The PA Environmental Defense Foundation Tuesday filed an addendum to its petition with Commonwealth Court challenging the provisions of the Fiscal Code bill-- House Bill 674 -- enacted in October transferring monies from the Oil and Gas Lease Fund to DCNR and the Marcellus Legacy Fund asking that they be declared unconstitutional because they were made with no regard for the public trust under the constitution’s Article I, Section 27 Environmental Rights Amendment.

The addendum says now over $1.1 billion earned from the sale of natural resources from state forests is now at stake in this case.

This issue is before Commonwealth Court because of the June 20 PA Supreme Court decision declaring other transfers in past budgets unconstitutional for the same reason.  The upper court directed the Commonwealth Court to sort out issues related to these transfers consistent with the court’s ruling.

The June 20 ruling by the PA Supreme Court declared 2009 and 2010 amendments to the Fiscal Code transferring $478 million from the Oil and Gas Lease Fund to the General Fund unconstitutional because there was no evidence the General Assembly considered the use of the funds in its role as public trustee for natural resources under the Environmental Rights Amendment.

The addendum to the petition filed Wednesday deals with the transfer of $61 million from the Oil and Gas Lease Fund to pay operating expenses for the Department of Conservation and Natural Resources for FY 2017-18.

It also includes the transfer of $35 million from the Oil and Gas Lease Fund to the Marcellus Legacy Fund and re-transfer of those monies to the Environmental Stewardship Fund and the Hazardous Sites Cleanup Fund to pay for activities that “while beneficial, do not prevent and remedy the harm to the State Forest from oil and gas extraction.”

In the July PEDF filed motions with the Court to declare the 2017-18 General Fund budget bill-- House Bill 218 (Saylor-R-York)-- unconstitutional because it transfers over $61 million from the Oil and Gas Lease Fund to finance the general operations of the Department of Conservation and Natural Resources.

The new motion says “over $1.1 billion generated from the lease and sale of public natural resources on our State Forests has been removed from the Section 27 public trust since 2009 for uses other than preventing and remedying the degradation, diminution and depletion of our State Forest and Park public natural resources by oil and gas extraction.

“As a result of the above Oil and Gas Lease Fund appropriations and transfers, the people who live and work and recreate in the PA WILDS, including the PEDF members, as beneficiaries of the public trust under Section 27, are deprived of their rights by the continued degradation of our State Forests and Parks, continued diminishment of public natural resources that will be needed to sustain the forest for future generations, and the continued loss of the money that is a public natural resource asset.”

The motion also points out, Section 1601.2-E(c) of the Fiscal Code bill actually re-enacts the Oil and Gas Lease Fund, but fails to include a requirement to “reasonably exercise its duties as trustee of the environmental trust created by Section 27, the newly designated Oil and Gas Lease Fund needs to be amended to reflect these requirements.”

In the July motions, PEDF said, “If the Commonwealth can use our public natural resources for general operating expenses, including salaries and expenses, even assuming it is argued that the employees’ salaries and expenses are related to “conserving and maintaining” public natural resources, then no constitutional protection of the actual public natural resources will exist.

“The Commonwealth can and will argue that most, if not all, of DCNR employees are working toward conserving and maintaining our State Parks and Forests. The Department of Environmental Protection employees are also arguably working to conserve and maintain the public natural resources of our clean air and pure water.

“Other agencies also have obligations that could be viewed, under this interpretation, to be conserving and protecting our public natural resources, including both statewide and municipal entities.

“An interpretation of Article I, Section 27 that allows DCNR to decide to lease our State Forests for private industrial use to extract oil and gas to pay the general operational costs of DCNR and other State agencies results in the degradation, diminution and depletion of the corpus of the public trust and, therefore, fails to conserve and maintain the public natural resources for the benefit of the people, including future generations.

“The proceeds of the sale of trust assets must be directly related to conserving those resources. Article XVI of the Appropriations Act of 2017 makes an impermissible and unconstitutional general appropriation of trust assets for purposes that are not consistent with the trust purposes.”

Click Here for a copy of the addendum to the petition.

For more information on this issue, visit the PA Environmental Defense Foundation website.

[Posted: Dec. 5, 2017]

12/11/2017