On May 17, the Pennsylvania Environmental Defense Foundation (PEDF) filed a petition for declaratory relief in the Commonwealth Court of Pennsylvania asking the Court to declare 2017 amendments to the fiscal code eliminating the Department of Conservation and Natural Resource’s Oil and Gas Lease Fund and making and proposing $96 million in money transfers from the Fund unconstitutional.
The petition is a continuation of the case resulting from the Pennsylvania Supreme Court’s June 20 decision declaring transfers from the Fund unconstitutional because the General Assembly and the governor failed to adequately perform their public trustees responsibilities under the state constitution’s Environmental Rights Amendment.
PEDF contends the General Assembly’s action to repeal the Oil and Gas Lease Fund in the 2017 amendments to the fiscal code (House Bill 674, page 23) “causes immediate and long-term impacts to our public natural resources and to the beneficiaries’ rights to those resources.”
The petition continues:
By repealing the Oil and Gas Lease Fund Act, the gas and oil extraction authorized on over 617,000 acres of State Forest land continues, but the proceeds from the leasing are no longer available to DCNR to benefit our State forests and parks as they had been under the Oil and Gas Lease Fund Act.
In repealing the Oil and Gas Lease Fund Act, the 2017 Fiscal Code Amendments did not replace it with any safeguards on the use of the Section 27 trust funds from extraction and sale of oil and gas on our State forests and parks.
By repealing the Oil and Gas Lease Fund Act without providing any safeguards to ensure the trustees use the Section 27 trust funds to conserve and maintain public natural resources, the Respondents violated Section 27 on its face.
The repeal of the Oil and Gas Lease Fund Act and replacement with new provisions that give the General Assembly control over these Section 27 trust funds are no different than the prior attempt to shift control of the Oil and Gas Lease Fund from DCNR under Section 1602-E and 1603-E of Fiscal Code (72 P.S. §§ 1602-E and 1603-E, enacted as part of omnibus amendments to the Fiscal Code on October 9, 2009), which the Supreme Court declared facially unconstitutional under Section 27. PEDF II, 161 A.3d at 938.
By repealing the Oil and Gas Lease Fund Act, the Respondents have again diverted Section 27 trust funds from the control of DCNR, leaving DCNR without the ability to fulfill its Section 27 trustee duties; and without establishing any alternative method for the Commonwealth to faithfully exercise its constitutional and fiduciary duties to conserve and maintain the public natural resources of our State forests and parks.”
PEDF also asked the Court to declare $61 million in transfers from the Oil and Gas Lease Fund in 2017-18 and the proposed action by Gov. Wolf to transfer an additional $35 million as part of the 2018-19 budget unconstitutional as well, again based on the public trustee obligations under the Environmental Rights Amendment.
Governor Wolf and the Commonwealth violated their duties of prudence, loyalty and impartiality as fiduciaries of the trust under Section 27 by enacting Section 1601.2-E(e) of the Fiscal Code authorizing annual transfers of Section 27 trust funds in the Oil and Gas Lease Fund to the Marcellus Legacy Fund and then to the Environmental Stewardship Fund and the Hazardous Sites Cleanup Fund that cause the degradation, diminishment and depletion of the public natural resources in the State forest in the PA WILDS of northcentral Pennsylvania to benefit other public and private natural resources in other areas of the State.
Click here for the Motion for Declaratory Relief.