and maintain these assets for their benefit, and imposing trustee duties on all Commonwealth government, including the Governor and appointed agency officials, the members of the General Assembly, and the judiciary. Reviews the actions of Governors Rendell and Corbett in violation of their duties as trustee under Article I § 27. Reviews the Governors’ violations of constitutional protections established through the CNRA and their direction of OGLF monies to non-trust purposes.

Summarizes the Commonwealth Court’s dismissal of PEDF’s requests for declarations regarding the Governor’s trustee duties under Article I § 27 and the uncontroverted evidence of harm established by PEDF. States that the Commonwealth Court has dismantled the public trust provisions of Article I § 27 through its findings by 1) refusing to impose any trustee duties on the Governor and declaring that DCNR is not the trustee of our State Parks and Forests; 2) finding that the General Assembly has complete discretion to spend the OGLF monies for any public purpose without considering the Article I § 27 mandate to conserve and maintain public natural resources; 3) sanctioning the balancing of the people’s inalienable right to protection of their public natural resources with economic benefits, thus ensuring the degradation of the public natural resources; and 4) refusing to recognize the OGLF as a de facto trust fund even though the money in the fund is from the sale of public trust assets.

Requests the Supreme Court to reverse the Commonwealth Court decision and grant the declaratory relief PEDF requests as a matter of law.

VII. ARGUMENT

            A. Commonwealth Court Dismantles Meaning of Article I § 27

Reviews the Commonwealth Court’s several erroneous conclusions in its analysis and application of Article I § 27 to PEDF’s requests for declaratory relief which, when viewed together, have the result of rendering Article I § 27 virtually meaningless in the context of protecting our State Forests and Parks.

                        1. Failure to Apply Principles of Construction of Article I § 27

Reviews the Commonwealth Court’s citation of other cases in relation to PEDF’s case, including Robinson Township, and Payne I.

                        2. Err in Finding that DCNR, and by Implication the Governor, Is Not a Trustee

In the Commonwealth Court Opinion, the Court states that DCNR and by implication, the Governor, is not the trustee under Article I § 27. This is a clear error. Reviews Commonwealth Court’s citation of DCNR’s trustee duties in Belden and Blake Corp. v. DCNR.

                        3. Err in Allowing the Legislature to Determine the Meaning of “For the Benefit of All the People”

The Commonwealth Court’s conclusion that the only constraint on the use of the OGLF monies under Article I § 27 “is the general requirement that the monies be used ‘for the benefit of the people’” and that “the public benefit to which those monies are put lies within the discretion of the General Assembly” violates the plain meaning of Article I § 27. The Commonwealth Court 1) separates the leasing of State land for oil and gas extraction from the use of the money itself, and 2) separates the duty to conserve and maintain public natural resources from the duty to benefit the people. Both separations are inappropriate and take the heart out of Article I § 27. PEDF asks the Supreme Court to declare that the General Assembly does not have the discretion to use the OGLF funds for any public benefit.

                        4. Error in Balancing Harm to “Inviolate Rights” with Economic Development

Citing Robinson Township, the Commonwealth Court somehow attempts to justify the harm to State Forests and Parks from oil and gas leasing based on the economic benefits derived to support general government spending. In addition to Article I § 27, the people's rights are also protected under Article I § 1, which preserves the people's inherent and indefeasible rights to possess and protect their property. The ability of the Commonwealth government to infringe on the people's declared rights in Article I is explicitly limited by Article I § 25. The Commonwealth Court erred by failing to consider the fundamental protections afforded the people in these Article I provisions. PEDF asks the Supreme Court to declare invalid the Commonwealth Court's balancing test that authorizes the leasing of State Forest and Park land and the conversion of public trust assets (sale of natural gas and oil) to support general government spending proposed by the Governor and the General Assembly without any consideration of the impact to the trust when the money will promote the economic well-being of the citizenry.

                        5. Err in Balancing DCNR’s Statutory Duty with the Governor’s Right to Require Leasing for Economic Benefit

The Commonwealth Court makes DCNR the sole agency responsible for the decision to lease, and the Court also gives the Governor and the General Assembly the right to pressure DCNR to lease without any duty imposed on the Governor to meet his duties as trustee under the public trust. This is a violation of the clear meaning of the public trust under Article I § 27. PEDF asks the Supreme Court to declare that the Governor and General Assembly are trustees with the duty to conserve and maintain our State Forests and Parks. They cannot apply political pressure to alter DCNR's decision without an evaluation of the impacts of their position on the public natural resources.

            B. Governors’ Decisions to Lease State Lands for Natural Gas Extraction to Generate Revenue Violate Article I § 27

                        1. Decisions to Require Leasing Violate the Public Trust

Governors Rendell and Corbett made multiple decisions that violate Article I § 27 through mandated leasing that includes: 1) issuing Executive Budgets for FY 2009-10, FY 2010-11 and FY 2014-15 that relied upon the transfer of future deposits into the OGLF from additional leasing; 2) approval and signature of General Appropriation Acts for 2009, 2010 and 2014 that relied upon the transfer of future deposits into the OGLF from additional leasing; and 3) approval and signature of Fiscal Code amendments (Sections 1602-E through 1605-E) in 2009, 2010 and 2014 that authorized transfers of future deposits into the OGLF from additional leasing. Cited are Payne v. Kassab; Commonwealth v. National Gettysburg Battlefield Tower, Inc.; and Robinson Township. PEDF asks the Supreme Court to review the Governors’ actions as requested and declare them in violation of Article I § 27.

                        2. Failure to Perform Evaluation of Harm Prior to Leasing

Before making a decision or taking an action that might or will negatively impact the public natural resources of our State Forests or Parks, the Governor and the members of the General Assembly have the fiduciary duty under Article I § 27 to understand what those impacts are or might be, both to the public natural resources and to the peoples’ uses of and benefits to those resources, and to the peoples’ rights established in the amendment. Cites Robinson Township and includes testimony by Dr. James Grace and Dan Devlin. The Commonwealth Court did not impose any duty upon the Governor or the General Assembly to evaluate the impact of their decisions on the people's public natural resources nor did it even discuss this issue even though it is central to PEDF's request for declaratory relief. PEDF asks the Supreme Court to declare that prior to deciding to lease State Forest or Park land for oil and gas extraction, an evaluation of the impacts to public natural resources and measures needed to remedy the unpreventable impacts must be conducted; and to declare that the Governors violated their fiduciary duty to conserve and maintain the public trust under Article I § 27 by failing to conduct any evaluation before making their decisions to lease additional public land.

                        3. Violations of Constitutional Protections of Conservation and Natural Resources Act

States the numerous violations of the CNRA’s protections. Cites Belden and Blake Corp. PEDF asks the Supreme Court to declare that neither the Governor nor the General Assembly can alter the statutory protections afforded by CNRA to ensure DCNR conserves and maintains the public natural resources of our State Forests and Parks without providing alternate protections that ensure the constitutional mandates are met. PEDF further asks that the Supreme Court declare that the Governors violated Article I § 27 by failing to comply with the constitutional protections afforded by CNRA.

            C. The Commonwealth Court Failed to Recognize the Funds from the Leasing and Sale of Public Natural Gas as Part of the
Public Trust under Article I § 27

                        1. Oil and Gas Lease Fund Assets Are Public Trust Assets

  a. Under Article I § 27, Public Natural Resources Are the Property of the People, and the Corpus of the Public
Trust, Not the Property of the Government

The Commonwealth Court failed to consider this. Neither the Governor nor the General Assembly can take away the constitutionally protected proprietary interests of the people in their State Forest and Park land, including the associated mineral resources, simply by amending the OGLFA through the Fiscal Code to give control of this money to the General Assembly. This right of the people is guaranteed in Article I § 25, which declares the relationship between the people’s rights and the government they created.

b. The Duties of the Trustee Mandate that Corpus of the Trust, the Public Natural Resources, Are to be
Preserved for the Purpose of the Trust

When the people of Pennsylvania voted overwhelming to amend their constitution to include Article I § 27, they established a fiduciary relationship between themselves as the common owner of the trust assets (i.e., the public natural resources of the Commonwealth) and Commonwealth government. The primary duty of the Commonwealth, as trustee, is to preserve those assets and to ensure the safety of the trust principal. By using these public trust assets for non-trust purposes, the Commonwealth violated its fiduciary duty as trustee to preserve the corpus of the public trust, for the beneficiaries of both present and future generations.

c. Taking Money from the Corpus of the Public Trust Prevents DCNR from Meeting Its Duty under
Article I § 27

The Commonwealth Court failed to recognize the critical connection between the OGLF and DCNR’s fiduciary duties under Article I § 27. DCNR made decisions to lease in reliance on its statutory control of the funds from such leasing to carry out its fiduciary duties. PEDF asks the Supreme Court, for the reasons discussed in this section, to declare that the money in the OGLF is a public trust asset over which DCNR must retain control to fulfill its fiduciary duty as trustee of the public natural resources under the CNRA and Article I § 27.   Includes testimony by Dr. James Grace and references testimony by former Secretary DiBerardinis.

                        2. People’s Vested Rights in the Oil and Gas Lease Fund (HHAP)

The Commonwealth Court refused PEDF’s request that the OGLF be declared a de facto public trust fund under Article I § 27 that must be used for projects to conserve and maintain our State Parks and Forests. Section references HHAP and the MCARE Act and Fund. The Commonwealth Court erred in its analysis of the status of the OGLF, including application of the Supreme Court's precedent in HHAP. PEDF asks the Supreme Court to declare that the OGLF is a de facto trust fund that must be used for trust purposes, not for any purpose determined by the General Assembly to be a public benefit.

            D. Section 1602-E of the Fiscal Code Violates Article I § 27

Section 1602-E of the Fiscal Code removes DCNR's exclusive control over royalty payments deposited into the OGLF and directs this money to be appropriated as part of the annual appropriation process controlled by the General Assembly and the Governor. The Commonwealth Court errs by recasting PEDF's challenge to this provision as an inquiry into the motives of the General Assembly in passing the Fiscal Code amendments rather than a constitutional challenge under Article I § 27, an inquiry which PEDF is not making and has not made. By ignoring the constitutional origins of the money in the OGLF, and DCNR's need and reliance on these funds, and by undermining the fundamental principles upon which prior leases were made under the statutory framework of the CNRA, the Governor violated his duty as trustee in signing Section 1602-E of the Fiscal Code into law. Further, Section 1602-E itself violates Article I § 27 and must be declared unconstitutional. PEDF requests that the Supreme Court make these declarations.

            E. Section 1603-E of the Fiscal Code Violates Article I § 27

Section 1603-E of the Fiscal Code limits the amount of royalty money appropriated annually to DCNR to up to $50 million dollars if sufficient funds are available, and requires DCNR to give preference to use these appropriated funds "to the operation and maintenance of State parks and forests." Here again, PEDF did not ask the Commonwealth Court to determine whether DCNR's funding is adequate. The Governor signed into law Section 1603-E without any consideration of his duty as trustee under Article I § 27, without any consideration of DCNR's needs to control the Funds from oil and gas leases to meet its constitutional and statutory mandates to conserve and maintain the public natural resources of the State Forests and Parks, and without any consideration of the conflicts of interest imposed on DCNR. For these reasons, the Governor violated his duty under Article I § 27 by signing into law Section 1603-E of the Fiscal Code; and Section 1603-E violates Article I § 27. PEDF asks the Supreme Court to make these declarations.

            F. Oil and Gas Lease Fund Transfers Violate Article I § 27

Includes a chart listing the transfers from the OGLF since 2009. The Commonwealth Court ruled that the OGLF is not a public trust fund and that the only constraint is that the money be used “for the benefit of all the people” at the discretion of the General Assembly. The direct and indirect transfers from the OGLF authorized by the Governor and the General Assembly have left virtually no money in this fund for DCNR to carry out its fiduciary duties under Article I § 27 to prevent and remedy the harm from the large scale industrial shale gas development occurring on the State Forest. The Commonwealth Court's failure to recognize that the OGLF is a public trust fund, and its sanction of the above transfers without any consideration of DCNR's fiduciary duties under CNRA and Article I § 27, is a failure of the Court itself to recognize its own Article I § 27 obligations. For these and other Fiscal Code errs by the Commonwealth Court, PEDF asks the Supreme Court to declare that Governors Rendell and Corbett violated their fiduciary duty as trustee under Article I § 27 by proposing, negotiating and approving these transfers. In addition, PEDF asks the Supreme Court to declare the legislative provisions authorizing these transfers and improper uses of the OGLF to be unconstitutional.

            G. Standing/Justiciability

The Commonwealth Court dismissed the following: 1) all of PEDF’s requests for declarations concerning the Governor’s fiduciary duty under Article I § 27 relative to the leasing of our State Forests and Parks for unconventional shale gas extraction and his decisions to take monies gained by this leasing away from DCNR; 2) all consideration of the harm caused by the Governor’s actions to our State Forests and Parks, to DCNR’s ability to meet its constitutional and statutory duty to our public natural resources, and to the people who own those resources, and for whose benefit the Commonwealth has the duty as trustee to protect and conserve those resources; and 3) all the uncontested hearing and affidavit testimony of the harm from the actions of the Governors, asserting that "resolution of these and similar questions are not necessary or appropriate under the Declaratory Judgments Act, as they do not go to the heart of a particular and concrete dispute between PEDF and the Commonwealth Respondents." PEDF disagrees, as the Declaratory Judgments Act (DJA) specifically provides for the declaration of rights or legal relations by any person interested in the administration of a trust, and to direct administrators or trustees to do or to abstain from doing any particular act in their fiduciary capacity; or to determine any question arising in the administration of a trust.

PEDF requests that the Supreme Court find that the Commonwealth Court erred in stating that PEDF raised questions that do not go to the heart of a particular and concrete dispute between PEDF and the Commonwealth Respondents, and declare that that PEDF has established justiciable claims.

VIII. CONCLUSION

For the reasons set forth above, PEDF respectfully requests that the Supreme Court reverse the Commonwealth Court's order denying PEDF's requests for declaratory relief and grant PEDF's requests for summary relief.

Analysis of January 7, 2015 Commonwealth Court Opinion

The Declaratory Judgment Act is remedial legislation and is to be liberally construed [42 Pa.C.S. § 7541(a)]. Its purpose is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.

The specific relief requested in the Petitioner’s Motions for Summary Judgment is to settle the uncertainty with respect to the rights, status and other legal relations of the Petitioner and its members relative to public trust provisions of Article I § 27 regarding the Governors’ requirements to lease State Forests and Parks, and to sell the natural gas and oil within those lands for revenue generating purposes to help balance the Commonwealth budget and help pay for other Commonwealth mandated programs including education.

The Court Opinion never evaluates the basic constitutional questions asked by the Petition:

1.    Are the public trust provisions of Article I § 27 that require the Commonwealth as trustee to conserve and maintain the public natural resources for the benefit of the people self-enabling; that is, are they enforceable as an active viable trust? (“Pennsylvania’s public natural resources are the common property of 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.” – Article I § 27)

2.    Is the Governor, as chief executive officer, a trustee of the public trust, and does he have the fiduciary duty to conserve and maintain the public natural resources for the benefit of the people?

3.    Can the Governor require private industrial development of natural gas and oil extraction on our State Forests and Parks, which degrades and diminishes those public trust resources, to generate money for purposes other than to conserve and maintain those resources?

4.    Can the Governor convert the corpus of the public trust under Article I § 27 to money to meet other constitutional requirements of the Governor?

5.    Is the Department of Conservation and Natural Resources (DCNR) the statutorily designated trustee of our State Forests and Parks under the Conservation and Natural Resources Act (CNRA), and does the CNRA create specific structure whereby DCNR can lease Forest and Parks land under Article I § 27, provided that the money goes back into the natural resources?

6.    Is the Governor bound by DCNR’s decisions?

7.    Are Article I rights protected from Government intrusion?

8.    Do the people have actual proprietary rights to the public natural resources?

9.    Is the Commonwealth interest in the public natural resources limited to their duty as trustee?

The Commonwealth Court Avoids the Petitioner’s (PEDF's) Issues:

In its Opinion, the Court is able to avoid dealing with the Petitioner’s issues by limiting its findings to the question of whether the legislature has the authority to move the lease funds from the Oil and Gas lease Fund for any public benefit, and the Court opines that only the legislature can define what those benefits are.

