Thursday, June 11, 2020

PA Environmental Defense Foundation Defends Lawsuit Saying DCNR’s Forest Plan Mission To Sell Gas Resources Not Consistent With Environmental Rights Amendment

On June 8, the PA Environmental Defense Foundation submitted a brief responding to preliminary objections to its January Lawsuit against the Department of Conservation and Natural Resources saying the State Forest Plan it adopted allowing the sale of natural gas resources is not consistent with its trustee responsibilities under the state constitution’s Environmental Rights Amendment.
PEDF filed the lawsuit over the State Forest Resource Management Plan in 2016 DCNR adopted that changed the focus of management away from the science of ecosystem management and its trustee responsibilities to one where the Plan said it is DCNR’s mission to extract and sell the oil and gas resources for the economic use of DCNR and the Commonwealth.  
Prior to 2016, the lawsuit says DCNR’s managed oil and gas lease sales, timber sales and recreational uses of the State Forest to be consistent with the paramount goal of maintaining the health of the forest ecosystem. 
In 2016, PEDF said DCNR changed the State Forest Management Plan management paradigm to equate oil and gas economic “values” with the value of the forest ecosystem itself, including people’s “right to clean air, pure water, and the preservation of the natural, scenic, historic and aesthetic values of the [forest] environment” [from the Environmental Rights Amendment].
The 2016 State Forest Plan now requires DCNR to “balance” the economic value of the oil and gas resources with the ecosystem values of State Forest public natural resources protected under the Environmental Rights Amendment-- Article I Section 27 of the Pennsylvania Constitution.
PEDF said the 2016 Plan incorrectly says the economic use and sound extraction and utilization of coal, oil, natural gas and other geologic resources are part of its mission in managing State Forest lands.
In addition, “DCNR provides no discussion in the 2016 Plan of its fiduciary duties as trustee under Section 27 in managing our State Forest trust assets; DCNR provides no evaluation in the 2016 Plan of how it has complied with its fiduciary duties as trustee of our State Forest trust assets under the prior plan; and DCNR articulates no specific actions in the 2016 Plan that it will take to comply with its fiduciary duties as trustee of our State Forest trust assets in the future; in particular, DCNR does not describe any actions that it will take to remedy the degradation, diminution and depletion of the State Forest public natural resources that has and will continue to occur under existing leases for the extraction and sale of State Forest oil and gas.”
As a fiduciary under the Environmental Right Amendment, PEDF said, “the Commonwealth has a duty to act toward the corpus of the trust – the public natural resources – with prudence, loyalty, and impartiality.” which they have not in this case.
From 2008 to 2010, DCNR was required to lease almost 139,000 acres of State Forest land for Marcellus Shale natural gas extraction and the Governor and General Assembly used those funds to balance the state General Fund budget and directly pay for the operations of DCNR.
At the same time, the extraction of natural gas caused immediate and long-term degradation of the State Forest, PEDF said.  
PEDF pointed to the 2014 and 2018 Shale Gas Monitoring Reports prepared by DCNR which noted-- “... natural gas development on State Forest land, ‘especially at the scale seen in the modern shale-gas era, affects a variety of forest resources and value, such as recreational opportunities, the forest’s wild character, scenic beauty, and plan and wildlife habitat.’”
Among the impacts PEDF pointed to from Shale gas development since 2008 were--
-- Converted 1,770 acres of State Forest land from forest to shale gas infrastructure;
-- Construction of 265 infrastructure pads;
-- Construction of 260 miles of new roads;
-- Construction of 188 miles of gas pipeline corridors; 
-- “noticeable changes to the forest landscape are evident” with the largest increase overall resulting from “an additional 9,913 acres of forest edge (a 35 percent change in the Elk State Forest specifically); and
-- Greater fragmentation of the State Forest, noting core State Forests have lost 15,134 acres of large intact forest blocks, which are unfragmented forest blocks of more than 500 acres.
The lawsuit says by paying for DCNR’s operations from the sale of public natural resources, the Governor and General Assembly have been able to divert revenue from the General Fund previously used to pay for DCNR’s operations for other purposes to serve their political needs. 
