Thursday, May 13, 2021

PA Environmental Defense Foundation: A Review Of Where We Are Today On The 50th Anniversary Of PA's Environmental Rights Amendment

By John E. Childe, Attorney For PEDF

This statement by the PA Environmental Defense Foundation chronicles their legal efforts to get the General Assembly, governors and state agencies to recognize their trustee responsibilities to protect the environmental rights of Pennsylvanians and our shared natural resources under the Environmental Rights Amendment in Article I, Section 27 of the state  constitution.

In April of 2012 PEDF filed a lawsuit against the Governor and the Commonwealth of Pennsylvania for violating Article I Section 27 by requiring DCNR to lease our State Forest for oil and gas extraction and then taking the money for general fund appropriations. 
That lawsuit resulted in the Supreme Court decision of June 20, 2017, upholding Section 27 as an enforceable constitutional trust. [Read more here]

The purpose of the PEDF 2012 Petition was and still is to use Article I Section 27  to stop further leasing of our State Forest, to put DCNR back in charge of managing our State Forest as an active constitutional trustee, and to restore the ecosystem of the 1.6 million acres of our State Forest in North Central Pennsylvania being degraded by the Commonwealth’s leasing activities. 

After three days of trial in Commonwealth Court in 2014 PEDF stopped Governor Corbett’s proposal to lease an additional 30,000 acres of State Forest land for oil and natural gas extraction, which would have added onto the 660,000 acres of Forest land currently under lease.  [Read more here]

Oral argument was finally heard in PEDF’s case in March of 2016. Fifteen months later the Supreme Court issued the Opinion of June 20, 2017. 

What was accomplished in the 2017 Opinion include the following:

1. That the principles of Article I Section 27 established in the plurality opinion of Justice Castille in the Robinson Township decision are now enshrined into Pennsylvania Constitutional Law.

2. That among the “inherent and indefeasible” rights in Article I of Pennsylvania’s Constitution are the environmental rights set forth in the Environment Rights Amendment, Article I Section 27.

3. That the constitutional language of the trust itself as set forth Article I Section 27 controls how to comply with the Amendment.

4.  That the Payne V. Kassab test relying on compliance with existing statutes to determine compliance with Article I Section 27 established in the 1973 is overruled.

5. That the public trust provisions of Article I Section 27 are self-executing.

6. That the Commonwealth has the constitutionally imposed fiduciary duty to manage our state parks and forests, including the oil and natural gas therein, as part of the corpus of the public trust for the benefit of the people, to accomplish the purpose of the trust, to conserve and maintain the corpus by, inter alia, preventing and remedying the degradation, diminishment and depletion of those resources.

7. That the Commonwealth, including the Governor and the General Assembly, may not treat our State forest or parks as proprietary owners, and instead must fulfill their duties as trustees.

8. That the Commonwealth may use the State forest and parks only as assets of the trust, and therefore only for the purposes authorized by the terms of the trust or for the preservation of the trust.

9. That all proceeds from the sale of oil and natural gas are part of the corpus of the public trust and the Commonwealth must manage the entire corpus according to the fiduciary obligations as trustee.

10. Using those proceeds for the general fund or for the general operation of DCNR are not trust purposes and therefore unconstitutional. 

Since the 2017 Opinion of the Supreme Court the Governor, the General Assembly and the Commonwealth Court have essentially ignored the terms of the Opinion. 

There is simply too much money from the oil and natural gas leases for them to give up using for general fund purposes. 

PEDF has two active cases before the Pennsylvania Supreme Court now to reassert and continue to define what conserving and maintaining our public natural resources means, and what the duties of the Commonwealth as trustee requires to protect and conserve our State Forest in North Central Pennsylvania.

Visit the PA Environmental Defense Foundation website to learn more and to support their efforts.

Related Articles - PEDF Lawsuit:

-- PA Environmental Defense Foundation Asks PA Supreme Court To Stop Unconstitutional Diversions Of Revenue From Gas Drilling On State Forest Land That So Far Has Taken Over $829 Million

Related Articles - 50th Anniversary:

-- DCNR Blog: Celebrating 50 Years Of The People's Right To A Clean Environment 

-- StateImpactPA, PA Parks & Forests Foundation Set May 18 Viewing, Panel Discussion On WITF’s PA’s Environmental Rights Amendment Documentary

-- Ned Smith Center For Nature & Art Celebrates 50th Anniversary Of PA Environmental Rights Amendment

-- Now On Sale! New Book By Franklin Kury Makes The Case For A Constitutional Right To A Healthy Environment

-- PEC Podcast: Celebrating 50th Anniversary Of PA’s Environmental Rights Amendment With Franklin Kury

[Posted: May 13, 2021]  PA Environment Digest

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