Does the Governor have the right to break the law? Absolutely not.
Letter from Ron Evans, Centre County PA Daily, May 20, 2014
Two years ago, Pennsylvania Environmental Defense Foundation attorney John Childe went straight to the top, bringing legal action against Gov. Tom Corbett for his failure to protect state lands against the destructive impacts of the Marcellus Shale gas industry. Childe declared that the governor violated not only Article I, Section 27 of the state constitution but also the Conservation and Natural Resources Act and the Oil and Gas Lease Act.
Article I, Section 27 of the state constitution states “The people have a right to clean air, pure water, and to the natural, scenic, historic, and aesthetic values of the environment. … As trustee of these resources, the (c)ommonwealth shall conserve and maintain them for the benefit of all the people.”
These words are more than a statement of policy. They create a legally enforceable duty of the governor to protect our environment. This was confirmed by the recent plurality opinion of the state Supreme Court regarding Act 13. That decision is very powerful guidance for the Commonwealth Court when it rules on PEDF’s current legal action against Corbett.
Another important part of the Supreme Court’s Act 13 opinion requires that each branch of government, before proceeding on an action that might affect constitutionally protected interests, must consider the environmental effects.
Realizing the ruinous punch of the 700,000 acres of state forest lands leased, DCNR performed a landmark study that determined all remaining state lands were too environmentally sensitive to be leased. Then-Gov. Ed Rendell subsequently issued an executive order creating a moratorium against additional leasing.
Recently, Corbett proposed to rescind that drilling moratorium and force DCNR to issue additional gas leases for both state park and state forest lands. Childe has updated PEDF’s original challenge to Gov. Corbett to include this new violation.
The Oil and Gas Lease Act mandates that money from the leasing of state lands be set aside in the Oil and Gas Lease Fund for the stewardship of our public lands. Over $400 million of this money has already been illegally transferred out of the Oil and Gas Lease Fund and diverted to the general budget. And Corbett wants to misappropriate $192 million more for fiscal year 2014-15.
With the Act 13 reversal, Pennsylvania’s Supreme Court has determined the governor and the General Assembly are not above the law. Hopefully, it will continue to determine that the environmental rights of the people, as guaranteed by the state constitution and supported by other legislative mandates, prevail.
The people spoke when they voted overwhelmingly 43 years ago to ratify Article I, Section 27. Ever since then, every elected public official in Pennsylvania has sworn to uphold our constitution.
Corbett took that oath Jan. 17, 2011. Now, because the governor has ignored his sworn oath to uphold the state constitution, PEDF is using the power of the courts to hold him accountable for his actions. If our governor’s illegal actions are not stopped by the courts, they are most certain to continue, if not escalate.
Our constitutional right to clean air and water is far from [guaranteed]. While all Commonwealth Court decisions to date have been in PEDF’s favor, this case will determine the future of all our state lands. Legal action is not cheap, but it is effective and cannot be ignored.
PEDF’s track record is outstanding. Of the past 126 legal actions initiated, Childe has won 96 percent for this statewide nonprofit that operates solely with volunteers and allocates nearly all of its funds to litigation.
>>> Ron Evans is president of the Pennsylvania Environmental Defense Foundation in Bellefonte, Centre County, PA. <<<
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Corbett lifts new-gas-lease moratorium in state forests
By Andrew Maykuth, Philadelphia Inquirer, May 24, 2014
Gov. Corbett on Friday signed an executive order lifting a 2010 moratorium on leasing additional state forests for Marcellus Shale natural-gas development, but it prohibits new leasing that would cause additional surface disturbances.
The order puts into effect a promise the governor made in February to generate $75 million for state coffers by leasing Department of Conservation and Natural Resources lands adjacent to public and private land already under existing leases that can be developed using horizontal drilling.
“With this executive order, I am directing that the commonwealth maintain a moratorium on any additional gas leasing of DCNR lands that involves long-term surface disturbance, such as placing well pads, roads, or pipelines in the newly leased areas,” Corbett said.
“This balanced approach will ensure that the special characteristics and habitats of DCNR lands are conserved and protected, and will also provide for historic investments in conservation programs, our schools and quality health care, without raising taxes on Pennsylvanians.”
Corbett’s announcement in February that he would lease new state lands drew flak from conservationists and anti-drilling activists, who said that any drilling, even that which did not require new surface disturbances, would disturb the environment.
“This decision is clearly so toxic to the public that the governor is releasing it late on a Friday afternoon before a three-day holiday,” said John Hanger, the state environment secretary under Gov. Ed Rendell, who signed the 2010 leasing ban that was rescinded Friday by Corbett’s action.
Though new lease payments would be channeled to the state’s general fund, Corbett’s order also provides that all future royalties derived from oil and gas production would support state forests and parks.
Royalties, which are a share of the sales of oil and gas production, would be used to make improvements to state forests and parks, to acquire new lands, or to buy mineral rights underlying “high-value” surface lands.
Last year, the state generated about $110 million in oil and gas royalties that mostly went to running DCNR operations.
The use of royalty income to buy mineral rights would address a potential hot-button issue: drilling in state parks.
Many state lands are what are known as “split estates” – the mineral rights are separately owned by private parties. By law, the owners of the subsurface rights can access the land’s surface, meaning a drilling company could set up a rig in a state park to explore for oil and gas. By acquiring mineral rights under sensitive lands, the state would gain full control over the surface.
No drilling has taken place in parks thus far, but some split-estate land, such as Ohiopyle State Park in Fayette County, are considered vulnerable because drilling is taking place nearby.
Corbett’s critics said the timing of the announcement seemed suspicious.
Commonwealth Court has scheduled a hearing for Wednesday on a suit by the Pennsylvania Environmental Defense Foundation that challenges Corbett’s plan to use royalty income for DCNR’s operating budget. The group is seeking an injunction to stop new leasing.
John Quigley, former DCNR secretary under Rendell, also said that only the state legislature has the power to approve how royalty income is spent. “Corbett does not have the authority to direct the utilization of royalty income,” he said.
Critics including State Rep. Greg Vitali (D., Delaware) have also expressed skepticism that the state can generate $75 million from new leases, and have pressed the governor to identify which parks and forests are under consideration.