PEDF said DCNR’s 2016 State Forest Management Plan accepts this new funding paradigm that degrades our State Forest to pay for DCNR’s annual operations because it supports “economic” benefits of gas extraction, rather than the value of our public natural resources, and its management directive to satisfy the political interests of the Commonwealth.
The lawsuit says replacement of General Fund Tax Revenue is not a trust purpose, any more than is the payment of DCNR’s operating expenses.
Respondent Challenges
PEDF is asking the Court to require DCNR to amend the State Forest Management Plan consistent with its trustee duties under the Environmental Rights Amendment.
PEDF is not seeking an award of money damages. PEDF is seeking compliance with the Constitution and particularly compliance with the mandates of the Environmental Rights Amendment. 
Among the many arguments in the brief countering the “Respondents” [DCNR’s] challenge to the lawsuit are the following.
“Contrary to what the Respondents have said in their challenge to the PEDF lawsuit, there is no immunity from PEDF’s valid claims under the Declaratory Judgments Act challenging the constitutionality of their actions.
“Respondents contend that because the 2016 Plan is a statement of policy, PEDF’s Amended Petition should be dismissed because “any relief granted would be merely academic in nature,...”
“Somewhat incredibly, the Respondents assert that if “this Court declare[s] that the DCNR and the Secretary have violated Pa. Const. Art. I, § 27, and requests the imposition of requirements on the DCNR, and requests that the DCNR and the Secretary be directed to carry out affirmative acts” (i.e., to revise the 2016 Plan consistent with its Section 27 fiduciary duties), such relief “would have no practical effect on the DCNR’s and the Secretary’s management of the State forest.” 
PEDF said, "If such relief is granted, it would have the effect of requiring the Respondents to prepare a State Forest Resource Management Plan that complies with Article I § 27 and their fiduciary duties thereunder and ensuring the public natural resource of our State Forests are conserved and maintained.   Compliance with the Constitution would not be merely academic in nature."
“The Respondents seem to suggest that unless the people of Pennsylvania tell them how to conserve and maintain the public natural resources of our State Forest through specific provisions in their Constitution or the General Assembly provides such direction by enacting specific legislation, they don’t have to do anything. 
“This argument turns our system of government on its head. The people of Pennsylvania have declared in Article I § 27 of their State Constitution that their State government is responsible as a trustee for conserving and maintaining the public natural  resources in their State, which they own and have set aside in a public trust. 
“The General Assembly has enacted the Conservation and Natural Resources Act to establish DCNR as the Commonwealth agency responsible for carrying out these trustee duties for our State Parks and State Forests. The DCNR Secretary is responsible for overseeing this mission and ensuring that DCNR develops the expertise necessary to do so.”
“The Respondents have been directed by the Supreme Court in PEDF II to exercise their fiduciary duties of prudence, loyalty and impartiality as trustees under Article I § 27 and CNRA to prevent and remedy the degradation, diminution and depletion of our State Forest and State Park public natural resources. 
“It is their job to develop and apply their expertise to carry out these duties and to explain to the people of Pennsylvania how they do so. They have failed to carry out their trustee duties in the 2016 Plan and PEDF has documented that failure.” 
This is one of a series of lawsuits the PA Environmental Defense Foundation have filed to see that the General Assembly, the Governor and state agencies follow the 2017 PA Supreme Court decision saying public officials, local and state governments and agencies like the Department of Conservation and Natural Resources have a duty, as trustees of the environmental public trust created by the Environmental Rights Amendment, to manage the monies resulting from oil and gas drilling on State Forest land in a manner consistent with the Amendment.
The state constitution says, “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.”
For more information on this case, visit the PA Environmental Defense Foundation website.  Questions should be directed to John E. Childe, 717-743-9811 or send email to:
Visit DCNR’s Natural Gas Management webpage for more information on natural gas drilling on State Forest land.
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[Posted: June 11, 2020]  PA Environment Digest

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