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

On January 6, the PA Environmental Defense Foundation filed an amended lawsuit in Commonwealth Court asking the Court to direct the Department of Conservation and Natural Resources to manage State Forests consistent with its trustee responsibilities under the state constitution's Environmental Rights Amendment.

PEDF said it filed the amended petition because DCNR adopted a State Forest Resource Management Plan in 2016 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.

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.

Specifically, PEDF is asking the Court to declare--

-- The 2016 Plan asserting part of DCNR’s mission to authorize the extraction and sale of natural gas and other mineral resources unconstitutional;

-- DCNR’s assertion in the 2016 Plan, which it follows to administer our State Forest public trust assets, that the social and economic values from selling our State Forest oil and gas are on par with the ecological health of the State Forest violates DCNR’s fiduciary duties as the trustee of our State Forest under Section 27 and the rights of the beneficiaries thereunder;

-- In its 2016 Plan to administer our State Forest trust assets, DCNR has violated its fiduciary duties as trustee under Section 27 by asserting that it can balance the purposes of Section 27, i.e., the right to have our public natural resources conserved and maintained by the Commonwealth as trustee for the benefit of the people living today and for future generations, with the alleged proprietary right to extract and sell our public natural resources for economic use;

-- DCNR has violated their fiduciary duties of prudence, loyalty and impartiality as trustees under Section 27 by treating the State Forest geologic resources as proprietors and declaring their mission in the 2016 Plan to be the extraction and sale of public natural resources of our State Forest for economic use by them and the Commonwealth;

-- DCNR’s mission as stated in CNRA [the act creating DCNR] Section 101(b) to manage the State Forest lands to assure their long-term health, sustainability and economic use does not require DCNR to authorize the extraction and sale of the oil and gas that is a part of the public natural resources of our State Forest when that activity will degrade, diminish and deplete the State Forest public natural resources contrary to the mandates of Section 27;

-- The conditions established by DCNR in its 2016 Plan to administer our State Forest public trust assets and allow the development of oil, gas and other geologic resources, i.e., its statement that “[d]evelopment of geological resources should occur when it is compatible with landscape goals and functions, avoids sensitive areas, and minimizes adverse impacts,” are contrary to and in violation of Section 27 because they sanction leasing of State Forest land for oil and gas extraction and sale without preventing and remedying the degradation, diminution and depletion of our State Forest public natural resources;

-- The oil and natural gas resources of our State Forest, as part of the corpus of the public trust under Section 27, cannot be used for the economic benefit of the Commonwealth because such economic use violates the purpose of the trust, which is to conserve and maintain those resources for the benefit of the people;

-- DCNR must amend the 2016 Plan consistent with the Supreme Court’s mandates in PEDF II and remove all statements and discussion that indicate its mission is to manage the State Forest by selling its oil and natural gas resources for economic use; and

-- DCNR has no constitutional right to lease State Forests for the extraction and sale of oil and natural gas for the economic benefit of the Commonwealth.

[Note: Gov. Wolf signed an executive order in 2015 administratively imposing a moratorium on new oil and gas leases in State Forests and Parks that remains in effect.

[However, in June of last year, several Republican Senators introduced legislation reopen State Forests to natural gas drilling to fund a Restore PA-lite infrastructure funding program and other Republicans have repeatedly expressed interest in more State Forest drilling.]

Click Here for a copy of the amended lawsuit.

PEDF Lawsuit No Surprise

The lawsuit filed by the PA Environmental Defense Foundation is not a surprise.

In June of 2019, PEDF submitted comments to DCNR on a proposal to replace State Forest land lost to gas drilling in Northcentral Pennsylvania with a tract of land in Chester County.

In its 10-page comments, PEDF said, “The State Forests and State Parks in Pennsylvania are public natural resources owned by the people of Pennsylvania, not the Commonwealth, under the Pennsylvania Constitution. The Pennsylvania Supreme Court has stated that these public lands are part of the trust established in 1971 when the people of Pennsylvania amended their Constitution to include Section 27.

“DCNR, as the Commonwealth agency authorized to manage these public trust resources, must carry out this function consistent with its constitutional fiduciary duties as a Commonwealth trustee under Section 27.”

“By advancing a proposal that does not remedy the harm that has occurred to public outdoor recreation use of our public lands in the Pennsylvania Wilds, DCNR has violated its fiduciary duty under Article I, Section 27 of the Pennsylvania Constitution to conserve and maintain the public natural resources of these public lands.”

In June of 2018, the PA Environmental Defense Foundation submitted comments to DCNR, then in the process of updating the separate Forest District Management Plans, to amend the 2016 overall State Forest Plan to include provisions to manage the State Forests consistent with the June 2017 decision by the PA Supreme Court.

The PEDF comments said in part-- “The recent Supreme Court decision issued in PEDF v. Commonwealth, 161 A.3d 911 (Pa. 2017) defines your duties as trustees of our State forests and parks, including our oil and natural gas. Your constitutional obligation under Article I Section 27 is to conserve and maintain the corpus of the trust, our public natural resources, for the benefit of the people, who are the beneficiaries of the trust.

“To conserve and maintain means that you cannot deplete, diminish or degrade those resources. You have the duty to both prevent and remedy any degradation of those resources. It means that you must ensure that the resources are conserved for future generations. The 2016 State Forest Plan does not reflect that you have complied with those duties.

“As trustees, you must comply with the fiduciary trust laws of Pennsylvania. One of your primary fiduciary duties is to provide the beneficiaries with a complete inventory of the public natural resources, including an inventory of the existing degradation of those resources.

“In addition, you have the duty to inform the beneficiaries of the management plans to prevent and remedy the degradation, and to ensure the sustainability of the corpus of the trust for future generations.”