The Court first accomplishes this by eliminating three critical elements of the Petition (Opinion at Pgs. 26-27):

1.    The Court refuses to consider all of the Petition’s requests for declaration dealing with the Governor’s leasing of State Forests and Parks, and his duties as trustee under the public trust in making those decisions; and refuses to define the meaning of the critical terms of the public trust, as listed above.

2.    The Court refuses to consider all the uncontroverted evidence of harm caused by the decision to lease State Forests for gas extraction, including harm to Petitioner’s members from the industrial activities, the testimony of former DCNR administrators, and the 2014 Shale Gas Monitoring Report of DCNR.

3.    The Court refuses to analyze and apply the principles of the Robinson Twp. Plurality Opinion to any Article I § 27 issues, although the principles are restated in the Opinion.

The second method the Court uses to avoid dealing with the principal Article I § 27 questions is by limiting their findings to narrowly defined issues that do not relate to the constitutional questions raised by the Petition (Opinion at Pg. 27):

1.    Can the Court consider any challenge to the legality of the leases entered into in FY 2009-2010 without having the leaseholders as indispensable parties?
Court’s answer: No.

2.    Does 1602-E of the Fiscal Code, which provides that the General Assembly shall appropriate all royalty moneys from the lease fund, violate Article I § 27?
Court’s answer: It does not because the courts cannot tell the legislature how to move money from one general fund to another. The legislature has the right to appropriate funds.

3.    Does 1603-E of the Fiscal Code, which states that up to $50 million of the Lease Fund shall be appropriated to DCNR, violate Article I § 27?
Court’s Answer: It does not because the courts cannot tell the General Assembly that they are inadequately funding an agency or program, and the Petition does not establish that there is inadequate funding.

4.    Does the General Assembly’s transfer/appropriations from the Lease Fund violate Article I § 27?
Court’s Answer: It does not because the only limitation of the use of the funds from leasing within Article I § 27 is the phrase “for the benefit of all the people,” and since that is a general benefit, only the General Assembly can determine what those benefits are.

5.    The Court then addresses the question raised by the Governor as to whether or not the Governor, as “Supreme Executive,” can override DCNR’s decisions as to whether or not to lease. The Court does not address Petitioner’s questions as to whether the Governor violates his duty under Article I § 27 by deciding to lease when DCNR makes the decision not to lease.
Court’s Answer: Since DCNR has the statutory duty, the Governor cannot directly override DCNR’s decision as to whether or not to lease. But the Governor and the legislature can lobby DCNR to lease for money for the general benefit of the public. And the Governor and the legislature do not, apparently, have any duty to comply with the duties of the trustee to conserve and maintain the public natural resources for the benefit of the people.

Problems with The Court’s Finding of DCNR's Statutory Authority to Lease:

* The authority to lease within the Conservation and Natural Resources Act is that of DCNR to determine if it is in the best interest of the Commonwealth to lease.

* But only the General Assembly can determine what “for the benefit of the people” means relative to the justification for moving the money from the Lease Fund for other purposes.

* DCNR has to apply the principles of Article I § 27 to its decision, but the Court does not delineate what those principles are.

* But neither the Governor nor the General Assembly has been determined to be trustees regarding any of their decisions as to the need to lease.

* It is within the authority of the Governor and General Assembly to use the lease money for the economic benefit of the Commonwealth.

* The Court specifically states that the Governor and the General Assembly can put pressure on DCNR to lease.

There is, thus, an unresolved conflict created by the Opinion.
DCNR cannot sue the Governor or the General Assembly.
Who is going to win the conflict?

General Problems with the Opinion:

1.    There is no constitutionally protected public trust of our public natural resources. Court findings send a clear message that the public trust provisions of Article I § 27 can only be activated and interpreted through legislation.

a.    Who is considered the trustee of the trust is only established by law – the CNRA.

b.    Who defines the meaning of the term, “for the benefit of all the people” within the public trust – only the legislature.

c.    Who determines if the corpus of the trust can be removed from the trust – only the legislature.

d.    The decision to use State lands for revenue-generating activities lies exclusively within the Commonwealth’s control.

2.    The Opinion shifts the burden from the government need to evaluate harm before making a decision to the challenger’s need to establish inadequate funding. The need for evaluation of impacts on the public natural resources before making a decision or taking an action that might or will harm those resources and harm the people’s benefits to those resources has been replaced by the requirement to establish that DCNR is inadequately funded to deal with the impacts.

3.    The Opinion recognizes no Article I limitations in requiring leasing.The Court Opinion ignores the Petitioner’s request for declaration that the constitutional rights under Article I are limitations imposed on the Commonwealth in dealing with impacting the public natural resources.

Section 1 of Article I identifies the rights under Article I as indefeasible. Section 25 of Article I specifically states that “to guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.”

4.    Subjective harms benefit this analysis. The Court findings leave the following subjective and unsupportable test (Opinion, Pg. 54):

“If anything, when environmental concerns of development are juxtaposed with economic benefits of development, the Environmental Rights Amendment is a thumb on the scale, giving greater weight to the environmental concerns in the decision making process. A determination as to whether sales or leases of state-owned lands or natural resources are consistent with the Commonwealth’s obligations under Article I § 27 must be made on a case by case basis.”

PEDF’s Response: Is the test, then, that if leasing our State Forests for gas extraction provides some economic benefit, it is therefore alright to proceed unless the harm somehow exceeds the benefits? Or, is the test to determine if the leasing is consistent with the public trust requirements of Article I § 27? If the Court finds that “for the benefit of all the people” is not limited to conserving and maintaining the public natural resources, then what is the basis of the balancing? If DCNR or the Governor want to put a public landfill on a State Park, is that sufficient benefit to justify a harms/benefits analysis?

The Court provides no declaration of what the public trust requirements are under Article I § 27.

Jurisdictional Statement in PEDF's Appeal to Pennsylvania's Supreme Court

            The Pennsylvania Environmental Defense Foundation, Petitioner, hereby files this jurisdictional statement as required by Pa. R.A.P. 909 in support of its Notice of Appeal to the Supreme Court of Pennsylvania from the order entered in this matter on the 7th day of January, 2015.

            1. Opinion Reported: The opinion in support of this order, as well as the order, has been reported and is cited as 2015 Pa. Commw. LEXIS 9.

            2. Jurisdiction: The Supreme Court has jurisdiction over appeal of this order, which is expressly defined as a final order by the Declaratory Judgments Act, 42 Pa.C.S. § 7532, and under 42 Pa.C.S. § 723, is an appeal as of right pursuant to Pa. R.A.P. 1101, as this matter was originally commenced in the Commonwealth Court and was not an appeal from another court, magisterial district judge or another government unit.

            3. Order: The text of the order in question is appended hereto.

            4. Concise Statement of Procedural History: Petitioner filed a petition for review in the nature of an action for declaratory relief on March 6, 2012 requesting the Court “to settle and afford relief from uncertainty and insecurity” with respect to the “rights, status and other legal relations” of Petitioner's members as beneficiaries under the public trust provisions of Article I Section 27 of the Pennsylvania Constitution (Article I § 27) with the Commonwealth, and specifically with the Governor (Respondents), as trustee of the public trust.

            The uncertainty and insecurity of Petitioner's rights resulted from decisions and actions of Governor Rendell to spend money from the sale of natural gas on our State Forests, a public natural resource, for purposes not authorized under the Article I § 27 trust to balance the General Budget; and then to require more State Forest leasing for the same non-trust purposes. Petitioner’s members were harmed by those leases and by the loss of the money from those leases. Governor Rendell subsequently issued a moratorium on further leasing before leaving office. Governor Corbett continued to spend money from the sale of public natural resources for non-trust purposes and declared his intention to require further leasing to raise more money for such non-trust purposes. Petitioner filed this Petition in response.

            Petitioner filed an amended petition on April 30, 2012 in response to Respondents' preliminary objections. Respondents again filed preliminary objections on July 24, 2012 asserting, inter alia, that the case should be dismissed because the issues involved were political questions over which the court had no jurisdiction. The Court denied the preliminary objections on January 22, 2013 following briefing and argument.

            The House and Senate Republican Caucuses of the Pennsylvania General Assembly filed a motion to intervene in the case on June 13, 2013. The Court denied intervention on issues related to Article I § 27 but granted partially on procedural constitutional challenges to certain legislation in question. By Order of February 4, 2014, the Court withdrew the limited grant of intervention because Petitioner had removed its procedural challenges to legislation.

            Petitioner requested to file a second amended petition on December 5, 2013 based on additional information obtained during discovery. It was granted and deemed filed as of December 30, 2013. Respondents filed an answer to the second amended petition on February 12, 2014.

            Petitioner requested to file an addendum to the second amended petition on February 20, 2014 to include Governor Corbett’s declared intent in his Executive Budget of February 4, 2014 to require more leasing to raise money to balance his proposed budget. Petitioner's request was granted and the addendum was deemed filed as of March 18, 2014. Respondents filed their answer on April 16, 2014.

            Petitioner filed a motion for summary judgment on April 21, 2014 and a motion seeking a preliminary injunction on April 28, 2014, based on the new allegations. Petitioner also requested expedited consideration of the latter. A hearing on the preliminary injunction was held on May 28, and June 2-3, 2014. An order based on the parties' stipulation of settlement was entered on July 17, 2014, based on Respondents’ agreement not to require more leasing until the case was decided.

            Petitioner's summary judgment claims were denied or dismissed by the Commonwealth Court in the opinion and order issued on January 7, 2015, which is the subject to this appeal.

            6. Questions Presented

            a. Did the Commonwealth Court err in denying Petitioner’s motion for summary judgment seeking a declaration of the rights, privileges, and duties of the Respondents and the Petitioner under Article I § 27 when requiring the leasing of Pennsylvania's State Forests and Parks for oil and gas extraction to raise money for purposes other than conserving and maintaining the public natural resources of our State Parks and State Forests for the benefit of the people?

            b. Did the Court err in denying Petitioner’s motion for summary judgment on standing by refusing to recognize the harm to Petitioner's members based on undisputed evidence presented to the Court of the harm to the public natural resources of our State Forests and State Parks from the Respondents' sale of natural gas thereon; the harm to uses of our State Forests and State Parks by Petitioner's members; and the harm to the resources and Petitioner’s members from taking the money from the leasing and sale of those resources from DCNR?

            c. Did the Court err in denying Petitioner's motion for summary judgment seeking a declaration that the Respondents violated their duties under Article I § 27 by failing to consider the undisputed evidence that the Respondents failed to evaluate the potential and actual harm to the public natural resources and to the rights of the people, both those living today and to the future generations, BEFORE making the decisions to require more leasing of our State Parks and Forests for gas extraction and taking the money from the leasing and sale of the gas and oil?

            d. Did the Commonwealth Court err in denying the Petitioner’s motion for summary judgment seeking declarations that the DCNR is the statutorily designated Article I § 27 trustee under the Conservation and Natural Resources Act with the duty to conserve and maintain our State Parks and Forests and the public natural resources that are a part thereof; and that Respondents violated their duties under Article I § 27 by ignoring DCNR’s specific request not to require further leasing of our State Forests until DCNR could study the impacts of existing leases, and by ignoring DCNR’s request that they honor the existing statutory appropriation of the money from the leasing and gas extraction to DCNR because DCNR needed the money to conserve and maintain the public’s natural resources for the benefit of the people?

            e. Did the Commonwealth Court err in finding that the Governor and the General Assembly can continue to take the money from oil and gas leases of 386,000 acres of State Forest that DCNR entered into before the 2009 Fiscal Code Amendments when DCNR entered into those leases based on the knowledge that DCNR would have the money therefrom to deal with the harm caused by authorized oil and gas extraction, and to help DCNR conserve and maintain our State Parks and Forests for the benefit of the people, both now and in the future?

            f. Did the Commonwealth Court err by not considering the impacts of Sections 1604-E and 1605-E of the Fiscal Code, which require DCNR to lease more State Forest land to obtain $240 million dollars for the General Fund in 2009 and 2010, and the relation of these provisions to Section 1602-E and 1603-E of the Fiscal Code, before deciding the constitutionality of Sections 1602-E and 1603-E?

            g. Did the Commonwealth Court err in denying that the Oil and Gas Lease Fund, which is funded solely by the funds from leasing State lands for oil and gas extraction and the sale of the oil and gas therefrom, which are public trust assets under Article I § 27, is a public trust fund?

            h. Did the Commonwealth Court err by finding that the Governor and the General Assembly can appropriate money from the Oil and Gas Lease Fund knowing that such appropriations will require DCNR to lease more of our State Parks and State Forests, and that DCNR needs the money from the Fund, against DCNR's recommendations, without considering the impacts of those appropriations based on their duty as trustee of the public natural resources under Article I § 27?

Dated: February 6, 2015
John E. Childe
Attorney for Petitioner

Retention Pond, DCNR 100 Pad N, Seneca Resources, Loyalsock State Forest

Application for Reargument
January 21, 2015

Following is the text for the Application for Reargument to the Commonwealth Court

PETITIONER’S APPLICATION FOR REARGUMENT

The Pennsylvania Environmental Defense Foundation (PEDF), through its undersigned counsel, submits this request for reargument in the above-captioned case pursuant to Pa.R.A.P. 2541-2544 because the Commonwealth Court has overlooked or misapprehended certain points of law and fact in its Opinion and Order issued on January 7, 2015.

The Court Misapprehended Application of the Balancing Test in Considering the Constitutionality of an Action or Decision of the Commonwealth that Directly Impacts Rights Established Under Article I § 27

The Court concludes, after a brief analysis of Article I Section 27 of the Pennsylvania Constitution (Article I § 27), and after rejecting the Pennsylvania Supreme Court's plurality decision in Robinson Twp. v. Commonwealth, 83 A.3d 901 (Pa. 2013), that it remains bound by its own Article I § 27 balancing test established in Payne v. Kassab, 312 A.2d 86 (Pa. Cmwlth. 1973), which was affirmed by the Pennsylvania Supreme Court (Payne v. Kassab, 361 A.2d 263 (Pa. 1976)). Opinion (Op.) at 33-34. The Payne opinions require the Commonwealth to balance any harm to the rights established under Article I § 27 that may or will be caused in carrying out its duties against the benefits derived from the Commonwealth's action.

In reaching its conclusion in this case, the Court misapprehended the meaning of the rights of the people under Article I of the Pennsylvania Constitution, and misconstrued Article I § 25, which clearly and directly precludes any balancing of the people’s rights under Article I § 27 with the constitutional powers and duties given to the Commonwealth government by the people. The Court overlooked PEDF's argument that Article I § 1 of the Pennsylvania Constitution declares the Article I rights of the people to be indefeasible; and misapprehends the plain language of Article I § 25, which states that “to guard against the transgressions of the high powers which we have delegated, we declare that everything in this Article is excepted out of the general powers of government and shall forever remain inviolate.” It is undisputable that the Commonwealth is prohibited from balancing Article I rights with the Commonwealth’s duties under other constitutional mandates, including balancing the budget (Article VIII, § 12) or providing for public education (Article II, § 14).

The Court Overlooked the Plain Language of Article I § 27

The plain language of the public trust under Article I § 27 states: “Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come” (emphasis added). The Court overlooked this plain language, which states that the people own the public natural resources, not the Commonwealth. The public natural resources are the corpus of the trust established by Article I § 27. The Commonwealth cannot lease or sell those natural resources, including the natural gas and oil, and take the money out of the public trust to carry out its other responsibilities.

Article I § 27 specifically defines and limits the Commonwealth’s role with regard to public natural resources: “As trustee of those natural resources, the Commonwealth shall conserve and maintain them for the benefit of all the people” (emphasis added). The Commonwealth is constrained to fulfill its duty as trustee under Article I § 27 to conserve and maintain the public natural resources for the benefit of the people in any action it takes to carry out its constitutional or statutory duties. Nothing in Article I § 27 allows the Commonwealth to use the people's public natural resources to carry out its other duties under the Constitution.

