[J-35-2016] [MO: Donohue, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
PENNSYLVANIA ENVIRONMENTAL : No. 10 MAP 2015
DEFENSE FOUNDATION, :
: Appeal from the Order of the
Appellant : Commonwealth Court at No. 228 MD
: 2012 dated January 7, 2015
:
v. : ARGUED: March 9, 2016
:
:
COMMONWEALTH OF PENNSYLVANIA, :
AND GOVERNOR OF PENNSYLVANIA, :
TOM WOLF, IN HIS OFFICIAL CAPACITY :
AS GOVERNOR, :
:
Appellees :
CONCURRING AND DISSENTING OPINION
JUSTICE BAER DECIDED: June 20, 2017
Through today’s decision, this Court takes several monumental steps in the
development of the Environmental Rights Amendment, Article I, Section 27 of the
Pennsylvania Constitution. I agree with many of the Majority’s holdings, including Part
IV.A.’s dismantling of the Commonwealth Court’s Payne1 test, which stood for nearly
fifty years, the confirmation that the public trust provisions of the amendment are self-
executing in Part IV.C., and the recognition in footnote 23 that all branches of the
1
Payne v. Kassab, 312 A.2d 86 (Pa. Cmwlth. 1973).
Commonwealth are trustees of Pennsylvania’s natural resources.2 These holdings
solidify the jurisprudential sea-change begun by Chief Justice Castille’s plurality in
Robinson Township v. Commonwealth, 83 A.3d 901, 950-51 (Pa. 2013) (plurality),
which rejuvenated Section 27 and dispelled the oft-held view that the provision was
merely an aspirational statement. With this, I am in full agreement.
Nevertheless, I dissent from the primary holding of the case declaring various
fiscal enactments unconstitutional or potentially unconstitutional based upon the
Majority’s conclusion that the proceeds from the sale of natural resources are part of the
“trust corpus” protected by Section 27. Maj. Op. at 34. I reject my colleagues’ reading
of Section 27, which I find to be unmoored from the amendment’s language and
purpose. As discussed below, the current decision imposes upon our sister branches of
government private trust principles that are absent from the constitutional language and
tangential to the forces motivating the adoption of Section 27.
As articulated in the extensive passage of Robinson Township quoted by the
Majority, the Environmental Rights Amendment was enacted to address Pennsylvania’s
long history of environmental devastation resulting from the timber, hunting, and coal
industries, as well as environmental disasters in the 1950s and 60s. The Amendment
aimed to prevent further pollution and the wasting of Pennsylvania’s natural resources,
as well-documented in the legislative history of Section 27, relied upon by the Robinson
Township plurality. Robinson Township, 83 A.3d at 960-963. In contrast, there is
neither constitutional language nor legislative history addressing the financial proceeds
from the use or sale of natural resources. It simply was not considered during the
2
I additionally concur with the holding that the Oil and Gas Lease Fund is not a
constitutional trust fund. Maj. Op. at 45.
[J-35-2016] [MO: Donohue, J.] - 2
passage of the amendment. Protection of natural resources, not funding, was the focus
of the amendment, and as expressed below, the two are not necessarily interrelated.
Through their actions today employing private trust principles to direct that all
proceeds from Pennsylvania’s public natural resources be funneled into environmental
protection, my colleagues threaten to override the delicate process required of the
legislative and executive branches to achieve a constitutionally-mandated balanced and
fair budget. Despite a lack of support in the language of Section 27, hundreds of
millions of dollars generated by the recent Marcellus Shale exploration on state land as
well as proceeds from oil, gas, coal, timber, game and other natural resources, will be
cordoned off from critical areas of the Commonwealth’s budget, including education,
infrastructure, and other public works, without consideration of whether such funding is
necessary to protect Pennsylvania’s public resources.3
As described below, I reject the imposition of inflexible private trust requirements
and instead would interpret the language of Section 27 with an awareness of the public
trust doctrine as it applied to natural resources at the time of Pennsylvania’s enactment
of Section 27. Utilizing this doctrine and the necessary presumption that our sister
branches act in accordance with the Constitution, I conclude that the Pennsylvania
Environmental Defense Foundation failed to meet its burden to prove the statutes
“clearly, palpably, and plainly violat[e] the Constitution.” Stilp v. Commonwealth, 905
A.2d 918, 939 (Pa. 2006). Accordingly, I would affirm the Commonwealth Court’s order
3
I recognize that the Majority has limited its holding to royalties and has remanded to
the Commonwealth Court to determine whether other payments constitute proceeds
from the sale of trust assets, which would be deemed part of the trust corpus, as
opposed to income generated by the assets, which would not be deemed part of the
corpus of the trust under private trust principles. Maj. Op. at 36. As I dissent from the
stringent application of private trust duties relating to the corpus of the trust, I need not
determine the validity of this dichotomy.
