On August 9, Commonwealth Court issued a Memorandum Opinion dismissing a petition by the PA Environmental Defense Foundation challenging the State Forest Plan adopted by DCNR 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 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.

Commonwealth Court said, “Finding a constitutional violation based on statements in the 2016 SFRMP, without reference to any particular action on the part of DCNR, would take us into the realm of speculation and conjecture.

“Accordingly, because the Foundation has failed to articulate any imminent injuries occasioned by adoption of the 2016 SFRMP, and has failed to anchor its amended petition for review on any particular action taken by DCNR, we must conclude that the matter is not ripe, and no controversy is present that could permit us to enter a declaratory judgment.”

“The Foundation seeks to compel DCNR to amend the 2016 SFRMP in the ways outlined in the amended petition for review. However, the Foundation does not have a clear right to such relief.

“It points to no legislative enactments or regulatory provisions, and we have found none, that mandate DCNR to develop and maintain a forest resource management plan in the first place. Because the Foundation seeks to compel DCNR to do something it is not mandated to do, mandamus will not lie, and we sustain DCNR’s preliminary objections as to the mandamus claims.”

Although Commonwealth Court said there were “no legislative enactments or regulatory provisions” that mandated DCNR to develop the plan, the Court acknowledged the PA Supreme Court’s 2017 Environmental Rights Amendment decision saying--

“The Supreme Court explained that the Commonwealth’s trustee obligations “create a right in the people to seek to enforce the obligations” and therefore the public trust provisions of the ERA are “self-executing.” Id. at 974. In other words, the public trust obligations of the ERA are enforceable regardless of whether there is legislation providing for such enforcement.”

Click Here for a copy of the Opinion.

John E. Childe, attorney for PEDF, said “I welcome the Commonwealth Court Court decision. The issues in the case are important. DCNR has the duty under Article I Section 27 to manage our State Forest in compliance with their fiduciary duties as trustee.

“Their 2016 State Forest Resource Management Plan violates the Constitutional Amendment in many ways. Perhaps most importantly, it asserts that DCNR has the obligation to lease more State Forest land for oil and natural gas because it is their duty manage the economic uses of the forest in addition to conserving the forest. They clearly cannot do both.

“Selling our natural resources and degrading the ecology of the forest in doing so directly conflicts with the duty to conserve and sustain the forest for future generations.

“The Commonwealth Court continues to want to look to statutory and regulatory compliance as the test for compliance with the Constitution. That concept died with the death of their 40 years of case law under "Payne v. Kassob" that the [PA] Supreme Court overturned in the 2017 decision, PEDF v.  Gov. Wolf, (PEDF II).

“We will appeal the decision to the  [PA] Supreme Court this week!”

This PA Environmental Defense Foundation lawsuit is part of a series of legal actions filed by the Foundation to enforce the 2017 PA Supreme Court decision on the Environmental Rights Amendment frequently overturning Commonwealth Court rulings on these issues.

In July, the PA Supreme Court overturned another Commonwealth Court decision to again declare transfers from the DCNR Oil and Gas Fund unconstitutional because the General Assembly and various governors did not follow their public trustee responsibilities under the Environmental Rights Amendment.  Read more here.

On August 2, the Foundation followed the July PA Supreme Court decision with a petition to Commonwealth Court asking for the return of $1.3 billion in state forest drilling revenue to DCNR’s Oil and Gas Lease Fund in compliance with a PA Supreme Court decision on July 21.

For more information, visit the PA Environmental Defense Foundation website.  Questions should be directed to John E. Childe, attorney for PEDF, by sending email to: childeje@aol.com  or calling 717-743-9811.

Related Articles:

-- 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

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

-- PA Supreme Court Again Declares Transfers From DCNR Oil & Gas Fund Unconstitutional Under Environmental Rights Amendment

-- PA Environmental Defense Foundation Files Petition In Court To Order Commonwealth To Return $1.3 Billion In Revenue From State Forest Drilling Unconstitutionally Transferred From Oil & Gas Lease Fund

[Posted: August 10, 2021]

8/16/2021