The Court Misapprehended PEDF’s Fundamental Article I § 27 Claims

PEDF's fundamental requests are for the Court to declare that the Respondents violated their duties as Trustees under Article I § 27 by failing to evaluate the impacts on the public natural resources BEFORE making the following decisions and taking the following actions:

(1) Requiring DCNR to lease additional State Forest land for oil and gas extraction knowing that more than 600,000 acres of State Forest were already under lease, and that DCNR had decided not to execute any more leases until it could assess the harm to the State Forest from the existing leases;

(2) Taking from DCNR $143 million that DCNR had obtained from leasing 74,000 acres of State Forest for oil and gas extraction in 2008, knowing that DCNR had entered into those leases with the understanding that it would receive this money under existing law (the Oil and Gas Lease Fund Act) to deal with the impacts from oil and gas extraction and to benefit the public natural resources of our State Forests and Parks;

(3) Requiring additional State Forest oil and gas leases in 2009 and 2010 for the sole purpose of raising money for the General Fund, knowing that the additional oil and gas extraction would cause direct, immediate and long term harm to Pennsylvania’s public natural resources, and knowing that DCNR needed the money to fulfill its obligation to conserve and maintain our State Parks and Forests under Article I § 27.

The Court misapprehended the nature of PEDF's fundamental claim and failed to address the Respondents duties under Article I § 27 to evaluate the impact of their decisions and actions before taking them.

The Court also misapprehended the nature of PEDF's fundamental claims in asserting that parties holding DCNR leases are indispensable parties. PEDF has never requested that the Court invalidate the existing DCNR leases and would have named the lease holders if it intended to do so.

The Court Overlooked Undisputed Facts of Harm

The Court recognizes that Article I § 27 places an affirmative duty on the Commonwealth to “prevent and remedy the degradation, diminution, or depletion of our public natural resources”. Op. at 50. To carry out this duty, the Commonwealth, including the Governor as its Chief Executive Officer, must evaluate the degradation, diminution, or depletion of public natural resources (i.e., the harm) that will result from a proposed decision or action. The Court overlooked the need for this critical assessment of harm by the Commonwealth in carrying out its Article I § 27 trustee duties, and the Respondents' failure to conduct this assessment before making decisions and taking actions that would impact public natural resources.

Even if the Respondents are allowed to balance the people's constitutional rights against the Respondents' own duties (a position that, as discussed above, misapprehends our Constitution), the Court overlooked the need for the Respondents to evaluate the harm to the public natural resources, as well as the harm to the people's rights under Article I § 27, so those harms could be balanced against the benefits that the Respondents allege justify such harms. The Court has the duty to review that balancing, which it could not do because the Respondents failed to evaluate the harm or conduct any actual balancing.

Although the Respondents failed to evaluate the harm to public natural resources from oil and gas extraction on our State Forests and Parks, PEDF presented extensive undisputed evidence of such harm, which the Court overlooked. PEDF provided specific evidence of harm in Affidavits from 14 of its members and member groups, beginning with the loss of thousands of acres of State Forest land to surface disturbance from gas extraction activities. The Court overlooked the specific harm described in the Governor’s Marcellus Shale Advisory Commission Report issued in July 2011, including forest fragmentation and air pollution; and the specific harm described in the DCNR Shale-Gas Monitoring Report issued in April 2014. The Court overlooked the undisputed testimony elicited during the three-day hearing in this case of actual, immediate and long term harm to public natural resources caused by the natural gas extraction activities on our State Forests and Parks.

PEDF summarized the findings of harm to our State Forests from DCNR's 2014 report for the Court in its briefs. That harm, which is based on data collected by DCNR during 2012 when just 20% of the natural gas wells anticipated had been drilled, includes surface disturbance to the land, introduction of invasive species, increased pest susceptibility, water impacts, environmental law violations, air impacts, impacts to wildlife, recreation impacts, dust impacts, noise impacts, timber impacts, pipeline impacts, impacts to the wild character of the forests, and impacts from forest fragmentation. The report projected that gas extraction activity would continue to occur under the leases for at least the next 50 years, and that harm would be cumulative. The Court not only overlooked this undisputed evidence, but failed to even mention the DCNR report.

The Court Overlooked or Misapprehended that PEDF's Claims are Against the Governor Not the General Assembly

The Court misapprehended that PEDF filed its claims against the Governor and the Commonwealth, not the General Assembly, because the Governor, as the Chief Executive Officer of the Commonwealth, was and is responsible for insuring that he and DCNR meet their constitutional and statutory obligations as trustee of Pennsylvania’s natural resources, and his failure to do so has resulted in harm to PEDF’s members. The Court recognizes that officials at DCNR have a duty to support, obey and defend Article I § 27 when determining whether leasing State Forest and Park land for oil and gas extraction is in the best interest of the Commonwealth; but then condones the attempt by the Governor (and the General Assembly) to influence DCNR's decision without regard to Article I § 27. Op. at 57-58.

The Court Misapprehended that Sections 1602-E and 1603-E of the Fiscal Code Violate Article I § 27 by Altering Appropriations to DCNR AFTER DCNR Made Decisions in Reliance upon those Appropriations

The Court recognizes that DCNR has exclusive authority under the Conservation and Natural Resources Act (71 P.S. § 1340.302(a)(6)) to lease State Forest land for oil and gas extraction when it determines that doing so is in the best interest of the Commonwealth. Op. at 56. The Court recognizes that DCNR must consider whether such leases are consistent with the rights, duties and obligations embodied in Article I § 27. Op. at 58.

The Court recognizes that since 1955 the Oil and Gas Lease Fund Act (71 P.S. §§ 1331-1333) expressly appropriates all of the money from DCNR leases to DCNR for its exclusive use for conservation, recreation, dams and flood control projects. Op. at 4. The Court recognizes that since the inception of DCNR's oil and gas leasing of State Forest land for oil and gas extraction in 1947, DCNR has made its leasing decisions knowing that the Oil and Gas Lease Fund Act gives it control of the funds generated from the leasing to mitigate the harm from the extraction activities by funding projects to enhance State Forests and State Parks. Id.

The Court recognizes that when DCNR made the decision to award additional leases in 2008, the Oil and Gas Lease Fund Act continued to direct the money from such leasing to DCNR. AFTER these leases were awarded and the initial bonus rental payments received, the Respondents approved Sections 1602-E and 1603-E to the Fiscal Code, which give the General Assembly the ability to override the standing appropriation by the Oil and Gas Lease Fund Act of royalty money from DCNR leases directly to DCNR. At the same time, the Respondents approved the transfer of $143 million of the initial lease rental payments received by DCNR for the 2008 leases from the Oil and Gas Lease Fund to the General Fund through the General Appropriations Act of 2009. Op. at 7-9.

For all the leases entered into by DCNR before the additional leasing was mandated by the Respondents in 2009 and 2010 (discussed further below), DCNR awarded those leases on the basis that it would receive the money therefrom to mitigate the impacts to the public natural resources from the gas extraction process by funding projects to protect and improve the public natural resources of our State Forests and State Parks. PEDF provided uncontroverted testimony that DCNR has a backlog of projects needed to conserve and maintain the public natural resources of our State Parks and Forests totaling an estimated billion dollars, including the repair and replacement of existing dams, remediation of acid mine drainage and pollution from abandoned wells, the purchase of privately-held natural gas rights on our State Parks and Forests to protect their integrity, and the purchase of additional land in and adjacent to our State Parks and Forests in order to protect and buffer the impacts of gas extraction occurring on nearby private lands.

Despite DCNR's expectation that the moneys from the 2008 leasing would be available to it to fulfill its Article I § 27 duties to conserve and maintain the public natural resources of our State Forests and Parks, the Respondents approved these Fiscal Code provisions without any analysis of the costs to deal with the cumulative impacts from the gas extraction under the existing DCNR leases, gas extraction under private leases on State Park and Forest land with severed oil and gas rights, or gas extraction occurring on private land adjacent to our State Parks and Forests.

Rather than analyzing the Respondents' duties under Article I § 27, the Court misapprehends PEDF's claims as questioning the adequacy of the amount of royalty funds (up to $50,000,000) appropriated to DCNR under Section 1603-E of the Fiscal Code. PEDF does not raise this question. By framing the question in this manner, the Court shifts the burden to DCNR to demonstrate that the funding appropriated to DCNR "is so deficient that DCNR cannot conserve and maintain our State natural resources." Op. at 47.

Under Article I § 27, the burden is on the Respondents as trustees to insure that their actions do not and will not harm the public natural resources. The Respondents, not PEDF, bear the burden of ensuring that DCNR retains the funds it relied upon in deciding to lease State Forest land to carry out its constitutional and statutory obligations to conserve and maintain the public natural resources of our State Parks and State Forests.

The Court Overlooked the Fiscal Code Transfers to the General Fund

PEDF's challenge to Sections 1604-E and 1605-E of the Fiscal Code, which authorized the transfer to the General Fund of $240 million generated by mandated addition State Forest leasing, are fundamental to the Court's analysis of the Respondents' Article I § 27 duties. The Court overlooked these transfers and only reviewed the constitutionality of Sections 1602-E and 1603-E of the Fiscal Code.

The undisputed facts establish that the Governor knew when he signed these Fiscal Code provisions into law that DCNR would be required to lease additional State Forest lands to raise the money for these transfers; he also knew that DCNR recommended against such additional leasing because it needed time to evaluate the impacts of unconventional gas extraction occurring under existing leases to assess whether more oil and gas extraction could occur without irreparable harm. The Court also overlooked the undisputed fact that the Governor knew DCNR needed the money from the oil and gas leasing to mitigate the impacts from the gas extraction activity; and that, as discussed above, DCNR awarded the leases expecting to retain the money generated by the leases, based on existing law in effect since 1955, which appropriated the money from the leasing directly and only to DCNR exclusively for projects to conserve our State Parks and Forests and to enhance their recreational use by the people.

The Court Misapprehended the Public Trust Fund Established by Article I § 27

The Court recognizes that Article I § 27 "creates a public trust in favor of the people (i.e., the trust beneficiaries), including future generations, which encompasses our public natural resources, which include, inter alia, state-owned lands and mineral reserves (i.e., the corpus of the trust)." Op. at 30. The Court further recognizes that the Commonwealth's trustee obligation under Article I § 27 places an affirmative duty on the Commonwealth to prevent and remedy the degradation, diminution, or depletion of our public natural resources; and that as fiduciary, the Commonwealth has a duty to act toward the corpus of the trust—the public natural resources—with prudence, loyalty, and impartiality. Op. at 50.

After finding that the oil and gas on our State Forests are part of the corpus of the public trust established by Article I § 27, the Court misapprehended the nature of the money derived from the sale of those trust assets when it asserts that their placement in a fund created by statute makes them a "special fund", not a constitutional trust fund. The Court points to other provisions in the Pennsylvania Constitution that dedicate certain money to particular purposes (e.g., use of gasoline taxes and motor license fees for public highway taxes under Article VIII § 11(a); issuing bonds to create a fund for land and water conservation and reclamation under Article VIII § 16) to suggest that these funds are trust funds, but that money derived from the sale of trust assets established under Article I § 27 somehow are not. The Court misapprehended the nature of trust funds and the fiduciary duties of trustees to reach this conclusion.

The money from the sale of public natural resources, which are public trust assets under Article I § 27, must be used exclusively for trust purposes—to conserve and maintain public natural resources—just as the funds established under Article VIII must be used exclusively for their trust purposes. The sale of our public natural resources to raise money for other laudable government purposes (e.g., education, remediating legacy contamination on private land, or preserving farmland) is not sanctioned.

For the reasons set forth above, PEDF respectfully requests that the Court grant reargument and reconsider its Opinion and Order as it relates to the above issue.
____________________
John E. Childe, Esq.

Proposed compressor station site, Hills Grove Road, Loyalsock State Forest

Summary of PEDF's Argument before Commonwealth Court En Banc (entire court)

Summarized below are the principles argued by our attorney, John Childe, at the October 8, 2014 oral argument before the Commonwealth Court.

The concept embodied in Article I § 27 of Pennsylvania’s Constitution that the public natural resources are the common property of all the people is not a new one. It is a concept that is at the heart of our democracy. It is something that we all inherently know.

But in 1971, the people of Pennsylvania did something that no other state, that no other nation of which our attorney is aware has done. The people recognized this right in Article I of Pennsylvania’s Constitution, and this makes all the difference.

Article I Sections I and 25
The intent to make all the stated rights of the people part of Article I of our Constitution is clear. Section 1 of Article I identifies the rights as indefeasible. Section 25 of Article I specifically states that “to guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.”

The Respondent Governors (Rendell and Corbett) Have Violated the Constitution and Their Duties Thereunder with the Following Decisions and Actions:
(1)   By converting the public natural resources of our State Forests to industrial development through leases for gas extraction that last for up to fifty years; and by selling our non-renewable natural gas, also a public natural resource, solely for the purpose of obtaining revenue for one year for the General Fund.
(2)   By giving up control of all the funds from gas extraction to the General Assembly, rather than keeping the funds with the Department of Conservation and Natural Resources (DCNR).
(3)   By requiring DCNR to be dependent on revenue from leasing our Parks and Forests to operate the agency in order to divert more gas extraction money to the General Fund.
(4)   By taking away from DCNR control of their grants by diverting $50,000,000 annually to the Commonwealth Financing Authority and the Marcellus Legacy Fund.

All of These Actions Violate Both Article I § 25 and Article I § 27 of Our Constitution, and Violate Respondents’ Duty as Trustees
THE TEST FOR COURTS TO APPLY for determining whether these actions are unconstitutional is based on whether the actions or decisions violate the duty to conserve and maintain the public natural resources for the benefit of the people. The actions or decisions do violate the duty.

Conserve and Maintain
The principal duty of the trustee under Article I § 27 is to conserve and maintain the public natural resources for the benefit of all the people. The common definition of “conserve” is to keep from loss, waste or injury. It is synonymous with preserve. The common definition of “maintain” is to keep in existence, or to preserve, or to keep unimpaired. (Random House College Dictionary, Revised)

The trustee’s duty to conserve and maintain are statutorily defined in relation to State Forests and Parks under the 1995 Conservation and Natural Resources Act (CNRA), Section 101(b)(1) which states that it is DCNR’s duty to (1) “maintain, improve and preserve State Parks, (2) manage State Forest lands to assure their long-term health, sustainability and economic use, and (3) to administer grant and technical assistance programs that will benefit rivers, conservation, trails and greenways, local recreation, regional heritage sites, conservation and environmental education programs across Pennsylvania.” (The term Economic Uses is defined in Sec. 101(a)(4) and (6) to mean outdoor recreational and tourist economy.)

Shortly after DCNR was created, the Bureau of Forestry applied its scientific knowledge and experience to these duties to conserve and maintain forests and adopted the long-term plan titled Penn’s Woods-Sustaining our Forests, published in 1995.

The plan is based on defining and implementing sound ecosystem management to insure the long-term health, viability and productivity of the Commonwealth’s forests. This system requires the retention of the wild character and the maintenance of the biological diversity of the forest, while providing pure water, opportunities for low-density recreation, habitats for forest plants and animals, sustained yields of quality timber, and environmentally sound utilization of minerals. (Environmentally sound utilization means mineral extraction that does not disturb the other uses under ecosystem management as previously stated – testimony of both Dr. James Grace and Daniel Devlin.)

The primary goal of ecosystem management is to keep the complex interdependencies of the biological systems intact and functioning well over long periods of time. The essence of maintaining ecosystem integrity is to retain the health and resilience of systems so they can accommodate short-term stresses and adapt to long-term changes. Each of the uses identified is considered as important as each of the others to sustain the whole.

Balance Multiple Uses of the State Forest
To insure sustainability of the public resources for future generations, it is necessary to balance the interests of present and future generations, and to insure that the use of one resource does not deplete, diminish or degrade the other resources of our forests. One of those resources is the economic viability of our parks and forests as part of Pennsylvania’s outdoor recreation and tourist industry.

DCNR has insured that both these balances are achieved through the long-term plan using the principles of ecosystem management. Both Governors’ decisions to require leasing of State Forests for money for the General Fund and taking the funds from the Oil and Gas Lease Fund (OGLF) preclude DCNR from achieving those balances, and in fact undo those balances.

Balance Economic Benefits with Harm to the Public Trust
The Respondents justify the actions to require more leasing and to take all the money by arguing that the Governor has the authority to balance the economic benefit of leasing against the harm caused by the leasing. The Governor has no authority to do so. No principle of law permits the government to suspend constitutional requirements for economic reasons, no matter how compelling those reasons may be. (Auth. Cited at Br. 87)

Again, the Supreme Court Plurality Opinion in Robinson Township states, “For these reasons, we are constrained to hold that the degradation of the corpus of the trust…are incompatible with the express command of the Environmental Rights Amendment. We recognize the…urgency with which the political branches believe they must act to secure the benefits of developing the unconventional gas industry…But in the urgency, it is apparent that the Article I Section 27 constitutional commands have been swept aside. Act 13’s unauthorized use of the public trust assets is unprecedented and constitutionally infirm, even assuming that the trustee believes it is acting solely and in good faith to advance the economic interests of the beneficiaries.” Id. at 981-982 (Br. at 74-75).