[J-35-2016] [MO: Donohue, J.] - 3
granting, in substantial part, summary relief to the Commonwealth and denying the
Foundation’s application for summary relief.
A. The Language and History of Section 27.
Analysis of the issues in this case begins with the language of Section 27, which
provides as follows:
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 the people.
PA. CONST. art. I, § 27. The Majority correctly observes that “the fundamental rule of
construction which guides [this Court] is that the Constitution’s language controls and
must be interpreted in its popular sense, as understood by the people when they voted
on its adoption.” Ieropoli v. AC&S Corp., 842 A.2d 919, 925 (Pa. 2004). Moreover,
“technical words and phrases and such others as have acquired a peculiar and
appropriate meaning . . . shall be construed according to such peculiar and appropriate
meaning or definition.” 1 Pa.C.S. § 1903(a).
I agree with the plurality in Robinson Township and the Majority in the case at
bar that Section 27 contains two enforceable rights. Maj. Op. at 29; Robinson
Township, 83 A.3d at 950-952. The first sentence of Section 27 provides a “right to
clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic
values of the environment.” The second and third sentences, relevant to the case at
hand, combine to create the people’s right to have Pennsylvania’s natural resources
conserved and maintained. Specifically, the second sentence declares that “public
natural resources are the common property of all the people, including generations yet
[J-35-2016] [MO: Donohue, J.] - 4
to come,” and the third sentence requires the Commonwealth to act “as trustee” of the
resources and to “conserve and maintain them for the benefit of all the people.”
While the Majority imposes upon the Commonwealth private trust duties through
the Uniform Trust Act, I do not find that the language of the Section 27 supports this
analysis. Notably, Section 27 does not speak in terms of the people as “beneficiaries,”
nor does it define the resources in terms of the “corpus of the trust.” Instead, it broadly
provides that the resources are the “common property” of the people. Common
ownership, however, does not grant individuals rights commensurate with private
ownership. As aptly observed by the United States Supreme Court, “the right that we all
possess to use the public lands is not the ‘property’ right of anyone.” College Sav. Bank
v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 673 (1999).
Rather than imposing private trust principles on the expansive rights granted by
Section 27, I follow the lead of the plurality opinion in Robinson Township and rely upon
the legislative history detailing the drafting and approval of Section 27 utilizing the public
trust doctrine. Robinson Township, 83 A.3d at 955-56. Included in this legislative
history is a statement by Representative Franklin Kury, the drafter and primary
proponent of the Amendment (“Kury Statement”), integrating a legal analysis of the
Amendment by Duquesne University Professor Robert Broughton (“Broughton
Analysis”). 1970 Pa. Legislative Journal - House at 2269-82 (April 14, 1970).4
4
I recognize and concur with the proposition that statements made by individual
legislators are of limited value in determining the intent of the General Assembly as a
whole regarding a statutory enactment, given that the individuals speak only for
themselves. Notwithstanding, in this case, I find value in Representative Kury’s
statement and his submission of Professor Broughton’s analysis as Kury authored the
proposed constitutional amendment. Moreover, he drafted questions and answers
circulated to inform the general public of the intent of the proposal prior to them voting to
adopt the constitutional amendment. Exhibit UU to Petitioner’s Brief in Opposition to
Respondents’ Cross Motion for Summary Judgment and Petitioner’s Reply to
Respondents’ Response to Petitioner’s Motions for Summary Judgment (reproducing
(continued…)
[J-35-2016] [MO: Donohue, J.] - 5
Professor Broughton repeatedly explained that the second and third sentences of
Section 27 “have the purpose of placing Pennsylvania among the jurisdictions which
adhere to the public trust theory of public natural resource management.” 5 1970 Pa.
