The potential meanings of a constitutional public trust.

• Author: Dernbach, John C.
• Position: IV. Explicit Constitutional Obligations and an Implied Duty to Consider Impacts through VII. Conclusion, with footnotes, p. 485-518 - Developments in the Public Trust

4. EXPLICIT CONSTITUTIONAL OBLIGATIONS AND AN IMPLIED DUTY TO CONSIDER IMPACTS

   Determining the constitutionality of a legislative or administrative action is a last resort for courts. First, these acts are clothed with a presumption of constitutionality, and this presumption is overturned only by palpable or clear violations. (184) Second, " [i]t is well settled that when a case raises both constitutional and non-constitutional issues, a court should not reach the constitutional issue if the case can properly be decided on non-constitutional grounds." (185)

   In the case of environmental and land use matters, moreover, the protections built into a plethora of environmental and land use laws mean that, in many if not most cases, public constitutional environmental rights are already being protected. Thus, cases in which the plaintiff or appellant challenges a DEP action on the grounds that it violates several regulations and statutes as. well as section 27 are not likely to be decided on constitutional grounds. In fact, many of the post-Robinson Township appeals to the Pennsylvania Environmental Hearing Board appear to fall into this category. (186) Similarly, challenges to local government land use and zoning decisions axe likely to be based on a variety of statutory, procedural, and evidentiary issues as well as section 27, and are thus not likely to be decided based solely on the Amendment. (187)

   That said, three different types of constitutional claims are being made subsequent to Robinson Township that can be directly or implicitly derived from the Amendment's text. The first is that the government has failed to comply with its duty to conserve and maintain public natural resources. (188) The second is that the state has failed to protect environmental rights in the preservation of the natural, scenic, historic, and esthetic values of the environment as well as clean air and pure water. (189) Both of these derive directly from the text of the constitution, but the public trust claims are much more numerous at present than those based on environmental rights. A third claim is reasonably implied from the text: the government violated section 27 by acting without first considering the impact of its action on constitutionally protected resources and values. (190) While most of these claims have yet to be fully litigated, they do give a sense of the range of potential meanings and applications of section 27.

   1. Explicit Constitutional Obligations

      After Robinson Township, claims are being made against the government under both clauses of the Amendment--public trust and general environmental rights.

      1. Duty to Conserve and Maintain Public Natural Resources

         A pair of cases brought in commonwealth court are testing the state's public trust duty to conserve and maintain public natural resources. (191) Both challenge, in somewhat different ways, the transformation of state park and forest lands by leasing for oil and gas development that has been wrought by the Marcellus shale boom in Pennsylvania. (192) Both claim that the legislature has transformed longstanding oil and gas leasing programs on state forest and park lands in ways that significantly weaken the state's ability to conserve and maintain public natural resources, and has done so to provide money to help fund the state's overall budget. (193)

         Since at least 1955, the Pennsylvania Department of Conservation and Natural Resources (DCNR) and its predecessor agencies have leased state forests for oil and gas drilling. (194) The Oil and Gas Lease Fund Act (195) sets out DCNR's responsibilities for administering that program, and assigns all rents and royalties received from leasing to DCNR, to be used for "conservation, recreation, dams, or flood control." (196) The wells under this program, mostly small in size and impact, generated a modest amount of money that DCNR used to offset the environmental impacts of the program and for other conservation purposes. (197)

         The Marcellus shale revolution in Pennsylvania led to several dramatic changes in this program. (198) To begin with, it led to significant increases in both the number of acres leased and the revenues received by the commonwealth. Prior to 2008, annual state revenues under the Oil and Gas Lease Fund Act were about $4 million per year. (199) This was all done with conventional oil and gas drilling. Unconventional Marcellus shale production technology led to enormous increases in production. In 2008, for example, DCNR leased 74,000 acres and "received $163 million in prepaid rental payments." (200) In 2009 and 2010, the state received a total of $444.1 million from leasing state land for oil and gas. (201)