The authority cited by respondents, National Audubon v. Superior Court of California, is based on common law principles. Under common law public resource protection, the government owns the submerged lands and has the duty to protect the people’s uses of the water over the lands, navigation, commerce and fishing rights… But under the constitutional provisions of Article I § 27, the people own the natural resources, including the land and the natural gas that is a part of that land. The Governor has no proprietary interest in the public natural resources.

Nor does the Governor have any independent authority to lease State Forests or Parks or to sell the natural gas independent of the CNRA, which has delegated that authority to DCNR under the specific limitations of Article I § 27.

“Benefit of the People”
The third sentence of Article I § 27 states, “As trustee of these resources the Commonwealth shall conserve and maintain them for the benefit of the people.”

The phrase “benefit of the people” specifically relates to the benefits to the public natural resources within the Constitutional Amendment. These benefits reflect the three rights established by the Amendment.

The phrase cannot mean any benefit outside the purposes of the trust. That would violate one of the basic tenants of fiduciary law, stated by the Robinson Township Plurality Opinion, “A trustee may use the assets of a trust only for the purposes authorized by the trust or necessary for the preservation of the trust. Other uses are beyond the scope of discretion conferred, even where the trustee claims to be acting solely to advance other discrete interests of the beneficiaries.” (Citations page 36 of Addendum Br.)

The Supreme Court Plurality Opinion further states, “ As trustee, the Commonwealth has the duty to refrain from permitting or encouraging the degradation, diminution or depletion of public natural resources, whether…through direct state action or indirectly…” Id. At 957

The Oil and Gas Lease Fund Is a Constitutional Trust Fund
Although the OGLF is identified as a special fund, it is in fact a trust fund (See Pages 39-55 of Br. In Support of Addendum Summary Judgment). The Fund is part of the public trust. Revenue in the OGLF is generated entirely from State Forests, which are leased and converted to industrial development, and from the sale of natural gas, a non-renewable public natural resource, both of which are part of the corpus of the public trust under Article I § 27.

Mcare
The recent Supreme Court Decision in Hospital and Healthsystem Assoc. of Pa. v. Commonwealth (cited beginning Page 39 of Addendum Br.) is directly on point. There, Pennsylvania physicians and hospitals were required to keep a special fund, under the Mcare Act, as backup insurance. In 2009, the government amended the Fiscal Code to take $100,000,000 from the Mcare Fund for the General Fund. The Supreme Court found the transfer unconstitutional, looking to the fact that the assessment program under the Mcare Act was never intended as a general revenue mechanism to raise tax revenue, and that there is a rational relationship between the moneys paid into the fund and their mandated use under the Act. This is also certainly true for the OGLF.

Since its inception in 1955, the OGLF has always been used for the exclusive purposes of the OGLF Act – conservation, recreation and flood control, all functions under DCNR and its predecessor agency, and all of which relate to the duty to conserve and maintain the public natural resources.

Both DCNR and the beneficiaries of the trust have relied on the receipt of the funds under the terms and conditions of the OGLF Act when making any decision to lease. (See testimony of Michael DiBerardinis, Dr. James Grace and Daniel Devlin.)

The Mcare court decision dealt directly with the question of whether the legislature was free to re-appropriate the funds, as the Governors and General Assembly did with the OGLF, and the Court answered that it could not, stating, “If the Constitution precluded it from doing so, the severity of the fiscal crisis is immaterial.”

In the case of the OGLF, if the leasing of the State Forests and Parks by the Respondents is unconstitutional, then the moneys generated by those leases cannot be re-appropriated from DCNR to the General Fund or for any other purposes outside of the trust.

A trustee cannot sell or convert the assets of a trust and take the proceeds of that sale outside of the trust. The Commonwealth as trustee has the fiduciary obligation to keep the proceeds of the lease and sale of the public natural resources within the public trust to be used for the specific purposes of the trust.

The Commonwealth has no ownership right to the public natural resources. They are the common property of the people as mandated under Article I § 27. Neither the Governor nor the General Assembly have any authority to take the corpus of the trust and convert and sell it for other government purposes outside the trust.

2014 Amendments to the Fiscal Code
The recent amendments to the Fiscal Code just about eliminate constitutional protections for continued leasing of State Parks and Forests. The new Section 1601.1 declares outright that leasing State Parks and Forests for revenue for the General Fund is authorized and that it is in the best interest of the Commonwealth to lease, not if DCNR determines that leasing is justified under Article I § 27 and is in compliance with its scientific plan to conserve and maintain the public resources. Section 1601.1 authorizes leasing if there are uses other than protecting public natural resources that can benefit from leasing.

The changes made by the Fiscal Code ignore the current dilemma that DCNR is facing, with 1) almost 700,000 acres of State Forest land that are currently leased (many of which are not DCNR leases but instead are severed, private rights leases), 2) all the private land leases located adjacent to and within our State Forests and Parks; and 3) more than 200,000 acres of our State Parks that have severed, privately-owned mineral rights. DCNR has only just begun to understand what the impacts will be from those leases, and what the costs will be to try to mitigate them.

Neither the Governors nor the General Assembly made any attempt to understand those impacts before approving the 2014 Fiscal Code Amendments.

The 2014 Amendments violate the proprietary interests of the people in the State Parks and Forests. They are based on the presumption that the Commonwealth has the proprietary authority to lease independently of and immune from the rights of Article I § 27, and that the Parks and Forests can be used to generate general funds. The Commonwealth does not have this authority.

Proposed Non-Surface Impact Leases
Governor Corbett has issued an Executive Order to allow further leasing of State Forest and Park lands for gas extraction only if the leases do not allow for any impacts to the surface of the Parks or Forests. This authorization is to support his proposal for $75,000,000 for the General Fund to be obtained from new leases, which became $95,000,000 when he signed the Appropriations Act into law.

PEDF did not challenge the constitutionality of the Governor’s Executive Order. And there have been no new permits issued that the PEDF could challenge.

But PEDF did challenge the constitutionality of the Governor’s decision to require leasing of State Forests and Parks for gas extraction to obtain revenue for the General Fund. This decision violates all the constitutional mandates of Article I § 27.

The decision violates the duty of the trustee to conserve and maintain the public natural resources because, even under an alleged non-surface impact lease, it requires the loss of the natural gas for future generations. In addition, an in-depth analysis or evaluation of any degradation, diminishment or depletion as a result of leasing needs to be done, and none was conducted.

The decision violates the constitutional protections established in the CNRA, that only DCNR can make the decision to lease, and DCNR has not done so.

The decision violates the statutory structure of CNRA by taking the funds away from DCNR for the purpose of maintaining the public resources.

The decision violates the public trust duties to use the corpus of the trust only for the purposes of the trust, and only for the benefit of the beneficiaries.

Requiring Money to Obtain Leasing for the General Fund to Operate DCNR and for the Act 13 Amendment Diverting Money to the Commonwealth Financing Agency
Using OGLF moneys for the General Fund, to operate DCNR, and for the Marcellus Legacy Fund are all outside the purposes of the trust.

Both Governors’ requirements that DCNR lease State Forest (and now State Park) lands for revenue for the General Fund violates their fiduciary duty as trustees to conserve and maintain the natural resources for the benefit of the people for the purposes set forth in the trust. Leasing degrades, diminishes and depletes the State Forest and the natural resources therein.

A trustee may use the assets of a trust only for the purposes authorized in the trust or necessary for the preservation of that trust. Other uses are beyond the scope of the discretion conferred. (Cases cited page 65 of Br.)

These decisions violate Article I § 25 as well as Article I § 27, by failing to act solely in the beneficiaries’ interests as set forth in the trust and instead, to use trust assets to benefit other duties of the Governor that are not a part of the public trust.

The decisions violate the Governors’ duty to obey the laws of the Commonwealth by overriding the limitations to lease set forth under the CNRA, and by overriding the limitations of the OGLF Act as adopted under the CNRA.
The decisions violate the Governors’ fiduciary duty as trustees by overriding the recommendations of DCNR, the agency with the expertise, not to lease until the impacts from the existing leases are determined; and by overriding DCNR’s notice that the revenue was needed for completing a backlog of projects necessary for the public resources, as mandated by the CNRA and the OGLF Act.
The decisions violate the Governors’ duty as trustees as well as their duty to obey the laws of the Commonwealth by stripping DCNR of its ability to conserve and maintain the State Forests by determining whether to lease, and by stripping DCNR of the revenue from the existing and prior leasing that would allow DCNR to adequately study, manage and mitigate the impacts from those leases.
The decisions violate the Governors’ constitutional duty to consider, in advance of leasing, the environmental effect of any proposed action on the constitutionally protected features. Id. 951-952 (Br. At 73.)

Use of the Oil and Gas Lease Fund to Operate DCNR
Governor Corbett’s use of the OGLF to benefit the General Fund by replacing General Funds for DCNR with OGLF money to operate the agency is unconstitutional. Use of the OGLF to operate DCNR violates Article I § 27 and raises the same constitutional infirmities as directly transferring the funds.

Under Section 1603-E of the Fiscal Code, up to $50,000,000 are allegedly allocated to DCNR from the OGLF each year for compliance with the conditions of the OGLF Act. However, this money is used for DCNR’s operating expenses rather than the projects and land purchases for which the Fund is legislatively intended. The projects and land purchases get nothing. Under the 2014 Amendments, DCNR is no longer guaranteed any funds from the OGLF for these purposes.

To put DCNR in the position of having to lease state land in order to operate directly conflicts with their Constitutional and statutory obligations to conserve and protect those public natural resources.

No evaluation was made on either the impacts to the natural resources by the decision or on the impacts to DCNR’s ability to meet its Constitutional and statutory duties to conserve and protect the public trust resources and the beneficiaries rights and benefits thereto. This lack of evaluation violates Article I § 25 as well as Article I § 27.

Section 1602-E of the Fiscal Code

Section 1602-E violates Article I § 27 because there was no evaluation of the impact of the action on the rights of the people under the Environmental Amendment before the decision was made, despite the fact that DCNR had notified the Governor of the impacts. (Br. at 89-90.)
1602-E violates Article I § 27 by permanently removing the statutory protections established in the CNRA, which allowed leasing of State Forest land for the extraction of gas and oil because the revenues from that leasing would go back into the public natural resources.

1602-E violates Article I § 27 because it takes the corpus of the trust, as assets converted to revenue, out of the trust.

1602-E violates Article I § 25 because it clearly uses the power of the government to transgress on the rights of the people to their public natural resources.

PEDF Files Final Brief in Lawsuit, Oral Argument Set for October 8

* PEDF attorney John Childe has filed the final Brief in the lawsuit to protect our State Forests and Parks from the harmful effects of Marcellus Shale gas extraction. The 76-page Brief can be read in its entirety here. It is also summarized below.

* Oral Argument has been set for October 8, 2014.
Location: Court Room No. 1, Ninth Floor, Widener Building, 1339 Chestnut Street, One South Penn Square, Philadelphia, PA
Time: Arguments are set to begin at 9:30 a.m., but PEDF may not be scheduled first.

Summary of Brief
COMMONWEALTH COURT OF PENNSYLVANIA
Petitioner: PENNSYLVANIA ENVIRONMENTAL DEFENSE FOUNDATION
Respondents: COMMONWEALTH OF PENNSYLVANIA and GOVERNOR THOMAS W. CORBETT, JR.

I. DECLARATORY JUDGMENT ACTIONS
PEDF asks Commonwealth Court solely for relief under the Declaratory Judgments Act (remedial legislation) and cites justification for this request.

II. RESPONSE TO STATEMENT OF FACTS

            A. Procedural History. PEDF lists twenty-two additional relevant facts not provided by the Respondents, March 6, 2012 – July 31, 2014. Includes list of PEDF members or member groups.

            B. Material Facts. PEDF’s supportive facts are based on law and on admissions of authorized agents or representatives of party opponents, and taken from public documents. In considering a motion for summary judgment, the court must consider the entire setting of the case, inclusive of all papers actually presented in the record as well as the potential record at the time of trial.

III. SUMMARY OF ARGUMENT

This section explains how the Respondents have attempted to reframe PEDF’s claims to avoid the fact that their (Respondents’) actions have violated Article I § 27 of the Pennsylvania Constitution. PEDF’s stated claims are as follows:

            Article I Protection: The specific rights of the people are spelled out in plain language, and the Respondents have violated these rights. In addition, these constitutional rights “are excepted out of the general power granted to the government and shall forever remain inviolate” under Article I § 25. “Protection” means that the Commonwealth must consider in advance of a decision or action what the effects would be on each of the people’s constitutional rights.

            Balancing Rights and Interests: Governors Rendell and Corbett ignored the rights in Article I § 27 and the limitations in Article I § 25. Instead, they maintain that the government’s economic interests are more important than the people’s rights under Article I § 27. PEDF maintains that Article I § 27 does not allow for such determination, that the public natural resources are owned by the people (not the government), and that the resources are not a “cash cow” for the governor and the General Assembly, who serve as trustee of the resources with a fiduciary duty to conserve and protect them for the people.

            Common Law Public Trust Not Applicable: Under common law, the government owns the land beneath our rivers and streams, and the people have the right to use the water. Under Article I § 27, the people are the common owners of the land and other public natural resources. Common law is not applicable to Article I § 27.

            Legislative Actions: PEDF asserts that any legislation enacted must be consistent with rights established by Article I § 27. The 1995 Conservation and Natural Resources Act (CNRA) was consistent as enacted. But the Respondents stripped the CNRA and the Department of Conservation and Natural Resources (DCNR) of their ability to meet their constitutional obligations under Article I § 27.

            People’s Reliance: Over the years, the people relied on the protections afforded their public lands by the provisions of Article I § 27, which were insured and carried out by DCNR in its leasing practices.

            Petitioner’s Harm: Affidavits of individual and group members of PEDF establish harm from development of gas extraction on the leased State Forest, substantiated by DCNR’s April 2014 Shale-Gas Monitoring Report. The Respondents have used, and want to continue to use, our state lands for revenue for other Commonwealth purposes as they choose, and to ignore the mandates of the CNRA and DCNR. Contrary to their obligations under Article I § 27, they have passed Amendments to the Fiscal Code to this end.

IV. PETITIONER’S RESPONSE TO RESPONDENTS’ ARGUMENT

            A. Rights of Petitioner’s Members. PEDF claims that the rights of its members under Article I § 27 have been violated by the Respondents. PEDF asks the Court to declare the nature of the Respondent’s rights and responsibilities, and to look to the plain language of the Article to make that clarification.

                        1. Right to Clean Air, Pure Water and Preservation of Values. PEDF requests the Court to declare that PEDF’s members and all other people of the Commonwealth have this right in their State Parks and Forests.

                        2. Proprietary Rights. The second sentence of Article I § 27 establishes by constitutional mandate that the people own the public natural resources of Pennsylvania as their common property, and this language is clear. It does not say that the resources are the property of both the people and the government – but the property solely of both the people who are alive now and the people of generations yet to come. The sentence also establishes the beneficiaries of the public trust and that the public natural resources are the corpus of that trust. PEDF requests the Court to declare that PEDF’s members and all the people of the Commonwealth have a proprietary right in the public natural resources of our State Parks and Forests.

                                    a. Common Law Public Trust Doctrine Not Applicable. PEDF asserts that no single common law public trust doctrine exists. Citing various litigation measures, PEDF maintains that applying the common law principle that the sovereign has legal title to submerged lands would be inappropriate in the constitutional rights of the people of Pennsylvania to common ownership of Pennsylvania’s public natural resources.

                                    b. Natural Gas and Oil Interest Acquired When State Parks and Forests Were Purchased Are Public Natural Resources. PEDF maintains that where mineral rights are retained with the public lands, they are the common property of the beneficiaries of the public trust and as such are subject to the same constitutional protections as our State Parks and Forests.