Legislative Journal - House at 2273 (Broughton Analysis), 2275 (observing that the
“primary purpose” of the final two sentences was “to constitutionally affirm that the
public trust doctrine applied to the management of public natural resources in
Pennsylvania”). Moreover, as explained below, the terminology used by the drafters of
Section 27 evokes the public trust doctrine.
1. The public trust doctrine.
The public trust doctrine has been part of common law for centuries even though
it has not been “clearly enunciated” in Pennsylvania. Id. at 2275 (Broughton Analysis).
The lack of clarity of the doctrine, however, does not permit us to ignore the intent of the
legislators drafting the amendment nor the voters adopting it, which was to employ
public trust principles. In other words, we should not fall back upon precepts of private
trust law merely because they are familiar to us. Instead, we should attempt to
understand the underpinnings of the public trust doctrine invoked by Section 27.
As Broughton explained, the public trust doctrine, at base, invokes a fiduciary-like
construct whereby the government has “the duty to manage, use, and/or consume the
property of the public solely for the benefit of the public.” 1970 Pa. Legislative Journal–
(…continued)
John C. Dernbach and Edmund J. Sonnenberg, A Legislative History of Article I,
Section 27 of the Constitution of the Commonwealth of Pennsylvania, 24 Widener L.J.
181 (2015) (including Representative Franklin L. Kury’s 1971 Question and Answer
Sheet in favor of Pa. House of Representatives, Joint Resolution 3)).
5
While the Majority relies upon Professor’s Broughton’s explanation that the
Commonwealth must act as a trustee rather than a proprietor, Maj. Op. at 31, it fails to
acknowledge that the professor utilized this dichotomy in describing the public trust
doctrine, which the Majority relegates to a footnote. Maj. Op. at 34 n.26.
[J-35-2016] [MO: Donohue, J.] - 6
House at 2273 (Broughton Analysis). The concept of a public trust derives from English
common law securing the public’s ability to navigate, conduct commerce, and fish along
the seashore and rivers and to travel and hunt in dedicated public common areas.
Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial
Intervention, 68 Mich. L. Rev. 471, 475-76 (1969) (hereinafter “The Public Trust
Doctrine”); Joseph L. Sax, Liberating the Public Trust Doctrine from its Historical
Shackles, 14 U.C. Davis L. Rev. 185, 189-91 (1980-81). In language reflected in
Section 27, the sovereign is deemed to hold the lands “as trustee of a public trust for the
benefit of the people.” National Audubon Society v. Superior Court, 658 P.2d 709, 718
(Cal. 1983) (citation omitted).
Until the late 1960s, the concept had been applied primarily to navigable
waterways and designated parklands, including fishing and hunting rights. Indeed, a
few of our sister states incorporated public trust provisions regarding navigable
waterways and state lands into their constitutions long before Pennsylvania’s adoption
of Section 27.6 In connection with the environmental rights awakening during the years
immediately preceding the 1971 adoption of Section 27, a movement developed to
expand the previously limited public trust doctrine to encompass natural resources
generally. The expansion of the doctrine is largely credited to Professor Joseph Sax’s
seminal 1969 article, The Public Trust Doctrine in Natural Resource Law: Effective
Judicial Intervention, supra, which was relied upon by Professor Broughton in the
legislative proceedings related to the adoption of Section 27.
6
See, e.g., VA. CONST. art. XI, § 3 (previously included as Section 175 of the Virginia
Constitution of 1902, protecting the state’s oyster bed and imposing specific limitations
on the government); WA. CONST. art. 15, § 1 (incorporating the public trust doctrine to
protect harbors and tide waters); see also Sax, The Public Trust Doctrine, 68 Mich. L.
Rev. at 547 n.230-233.
