Environmental group wants court to revisit ruling on drilling on state lands

An environmental group asked the Commonwealth Court today to reconsider a ruling from earlier this month that upheld the state’s right to use revenue from oil and gas drilling on public lands for general spending.

The Pennsylvania Environmental Defense Foundation filed an application for reconsideration, saying the court overlooked or misunderstood issues of law or fact in the nearly unanimous decision released on Jan. 7.

The court ruled that the General Assembly acted within its constitutional authority by balancing budgets in recent years with money transferred money out of a special account for conservation projects that is funded by oil and gas revenue from state lands.

The environmental group wants the court to reconsider because the judges did not address its fundamental claim: that the state failed to perform its constitutional duty to evaluate the likely environmental impact before leasing tens of thousands of acres of state forests for natural gas extraction and transferring the money out of the conservation fund controlled by the Department of Conservation and Natural Resources.

Instead the court interpreted the foundation to be challenging the adequacy of the amount of money — up to $50 million — that the state allocated to DCNR from drilling royalties, a question the group said it did not raise.

“By framing the question in this manner, the court shifts the burden to DCNR to demonstrate that the funding appropriated to DCNR ‘is so deficient that DCNR cannot conserve and maintain our state natural resources,’” the group’s attorney, John Childe, wrote. He argued that the constitution puts the burden instead on the state and governor “to insure that their actions do not and will not harm the public natural resources.”

Among other arguments, the environmental group said the constitution does not allow the state, which is the trustee and not the owner of the public’s natural resources, to lease or sell those natural resources and then use the money for other government purposes, however laudable.

In its Jan. 7 decision, the court chose not to address the legality of natural gas lease sales DCNR held in 2008 and 2010, since the companies that bought the leases were not a part of the case. But the environmental group said it never asked the court to invalidate existing leases.

The court’s decision this month was a victory for the Republican-controlled General Assembly and the departing Corbett administration, but it came too late to allow them to follow through on a plan to raise $95 million for the budget by signing new leases for gas extraction under public lands this fiscal year.

Gov. Tom Wolf, a Democrat who took office on Tuesday, campaigned on a pledge to reinstate the ban on new oil and gas leases in state parks and forests that former Gov. Ed Rendell put in place in October 2010 after approving several rounds of leases.

Legal observers have questioned the weight of Mr. Wolf’s anticipated executive order because the Commonwealth Court determined that DCNR — not the governor — has the ultimate authority for making the decision to lease.

If past statements are any indication, Mr. Wolf’s acting DCNR Secretary Cindy Dunn is unlikely to endorse further leasing of state lands. A former deputy secretary at the department, she testified as a witness for the Pennsylvania Environmental Defense Foundation during a hearing in the case last year about the industrial development that gas drilling had brought to public lands marketed by the state as eco-tourism destinations.

In her most recent role as president and CEO of the environmental organization PennFuture, she said, “Carefully managed industrialization is still industrialization, so the need for a moratorium on leasing of state forests and parks to drillers remains.”

Laura Legere: llegere@post-gazette.com

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