Guest Commentary: A Trust for the People
Guest Commentary: A Trust for the People
A twelvemonth later a landmark land Supreme Court decision, a state politics watcher says we are on the cusp of broad environmental reform—funded past Marcellus Shale
Jul. 17, 2018
John Childe is a Dauphin Canton ecology lawyer who has been using a once obscure Article in the Pennsylvania Constitution to create a new and powerful legal edifice that could shortly exist the state'south nigh pregnant environmental institution.
Childe's constabulary court filings on behalf of the Pennsylvania Environmental Defense Fund Foundation, and recent decisions past the state Supreme Court in response to these filings, now find the state on the brink of a singular event: the creation of an contained environmental public Trust with a potential bankroll of many millions of dollars and a mandate to preserve the natural environs.
In 2012, Childe began to sue the state in a instance focused on their leasing of public lands to Marcellus Shale gas drillers . The Foundation charged that the state was unconstitutionally leasing out the land lands and also that it had improperly converted and spent some $1.1 billion dollars it has received in various royalties and bonus payments for granting extraction rights.
In June of 2017, Childe'due south five-year endeavor finally won him a sweeping country Supreme Court decision in favor of the Foundation that had ii major effects:
- The outset was to brand Article one, Section 27 of the state Constitution, the "environmental rights clause," the living law of the land with regard to its plain language declarations—namely, that the public has a correct to clean air and pure h2o, and that the state has a duty to human activity as a "trustee" of public natural resources and maintain them for present and futurity generations.
- And the 2nd was that the Court specifically declared the existence of an ecology public Trust entity, like to private financial trusts, into which the monies in dispute (awaiting final disposition of the even so open case) should exist deposited.
Back in 1971, the people of Pennsylvania had overwhelmingly voted for the environmental rights amendment, but in an "but in Pennsylvania" story, the amendment had been fenced off for decades by the rulings of state court judges who fudged and fumbled with its true meaning.
The Supreme Courtroom's decision last year was, therefore, a Zeus-like bolt of lightning that rebirthed Article one Department 27's plain language from years of obscurity equally a vapid artifact of Globe Day idealism.
Justice Christine Donohue, the author of the Courtroom's majority opinion, specifically noted that Section 27 is located in Commodity i of the Constitution and thus ranks amongst "the most sacred and inviolable rights of the people." She and then ruled that the proper, constitutional use of the shale gas monies is "… to manage the corpus (master value) of the environmental public Trust for the do good of the people to accomplish its purposes—conserving and maintaining the corpus past, inter alia, preventing and remedying the degradation, diminution and depletion of our public natural resource."
"There is no indication," Justice Donahue, also wrote in that historic stance, "that the General Assembly considered the purposes of the public Trust or exercised reasonable care in managing the royalties in a fashion consistent with its section 27 Trust duties."
Recent decisions by the state Supreme Court in response now find the country on the brink of a atypical event: the creation of an contained environmental public Trust with a potential backing of many millions of dollars and a mandate to preserve the natural environment.
In fact, the Legislature for the better part of a decade had been interim equally though information technology had every right to appropriate and spend monies earned from Marcellus Shale public lands. Fifty-fifty in the confront of last year's Courtroom decision, the Legislature merely saw fit to make a few corrective tweaks to the language of the almanac Fiscal Code nib and then went ahead and spent shale gas gain in this year's (2018-19) budget human action.
In 2005, Marcellus Shale was a term known more often than not to geologists; by 2010 Pennsylvania was beingness portrayed equally the "Saudi Arabia of shale gas" with xl-years' worth of wealth trapped in the shale deposits miles beneath its surface. Near 130,000 acres of land forest land in north central Pennsylvania are now under charter for oil and gas extraction. Meanwhile another 700,000 acres of surface park lands sit atop Marcellus deposits the mineral rights of which are held by private owners and could also be developed.
Childe's briefs in the example have spelled out how as the industry ramped upward production it had been willing to pay big bucks for drilling concessions on land state and that ii prior Governors and the Full general Assembly greeted the phenomenon of Marcellus Shale gas drilling as a straight-out opportunity to make money and thus not take to enhance taxes. (Gov. Tom Wolf re-imposed a moratorium on any new leases in 2015, simply valid contracts for gas extractions on state lands have continued.)
