An environmental organization that put the teeth in Pennsylvania’s Environmental Rights Amendment is turning its sights on the state agency that manages 2.2 million acres of public forestland.
A lawyer for the Pennsylvania Environmental Defense Foundation sent an “intent to sue” letter to the Department of Conservation and Natural Resources in early June. The letter states that the foundation will take court action if the agency continues with its process of updating local plans under the current 2016 statewide forest management plan.
John Childe, the attorney representing the activist organization, said in the letter that the 2016 plan first must be revised because it fails to uphold the state’s Environmental Rights Amendment in its handling of natural gas extraction in state forests.
The Environmental Rights Amendment, added to the state constitution in 1971, asserts the public’s right to “clean air, pure water and the preservation of the natural, scenic, historic and esthetic values of the environment.” The amendment also says that the state’s natural resources are the common property of all of the people, including generations yet to come, and that the state must conserve and maintain them.
“Nothing in the 2016 plan does anything to identify and quantify the impact of drilling on the 617,000 acres opened up to natural gas leases,” Childe said. “The biggest problem that state forests have is being ignored.”
The state forest management plan is the road map for managing all aspects of the massive forest system. Updated periodically, the plan forms the basis for 20 local forest district plans.
By revising the statewide plan now, Childe argues, the DCNR could guide the local plans in ways that better conform to the law.
“Then they would have a whole section on what their [Environmental Rights Amendment] obligations are and how they intend to meet them,” Childe said. “They need to tell how well they are doing across the entire forest system.”
Cindy Adams Dunn, DCNR secretary, said in a written statement that the agency and its staff “fully embraces” its role as a trustee of the state’s natural resources and that the “DCNR vehemently disagrees with [the foundation’s] position.”
The DCNR is conducting a series of meetings, scheduled through November, to gather public input on updates to the district plans. “[DCNR] encourages all to read the plan and take advantage of these public meetings as an opportunity to help set management priorities and meet the men and women who serve as trustees for the public forests,” Dunn said.
About 1.5 million acres of state forests are underlain with the Marcellus Shale formation that harbors natural gas. Most of it is located in a northcentral region called the Pennsylvania Wilds, which includes some of the most pristine forestland in the state. To date, the DCNR has issued three shale gas leases on a total of 138,866 acres.
The 2016 state forest management plan states that “the economic use and sound extraction and utilization of geologic resources is part of the bureau’s mission.” The foundation contests this.
“Nothing in the plain language” of the Environmental Rights Amendment, Childe wrote in his letter, allows for the sale of public natural resources for economic use or benefit, the use of proceeds from the sale of natural resources for DCNR operational expenses, or “balancing” the economic gains of gas extraction with the long-term ecological health of state forests. If a conflict exists between the agency’s mission and constitutional law, Childe argues, the law must win.
Among other requests, the foundation is asking the DCNR to add to the forest management plan an inventory of existing and anticipated degradation of natural resources caused by gas drilling and explain how those impacts can be prevented and repaired.
A DCNR spokesperson said the agency will publish an update to its 2014 Shale-Gas Monitoring Report in early summer and that it will include information similar to what the foundation has requested.
The foundation has a history of challenging the state’s handling of gas extraction and won a landmark 2017 decision from the Supreme Court of Pennsylvania, which found that, based on the Environmental Rights Amendment, the use of state revenue from oil and gas extraction to support anything but natural resource conservation is unconstitutional.
The decision also gave unprecedented strength to the amendment by invalidating a prior requirement to consider the economic value of a contested project against the conservation value of natural resources.
State Supreme Court Justice Christine Donohue wrote the majority opinion, in which she stated, “The Commonwealth (including the Governor and General Assembly) may not approach our public natural resources as a proprietor, and instead must at all times fulfill its role as a trustee.”
But soon after the court issued its decision, the state legislature and Gov. Tom Wolf approved a 2017–18 budget that uses revenue from gas leases to support general operations and other expenditures. The foundation has challenged it in court.