[J-35-2016] [MO: Donohue, J.] - 7
A few principles can be distilled from the common law public trust doctrine,
specifically in regard to the use and sale of resources. First, courts have generally
safeguarded the public’s continued use of trust property for its original purpose and
have disfavored the sale of trust land to private parties where the conveyance does not
support the purposes of the trust. See Sax, The Public Trust Doctrine, 68 Mich. L. Rev.
at 477. Notwithstanding this general precept, the public trust doctrine does not forbid
the state from developing, leasing, or even disposing of portions of trust property. Id. at
485-89.
Indeed, courts and scholars have recognized that “[a]s a matter of practical
necessity the state may have to approve appropriations despite foreseeable harm to the
public trust uses.” National Audubon Society, 658 P.2d at 728. These actions may be
deemed permissible if the governmental entity has considered the effect of the action
and attempted to “preserve, so far as consistent with the public interest, the uses
protected by the trust.” Id. The public trust doctrine, therefore, aims to limit but not
eliminate the rate of alienation of the trust property in order to protect public
expectations. Sax, Liberating the Public Trust Doctrine from its Historical Shackles, 14
U.C. Davis L. Rev. at 191-93; see also John C. Dernbach, The Potential Meanings of a
Constitutional Public Trust, 45 Envtl. L. 463, 484 (2015).
Although it is permissible to dispose of portions of protected property, a
government may be deemed to run afoul of its duties under the public trust if it disposes
of excessive portions of the relevant property, especially for less than fair market value,
or engages in transactions related to the public resources which benefit private entities
rather than the public generally. Sax, The Public Trust Doctrine, 68 Mich. L. Rev. at
488-89 (emphasizing that disposition of trust property cannot be of “such amplitude that
[J-35-2016] [MO: Donohue, J.] - 8
the state will effectively have given up its authority to govern”), 537 (observing that
public trust properties should not be used to benefit private entities).
A court faced with a questionable transaction will look to whether the legislative
body clearly intended to dispose of the public trust property and may deem revocable
any conveyances that are inconsistent with the purpose of the public trust. See
National Audubon Society, 658 P.2d at 721 (discussing Illinois Central Railroad Co. v.
Illinois, 146 U.S. 387, 453-54 (1892), in which the Supreme Court allowed Illinois to
revoke a conveyance of nearly all the submerged lands of the Chicago waterfront to a
private railroad). Importantly for purposes of this case, the doctrine encourages
government entities to utilize any proceeds gained from the disposition of public
property for the benefit of the general public. Sax, The Public Trust Doctrine, 68 Mich.
L. Rev. at 547 (observing that disposition of public trust property “may be made only for
full market value and that revenues from them must be devoted to replacement of
specific trust uses or to statewide public purposes”) (emphasis added). Thus, prior to
getting into the specifics of the Pennsylvania Constitution, it is notable that the classic
public trust doctrine does not contemplate what the majority holds. Monies from the
sale of natural resources need not remain as the “corpus” of the environmental trust, but
rather may be used for the general benefit of the public.
2. The Public Trust of Section 27.
Applying this summary of the public trust doctrine to the Pennsylvania
Constitution, I observe that, consistent with my analysis above, the language of Section
27 does not employ private trust principles. Instead, Section 27 is broadly phrased to
require the Commonwealth to “conserve and maintain” the public’s natural resources for
the benefit of all the people, including future generations. The phrasing invokes the
original common law public trusts relating to navigable waterways described above,
[J-35-2016] [MO: Donohue, J.] - 9
pursuant to which the government acts as trustee “with a duty to manage, use, and/or
consume the property of the public solely for the benefit of the people.” 1970 Pa.
Legislative Journal–House at 2273 (Broughton Analysis).
Conspicuously missing from Section 27 is any specific financial constraint. The
Commonwealth’s obligation is to conserve and maintain the public’s natural resources
regardless of the Commonwealth’s current financial status. Thus, in the absence of
funds from natural resources, the Commonwealth would be obligated to draw upon the
general budget to provide any needed funds for conservation and maintenance.
Conversely, if the Commonwealth experiences a windfall to the tune of a billion dollars
from natural resources, the Commonwealth would still be required to fund conservation
and maintenance needs but would not have to let any excess proceeds sit idle while
critical public projects were left unfunded. Instead, the Commonwealth may use the
excess in its sound discretion for the public’s health, safety, and welfare, whether that
be for education, infrastructure, or other necessary programs. The majority holds
otherwise by mistakenly viewing this public trust as a private trust.
