Responsible Drilling Alliance

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A Major Environmental Victory In The Courts

By Ralph Kisberg

By arguing that proceeds obtained from the sale of our natural resources are not part of the corpus of the trust, the Commonwealth improperly conceives of itself as a mere proprietor of those public natural resources, rather than as a trustee. In the Commonwealth’s view, it may dispose of our public natural resources as it so chooses and for any purpose it so conceives, so long as such disposition broadly benefits the public (apparently without regard to “generations yet to come”)…. As such, it urges us to substantially diminish its fiduciary obligation to prevent and remedy the degradation of our natural resources. We decline to do so.” – From the Majority Opinion, Pennsylvania Environmental Defense Foundation v. The Commonwealth of Pennsylvania… June 20th, 2017

Congratulations to the Pennsylvania Environmental Defense Foundation on the June 20th PA Supreme Court decision declaring the diversion of oil and gas lease royalties to the general fund unconstitutional. RDA would like to thank the board members of the PEDF and Pennsylvania’s premier environmental advocate, John Childe, for their brilliant work and dogged determination in the five-year fight to right this wrong.

In what is being called “a landmark decision,” Pennsylvanians’ constitutional right to “clean air, pure water, and to the preservation of the natural, scenic, historic, and esthetic values” of our environment has once again been upheld by the elected justices on our Supreme Court.

For a concise summary of the decision and its implications see this article by Laura Legere and Don Hopey in the Pittsburg Post Gazette.

This decision clearly shows the crucial importance of paying attention to the work of the judges we elect. Unlike Congressional and state legislative districts, our state Supreme and Commonwealth Court Justice elections are not corrupted by gerrymandering. Still, many voters go into the booth knowing nothing about the candidates other than their party affiliation. In the 2016 election, Pennsylvania voters chose wisely, and that choice is reflected in this landmark decision.

John Childe was quoted by in the PA Environment Daily Blog:

PEDF is grateful that, after 45 years since enactment, the Supreme Court has finally adopted Article I Section 27 as a viable trust for our public natural resources, …The Court has mandated that the Commonwealth must manage and protect our public natural resources under strict compliance with the fiduciary requirements as a trustee. No longer can the Commonwealth treat our public resources as government property. Our resources are our property, and the government must protect them for us and for all our future generations. The court has further recognized that money from the conversion of those resources must be used for the benefit of those resources. This should stop our legislature from requiring leasing of our State Forest and Parks for revenue…The opinion is clear and far reaching. But there are many issues left open to further interpretation. There is still much work to be done in our courts to provide the protection of our resources from further government incursion.

The majority opinion was written by Justice Christine Donahue and joined by Justices Debra Todd, Kevin Dougherty and David Wecht. In his “Concurring and Dissenting Opinion,” Justice Max Baer wrote:

Through today’s decision, this Court takes several monumental steps in the development of the Environmental Rights Amendment, Article I, Section 27 of the Pennsylvania Constitution. I agree with many of the Majority’s holdings, including… dismantling of the Commonwealth Court’s Payne test…, the confirmation that the public trust provisions of the amendment are self-executing… and the recognition…that all branches of the Commonwealth are trustees of Pennsylvania’s natural resources…

Baer went on to state:

…I dissent from the primary holding of the case declaring various fiscal enactments unconstitutional or potentially unconstitutional based upon the Majority’s conclusion that the proceeds from the sale of natural resources are part of the “trust corpus” protected by Article 1, Section 27… … Through their actions today employing private trust principles to direct that all proceeds from Pennsylvania’s public natural resources be funneled into environmental protection, my colleagues threaten to override the delicate process required of the legislative and executive branches to achieve a constitutionally-mandated balanced and fair budget.

The dissenting opinion of Chief Justice Thomas Saylor, first elected to the Court in 1997, appeared to reflect the amount of attention he seemed to pay to the oral arguments of the case as presented in March of 2016

I join the central analysis of the dissenting opinion authored by Justice Baer, based on the recognition that the Environmental Rights Amendment is an embodiment of the public trust doctrine.

RDA has been a consistent supporter of PEDF since 2012. We are very grateful to John Childe and the PEDF board for their efforts on behalf of us all. PEDF Board members include our friends, fellow Lycoming County resident and long time environmental advocate Cindy Bower and Dick Martin, Coordinator of the PA Forest Coalition and tireless advocate for preservation of the Commonwealth’s surface rights in the Clarence Moore lands in the Loyalsock State Forest. Also Board President Ron Evans, former Philadelphia Eagle star Pete Retzlaff and other distinguished Pennsylvanians.

The Pennsylvania Environmental Defense Foundation is supported by donations. Investing in the work of John Childe is the single most effective way anyone concerned with the public land legacy we leave for those who will follow us in Pennsylvania can help. If we all sent a small token of our gratitude, PEDF will be able to refill its coffers from this expensive suit and fund the next challenge.

PEDF has initiated over 125 legal actions and been successful 96% of the time. It doesn’t get better than that.

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