                                    c. Sustaining Pennsylvania’s Forest through Ecosystem Management. Mineral resources are valuable assets of the public trust and are recognized as such in the Bureau of Forestry’s Mission Statement. These mineral resources are necessary to preserve the subject of the trust and secure the beneficial uses of our State Parks and Forests in the future for the people of the state. The trustees have the obligation to insure that the sale of mineral resources is for the benefit of the corpus of the trust and not for the Commonwealth to determine and lease for whatever purpose the government favors.

            PEDF requests the Court to declare that public natural resources include the minerals acquired as part of our State Parks and Forests, and as such these minerals are the common property of PEDF’s members and all the people of the Commonwealth.

                        3. Rights as Beneficiaries of the Public Trust. PEDF requests the Court to declare that PEDF’s members and all the people of the Commonwealth do have rights as beneficiaries of the public trust that holds their property (the public natural resources) under Article I § 27.

            B. Constitutional Protections Under Article I

                        1. The Fundamental Rights of the People. Legislatively, Section 27 of Article I was deliberately placed in Article I of the Constitution because its sponsors and supporters firmly believed that the people have as much right to a clean environment and the preservation of our natural resources as they do to fundamental political rights, freedom of speech, freedom of the press, freedom of religion, and of peaceful assembly and privacy.

            Article I § 2 clearly states that the people have and retain ultimate power over their government.

            Article I § 25 separates the ownership of the public natural resources (owned by the people) from the general powers of their government by establishing their common proprietary ownership of those natural resources. The Pennsylvania Supreme Court has recognized these stated rights.

            Governors Rendell and Corbett have violated the people’s rights under Article I § 27, ignoring their responsibilities and duties as trustees. The authority of the governors under Article III does not allow them to violate these rights. PEDF asks the Court to declare that Respondents’ actions are in violation of PEDF’s constitutional rights and Respondents’ duties under Article I.

                        2. The Government Is Not Authorized to Balance the Fundamental Rights of the People against Economic Gain. Article I § 2 states that the people determine what is in their constitution. Article I § 25 says that all Article I rights are excepted from the government’s general powers and “shall remain inviolate.” Article I includes all (emphasis added) the rights under Article I § 27. The government cannot infringe on the people’s ownership rights of public natural resources by exercising its “high powers” to sell public natural resources to pay for general government spending. Doing so renders Article I § 27 meaningless. Neither Governor Rendell nor Governor Corbett consulted with DCNR to understand what the impacts of leasing State land for unconventional gas drilling might be, and both ignored DCNR’s recommendations against further leasing when it learned of the governors’ plans.

            C. Constitutional Duties of Trustee

                        1. Duty to Conserve and Maintain Public Trust Corpus. The Commonwealth is the trustee of the public trust and has no ownership of the corpus (natural resources) of the trust. As such, it is obligated to comply with all the terms of the trust and with standards governing a fiduciary’s conduct. Respondents cannot degrade, diminish or deplete the public natural resources for purposes outside of the trust.

                        2. Leases Executed in Reliance on Use of Money to Benefit State Parks and Forests.   The Oil and Gas Lease Fund (OGLF) Act specifies that the money from leasing State land must be used to prevent degradation from the extraction process, restore public natural resources, and improve those resources for the benefit of the resource and the people’s use. Article I § 27 makes this a constitutional requisite. The OGLF is a trust fund. The trustee cannot sell any natural resources that are the property of the people and then use the revenue for purposes outside the trust. The Respondent governors’ actions to use the OGLF for purposes outside the trust is illegal. Furthermore, DCNR is prevented from doing its statutory and constitutional duties to conserve and maintain the public natural resources because these powers have been stripped from DCNR by the governors’ decisions. The 2014 Fiscal Code Amendments provide that the governor will control leasing determinations, not DCNR.

            PEDF requests that the Court declare these decisions in violation of the Respondents’ duties as fiduciaries, in violation of PEDF’s members’ rights, and are contrary to Article I § 27.

                                    a. Duty to Evaluate the Effects of Leasing State Parks and Forests for Revenue. Respondent governors made no attempt to evaluate the effects of their misappropriation of OGLF moneys regarding DCNR agency operations or the funding of the Marcellus Legacy Fund through Chapter 25 of Act 13 of 2012.

            PEDF requests the Court to find and declare that Respondents violated their duty as trustee by failing to evaluate the effects of their decisions to lease State Parks and Forests for gas extraction for the purpose of obtaining funds for the General Fund before they made those decisions or took those actions.

                                    b. Duty to Evaluate the Effects of Transfer of Oil and Gas Lease Fund. The Respondent governors made no evaluation of the constitutional and legislative impacts of their continuing decisions to take the revenue from the oil and gas leasing away from DCNR through the 2009 and 2014 Amendments to the Fiscal Code. Heretofore, all of the revenue from oil and gas leasing was returned to the public trust for the purposes mandated in the OGLF Act.

            PEDF requests the Court to find and declare that Respondents violated their duty as trustee by failing to evaluate the effects of their decisions to take the oil and gas lease funds away from DCNR for purposes outside the interests of the trust.

            D. Statutory Duties of Respondents. The governor is the Chief Executive Officer of the Commonwealth under Article IV § 2 of the constitution, which states that the governor has to obey the laws just like everyone else. There is nothing in the CNRA or the constitution that says he is exempt from doing so.

                        1. DCNR Designated Trustee with Authority to Lease. DCNR was created in 1995 by the CNRA and given sole power and duty to manage our State Forests and Parks, as well as rivers, trails, greenways, and community recreation and heritage areas consistent with the mandates of Article I § 27.

                        2. DCNR Mission to Sustain the State Forest through Ecosystem Management. In 1995, DCNR’s Bureau of Forestry defined its mission to “insure the long-term health, viability and productivity of the Commonwealth’s forests and to conserve native wild plants” by “Managing state forests under sound ecosystem management . . .” consistent with the CNRA and Article I § 27.

                        3. Economic Development under CNRA and Article I § 27. Part of DCNR’s mission under the CNRA is to sustain the economic use of the forest. This economic use was defined by the CNRA as “the continued success of the tourism and recreation industry, the second largest industry in the State” by “Preserving, enhancing, maintaining and actively managing our system of State parks, forests, community recreation and heritage conservation areas . . .” (Section includes testimony by Cindy Adams Dunn, former DCNR Deputy Secretary for Conservation and Technical Services.)

                        4. DCNR Authority to Lease under CNRA and Article I § 27. Subject to the mandates of the CNRA and Article I § 27, DCNR is given the authority to make and execute contracts or leases for mining or removal of valuable minerals in State lands. Authority is also given to DCNR to use the rents and royalties from such leasing to benefit the public natural resources managed by DCNR. The governor’s duty is to insure that DCNR has the ability to carry out its obligations and not to undermine its ability to do so. DCNR’s basis for leasing decisions is to insure that leases meet the sustainability standards of DCNR’s mission and mandates. (Section includes testimony by DCNR Deputy Secretaries James Grace and Dan Devlin.)

            Respondent Governors Rendell and Corbett ignored the CNRA limitations on leasing State Forests and ignored repeated DCNR Secretary and Deputy Secretary warnings that no further leases should be allowed until they were assured that existing sustainability standards could be met. Respondents only wanted the revenue from gas extraction and did not consider DCNR’s responsibilities or their own responsibilities as trustees, a violation of the CNRA and Article I § 27.

            PEDF requests the Court to find and declare that the Respondents have violated their constitutional duty as trustee by these actions, and violated PEDF’s members’ rights under Article I § 27.

            E. Harm to Petitioner’s Rights from Respondents’ Violations. In Robinson Twp., the Pennsylvania Supreme Court stated that Article I § 27 offers protection of the people’s natural resources against both immediate and future impacts, and that enforcing the constitution in this regard does not impede citizen beneficiaries.

                        1. PEDF Member Affidavits and Testimony. Affidavits of fourteen PEDF member and member groups were included as part of the previously filed Second Amended Petition and Motion for Summary Judgment. (Section includes testimony regarding Marcellus Shale gas extraction impacts on the State Forest by PEDF member Cindy Bower and member groups.)

                        2. DCNR Shale-Gas Monitoring Report (April 2014). Introduced by the Respondents at the Hearing before the Court, this report substantiates the harm experienced by PEDF’s members and their concerns for the cumulative impacts, as well as the findings in the Governor’s Marcellus Shale Advisory Committee Report, July 2011. These impacts include a) Unprecedented scale of development, b) Wide range of environmental concerns, c) Conversion to non-forest uses, d) Impact monitoring just beginning, e) Land impacts, f) Invasive species, g) Increased pest susceptibility, h) Water impacts, i) Environmental law violations, j) Soil impacts, k) Air impacts, l) Fauna (wildlife) impacts, m) Recreation impacts, n) Visitor experience impacts, o) Scenic drive impacts, p) Dust impacts, q) Noise impacts, r) Timber impacts, s) Pipeline impacts, t) Gas well development impacts, u) Impacts to wildness of State Forest, and v) Forest fragmentation impacts.

            F. Respondents Failed to Consider the Tourism and Recreation Economic Value of Our State Parks and Forests. The Pennsylvania Wilds is being marketed as a wilderness experience. The geographical relationship between the Wilds and the State Forest subject to gas extraction in the Marcellus Region is almost identical. About 40% of the State Forest in the Wilds has been leased for natural gas development, impacting the experience of people who visit the Wilds. (Section includes testimony from former DCNR Secretary Michael DiBerardinis.)

            The Shale-Gas Monitoring Report does not evaluate the economic impacts to the Wilds as a result of gas extraction.

            G. DCNR New Management Strategies. DCNR has updated its oil and gas leases to include additional provisions to address new management practices necessary for shale gas development. However, the new leases cannot stop the development of the gas extraction that will continue on almost 700,000 acres of State Forest and 250,000 acres of State Parks subject to oil and gas development for the next fifty years. Moreover, these are guidelines, not enforceable requirements.

            Within the State Forest, approximately a) 140,000 acres are subject to DCNR’s new lease provisions, b) 250,000 acres are subject to older leases that do not contain provisions necessary to effectively manage shale gas development, and c) 290,000 acres have severed mineral rights and are subject to private leases over which DCNR has little or no control.

            H. DCNR’s Need for Money to Protect Public Natural Resources. (Section includes testimony of former DCNR senior managers James Grace, Michael DiBerardinis, John Norbeck and Cindy Dunn.)

            DCNR has as much as a billion dollar backlog of projects needed by both Parks and Forests, including infrastructure repair and replacement, old mine pollution abatement, purchase of buffer lands, purchase of lands to replace those lost to gas development, and funding for projects to further support local ecotourism and recreation economic opportunities based on our State Parks and Forests. In addition, Respondents do not consider costs of cumulative impacts of shale gas development on our State lands over the next fifty-plus years, or costs to restore these lands, yet they have the obligation as trustee to do so under Article I § 27. Respondents are simply siphoning the lease moneys from the OGLF because their proposed budgetary spending exceeds general tax revenues.

            I. Governor’s 2014-3 Executive Order Not Relevant. Neither the Governor’s Executive Order nor the conceptual non-surface disturbance leases authorized by this Order have been raised by PEDF as issues in its Second Amended Petition or Addendum to the Petition. They were only relevant to PEDF’s Application for Special Relief in the form of preliminary injunction relative to the governor’s proposed 2015 budget, and the Hearing held for this purpose. (Section includes testimony from James Grace, John Norbeck, Dan Devlin, and Cindy Dunn.)

            Respondents’ request for summary judgment on the constitutionality of the Governor’s Executive Order of 2014-3 and the concept of non-surface impact leases must be denied because neither of these concepts is an issue raised by PEDF’s pleadings.

            J. Respondents’ Separation of Powers Argument. “Separation of powers” is relevant when there are potential breaches between the duties of the three separate branches of government, not between the governor and appointees. The fact that the governor appoints the Secretary of DCNR does not mean that the governor can dictate to the Secretary actions that are not compliant with State statutes.

V. CONCLUSION

Petitioner (PEDF) respectfully requests this Honorable Court to find the requests for declaration as stated within Petitioner’s Second Amended Petition, Motion for Summary Judgment, brief in support of summary judgment, and as stated herein. Petitioner also respectfully requests this Honorable Court to deny Respondents’ Cross Motion for Summary Judgment.

PEDF Signs Agreement with Governor Corbett and Commonwealth

* June 17, 2014: Please click here to read Judge Brobson's Order in PEDF's Application for Preliminary Injunction. Key points:

Governor Corbett will not lease any more State Forest or Park land until Commonwealth Court has made a decision on the merits of PEDF's lawsuit.
PEDF will not continue to ask the Court to enjoin the use of the Oil and Gas Lease Fund to fund DCNR's operations while the case is pending. Enjoining the funds would have left DCNR without the ability to operate for the next year, and our Parks and Forests would have had to close down. PEDF is bringing their case to support DCNR's ability to protect our Parks and Forests, not shut them down.
The Court and the parties have agreed to completing the briefing of the issues by September 14. Oral Argument will take place in October, 2014.

PEDF Files Additional Court Documents
"Petitioner's Addendum to Motion for Summary Judgment" and
"Petitioner's Addendum to Brief in Support of Motion for Summary Judgment"
These documents are extensive and are summarized below. Please click on the document title in blue to download it in its entirety. The documents include information gathered during the Hearing on Preliminary Injunction May 28 - June 3, 2014.

Petitioner’s Addendum to Motion for Summary Judgment

Introduction
This section includes a review of Governor Corbett’s willful violation of three Pennsylvania statutes by intending to transfer $75,000,000 from the Oil and Gas Lease Fund (OGLF) to the General Fund for FY 2014 - 2015, and by committing $117,000,000 from the OGLF to operate DCNR for FY 2014-15. The Introduction also provides background on PEDF’s Motion for Summary Judgment (filed April 21, 2014), PEDF’s Application for Preliminary Injunction, and Application for a Hearing, which was granted and concluded June 3, 2014.

Commonwealth Court Judge P. Kevin Brobson postponed the decision on the request for Preliminary Injunction pending the passage of the 2014 Appropriations Act. The Act was signed by Governor Corbett on July 10, 2014 and now requires DCNR to pay for virtually all of its operations from the Oil and Gas Lease Fund (OGLF), directs DCNR to lease additional State Forest and Park Land to raise $95,000,000 for transfer to the General Fund, and declares that the OGLF is not a constitutional trust fund as asserted by PEDF.

The Addendum was filed to include facts and issues relating to the Budget proposals, the Hearing on the Preliminary Injunction, and the subsequent legislative justifications signed by Governor Corbett to implement his Budget proposals.

Relevant Law and Facts
This section is a review of the public statutes, documents, records, and testimony relevant to PEDF’s case.

A. Governor’s Actions Undermining DCNR's Mission
This section includes testimony by Dr. James Grace (former DCNR Deputy Secretary), Michael DiBerardinis (former DCNR Secretary), John Quigley (former DCNR Secretary), Daniel Devlin (DCNR Deputy Secretary), and John Norbeck (former DCNR State Park Director).

Selected Notes from Testimony:
* Dr. Grace testified that no more leasing should occur until the existing lease impacts are understood.
* Michael DiBerardinis testified that he wrote in a 2009 memorandum to Governor Rendell that (unconventional leasing of State Forest land) “would scar the economic, scenic, ecological, and recreational values of the forests, especially the most wild and remote areas of our state in the Pennsylvania Wilds. Your (the Governor’s) work and investment in rural economic revitalization through the outdoor experiences in the Pennsylvania Wilds could be erased.”
* Dan Devlin testified that the land that is part of State Forests and Parks belongs to the people of the Commonwealth and is not the property of the Commonwealth. The mineral resources that are part of the State Parks and Forests, such as oil and gas rights that have not been severed, are public natural resources and the property of the Public Trust.

B. Harm to Public Lands from Gas Development
This section includes testimony by John Norbeck, Cindy Adams Dunn (former DCNR Deputy Secretary), Cindy Bower (PEDF member), Daniel Alters (PEDF member and former DEP employee), and Daniel Devlin.

Selected Notes from Testimony:
* Dan Devlin testified that he did not make the decision to propose further leasing for the 2014 - 2015 Budget. In fact, he recommended against further leasing.

Declaratory Relief
PEDF requests that Commonwealth Court grant the following additional declaratory relief as part of its Motion for Summary Judgment:

1. Find and declare that Governor Corbett’s decisions to lease State Forest and Park Lands, transfer the revenue from those leases to the General Fund, and use the Oil and Gas Lease Fund to operate DCNR are unconstitutional and violate his duties under Article I § 27, and violate the rights of the people thereunder.

