Thursday, July 6, 2017

Op-Ed: The Impact Of The PA Supreme Court Environmental Rights Amendment Ruling On The Environment

By Richard Martin, Coordinator, Pennsylvania Forest Coalition

For years, the General Assembly acted as if they were the ones who determined the meaning of Article I § 27 [the Environmental Rights Amendment to the state constitution].
After the legislature diverted hundreds of millions of dollars from DCNR’s Oil & Gas Lease Fund, they didn’t count on the nonprofit Pennsylvania Environmental Defense Foundation to take them to task.
PEDF’s counsel, John Childe felt that the language Article I § 27 of our State Constitution was not just “aspirational,” but a clear statement of fact and the Commonwealth was the trustee of our natural resources.
PEDF sued the governor five years ago because revenue from our oil and gas leases was not being spent for conservation.
Sentence No. 1 of Article I § 27: “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.”
This is what we have been quoting for over 40 years, but it had not been affirmed by the courts until last week. Our State Supreme Court agreed that the wording is unambiguous. There is no longer a balancing act, with someone’s thumb on the scale.
Sentence No. 2: “Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come.”
This clearly establishes that the people own the public natural resources, not the Commonwealth. This is important because It eliminates all previous precedent and precludes compromises which balance protecting the resources with other Commonwealth duties.
Sentence No. 3: “As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.”
This establishes a public trust. This is a really big deal because it means that all agencies of the Commonwealth, both state and local, have a fiduciary duty to act toward the corpus of the trust, the public natural resources, with prudence, loyalty and impartiality.
The Commonwealth is not the proprietor of our resources, only the trustee. The standard for determining compliance is based on the plain meaning of “conserve and maintain,” a duty to prevent and remedy the degradation, diminution or depletion of our public natural resources.
This is also a big deal. There is no limitation of this duty to be based on “reasonable” degradation, diminution or depletion. This is not “a guide” for our legislators, it is their affirmative duty to prohibit degradation.
The trustee must also act affirmatively to pass such laws as will best preserve the subject of the trust, and secure its beneficial use in the future to the people of the state.
Proceeds from the sale of natural gas and oil are part of the corpus of the trust and must remain part of the trust. This is extremely important; all royalties from oil and gas must stay as part of the trust, and be used only to conserve and maintain the natural resources. Read details at the PA Environmental Defense Foundation website.
They may not realize it yet, but every public official in Pennsylvania is obligated to adhere to this Supreme Court decision because they all took an oath of office and swore to uphold the PA Constitution.
Ever since 1971, that oath of office has included Article I § 27. Every governor, senator, representative, mayor and municipal officer must prevent any degradation of our public natural resources.
Before it was diverted, the original Oil & Gas Act of 1955 had been invested in conservation. That fund was the primary reason that DCNR expanded our State Park System from 44 State Parks to the present 120.
Now we must use last week’s State Supreme Court decision to save and restore our state forests and state parks, allowing DCNR to fulfill its mission of conservation and maintenance of our public natural resources.
Sen. Franklin Kury is the visionary who worked both sides of the aisle to ensure that Article I § 27 became a constitutional amendment in 1971. Now, 46 years later, our State Supreme Court has finally affirmed his good work.
PEDF’s work is far from finished. More legal action will be needed to fully enforce the Supreme Court decision because the Supreme Court has asked Commonwealth Court to determine if lease and bonus payments are also assets of the trust.
Our Constitution’s environmental amendment makes Pennsylvania unique in protecting the public’s environmental rights and the June 20 decision by the State Supreme Court gives the amendment teeth, but PEDF counsel John Childe still has more work to do to ensure that all the words of Article I § 27 are fulfilled.
Richard Martin is Coordinator for the Pennsylvania Forest Coalition, a unique alliance of 4,115 hunters, hikers, anglers, landowners, wildlife-watchers, paddlers, bikers, churches and conservation groups who are united in our concern for the stewardship of our public lands.
Related Stories:
PA Supreme Court Has Saved Our State Forests and Parks!  By John  E. Childe, Attorney for PA Environmental Defense Foundation
Taking The Public Trust Seriously: The PA Supreme Court’s Landmark Decision In PEDF v. Commonwealth.  By John Dernbach, Distinguished Professor of Law, Widener University

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