Wednesday, April 29, 2020

Op-Ed: State Government Is Ignoring Pennsylvania’s Constitutional Right To A Clean Environment For Generations Yet To Come

By Ron Evans, President, PA Environmental Defense Foundation

Reportedly, when President Andrew Jackson disagreed with a decision of the Supreme Court’s Chief Justice, he said, “John Marshall has made his decision.  Now let him enforce it”.  
All three branches of Commonwealth government are saying the equivalent regarding a ruling the PA Supreme Court made in June, 2017.  
At that time the court ruled in favor of the Pennsylvania Environmental Defense Foundation (PEDF) who was suing the governor for not executing the environmental amendment of the PA Constitution.  
Article 1, Section 27 of the Constitution states “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.”
PEDF’s suit specifically contended that the Governor and legislature were ignoring the amendment in the management of state parks and forests   
The PA Supreme Court decision in PEDF’s case clearly stated that the amendment means state lands and resources are owned by the citizens of the Commonwealth in the form of a public trust.  In addition, the trust includes any money gained from the sale of the resources.   
The court ruled that the role of government at all levels is to act as a trustee of the public trust, not as proprietors, by conserving and maintaining public lands and resources.
The legislative and executive branch’s abrogation of their responsibilities as trustees becomes especially damaging with the rush to drill for natural gas in the Marcellus Shale region of the state.  
The governor and legislature have not permanently banned additional drilling on public lands, even though the Department of Conservation and Natural Resources has stated that any additional drilling will endanger fragile ecologies.  
The PA Supreme Court in its ruling deemed the Oil and Gas Lease Fund, established to mitigate damage caused by drilling, to be part of the public trust.  The Fund can be used only to maintain and conserve public natural resources. 
Starting with the Rendell administration approximately $1.2 billion have been taken out of the public trust and diverted to the General Fund. 
Governor Wolf and the legislature continue to ignore the PA Supreme Court decision by diverting $61 million from the Oil and Gas Lease Fund to the General Fund for the 2020-21 budget.
Consequently, PEDF filed another suit specific to the diversion of Oil and Gas Lease Fund money to the General Fund.  
After a 2 year wait, Commonwealth Court has ignored the decision of the PA Supreme Court by ruling that some of the Oil and Gas Lease Fund can be used to fund the operation of state departments and agencies.  
Now all three branches of state government are complicit in ignoring the PA Supreme Court decision in the PEDF case.  PEDF is appealing the ruling to the PA Supreme Court.
The Department of Conservation and Natural Resources (DCNR), the agency charged with conserving and protecting public lands is ignoring the PA Supreme Court.  
In the current plan for state forests, DCNR, in effect, has rejected the philosophy of ecosystem management which had guided decisions since 1995.  
Ecosystem management is a philosophy that meets both ecological and human needs.  In other words, an activity that meets a human need but damages the ecology is antithetical to sound ecosystem management.  
The 2016 Plan for state forests reverts to a multiple use approach in which DCNR functions more like an owner of the resources, not as a trustee as mandated by the PA Supreme Court.  
The plan states that oil and gas extraction is a legitimate use of public natural resources.    
Initially PEDF engaged in discussions with DCNR to get them to change the plan to be consistent with the PA Supreme Court decision.  DCNR refused to make the change so PEDF is challenging the plan in court.
In 1971, the legislature passed, the governor signed and the citizens ratified a visionary amendment to the Commonwealth’s Constitution.  
For almost 50 years, state government largely ignored its responsibility to act as a trustee of a public trust consisting of public lands and resources.  
In 2017 the PA Supreme Court made an unambiguous ruling mandating that government fulfill its trustee responsibilities.  
However, all three branches continue to ignore the ruling.  
As citizens and owners of the public trust, we cannot allow this undemocratic challenge  to a PA Supreme Court decision to persist.  
For more information on PEDF’s legal actions, visit the PA Environmental Defense Foundation website.
Click Here to watch a WITF documentary on Pennsylvania’s Environmental Rights Amendment and learn more at the PA Conservation Heritage website.
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[Posted: April 29, 2020] PA Environment Digest

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