In rejecting the applicability of the public trust doctrine, the Majority criticizes the
Commonwealth’s reliance on Illinois Central Railroad, the seminal decision of the United
States Supreme Court on the public trust doctrine. The Majority opines that Illinois
Central Railroad “has nothing to do with the proper treatment of proceeds from the sale
of trust assets.” Maj. Op. at 34 n.26. The Majority is correct that the High Court did not
discuss the proceeds of the sale, but it fails to recognize why. Illinois Central Railroad
does not address the proceeds for the same reason Section 27 does not address the
revenues from the sale of natural resources. Simply, the public trust doctrine is
focused upon preserving the public’s access to and enjoyment of the protected land and
resources. It aims to prevent the destruction or privatization of public assets but has
[J-35-2016] [MO: Donohue, J.] - 10
nothing to do with creating a balance sheet accounting of assets as would be necessary
under private trust law.
Consistent with the public trust doctrine’s principle that the government should
protect the public’s access to trust property and limit the rate of alienation, I agree with
Representative Kury who explained Section 27 as requiring that government actors
demonstrate that a proposed action benefits the public interest in cases where the
action might also impair natural resources. 1969 Pa. Legislative Journal-House at 722
(June 2, 1969) (Statement submitted by Rep. Franklin Kury). He emphasized that the
public interest in the environment should be “weighed against the interests of those who
would detract from or diminish [the natural resources] before - not after - action is
taken.” Id. Consistent with Representative Kury’s observations, Section 27’s invocation
of the public trust doctrine and the explicit reference to future generations precludes the
“wasting of resources,” but does not forbid the use of the resources for the current
benefit of the public. 1970 Pa. Legislative Journal–House at 2273 (Broughton Analysis).
Accordingly, I agree with the Robinson Township plurality which opined that the
Commonwealth has a prohibitory obligation “to refrain from performing its trustee duties
respecting the environment unreasonably” and an affirmative obligation to act to protect
the environment. Robinson Township, 83 A.3d at 957-58. Moreover, I further recognize
that many of the basic principles underlying the public trust doctrine overlap with
traditional duties of private trustees, including the requirement that a trustee act in the
public’s interest which requires loyalty, impartiality, and prudence. Id. at 957. Thus, I
agree with the Majority and Robinson Township plurality to the extent they hold that the
Commonwealth, as trustee under Section 27’s public trust, should (1) exercise the duty
of loyalty by administering the trust solely for the benefit of all the people, including
future generations, (2) abide by the duty of impartiality by balancing the interests of all
[J-35-2016] [MO: Donohue, J.] - 11
the beneficiaries, including balancing the interests of current versus future generations,
and (3) act with prudence by managing the resources with ordinary skill and caution.
However, nothing in the history of Section 27 as detailed herein suggests that monies
unnecessary to the conservation and maintenance of the environment must be cabined
off from other pressing needs of the people of this Commonwealth. The Majority’s
holding in this regard is in error. 7
Thus, I turn to specific issues regarding the interpretation of the Amendment
raised by the parties before this Court.
B. Analysis of the Foundation’s challenges
1. “Trust corpus”
7
I observe that the above-listed principles governing Section 27’s public trust align with
the Supreme Court of Hawaii’s interpretation of their similar constitutional amendment,
which provides:
For the benefit of present and future generations, the State
and its political subdivisions shall conserve and protect
Hawaii’s natural beauty and all natural resources, including
land, water, air, minerals and energy sources, and shall
promote the development and utilization of these resources
in a manner consistent with their conservation and in
furtherance of the self-sufficiency of the State.
All public natural resources are held in trust by the State for
the benefit of the people.
HAW . CONST. art. 11, § 1. The Hawaiian high court recognized that the plain language
of its constitution “manifests the framers' intent to incorporate the notion of the public
trust into [the] constitution.” In re Water Use Permit Applications, 9 P.3d 409, 443 (Haw.