Part Of Ongoing Legal Challenges

Since the June 2017 decision by the PA Supreme Court, the PA Environmental Defense Foundation has been filing follow-up motions and other petitions before Commonwealth Court and the PA Supreme Court seeking to enforce the 2017 decision.

On August 12, the PA Environmental Defense Foundation appealed a July 29 Commonwealth Court ruling the Foundation said ignore the 2017 opinion of the PA Supreme Court saying revenue from natural gas drilling on State Forest had to be held in trust under the Environmental Rights Amendment to the Constitution and only used for conservation purposes. Click Here for more.

On July 17, the PA Environmental Defense Foundation filed a petition for declaratory relief with Commonwealth Court asking the Court to block yet more transfers from DCNR’s Oil and Gas Lease Fund to pay for DCNR operating expenses in the FY 2019-20 budget consistent with the 2017 PA Supreme Court decision, and starting a new line of challenge. Click Here for more.

Through January 2018, more than $1.1 billion from the sale of public natural resources has been used to fill gaps in the state budget through transfers to the General Fund or to pay for agency operating expenses. In addition, $69.774 million was diverted from the Oil and Gas Lease Fund in the FY 2019-20 budget.

The 2017 decision by the PA Supreme Court declared provisions in the 2009 and 2019 Fiscal Code requiring the transfer of $478 million from the Oil and Gas Lease Fund to the General Fund unconstitutional and a violation of the public trust provisions under the Environmental Rights Amendment-- Article I, Section 27-- to the state constitution.

The Court said, “On their face, these amendments lack any indication that the Commonwealth is required to contemplate, let alone reasonably exercise, its duties as the trustee of the environmental public trust created by the Environmental Rights Amendment.

“To the extent such payments are consideration for the oil and gas that is extracted, they are proceeds from the sale of trust principal and remain in the corpus. These proceeds remain in the trust and must be devoted to the conservation and maintenance of our public natural resources, consistent with the plain language of Section 27.”

The PA Supreme Court remanded the case to Commonwealth Court for further proceedings consistent with the 2017 decision.

Since then, PEDF has been filing briefs and motions updating the Court on further actions taken that they believe are also unconstitutional according to the 2017 decisions. Those motions and petitions include--

-- December 2019: The PA Supreme Court accepted a PA Environmental Defense Foundation appeal of a July 29 Commonwealth Court ruling the Foundation said ignored a 2017 opinion of the PA Supreme Court saying revenue from natural gas drilling on State Forest had to be held in trust under the Environmental Rights Amendment to the Constitution and only used for conservation purposes. Click Here for more.

-- February 2019: A brief submitted by PEDF challenged the transfer and proposed of monies from environmental funds in from the Oil and Gas ($61.291 million), Keystone Recreation, Park and Conservation Fund ($10 million), Environmental Stewardship $30 million) and Hazardous Sites Cleanup funds by Gov. Wolf. Click Here for more.

-- May 2018: Petition for declaratory relief asks Commonwealth Court to declare 2017 amendments to the Fiscal Code eliminating DCNR’s Oil and Gas Lease Fund and making and proposing $96 million in money transfers from the Fund unconstitutional. Click Here for more.

-- May 2018: Filed a motion with Commonwealth Court asking that $383 million in bonus and lease payments from natural gas drilling on state forest land be protected and spent only in accordance with the public trustee requirements of the PA Supreme Court’s 2017 decision. Click Here for more.

-- January 2018: PEDF filed an amended petition for Extraordinary Jurisdiction with the PA Supreme Court asking that Court to take over all the issues raised by the Supreme Court’s June 20 decision declaring the use of DCNR’s Oil and Gas Fund to balance the state budget unconstitutional, since Commonwealth Court said it would not in a January 8 ruling. Click Here for more.

-- December 2017: PEDF filed an addendum to its petition with Commonwealth Court challenging the provisions of the Fiscal Code bill 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. Click Here for more.

-- July 2017: PEDF submitted its detailed brief to Commonwealth Court asking the Court to declare unconstitutional the transfer of $61 million from the Oil and Gas Lease Fund to pay, in part, to finance the general operations of the Department of Conservation and Natural Resources. Click Here for more.

-- July 2017: PEDF filed two motions asking Commonwealth Court to declare the 2017-18 General Fund budget bill 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. Click Here for more.

-- July 2017: PEDF filed a motion with Commonwealth Court asking the Court to determine if $383 million in Shale gas upfront and lease payments remains in the public trust to be used only for conservation purposes. Click Here for more.

-- June 2017: PA Supreme Court issued an opinion declaring the 2009 and 2010 Fiscal Code and other amendments diverting $478 million from DCNR’s Oil and Gas 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 to the state constitution. Click Here for more.

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: childeje@aol.com.

Visit DCNR’s Natural Gas Management webpage for more information on natural gas drilling on State Forest land.

NewsClips:

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Related Articles - PEDF Actions:

PA Supreme Court Accepts PA Environmental Defense Foundation Appeal Of Ruling On Gas Drilling Revenue Transfers To Pay DCNR, General Fund Expenses

PA Environmental Defense Foundation Urges DCNR To Manage Drilling In State Forests Consistent With The Environmental Rights Amendment Court Decision

PA Environmental Defense Foundation Advises DCNR Proposal To Replace State Forest Lost To Gas Drilling Does Not Meet Its Obligations As A Public Trustee

PA Environmental Defense Foundation Appeals State Court Ruling Saying Law, Not Constitution Directs Use Of State Forest Drilling Revenue Transfers

PA Environmental Defense Foundation Asks Court To Block FY 19-20 Transfers From Oil & Gas Fund To Pay DCNR Operating Expenses

PA Supreme Court Declares Law Diverting Oil & Gas Lease Funds To General Fund Unconstitutional

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