2. Find and declare that the Oil and Gas Lease Fund is a trust fund, that the funds therein are vested in the Public Trust, and that the Governor must use those funds for the purposes intended in the Public Trust, as set forth in the Oil and Gas Lease Fund Act, to conserve and maintain the rights of the people under Article I § 27, and that the Governor violated his duty as trustee and the rights of Petitioner’s members thereunder, by using trust fund moneys for general revenue.

3. Find and declare that the Governor violated Article I § 27 by making the decision to use money from the Oil and Gas Lease Fund, rather than General Fund revenue, to pay DCNR operations for the FY 2014 - 2015 ($117,000,000 first proposed in his Executive Budget and then $72,546,000 actually approved in the Appropriations Act of 2014), and thereby depriving DCNR of the use of these funds necessary to mitigate the loss of public natural resources on State Park and Forest land from oil and gas extraction.

4. Find and declare that the 2014 Fiscal Code Amendments to Article XVI-E, Oil and Gas Wells, signed by Governor Corbett on July 10, 2014, which add Sections 1601.1-E and revises Sections 1602-E and 1605-E, are unconstitutional violations of Article I § 27, and that the Governor violated Article I § 27, his duties and the people’s rights thereunder by approving the 2014 Fiscal Code Amendments.

The Addendum to Motion for Summary Judgment Concludes

* * * * * * * * * * * * * * * * * * * *

Petitioner’s Addendum to Brief in Support of Motion for Summary Judgment

Introduction
This section explains that PEDF filed its lawsuit against the Governor and not the General Assembly because

the leasing of State land for natural gas extraction and the use of the Oil and Gas Lease Fund (OGLF) is the duty of DCNR under the Conservation and Natural Resources Act (CNRA), and
the Governor is vested with the duty to uphold the laws and the Constitution of the Commonwealth.

The General Assembly has no control or responsibility over DCNR or the implementation of the law. The Introduction states why PEDF is asking the Commonwealth Court to declare that both former Governor Rendell and current Governor Corbett violated Article I § 27 of the State Constitution, the OGLF, and the CNRA.

I. Harm to Our State Parks and Forests from Additional Leases and Loss of Funds

A. DCNR Loss of Management Control to Comply with Its Statutory and Constitutional Obligations (includes testimony from Dr. James Grace and Michael DiBerardinis)
Both Governor Rendell’s and Governor Corbett’s decisions to lease the State Forests and now the State Parks to obtain revenue for the General Fund take away DCNR’s ability to meet their mission to manage our State lands under both the CNRA and Article I § 27. Both Governors have ignored their trustee duties to manage these resources as the Public Trust and have instead viewed them as property to be sold upon political or financial pressures.

Selected quotes from testimony:
* “DCNR’s loss of control over whether or not to lease is a terrible precedent. Dictating from outside how many acres to be developed, with no consideration of all the other uses, values, environmental factors, is a terrible precedent. DCNR cannot maintain the balance necessary to sustain the forest . . . To lose the funds from the leases and royalties means DCNR cannot effectively mitigate whatever happens. It does not allow DCNR to have the control to manage the forest effectively.” (Dr. James Grace)
* “The impact on the agency when the governor requires DCNR to lease State Forest land for General Fund revenue is that it deprives the agency of its legislative mission, and that is to advocate and protect and manage our State Parks and Forests. You’re taking the management prerogative out of the hands of the department when the department is told to generate this amount of revenue or put this many acres out for lease sale.” (Michael DiBerardinis)
  * Additional leasing of the State Forest “would scar the economic, scenic, ecological, and recreational values of the forests, especially the most wild and remote areas of State in the Pennsylvania Wilds.” (Michael DiBerardinis in March 2009 memorandum)

B. Impacts to State Forests from Additional Leasing and Taking Funds (includes testimony from Dr. James Grace)
Although Governor Corbett is requiring that new leases not allow surface disturbance, such leases will nonetheless cause additional impact to our State Parks and Forests. Of particular concern with both the existing oil and gas leases, and with the Governor’s order to lease more State Forest land and now State Park land for oil and gas development, is the failure to understand the cumulative impact to the public natural resources from this industrial development. The scale of industrial activity associated with unconventional shale gas development is unprecedented, and it is not clear that DCNR will be able to meet its mandated obligations to balance the values of the State Forest, and certainly to do so without control of the OGLF.

Selected quote from testimony:
* “By removing DCNR’s control of the Oil and Gas Lease Fund, the governor and the legislature have eliminated DCNR’s ability to manage these public lands effectively.” (Dr. James Grace)

C. Impacts to State Parks from Additional Leasing and Taking Funds (includes testimony from John Norbeck)
Governor Corbett’s decision to allow leasing of our State Parks for oil and gas extraction will cause immediate and irreparable harm to our State Parks and their public natural resources. State Parks have experienced impacts from oil and gas development activities, including impacts from conventional oil and gas development on several State Parks and from both conventional and Marcellus shale gas development on adjoining lands. No study has been conducted by DCNR or anyone else to assess the cumulative impacts of oil and gas extraction on our State Parks, or to evaluate the additional impact that would result from actually leasing State Park land for oil and gas extraction, particularly without money from the Oil and Gas Lease Fund to mitigate those impacts.

            D. Impacts to the Pennsylvania Wilds, Pine Creek Rail Trail and Other DCNR Economic Development Initiatives (includes testimony from Cindy Adams Dunn and Cindy Bower)
This section discusses the impacts of Marcellus gas development on primarily tourism, with a focus on the Pine Creek area and the largely developed Tiadaghton State Forest, both part of the Pennsylvania Wilds.

            E. Impacts from Non-Surface Disturbance Leases (includes testimony from Dr. James Grace and John Norbeck)
Dr. Grace testified that there will be impacts from non-surface disturbance leases. John Norbeck testified that gas development in the vicinity of State Parks has already caused impacts.

            F. Impacts to DCNR, Our State Forests and Parks, and the Pennsylvania Wilds Harms the Article I § 27 Rights of Petitioner’s Members (includes testimony from Cindy Bower and Dan Alters)
Testimony was presented and 16 affidavits were filed in support of harm.

II. The Governor’s Decisions to Lease State Parks and Forests, to Transfer Oil and Gas Lease Funds to the General Fund, and to Use Oil and Gas Lease Funds to Operate DCNR Are Unconstitutional
This section presents the case for the Governor’s violation of various State statutes.

            A. Statutory Protection of Constitutional Interests in Public Trust Resources of State Parks and Forests
Referenced are Pennsylvania’s Supreme Court Opinions in Robinson Twp. v. Commonwealth and Payne v. Kassab, the legislative history of Article I § 27, the House Legislative Journal, the CNRA, and DCNR’s strategic plan “Penn’s Woods – Sustaining Our Forests.”

Key Supreme Court quote from the Robinson Township case: “The explicit terms of the trust (Article I § 27) require the government to ‘conserve and maintain’ the corpus of the trust. The plain meaning of the terms conserve and maintain implicates the duty to prevent and remedy the degradation, diminution, or depletion of our public natural resources.”

            B. Constitutional Duty to Determine Impact of Decision or Action before any Proposed Action
Before making a decision or taking an action that might or will negatively impact the State Forests or Parks, the trustee making the decision has the duty to understand those impacts, both to the resources and to the people’s use and benefits thereof, and to the people’s rights per the Environmental Amendment. This was confirmed in Robinson Twp. Not only did the Governor fail to seek out information regarding impacts, he ignored the specific advise of DCNR not to lease any more State Forest land.

            C. Constitutional Duty to Refrain from Degradation, Diminution or Depletion of Public Natural Resources
This is further articulated through Robinson Twp. discussion.

            D. Constitutional Duty of Loyalty to Trust Assets and Beneficiaries
The Governor also violated his duty of loyalty to the corpus of the trust and to the beneficiaries’ (the people’s) interests, and instead benefited his own interest in trying to balance the Budget.

            E. Fiduciary Duty to Future Generations
This is further supported by Robinson Twp. The loss of DCNR’s ability to manage the Forest now affects the future Forest and the Public Trust.

            F. Fiduciary Duty to Use Assets of Trust for Purposes of Trust
State Parks and Forests and their mineral resources are part of the trust corpus, and leasing and selling the trust corpus for General Fund revenue is not one of the purposes of the trust.

            G. Commonwealth Interest in State Parks and Forests Is Not Proprietary
The interest is fiduciary. The Commonwealth is not the proprietor of our public lands and resources. Rather, the Commonwealth is the trustee and holds the public natural resources for the rights and benefits of the people.

            H. Violation of Conservation and Natural Resources Act
The CNRA authorizes DCNR to determine the leasing of State land for mineral extraction, not the Governor or the General Assembly. This violation is supported by the Oil and Gas Lease Fund Act and Article I § 27, which are also violated.

III. The Governor Has Failed to Recognize that the Oil and Gas Lease Fund is a Trust Fund
PEDF is asking the Court to find and declare that the OGLF is a trust fund and that the Governor is bound to use the funds derived from resource extraction for their intended purpose.

            A. The MCARE Fund Case
The Pennsylvania Supreme Court’s decision in Hospital and Healthsystem Assoc. of Pa. v. Commonwealth supports PEDF’s stance that the OGLF is a trust fund that must be used for trust purposes. In 2009, the Governor approved the transfer of $100 million from the MCARE Fund to the General Fund. Health care providers filed a petition, and Commonwealth Court granted them summary relief. The Court ruled that health care providers had a vested entitlement to have the moneys used for the purposes intended in the MCARE Act, and that such a right cannot be extinguished by the Fiscal Code. The Pennsylvania Supreme Court later upheld this ruling. DCNR’s consideration of when to lease State Forest land and what to do with the moneys from that leasing is based on the legislative scheme existing between CNRA and the Oil and Gas Lease Fund Act. This reliance was statutorily established to ensure protection of State lands as natural resources. It elevates the Oil and Gas Lease Fund Act to a trust fund.

Article I § 27 also guarantees that the people have a constitutionally protected property right in the public natural resources of their State Parks and Forests. When oil and gas that is part of these natural resources is converted to money through leasing and extraction, this money remains part of the Public Trust and must be used for projects authorized by the Oil and Gas Lease Fund Act.

            B. Oil and Gas Lease Fund Statutory Framework
This section further explains the statutory framework between the CNRA and the Oil and Gas Lease Fund Act, and explains why the Governor cannot move moneys at will from the OGLF, as if it were tax money, into the General Budget. The OGLF Act states that the Secretary of DCNR is given the authority to determine how and where the moneys are to be spent.

The Governor cannot take away the constitutionally protected proprietary interests of the people in land and mineral resources simply by amending the Oil and Gas Lease Act through the Fiscal Code to give control of the Fund to the General Assembly so that they can divide up the Fund as if were part of the Commonwealth’s general revenues. Conversion of proprietary interests of the people from a public natural resource to a private use for revenue requires that revenue to remain part of the Public Trust and be retained to conserve Public Trust lands. The Governor has failed to recognize and uphold this. The Governor’s attempts to use the public natural resources of the Public Trust to make up Budget deficits violates the fiduciary duty of the Governor as trustee of the Public Trust.

The OGLF has historically been considered a de facto trust fund. The Auditor General reinforced this in a 2004 Special Audit, stating that revenue from the OGLF must by law be used exclusively for conservation, recreation, dams and flood control projects on Commonwealth lands.

No matter how dire the Budgetary needs are, the Governor cannot violate the Constitution by moving funds out of the OGLF and into the General Fund.

IV. The Governor Cannot Use the Oil and Gas Lease Fund to Operate DCNR
PEDF is asking the Court to find and declare that the Governor violated Article I § 27 (and several constitutional principles) by deciding to use money from the OGLF, rather than General Fund revenue, to pay DCNR operations for the FY 2014 – 2015. This section describes these violations. As a result of the Governor’s decisions, our State Parks and Forests are suffering losses from Marcellus shale gas extraction to support other State programs that will not benefit the use and enjoyment of our State Parks and Forests.

V. The 2014 Amendments to Article XVI-E of the Fiscal Code Violate Article I § 27
This section describes these violations. The amendments also radically amend the CNRA by removing DCNR’s ability to make decisions regarding the leasing of our State lands, by giving control of the lease funds to the Governor and General Assembly for whatever uses they deem appropriate, and by stripping constitutional protections regarding leasing from the CNRA.

            A. Section 1601.1-E of the Fiscal Code
This new section of the Fiscal Code states: “The General Assembly finds and declares as follows: (1) Revenue from the leasing of State land to extract natural gas is necessary to obtain the revenue necessary to effectuate the 2014 – 2015 General Appropriations Act.”

This and other sub-sections from the Fiscal Code strip away the protections established under the CNRA to allow for continued leasing by DCNR. This statement is supported by excerpts from Payne v. Kassab, the legislative history of Article I § 27, Robinson Twp., other case history, the CNRA, and DCNR’s strategic plan, “Penn’s Woods – Sustaining Our Forests.”

Under 1601.1-E, it no longer matters
1) what impacts additional leasing will have on State lands,
2) that DCNR loses control of lease funds,
3) that our State Parks and Forests are part of a trust and the common property of the people, and
4) that the Governor and the Commonwealth have the obligation to conserve and protect the public resources for the benefit of the people.

Under 1601.1-E, the Governor becomes the decision maker for our State lands, not DCNR, and it becomes the Governor’s call for which purposes to use the lease funds.

DCNR entered into lease agreements for the current 700,000 acres under lease based on their understanding of conventional oil and gas development, not unconventional gas extraction. Experience with these agreements led to DCNR’s decision not to allow any more leases after 2008 until a better understanding of the impacts of the existing leases could be obtained, a decision that was supported by Governor Rendell with his 2010 Executive Order that placed a moratorium on further leasing. Before making a decision or taking an action that might or will negatively impact the State Forests or Parks, the trustee making the decision has the duty under the Environmental Amendment to understand what those impacts are or might be to the people’s rights established in the Amendment. This is supported by the Robinson Twp. decision and by the legislative history of Article I § 27.

DCNR has a list of repair, replacement, maintenance, remediation, mitigation, and sustainable economic development projects totaling hundreds of millions of dollars. OGLF moneys are needed for these purposes.

            B. Sections 1602-E and 1603-E of the Fiscal Code
Section 1602-E further removes Constitutional protection from State Forests and Parks by permitting the transfer of OGLF moneys to the General Fund by the General Assembly.

Section 1603-E allows for the annual transfer of up to $50,000,000 annually from the OGLF to DCNR, giving preference to operation and maintenance of State Parks and Forests, if the funds are deemed to be available by the General Assembly.

The Fiscal Code amendments are an attempt to provide statutory legitimacy to transfers from the OGLF to the General Fund in violation of Article I § 27 as implemented by the CNRA and the OGLF Act.

            C. Section 1605-E of the Fiscal Code
This section states: “Fiscal year 2014 – 2015. Not withstanding Section 1603-E or any other provision of law, in fiscal year 2014 – 2015, the amount of $95,000,000 shall be transferred from the (OGLF) fund to the General Fund.” This section, like the previous sections, gives the General Assembly, with the Governor’s approval, complete control over use of the OGLF since 2009 and undermines the legislative scheme specifically established under CNRA to implement Article I § 27.

The Governor’s reliance on the 2014 Fiscal Code Amendments to justify his FY 2014 – 2015 Budget decisions and approval of the 2014 Appropriations Act without any consideration of fiduciary or statutory duties, violates the people’s rights under our Constitution.

The Addendum to Brief Concludes

Judge Brobson's Order in PEDF's Commonwealth Court Hearing

* June 5, 2014: Judge P. Kevin Brobson issued an Order in PEDF's Commonwealth Court Hearing for Preliminary Injunction.

Important Understanding: The Commonwealth Court cannot prevent Governor Corbett from including $75 million from leasing new State Forest and Park land in the FY 2014-15 budget.

Essentially, the Order states that if the Court issued a ruling before the budget were to be finalized, it would “run afoul of the principle of separation of powers.” It further states that ". . . although this Court may determine whether challenged legislative enactments are lawful, there is no place carved out in our constitution for the Court to rule on the legality of budget proposals."

This means the General Assembly has to conclude the FY 2014-15 state budget process before the Commonwealth Court can act on the Preliminary Injunction. Upon final enactment of this budget, PEDF will file an application requesting a status conference with the Court.