         Because of the recession that began in 2007, however, the state government experienced serious revenue shortfalls. (202) In consequence, the state legislature began to use oil and gas leasing on state forest and park lands to balance the budget by supplying money to the general fund. (203) Three legislative amendments to the state fiscal code between 2008 and 2014 redirected a total of $335 million that would have been used for conservation purposes under the Oil and Gas Lease Fund Act to the general fund, where it is appropriated for a variety of state government purposes. (204) In addition, the legislature prevented DCNR from spending any Oil and Gas Lease Fund Act royalties without prior legislative authorization. (205) Finally, the legislature began using Oil and Gas Lease Fund revenue to support the overall budget of DCNR, rather than obtaining that budget money from the general fund and using Oil and Gas Lease Fund money for conservation purposes related to oil and gas extraction. (206)

         In 2010, Governor Ed Rendell issued an executive order imposing a moratorium on further leasing of DCNR lands for oil and gas development. (207) The moratorium, of course, did not prevent the state from receiving revenue under previously issued leases. The executive order states that more than 700,000 acres of the 2.4 million acres of state forest and park land are "currently subject to oil and gas development, including development in the Marcellus shale formation, either through leases executed with the commonwealth or through private ownership or leasing where the commonwealth does not own the subsurface oil and gas." (208) Another 800,000 acres of state forest land not currently subject to development contains significant environmental values, including high-value ecosystems, old growth forests, areas with sensitive environmental resources, remote areas, and areas with significant recreational value. (209) Additional development of state park and forest land for oil and gas development, the executive order states, will have significant adverse impacts that cannot be fully understood, will jeopardize DCNR's ability to conserve and maintain those resources, and will jeopardize the state's Forest Stewardship Council sustainable forestry certification. (210)

         In a 2014 executive order, Governor Tom Corbett rescinded the 2010 executive order and directed instead that "no State Park and State Forest lands owned and/or managed by DCNR shall be leased for oil and gas development," which would result in additional surface disturbance on state forest or state park lands. (211) Essentially, it said that leasing can resume, but only at existing well pads, where the state can allow drilling to deeper layers of shale (Marcellus shale is the shallowest of several potential shale gas strata in Pennsylvania) or different forms of drilling. The executive order also requires DCNR, within the bounds of existing law, to use oil and gas royalty revenue to repair and improve state park and forest infrastructure and amenities, and to acquire oil and gas and other mineral rights. (212) The recitations contained in the executive order suggest that use of state forests and parks for oil and gas drilling is compatible with use of those same lands for recreation and sustainable forestry. (213)

         The first case challenging this program is Pennsylvania Environmental Defense Foundation v Commonwealth of Pennsylvania (.Pennsylvania Environmental Defense Foundation), (214) an original action brought in 2012 in Commonwealth court. Although brought prior to Robinson Township, the Pennsylvania Environmental Defense Foundation's (PEDF's) arguments have evolved since that decision. (215) In this case, the petitioner, an environmental organization, sought declaratory relief against a variety of legislative and administrative actions that have occurred with state leasing of state parks and forests for Marcellus shale gas development since 2008. (216)

         In early 2015, in a ruling on cross-motions for summary judgment, the commonwealth court denied most of the declaratory relief that PEDF requested, but nonetheless decided that DCNR's oil and gas leasing decisions are subject to section 27, and that the governor has no authority to override that responsibility. (217)

         The court began its analysis by explaining that the plurality opinion in Robinson Township is not binding precedent. (218) It nonetheless acknowledged the persuasive power of the plurality's analysis by stating, "in reviewing the accompanying minority opinions, it does not appear that any of the concurring and dissenting justices disputed the plurality's construction of the Environmental Rights Amendment, including the rights declared therein and attendant duties imposed thereby on the Commonwealth." (219) In reconciling these two views, the Court cited Payne and said "we find the plurality's construction of Article I, Section 27 persuasive only to the extent it is consistent with binding precedent from this Court and the Supreme Court on the same subject." (220) The court also explained "our decision in Gettysburg Tower that the Environmental Rights Amendment is self-executing remains binding precedent." (221) The court then addressed four primary arguments concerning section...