2000) (citing this Court’s decision in Payne v. Kassab, 361 A.2d 263, 272 (Pa. 1976)
(“There can be no question that the [constitution] declares and creates a public trust of
public natural resources for the benefit of all people”)). The court explained that the
“basic purpose of the trust” was to “reserv[e] the resource for use and access by the
general public without preference or restriction” rather than for private commercial gain.
Id. at 450.
[J-35-2016] [MO: Donohue, J.] - 12
At the heart of the Foundation’s challenges to the various Pennsylvania
legislative enactments addressed below is its contention that the provisions violate
Section 27 by transferring Lease Fund monies from exclusively funding the DCNR’s
conservation activities to providing funding for the Commonwealth’s General Fund,
which can then be used for non-conservation activities. Underlying this issue is whether
the proceeds from the sale of natural resources, such as the rents and royalties gained
from the leases of oil and gas rights on Commonwealth land, should be considered part
of the “corpus” of the Section 27 trust as would be the case for a traditional private trust.
My colleagues in the Majority adopt the Foundation’s view that the proceeds of
Pennsylvania’s natural resources, which include the oil and gas at issue in this case,
are part of the “corpus” of the Section 27 trust, which can be used only for conservation
and maintenance of Pennsylvania’s public natural resources. Maj. Op. at 37.
As noted above, I disagree. Section 27 is silent regarding the creation of a
“corpus” and in no way suggests that the proceeds from the sale of natural resources
should be included in such a corpus. Instead, the focus of Section 27 is on the natural
resources themselves, not the money gained from the resources.8 The trustee’s duties
are to “conserve and maintain” the resources, not the money.
8
Moreover, the Commonwealth observes that in contrast to Section 27‘s silence, other
constitutional provisions clearly indicate when funds should be dedicated for specific
purposes, such as the Motor Vehicle Licensing Fund, PA. CONST. art. VIII, § 11 (entitled:
“Gasoline taxes and motor license fees restricted”), and the Land and Water
Conservation and Reclamation Fund, PA. CONST. art VIII, § 16 (indicating, prior to the
adoption of Section 27, that the fund created in the section was to be “used for the
conservation and reclamation of land and water resources of the Commonwealth” and
includes a list of specific uses). The absence of such designation in Section 27
regarding the proceeds of the well-established process of selling or leasing natural
resources suggests, according to the Commonwealth, that the voters did not intend to
encompass within the Section 27 corpus the proceeds from such sales including natural
gas rents and royalties.
[J-35-2016] [MO: Donohue, J.] - 13
Moreover, Section 27 does not require that the Commonwealth conserve and
maintain the resources for the benefit of the environment, but rather for the “benefit of
all the people,” which includes both the enjoyment of the natural environment but also
the utilization of the resources, without waste, for the current benefit of the public. My
conclusion is buttressed by the specific alterations of the language of Section 27 during
the drafting process to allow for the Commonwealth’s continued disposition of natural
resources, including through logging and hunting, without any suggestion in the text of
the Amendment that the funds had to be reinvested in the trust or used solely for trust
purposes.
Originally, Section 27’s third sentence provided, “As trustee of these resources,
the Commonwealth shall preserve and maintain them in their natural state for the
benefit of all the people.” H.R. 958, Printer’s No. 1105 (Apr. 21, 1969). During the
drafting process, the word “conserve” was substituted for “preserve,” and the phrase “in
their natural state” was removed. The substitution of “conserve” was made to allay
fears that “courts might interpret the word ‘preserve’ restrictively, to mean that if [the
Department of Forest and Waters] authorized trees to be cut on Commonwealth land, or
the Game Commission licensed hunters to harvest game, this would not be ‘preserving’
them.” 1970 Pa. Legislative Journal–House at 2273 (Broughton Analysis).
Instead, the use of the term “conserve” requires that the resources be used
prudently. As commonly understood, when a governing body during a drought issues
an order for the public to “conserve water,” the public may unquestionably still use water
for drinking, bathing, and other household uses but should be careful to avoid wasteful
use. Moreover, the removal of the phrase “in their natural state” emphasizes that the
drafters of Section 27’s language did not intend to freeze the current status of the
natural resources nor to prevent the Commonwealth’s ability to utilize the resources.
[J-35-2016] [MO: Donohue, J.] - 14
Taken together, these two changes demonstrate that the drafters contemplated the
continued, but judicious, use of the resources rather than “some form of environmental
absolutism.” Dernbach Brief at 18.
