In 2017, Pennsylvania’s environmental laws were turned upside down when the state Supreme Court ruled that the state, and possibly municipalities, were trustees of public lands and required to protect them for future generations.A lawsuit by the Pennsylvania Environmental Defense Foundation charges that Pennsylvania is violating the state’s Environmental Rights Amendment by allowing hydraulic fracturing for natural gas in state forests. (Ad Crable)

Seizing on that broad and still unsettled mandate, the Pennsylvania Environmental Defense Foundation is suing the state agency responsible for 2.2 million acres of state forests, saying it is violating its stewardship obligation by leasing public forestland for the hydraulic fracturing of natural gas.

To date, the state Department of Conservation and Natural Resources has collected more than $1.1 billion in revenue from fracking leases on 139,000 acres. By an act of the state legislature, the revenue has been used to help the state meet its budget and to fund the agency, despite protests from environmental groups.

Both uses of the money are in violation of the Supreme Court ruling and the 1971 Environmental Rights Amendment to the state constitution, argues the defense foundation, the nonprofit that initiated the lawsuit leading to the 2017 blockbuster ruling.

At that time, the court agreed with the defense foundation that money raised by DCNR through oil and gas leases and used on public natural resources shouldn’t be diverted to the state’s general fund.

That 4–2 ruling reiterated the wording of the amendment: “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all people.”

This time around, in Pennsylvania Commonwealth Court, the group zeroes in on DCNR’s State Forest Plan, adopted in 2016. Until then, the agency had managed oil and gas leases, timber sales and recreational uses of state forestlands with the paramount goal of maintaining the health of forests, according to the defense foundation.

But the new plan gives equal footing to the economic value of such uses and requires the agency to “balance” that value against ecosystem values, the lawsuit contends.

The lawsuit maintains that the agency, under the 2017 ruling, has an obligation to “conserve and maintain” public natural resources for the benefit of the people. “To conserve and maintain means you cannot deplete, diminish or degrade those resources. The 2016 State Forest Plan does not reflect that you have complied with those duties,” the defense foundation said in a press release.

Also, the suit charges that the forest guide lacks any plan to repair the degradation and depletion of state forests from fracking.

After leasing for state forests began in 2008, fracking has converted 1,770 acres of that public land to shale gas infrastructure, according to DCNR’s 2018 Shale Gas Monitoring Report. That includes the construction of 238 well pads and related structures, 200 miles of new roads and 188 miles of pipeline corridors. As a result, numerous blocks of unbroken forest have become fragmented.

“We’re threatening that core forest with this continued oil and natural gas extraction, but we are not putting any of the money back in dealing with the degradation and diminution that’s occurring,” said John Childe, the defense foundation’s attorney, speaking to a forum on Pennsylvania’s forests in Harrisburg in October.

Shortly after he became Pennsylvania’s Democratic governor in 2015, Tom Wolf issued an executive order placing a moratorium on further oil and gas leases on state forests and state parks. Even so, Republican legislators in the state have introduced a bill to reopen gas drilling in state forests. They say it’s needed to fund Wolf’s Restore Pennsylvania initiative for flood prevention and stream restoration.

Childe said continuing to allow funds from public lands to be diverted for other uses could mean “the very heart of our public natural resources would be at the disposal of the General Assembly.”

The defense foundation’s legal efforts to protect state forests “have met a stonewall of opposition from the General Assembly, the governor, DCNR and Commonwealth Court,” he said. “The Supreme Court has made it clear that the people own the property and the government has no other interest in public natural resources other than as a public trustee— and they don’t know how to deal with that.”

Asked for comment on the latest lawsuit, a DCNR spokesman said the agency does not comment on legal matters.

The defense foundation suit against DCNR is just the latest in a flurry of lawsuits meant to settle the details of the Supreme Court’s broad initial ruling.

An important decision emerged in July in Commonwealth Court on the issue of whether oil and gas funds could be diverted from the agency that maintains state forests and parks.

“The court appears to have decided that the Commonwealth is free to allow use of Pennsylvania’s public natural resources and to apply the income however it chooses. Only proceeds from the sale of public natural resources must be returned to the public trust corpus,” said David Mandelbaum, who teaches environmental litigation at Temple Law School.

He said the ruling means that the Environmental Rights Amendment “does not impose an obligation of conservation on the Commonwealth. Public natural resources can be used. The use merely has to be reasonable, in light of the right of later generations also to use the same resources.”

The defense foundation has appealed the ruling to the state Supreme Court.

Two years after the court’s 2017 ruling, many of the implications are still unsettled, said Martin Siegel, an environmental attorney in York.

Other court rulings seem to have held that municipal officials aren’t responsible for taking exceptional steps to ensure that public lands in their midst are environmentally protected if the state already has safeguarding regulations, Siegel said.

“But there are bigger unanswered questions right now,” he continued. “One big question is, is the state adequately funding environmental protection? Often, these rulings raise more questions than they answer. These things will be percolating through the system for decades.”