The Supreme Court'south opinion condemns the state'due south profit- making venture with Marcellus Shale drilling equally a wrongful assumption by the state of the role of "proprietor" over state lands.
On his weekend breaks, Childe often jumps into his off-road pickup truck and drives to The Pennsylvania Wilds , forest lands northward of Route 80 where much of the Marcellus drilling on public lands is taking place. He is a shut observer of what has been occurring and is of the stance that Department of Conservation and Natural Resources (DCNR) staff woefully underestimated the extent of the surface disturbances to park land that would be caused by Marcellus drilling.
Did the Supreme Court, facing what in upshot would be a $1 billion judgement against the Commonwealth, prudently remand the case over some thorny but minor details as a fashion of tedious-walking the bear upon on the state budget?
Extracting Marcellus gas is an intense industrial procedure that requires road building, large multi-well drilling pads, towering drilling rigs, storage and staging areas for sand and materials that are constantly trucked in and construction of numerous out-buildings to house pumping systems to inject and control fracking fluids that flow through pipes that go several miles downwards below the surface and extend laterally for thousands of feet.
Information technology has been articulate to Childe and the Foundation for more than a decade that something needed to be washed nigh the disruptive uses and altered and damaged landscapes acquired by Marcellus Shale drilling on state-owned lands.
Simply the powerful and pivotal Court decision concluding year was a delayed victory considering the Supreme Courtroom stopped short of granting the Foundation its complete goal: a declaratory judgement that all payments made for gas extraction on state forest lands are and must remain function of the corpus of Article 1, Section 27.
Instead, the Supreme Court declared that it needed to agree off on a final disposition and remanded the example for farther fact finding. The Court said it needed to square the creation of this kickoff ever environmental public Trust with the provisions for individual trusts—the only reasonably bachelor "trust" model for the courtroom to rely upon.
The loftier court specifically asked a lower trial court to parse out and interpret for public trust purposes the meaning of terms like "lease," "rent," and "bonus payment," all of which the DCNR has confusingly used to draw the revenues it has received from the Marcellus Shale gas drillers.
No dubiousness some interpretation of terms has been necessary to assistance in the creation of the public Trust, although why it should stall final judgement for over a year raises a key question: Did the Supreme Court, facing what in effect would be a $i billion judgement against the Commonwealth, prudently remand the case over some thorny but minor details as a way of boring-walking the impact on the state upkeep?
In any result, Childe for the past year has been preoccupied with working through the outstanding parts of the case in a newspaper boxing of briefs, motions and cross motions submitted to Approximate Mary Hannah Leavitt, the head of the Commonwealth Courtroom. In this contest, Childe has the upper hand in that he already has a Supreme Court opinion that makes clear that the State, as a fiduciary, has an over-arching duty to maintain the corpus of the Trust.
At some betoken, well after this year's election—which features contests for Governor, all PA House Members and one-half the State Senators—the hammer will fall. Perhaps by early 2019, the ecology public Trust will exist and be in some significant corporeality funded.
Childe and the Foundation have already foreshadowed how they intend to drive the task listing of the state Natural Resources agency in connection with its duties to the Trust. On June xi they sent a letter to Cindy Dunn, the Secretary of DCNR enervating that she immediately halt all plans to carry out a "working forests" plan adopted in 2022 that would let continued expansion of Marcellus shale gas extraction.
The letter likewise demands that Dunn obey the mandates of Article 1, Section 27 and as a trustee immediately prepare a complete inventory of public natural resource as part of DCNR plans to restore diminished and depleted country forest lands.
Failing that, Childe and the Foundation make clear they will seek resolution in the country Courts, where they have a track record.
Charlie Bacas, who retired in 2009 upon the sale of a software tool company he co-founded, spent twenty years in the state government, including the Governor's part of Bob Casey and Chief of Staff to House Majority Leader, Jim Manderino. He lives in York, PA, where amidst civic positions he'south served as Redevelopment Authority chairman.
Header photo: Flickr 
Source: https://thephiladelphiacitizen.org/guest-commentary-a-trust-for-the-people/
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