Moreover, the questions and answers drafted by Representative Kury explaining
the amendment to the voters did not suggest that any, let alone all, of the proceeds from
the uses of natural resources would be devoted to the preservation of the environment;
rather, the focus was upon requiring the government to “consider the people’s rights
before it acts,” which is consistent with the public trust principles discussed above.9
9
The purpose of the Amendment was explained to the voters as follows:
Q. Will the amendment make any real difference in the fight
to save the environment?
A. Yes, once Joint Resolution 3 is passed and the citizens
have a legal right to a decent environment under the State
Constitution, every governmental agency or private entity,
which by its actions may have an adverse effect on the
environment, must consider the people’s rights before it acts.
If the public’s rights are not considered, the public could
seek protection of its legal rights in the environment by an
appropriate law suit. The Resolution would benefit all of the
people, and would go a long way toward tempering any
individual, company, or governmental body which may have
an adverse impact on our natural or historic assets.
In short, the amendment will incorporate three broad
principles into our legal system:
1. The people have the right to a decent environment.
2. Our public natural resources belong to all the people,
including future generations.
3. The State is the trustee of these natural resources for
future generations.
Representative Franklin L. Kury’s 1971 Question and Answer Sheet in favor of Pa.
House of Representatives, Joint Resolution 3, supra at 5 n.4.
[J-35-2016] [MO: Donohue, J.] - 15
Nevertheless, while I would hold that the proceeds may be used for public
purposes other than conservation, the Commonwealth must act in a trustee-like
capacity in regard to disposing of the underlying natural resources, as discussed above.
Further, the legislative and executive branches must consider the funding level required
by the DCNR and other conservation bodies to allow them to fulfill the Commonwealth’s
constitutional duty to maintain and conserve the people’s natural resources. However,
once the Commonwealth has conscientiously fulfilled these duties, it is not required to
take the illogical step of leaving substantial monies unused in a fund for the environment
while being unable to meet other pressing needs of the people. In deciding otherwise,
the Majority is redrafting the Constitution to its own liking, ignoring the public trust
doctrine, and usurping the appropriate role of the legislature in first assuring the
conservation and maintenance of the environment and then meeting other pressing
needs of the citizenry.
2. Statutory challenges
Having rejected the Foundation’s claim that the funds generated by oil and gas
leases on Commonwealth land must be held regardless of whether the
Commonwealth’s obligation to conserve and maintain the environment have been
satisfied, the Foundation’s arguments relating to the Fiscal Code Amendments and
related budgetary decisions become amorphous. The Foundation’s overarching claim
is that the respective Governors breached their fiduciary duty because they did not
investigate the impact of the budgetary changes on the DCNR’s ability to fulfill its
constitutional and statutory duties, under the CNRA, to conserve and maintain the
public natural resources. Foundation Brief at 49, 52, 55-56.
I accept the Foundation’s assertion that it is not challenging the sufficiency of the
funding provided to the DCNR nor the DCNR’s decision to enter into the leases, but
[J-35-2016] [MO: Donohue, J.] - 16
instead challenges the failure of the Governors to investigate the impact of the changes
on the DCNR and the threat of the budgetary pressure to lease. Foundation Reply Brief
at 38. I further agree with the Foundation that the Governor and all Commonwealth
entities have a fiduciary duty as trustee of the people’s natural resources to consider the
effect of any contemplated action on the natural resources. See Robinson Township,
83 A.3d at 952.
A general duty to consider, however, does not translate into a justiciable cause of
action. Courts are not equipped to determine what level of consideration is required.
For example, should a court evaluate the proper consideration based on how many
hours were spent contemplating the effects, how much money was expended
researching the potential harms, or some indeterminate measure of how seriously our
sister branches weighed the issue. These determinations are not only ill-defined but are
entirely within the political realm reserved to the General Assembly and Governor.
Accordingly, I would affirm the Commonwealth Court’s dismissal of the
Foundation’s claims that the Governors violated their fiduciary duties in regard to the
budgetary provisions.
[J-35-2016] [MO: Donohue, J.] - 17