Preliminary Injunction was just one phase of PEDF's legal action (see below) against Governor Corbett. The main part of the case continues. The Court has set Oral Argument for September 8, 2014.

* * For two excellent reviews of the Order, please read Laura Legere's Pittsburgh Post-Gazette article here and Marie Cusick's StateImpact Pennsylvania article here.

Arborvitae reforestation??? Pipeline, inholding, Tiadaghton State Forest

PEDF Goes to Commonwealth Court Hearing!
May 28, 2014, 11:00 am
Pennsylvania Judicial Center, 601 Commonwealth Ave., Harrisburg
Testimony will be presented by
* Michael DiBerardinis, former DCNR Secretary
* Dr. James Grace, former Deputy Secretary for Parks & Forests, and former State Forester
* John Quigley, former DCNR Secretary
* John Norbeck, former Director of Bureau of State Parks
* Cynthia Dunn, former DCNR Deputy Secretary and Acting Secretary
* Five PEDF members representing Pine Creek Preservation Assoc., PA Forest Coalition, Keystone Trails Assoc., Loyalsock Creek Watershed Assoc., Lycoming Audubon Society, and Responsible Drilling Alliance.
* Two individual members of PEDF

* May 9,2014: PEDF files Petitioner's Application for Hearing in Support of Preliminary Injunction. This document provides information on the nature of the testimony to be presented in the hearing. Click on blue title to read document.

* May 12, 2014: PEDF files Petitioner's Brief in Response to Respondents' Joint Brief in Response to Petitioner's Application for Special Relief in the Nature of Preliminary Injunction. This is a long title, but in short, the document presents further information to support PEDF's request for a Preliminary Injunction (see April 28, 2014 below) against leasing more State Forest or Park land until the Court has decided the merits of PEDF's case. Click on blue titles to read documents.

PEDF attorney John Childe files final "Motion for Summary Judgment"
and Attending Documents in PEDF's Lawsuit to Save Our State Forests and Parks

McHenry Township, Tiadaghton State Forest, Pine Creek

April 21, 2014: PEDF attorney John Childe filed Petitioner's Motion for Summary Judgment and Petitioner's Brief in Support of Motion for Summary Judgment with the Commonwealth Court. Click on documents in blue to download.

The 57-page Motion is summarized below. The 146-page Brief contains too much detail to adequately summarize here. The Table of Citations alone lists 56 documents consisting of Pennsylvania's Constitution, Pennsylvania legislative history, state cases, federal cases, Pennsylvania statutes, rules and regulations, restatements of trusts, and law review. The 46 Exhibits consist of 15 affidavits, plus reports, audits, opinions, letters, plans, memos, State Budget excerpts, and environmental reviews.

Guard station, Tiadaghton State Forest, Pine Creek

April 28, 2014: John Childe filed a Preliminary Injunction to enjoin the Commonwealth of Pennsylvania and Governor Corbett from requiring DCNR:
1) to lease additional State Forest or Park land to generate $75,000,000 for the General Fund and
2) to use $117,000,000 from the Oil and Gas Lease Fund for DCNR's operating expenses.
The 16-page Injunction requests temporary injunction against leasing more State Forest or Park land until the Court has decided the merits of PEDF's case. This is particularly critical because Governor Corbett has proposed these actions in his 2014-15 Executive Budget issued 2/4/14 and to be finalized 6/30/14.

COP - Commonwealth of Pennsylvania Tract, Pine Creek

April 28, 2014: The Respondents to PEDF's lawsuit (Commonwealth of Pennsylvania and Governor Corbett) filed Joint Application of Respondents to Stay for Six (6) Months Their Obligation to Respond to Petitioner's Motion for Summary Judgment So As to Allow Time for Additional Discovery. In this ten-page document, the Commonwealth and Governor Corbett request six months to respond to the Petitioner's Motion for Summary Judgment.

April 29, 2014: John Childe filed Petitioner's Opposition to Respondents' Joint Application for Stay to Respond to Motion for Summary Judgment. In the seven-page document, Childe says, essentially, NO. The Respondents have had two years to do their discovery and more and have not done so.

April 28, 2014:
The Commonwealth Court ordered Respondents
Commonwealth of Pennsylvania and Governor Corbett
to respond in one week, by May 6, 2014.
This was after the Court had issued an order on April 22 for the Respondents to respond by May 22.

Summary -- Petitioner's Motion for Summary Judgment

The Petitioner's Motion for Summary Judgment is a request to the Commonwealth Court to make a decision on the merits of PEDF’s case based on the "information submitted." That the Court should decide the case is a matter of law. The facts are incontrovertible. The “information submitted” consists of the Second Amended Petition for Review, the Petitioner’s Motion for Summary Judgment, and the Petitioner’s Brief in Support of the Motion for Summary Judgment. Each can be read in its entirety by clicking on the document in blue.

Introduction: This section

seeks declaration of the duties and responsibilities of the Commonwealth of Pennsylvania and the governor of Pennsylvania as trustees of Pennsylvania’s public natural resources under Article I § 27, and the rights of PEDF’s members to the protection of those resources;
seeks declaration that the Respondents have violated Article I § 27 since 2008 by natural gas decisions and actions on State Forest land, and by removal of the Department of Conservation and Natural Resources’ (DCNR) control over the Oil and Gas Lease Fund, as mandated in the Conservation and Natural Resources Act (CNRA); and
seeks restoration of Article I § 27 rights of PEDF’s members in their State Forests and Parks.

Petitioner: Pennsylvania Environmental Defense Foundation (PEDF)

Respondents: Commonwealth of Pennsylvania, governor of Pennsylvania

Relevant Law and Facts
Documents provided in support of this case are publically available government publications or other public records.

A. Respondents’ Article I § 27 Constitutional Duties:
This section describes the responsibilities of the Commonwealth and the governor as trustees of Pennsylvania’s public natural resources under the mandates of Article I § 27, Pennsylvania Constitution.

B. DCNR’s Statutory and Constitutional Responsibility:

The Conservation and Natural Resources Act (CNRA), 1995, created the Department of Conservation and Natural Resources (DCNR) as a cabinet-level agency with the responsibility of managing Pennsylvania’s public natural resources consistent with the provisions of Article I § 27.

The Bureau of Forestry’s mission under Article I § 27 and the CNRA is described.
References are made to depositions of James Grace, former DCNR Deputy Secretary for Parks and Forests, and Michael DiBerardinis, former DCNR Secretary.
Basic ecosystem management: Forests are more than the sum of their parts.

Under the Oil and Gas Lease Fund Act, authority was given to DCNR to execute mining leases and to determine the use of rents and royalties generated by those leases.

C. Specialized Nature of the Oil and Gas Lease Fund

Revenue generated by the Oil and Gas Lease Fund must by law be used exclusively for conservation, recreation, dams and flood control projects on Commonwealth lands.
References are made to documents issued by the auditor general and attorney general.

D. DCNR Warnings to the Governor against Further Leasing and Diversion of Oil and Gas Lease Funds

This section includes DiBerardinis’ and Quigley’s 2008-09 warnings to Governor Rendell, and DCNR’s Environmental Reviews of Governor Rendell’s orders to lease land in the Marcellus Shale play.
Governor Rendell transferred Oil & Gas Lease Fund moneys to the General Fund through Fiscal Code Amendments.
Governor Rendell issued a moratorium on further oil and gas leasing of State Forest and Park lands (Executive Order 2010-05)

E. DCNR Forced to Lease without Adequate Environmental Review

Regardless of DCNR’s warnings and recommendations:

through the 2009 Appropriations Act, Governor Rendell and the Commonwealth transferred $143,000,000 generated from the 2008 lease sale from the Oil and Gas Lease Fund to the General Fund;
through Fiscal Code Amendments in 2009, Governor Rendell approved the transfer of another $60,000,000 from the Oil and Gas Lease Fund to the General Fund, which required additional leasing; and
in 2010, Governor Rendell approved another Fiscal Code Amendment to transfer another $180,000,000 from the Oil and Gas Lease Fund to the General Fund.

F. Impacts to State Forests from Gas Leasing and Extraction

This section describes impacts of a five-fold increase in State Forest land used for gas development that have not been fully explored at this point and, therefore, cannot be fully understood. Impacts include but are not limited to land clearing, earth disturbance, infrastructure, and facility development, and the resultant effects of these activities on the ecology, biodiversity, and integrity of the State Forest as a whole, both surface and subsurface, and including effects on air quality.

G. Impacts to State Parks from Gas Extraction

The Commonwealth owns only about 20% of the subsurface mineral rights to our State Parks, and all or portions of 61 Parks lie within the Marcellus Shale area. This section further explains the threats to our State Parks from gas industry development and the potential effects of such development on the people’s use and enjoyment of these Parks.

H. DCNR Has Been Forced to Rely on Oil and Gas Extraction to Pay Its Operating Expenses

Governor Corbett continues to propose budgets that increasingly decrease General Fund revenue available to DCNR for its general operating expenses and forces DCNR to misappropriate money from the Oil and Gas Lease Fund for this purpose. This section details appropriations for Fiscal Years 2009-2014 and budget proposals for Fiscal Year 2014-2015.

I. Act 13 Provisions Unlawfully Divert Funds Annually from the Oil and Gas Lease Fund and Divert Funding from DCNR’s Community Conservation Grant Program

Funds Diverted to the Environmental Stewardship Fund: Act 13 transferred $20,000,000 from the Oil and Gas Lease Fund in 2013 and authorizes the transfer of $35,000,000 annually thereafter to the Marcellus Legacy Fund for transfer to the Environmental Stewardship Fund. This section describes the annual allocation of Environmental Stewardship Fund moneys to the following four agencies and for what purposes: Department of Environmental Protection (DEP), Department of Agriculture, Pennsylvania Infrastructure Investment Authority, and DCNR. It also describes the impacts the misappropriation of these funds will have on State Forests and Parks.
Funds Diverted to the Hazardous Sites Cleanup Fund: Act 13 misappropriates an additional $5,000,000 to the Marcellus Legacy Fund for distribution to the Hazardous Sites Cleanup Fund in 2015 and increases this amount to $15,000,000 annually thereafter. This section further details the Hazardous Sites Cleanup Fund and its lawful sources of revenue and uses by DEP.
Funding Diverted from DCNR’s Community Conservation Grant Program: The Respondents approved the use of Act 13 Marcellus Shale impact fees for greenways, trails, open space, parks and beautification projects, and the administration of such fees by the Commonwealth Financing Authority (controlled by the General Assembly). DCNR is the agency lawfully created to advocate and distribute funds for the Community Conservation Grant Program. This section further describes effects of this diversion of funds away from DCNR’s control.

J. Interest of Petitioner’s Members

This section summarizes the harmful effects of the Marcellus Shale industry on State Forest and/or Park lands to Petitioner’s members as set forth in their affidavits and in their guaranteed rights under Article I § 27.

Summarized are the affidavits of the Pine Creek Preservation Association, Keystone Trails Association, Lycoming Creek Watershed Association, Loyalsock Creek Watershed Association, Muncy Creek Watershed Association, Tiadaghton Audubon Society, Lycoming Audubon Society, Responsible Drilling Alliance, Slate Run Sportsmen, Pine Creek Headwaters Protection Group, Pennsylvania Forest Coalition, and four individual members of PEDF.

This section further details particular harm experienced by the Petitioner’s members in the following areas of impact:

Loss of DCNR Control of the Oil and Gas Lease Funds: DCNR no longer has the ability to effectively carry out its mission as stewards of all our public natural resources as mandated by the CNRA and Article I § 27.

Loss of Use of State Forest Land for Private Industrial Development: The Forest that once was no longer exists where gas industry development has taken place, impacting thousands of acres and turning former contiguous and unbroken Forest into a patchwork of rural industry and heavy traffic. Petitioner’s members are furthermore prohibited from entering developed areas of State Forest and from partaking of the public benefits that these lands once provided.
Loss of Air Quality and Water Quality: Development of the Marcellus Shale cannot take place without impacting the many Exceptional Value streams in the State Forest and their indigenous aquatic life, and without impacting the air quality of what has been a vast recharge area.
Loss of Preservation of Natural, Scenic, Historic and Aesthetic Values of the Public Natural Resources: Simply put, there is no longer a State Forest where gas industry development has taken place, and enjoyment of the surrounding Forest areas is greatly diminished due to the overall cumulative impacts.
Increased Flooding from Increased Stormwater: The gas industry will cause increased impermeable surfaces that will accelerate and increase the amount of runoff in a landscape that is already prone to severe flooding, resulting in increased economic and emotional impacts.
Loss of Value to Real Estate: Private property values have already dramatically declined in areas in close proximity to gas industry activity.

Requested Declaratory Relief

The Petitioner requests that the Court grant declaratory relief as set forth in detail in its Brief in Support of the Motion for Summary Judgment. In summary:

1) Find and declare that the duties of the Respondents, when making a decision or taking an action that will or may impact State Forests or Parks, are defined by the terms of Article I § 27 and as implemented by the CNRA.

2) Find and declare that extracting natural gas on State Forest and Park lands causes immediate and long-term negative impacts to these public natural resources that must be mitigated to fulfill the obligation to conserve and maintain these resources under Article I § 27, and to protect the people’s rights to these resources, both now and in the future.

3) Find and declare that CNRA creates a statutory structure that only allows DCNR to continue to lease State Forest land for mineral extraction under the limits of Article I § 27 when DCNR maintains control over the money in the Oil and Gas Lease Fund from that leasing to mitigate the impacts to State Parks and Forests from oil and gas extraction.

4) Find and declare that the Oil and Gas Lease Fund is a de facto trust fund under the public trust established by Article I § 27.

5) Find and declare that the governor violated Article I § 27, and his trustee duties and the people’s rights thereunder, by proposing in his Executive Budget for FY 2009-10 the transfer to the General Fund of $174,000,000 from the Oil and Gas Lease Fund generated from the 2008 oil and gas lease sale of 74,000 acres of State Forest land, and by giving final approval to actually transfer $143,000,000 by signing the Appropriations Act for FY 2009-10.

6) Find and declare that the governor violated Article I § 27, his trustee duties and the people’s rights thereunder, by signing an amendment to the Fiscal Code, knowing that it required the transfer to the General Fund of an additional $60,000,000 from the Oil and Gas Lease Fund for the current fiscal year, and then by requiring DCNR to lease additional State Forest land for oil and gas extraction to generate this amount when DCNR recommended against further leasing until it had time to evaluate the impacts from unconventional Marcellus Shale gas extraction.

7) Find and declare that the governor violated Article I § 27, and his trustee duties and the people’s rights thereunder, by approving and signing into law amendments to the Fiscal Code that added (provisions) to permanently remove DCNR’s control over and use of the Oil and Gas Lease Fund to fulfill its trustee duties under Article I § 27 and the CNRA.

8) Find and declare that the governor violated Article I § 27, and his trustee duties and the people’s rights thereunder, by proposing in his Executive Budget for FY 2010-11 the transfer to the General Fund of $180,000,000 from the Oil and Gas Lease Fund knowing that additional leasing of the State Forest for oil and gas extraction would be required to generate this amount; by then requiring DCNR to proceed with this leasing knowing that DCNR recommended against further leasing until it had time to evaluate the impacts from unconventional Marcellus Shale gas extraction; and by approving the final transfer of the $180,000,000 by signing the amendment to the Fiscal Code that authorizes this transfer.

9) Find and declare that the governor, in fulfilling his mandate to submit a balanced budget proposal to the General Assembly cannot violate the people’s rights under Article I § 27 because the people’s Article I rights are limitations on the authority they give to the government under the Constitution.

10) Find and declare that the Respondents violated Article I § 27, and their trustee duties and the people’s rights thereunder, by failing to evaluate the impact of the additional leasing for the State Forest for oil and gas extraction on other uses of the public natural resources by the people as beneficiaries, including future generations, before directing DCNR to lease additional State Forest land.

11) Find and declare that the 2009 amendments to the Fiscal Code, titled Oil and Gas, violate Article I § 27 by permanently removing DCNR’s control over and use of the Oil and Gas Lease Fund to fulfill its trustee duties under Article I § 27 and the CNRA, and by authorizing transfers from the Oil and Gas Lease Fund to the General Fund.

12) Find and declare that the transfers from the Oil and Gas Lease Fund to the General Fund purportedly carried out pursuant to (certain provisions) of the Fiscal Code were not authorized because Section 1602-E only allows the transfer of royalties deposited in the the Oil and Gas Lease Fund and the money transferred was derived from lease sale bids, not royalties.

