Court to hear case on Pa.’s conservation duty

The Pennsylvania Supreme Court has agreed to hear arguments in a case over drilling in state forests that could reset expectations for what the government must do to show that it is conserving public natural resources.

The court’s seven justices, including three new members who will take their seats in January, appear poised to review the government’s obligations under the state constitution’s environmental rights amendment, which was given new respect with a 2013 Supreme Court decision that relied on it to upend key parts of a state Marcellus Shale drilling law, known as Act 13.

The court has agreed to hear arguments on two issues, one broad and one narrower: What is the proper standard for reviewing government actions and laws to see if they comply with the environmental rights amendment, and is it constitutional for the General Assembly to transfer money from state forest drilling out of a special fund set aside for conservation purposes?

The Pennsylvania Environmental Defense Foundation, an environmental advocacy organization, is challenging the state’s practice of opening state forests to oil and gas development and using the proceeds to fill budget gaps.

Gov. Tom Wolf has banned new oil and gas leases in state parks and forests, but roughly 700,000 acres of state forests are available for natural gas development through existing state or private leases.

Commonwealth Court largely sided with the state in January when it upheld the Legislature’s right to use state forest drilling royalties for general state budget purposes, as it has since 2009. But the lower appellate court did not settle the larger issue of the government’s proper role as trustee of the state’s natural resources, PEDF attorney John Childe said. Now, the Supreme Court appears ready to address it.

“They are going at the heart of the issues, the issues we wanted to have resolved, so we’re very happy about that,” Mr. Childe said.

The Supreme Court has not yet set a date for arguments in the case, but the earliest it could hear them is at a session in March. The court denied a request by the state House and Senate Republican caucuses to present oral argument as friends of the court.

One issue at stake in the court’s review is whether a three-part test that has been used by state courts for more than four decades to evaluate whether the government has properly balanced environmental and economic interests is adequate to meet the demands of the environmental rights amendment.

A Supreme Court plurality largely rejected that test in its 2013 decision in the drilling law case, Robinson Township v. Commonwealth, but since a majority of the justices didn’t agree, the test still stands.

“I do think the really big issue out there after Robinson Township is what is the standard you employ. Do you employ the text of the constitution or do you employ a judge-made rule?” said John Dernbach, a Widener University law professor.

“Very likely,” he said, the court will weigh whether the government’s use of state forest drilling funds is consistent with its constitutional duty, based on the plain text of the environmental rights amendment, “to conserve and maintain public natural resources for the benefit of present and future generations” instead of applying the three-part test.

That does not automatically mean the environmental group has the upper hand, he said. It also “doesn’t automatically mean that the government wins. It’s just a constitutional test.”

Kevin Moody, general counsel for the Pennsylvania Independent Oil and Gas Association, said the outcome of the PEDF case “could clear up some of the uncertainty created by the plurality decision” in the Robinson Township case, but the focus here is on a different part of the environmental rights amendment, regarding public natural resources.

The oil and gas trade group has submitted friend of the court briefs in the case, and it argues that the environmental group “is advancing a very narrow and unjustified view” of what the state is expected to do to conserve and maintain public natural resources, Mr. Moody said.

Laura Legere:

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