13) Find and declare that the governor violated Article I § 27, his trustee duties and the people’s rights thereunder, by proposing Executive Budgets and approving Appropriations Acts that require DCNR to use the Oil and Gas Lease Fund instead of General Fund revenue to pay DCNR’s day-to-day operating expenses . . . and prevent DCNR from using the Oil and Gas Lease Fund to mitigate the harm to State Parks and Forests from oil and gas extraction as required to fulfill its trustee duties under Article I § 27 and the CNRA.

14) Find and declare that the Respondents violated Article I § 27, and their trustee duties and the people’s rights thereunder, by approving the provisions of Act 13 of 2012 that transfer $50,000,000 annually from the Oil and Gas Lease Fund to the Marcellus Legacy Fund and prevent DCNR from using the Oil and Gas Lease Fund to mitigate the harm to State Parks and Forests from oil and gas extraction as required to fulfill its trustee duties under Article I § 27 and the CNRA.

15) Find and declare that the Respondents violated Article I § 27, and their trustee duties and the people’s rights thereunder, by approving the provisions of Act 13 of 2012 that created a grant program to benefit greenways, recreational trails, open space, parks and beautification projects across the Pennsylvania and authorized the Commonwealth Financing Authority, an authority controlled by the General Assembly, to administer the grant program rather than DCNR, the agency with the authority under the CNRA and the expertise to administer grants for these types of projects.

16) Find and declare that the Petitioner has standing to bring this action.

2014 Addendum to Lawsuit Addresses Governor Corbett's Intent
to Lease More State Land for His Budget
Click here to read the Addendum

Governor Tom Corbett has announced his continued intent to violate the State Constitution by

leasing more State Forest land and now State Park land for the sale of natural gas
misappropriating more money from the Oil & Gas Lease Fund to

- acquire $75 million for the General Budget for FY 2014-15
- transfer $117 million to the Department of Conservation & Natural Resources for its Operating Budget for FY 2014-15

terminating Executive Order 2010-05 (the 2010 moratorium), and issuing a new executive order to allow for the proposed leases

Direct Impacts: The Governor's announcement states there will be no surface impacts on the new leased lands. But there will be considerable impact on the already leased lands that will have additional gas extraction activities.

Indirect Impacts: There will also be indirect impacts, especially on State Park lands that will increase extraction activities adjacent to them. These impacts will include noise, traffic, and air and water pollution.

Public Trust Violation: Additionally, the natural gas the Governor is proposing to sell is a public natural resource as much as our State lands are a public natural resource. It is PEDF's position that such public natural resources, when converted to cash, are still a part of the Public Trust property. Further, there is the duty of the Governor and the Commonwealth to insure that such natural resources be retained for future needs of the Public Trust.

Key Points of PEDF's Lawsuit

Governor's Duty: Determine that the governor has a specific duty as Trustee under Article I Section 27 of the Pennsylvania Constitution to conserve and maintain the public’s natural resources.

Natural Resource Significance: Sustain the diversity and significance of Pennsylvania’s natural resources and the people's basic rights to those resources under Article I Section 27.

Protection from Marcellus Degradation: Protect environmentally significant State lands from degradation, and State Forests and Parks from further surface damage due to gas industry development.

DCNR's Authority: Ensure that DCNR retains the duty for conserving and maintaining the State’s natural resources under Article I Section 27, the Oil & Gas Lease Act, and the Conservation and Natural Resources Act.
State Land Evaluation: Determine that before any action is taken to lease additional State lands, a comprehensive and unbiased evaluation of the impacts on these lands must be completed under the governor’s duty to conserve and maintain the Commonwealth’s natural resources.

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Second Amended Petition for Review in the Nature of an Action for Declaratory Relief

...and we were promised a "Christmas tree," photo Terry Wild

December 5, 2013, PEDF’s attorney, John Childe, filed a "Second Amended Petition for Review in the Nature of an Action for Declaratory Relief" in the lawsuit against the Commonwealth of Pennsylvania and Governor Tom Corbett. The Petition is well documented. Its purpose is fourfold:
to include new information obtained during the discovery process
to present the requested outcome as clear declaratory statements
to clarify that not only is certain legislation unconstitutional, but so are the Governor’s numerous violations of Article I § 27 (Public Trust Doctrine), Pennsylvania State Constitution
to withdraw allegations that through the discovery process have been found to be no longer pertinent to the lawsuit

Following is a synopsis of the 79-page "Second Amended Petition . . ." which can be read in its entirety by clicking here.

Basis for the Suit
There are three Pennsylvania laws upon which the lawsuit is founded:
Article I § 27 (Public Trust Doctrine), Pennsylvania State Constitution
the 1995 Conservation & Natural Resources Act (CNRA)
the 1955 Oil and Gas Lease Fund Act (OGLFA), which established the Oil and Gas Lease Fund (OGLF)

Parties in the Lawsuit
The Petitioner is the Pennsylvania Environmental Defense Foundation (PEDF). Affidavits have been submitted by five individual members and eleven organizational members.

The Respondents are 1) the Commonwealth of Pennsylvania as the Trustee of Pennsylvania’s natural resources, and 2) the Governor of Pennsylvania, who has the responsibility of assuring that the State’s laws are carried out.

The lawsuit maintains that 1) the Commonwealth is NOT upholding its duties as Trustee and 2) the Governor is NOT upholding the three Pennsylvania laws upon which the suit is based.

Statement of Facts
This section contains the following:

1) Review of Article I § 27

2) The Department of Conservation & Natural Resources’ (DCNR) legal responsibilities under Article 1 § 27, the CNRA, and the OGLFA.

3) Provisions of the CNRA

4) Provisions of the OGLFA

5) Explanation of Balanced Protection of the Public Trust by DCNR as legally bound by the CNRA and OGLFA

6) Purpose of the OGLF and its misuse in 2004

7) Verification of State Forests and Parks as Public Natural Resources

8) Warnings by former DCNR Secretaries Nicholas DiBerardinis and John Quigley to former Governor Ed Rendell against the further leasing of State Forest lands and against the diversion of Oil & Gas Lease Funds away from their lawful use, 2008-2009

9) Lease sales 2009-2010 and lack of environmental reviews

10) Descriptions of impacts on State Forest land from Marcellus Shale gas industry development. The cumulative effects of these impacts could fundamentally change the character and threaten the ecological integrity of the State Forest System as a whole. Ultimately, this could threaten the certification of Pennsylvania’s State Forest System as compliant with the gold standard for forestry as established by the international Forest Stewardship Council, vital to the economic viability of the forest products industry.

11) Description of impacts on State Park land from Marcellus Shale gas industry development. The more than thirty State Parks in the Pennsylvania Wilds (northcentral) and Laurel Highlands (southwestern) areas are particularly susceptible to gas industry development. The Commonwealth DOES NOT OWN the mineral rights to over 80% of Pennsylvania State Parks, making them subject to the interests of the private owners who do.

12) Explanation of the Article I § 27 mandate and the people’s rights under this mandate. Explanation of the decision-making power that has been stripped from DCNR with regard to the leasing of State lands. Explanation of the loss of control of the OGLF that has been stripped from DCNR. The exclusive purpose of the OGLF – to offset harm to our public natural resources from oil and gas extraction – no longer exists. OGLF monies are being funneled to projects that do NOT conserve the State’s Forests and Parks and do NOT serve their lawful use or intended purpose.

13) Description of amount and losses of State Land to date as well as other private industry losses, and devaluing of private land

14) Description of irreparable impacts to the public’s natural resources from the loss of Oil & Gas Lease Funds. Review of the State Forest and Parks projects that are in dire need of these funds.

Declaratory Relief Requested (all Declarations are further explained in the body of the lawsuit)
A) Declare that the Governor, as the Constitutional Trustee of Pennsylvania’s Public Natural Resources under Article I § 27, Has the Affirmative Duty to Conserve and Maintain those Public Natural Resources for the Benefit of the People

B) Declare that the Governor has the Constitutional Duty to Consult with the Department of Conservation and Natural Resources When Considering an Action that will Negatively Impact Pennsylvania’s State Forests and Parks

C) Declare that the Trustee Under Article I § 27 with the Mandate to Conserve and Maintain the Public Natural Resources, has the Duty, before Making a Decision or Taking an Action that Will Negatively Impact the Public’s Natural Resources, to Evaluate the Present and Future Impacts, to Evaluate How to Minimize those Impacts, to Evaluate How to Restore or Mitigate those Impacts, to Evaluate the Costs to Do So, and to Insure that Money is Available to Do So

D) Declare that the Conservation and Natural Resources Act Establishes a Statutory Structure under Article I § 27 to Balance the Negative Impact from Leasing State Forest Land for Gas Extraction with the Benefits Obtained from the Use of the Funds from the Leasing by Limiting the Leasing to the Discretion of DCNR, and Providing DCNR with All the Money from the Leasing to Restore and Mitigate the Public Natural Resources

E) Declare that the Governor Violated the Public Trust Amendment by Deciding in the Executive Budget for Fiscal Year 2009-10 to Transfer $163,000,000 from the Oil and Gas Lease Fund to the General Fund

F) Declare that the Governor Violated His Duty under Article I § 27, and Violated the Conservation and Natural Resources Act, by Requiring DCNR to Lease State Forest Land for Gas Extraction to Acquire Money to be Transferred from the Oil and Gas Lease Fund to the General Fund

G) Declare that the Governor Violated His Duty under Article I § 27 by Approving and Signing into Law the Provisions of the Appropriations Act for 2009-10 that Transferred $143,000,000 from the Oil and Gas Lease Fund to the General Fund

H) Declare that the Governor Violated His Duty under Article I § 27 by Deciding in the Executive Budget for Fiscal Year 2010-11 to Transfer $180,000,000 from the Oil and Gas Lease Fund to the General Fund

I) Declare that the Governor’s Decision to Approve and Sign into Law Article XVI-E (Oil and Gas Wells) of the 2009 Fiscal Code Amendments Violated His Duty under Article I § 27

Section 1602-E of the Fiscal Code: 1602-E changed the OGLFA to: a) take away DCNR’s authority to determine how to use the funds from the Act, b) eliminate the exclusive purposes of this fund, and c) give the General Assembly complete control of the OGLF. The Petition explains the arbitrary constitutional and statutory unlawfulness of Section 1602-E and its consequences.
Section 1603-E of the Fiscal Code: 1603-E appropriates up to $50,000,000 annually from royalties to fulfill the intent of the OGLFA. In other words, the General Assembly can allocate annually anywhere from $0 to $50,000,000 to DCNR to fulfill its duties under the OGLFA. 1603-E also establishes preferences to DCNR for the use of this money.
Sections 1604-E and 1605-E of the Fiscal Code: These two sections unlawfully authorized the transfer of $240,000,000 from the OGLF to the General Fund. The governor ordered DCNR to lease an additional 80,000 acres of State Forest land to produce the money, even though DCNR convinced the governor that leasing 65,000 acres would be sufficient to generate these funds. This was in addition to the 74,000 acres leased in 2008 that produced $143,000,000 for transfer from the OGLF to the General Fund by the 2009-10 Appropriations Act. DCNR is now forced to manage approximately 700,000 acres of land under lease (65,000 plus 74,000 plus an existing 565,000 already under DCNR and private leases on State land) without the money from the OGLF to do so.

J) Declare that the Fiscal Code Amendments Violate Article I § 27 and are Therefore Unconstitutional

K) Declare that Section 104(P) of the Appropriations Act of 2011-12 Violates Article I § 27 and Is Therefore Unconstitutional for Allocating Funds from the Oil and Gas Lease Fund to the General Fund for the Specific Purposes of Payment of Salaries, Fees, Travel Expenses, and Other Expenses Not Related to Conservation and Maintenance of Public Natural Resources Impacted by Gas Extraction

L) Declare that the Governor Violated the Public Trust Amendment by Using Oil and Gas Lease Funds for Administrative Purposes

M) Declare that the Governor Violated the Public Trust Amendment by Approving the Act 13 Transfers from the Oil and Gas Lease Fund to the Marcellus Legacy Fund

N) Declare that Moneys from the Leasing of State Forest Land for Gas and Oil Extraction Are Part of the Public Trust and Must Be Used to Deal with the Impacts from Those Leases on the Public Natural Resources

O) Declare that transfers of the $383,000,000 from the Oil and Gas Lease Fund Were in Violation of the Oil and Gas Lease Fund Act, and Not Authorized under the Fiscal Code (72 P.S. 3611), or Article I § 27

Standing
Justification for standing of the five individual members and eleven organizational members of PEDF that submitted affidavits is presented in this section. Petitioner members’ rights and interests in Pennsylvania’s State Parks and Forests are substantially and immediately harmed by:

the loss of DCNR control of Oil and Gas Lease Funds
the loss of use of public State Forest land due to private industrial gas development
the loss of air quality and water quality
aesthetic harm, visual and auditory
increased flooding from increased stormwater runoff on increased impervious surface
the loss of real estate value

The Petition Concludes and Requests Declaratory Relief.

* * * * * * *

the changing face of the forest

In April 2012, PEDF filed suit against Governor Corbett and the Commonwealth of Pennsylvania (see Amended Petition for Review Lease Fund) regarding the further leasing of State lands for Marcellus Shale gas drilling.

We initiated the suit for three reasons:

  1. Over 700,000 acres of State Forest have already been leased for drilling.
2. Governor Corbett has threatened to lease more land, even though a 2010 Department of Conservation and Natural Resources (DCNR) study states that any remaining State Forest land is too environmentally sensitive for drilling.
3. The governor and the General Assembly have misappropriated money from the Oil and Gas Lease Fund Act.

         The Oil and Gas Lease Fund Act was created in 1955 and specifies that “All rents and royalties from oil and gas leases of any land owned by the Commonwealth, except rents and royalties received from game and fish lands, shall be placed in a special fund to be known as the "Oil and Gas Lease Fund" which fund shall be exclusively used for conservation, recreation, dams, or flood control or to match any Federal grants which may be made for any of the aforementioned purposes.”

         The governor and legislature have already diverted well over $400,000,000 from the Oil and Gas Lease Fund into the General Fund. Many more millions have been diverted to replace the use of general funds for the administration of DCNR as well as to fund existing and new entities that do not deal with the protection of natural resources on our State lands.

What PEDF Is Doing

Specifically, our lawsuit asks that the governor be required to fulfill his responsibilities to protect the right of all citizens to “clean air, pure water, and the preservation of the natural, scenic, historic, and esthetic values of the environment.” (Article 1, Section 27, Pennsylvania Constitution)

PEDF's lawsuit is the only legal action taken by any organization that is designed to bring some sanity and prudence to the overall State leasing process.

    The suit is progressing and asking the courts to require the governor to:

Conduct a comprehensive environmental impact analysis on the current and potential effects of drilling on State lands;

Uphold the referendum that prohibits any further surface disturbance on State lands;

Retain all funds gained from gas leases and royalties in the Oil and Gas Lease Fund, as necessary to deal with the impacts from the gas extraction process;

Restore the $383,000,000 taken from the Oil and Gas Lease Fund and put into the General Fund by former Governor Rendell.

What the Commonwealth Court Has Done

The Commonwealth Court has affirmed that the suit has merit on the constitutional issue and rejected Governor Corbett’s attempt to get the suit dismissed (see Commonwealth Court Opinion on Preliminary Objections and Commonwealth Court Denial for Reargument).

The Court has given PEDF the “green light” to proceed.
Your help is needed now more than ever to conserve our remaining State lands!
Join us with your donation in this landmark effort!

Please click here.

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Citizen's Guide: Protecting Our State Forests from Natural Gas Impacts
What can we do?

From the Introduction: Pennsylvania’s State Forests are being severely challenged as a result of leasing the mineral rights for natural gas exploration and development. Already our most pristine State Forests are being impacted. Forestland is being cleared for roads, pipelines, well pads and storage areas. Heavy truck traffic is turning Forests into industrial zones. The Forests are being fragmented and threatened with air, water, and noise pollution from gas development. Those of us who use and love the Forests need to help take care of them. What can we do? Lots!

PEDF's "Citizen's Guide" was produced in January 2012 with assistance from many groups and individuals and with special recognition to the Environmental Fund of Pennsylvania. Please click here or on the blue heading above to download the Guide.