[J-82-2021] [MO: Baer, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
PENNSYLVANIA ENVIRONMENTAL : No. 65 MAP 2020
DEFENSE FOUNDATION, :
: Appeal from the Order of the
Appellant : Commonwealth Court at No. 358
: MD 2018 dated October 22, 2020
:
v. : ARGUED: December 8, 2021
:
:
COMMONWEALTH OF PENNSYLVANIA, :
AND TOM WOLF, IN HIS OFFICIAL :
CAPACITY AS GOVERNOR OF :
PENNSYLVANIA, :
:
Appellees :
CONCURRING OPINION
JUSTICE DONOHUE DECIDED: August 5, 2022
I join the Majority and write separately to address the concerns voiced by my
learned colleagues regarding the potential use of trust assets for non-trust activities.
While I agree that in operation the statute may prove to be unconstitutional, I do not
believe it is facially so. I conclude that the Commonwealth Court’s order requiring the
Commonwealth to account for asset expenditures, as specifically requested by the PEDF,
will bring any as-applied constitutional defects to light. Indeed, I would not join the
Majority Opinion if it “[d]eem[ed] the entirety of DCNR’s budget to be a reasonable cost
of trust administration[.]” Concurring and Dissenting Op. at 8 (Wecht, J.). The
Commonwealth Court rejected that conclusion, and we do so again today.
I briefly elaborate on two parts of the Commonwealth Court’s opinion that I deem
pertinent to Justices Dougherty and Wecht’s conclusion that Sections 104(P) and 1601
of the General Appropriations Acts of 2017 and 2018 are facially unconstitutional. The
PEDF asserted that these provisions are
facially unconstitutional because they authorize the
appropriation of Lease Fund money for general government
operations. According to the Foundation, the Commonwealth
cannot use any of the proceeds from oil and gas deposited in
the Lease Fund to pay for the DCNR’s general government
operations, which include salaries and travel expenses,
contract fees, vehicle and equipment purchases and
maintenance, office rentals, and other similar expenses.
PEDF v. Commonwealth, 2020 WL 6193643 at *5 (Pa. Commw. 2020) (“PEDF IV”).
The Commonwealth responded that “[c]onservation and maintenance activities are
not accomplished in a vacuum: they require people and equipment.” Id. The
Commonwealth sought its own declaration “that its current usage of the Lease Fund is
wholly consistent with its Section 27 trustee responsibilities.” Id.
The Commonwealth Court denied both declarations. With respect to the PEDF’s
challenges, the Majority Opinion cogently explains the Commonwealth Court’s reasons
and why that result is still correct following PEDF v. Commonwealth, 255 A.3d 289 (Pa.
2021) (“PEDF V”). As to the Commonwealth’s requested declaration, the Commonwealth
Court stated:
In sum, because the Lease Fund contains both trust principal
and other deposits, we cannot declare that the appropriations
contained in Sections 104(P) and 1601 of the General
Appropriation Acts of 2017 and 2018 for the DCNR's
government operations are facially unconstitutional. By the
same token, we are also unprepared to grant the
Commonwealth's sweeping request that its current usage is
wholly consistent with its Section 27 trustee responsibilities.
Such a declaration requires an as-applied analysis, which we
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are not prepared to address in this matter. Therefore, we deny
both the Foundation's and the Commonwealth's cross-
Applications in this regard.
PEDF IV, 2020 WL 6193643 at *8.
I agree with this analysis. The Commonwealth sought a declaration that everything
the DCNR does “is wholly consistent” with its fiduciary duties, but the court could not
make that determination in the context of a facial challenge. The Commonwealth Court
returned to this same point when ruling on the PEDF’s request for “a declaration that the
Commonwealth must maintain a detailed accounting of monies in the Lease Fund and
how they are used.” Id. at *16. The Commonwealth Court granted that request for the
same reason it denied the Commonwealth’s requested declaration.
Although the Commonwealth tracks the source of the monies
as they are deposited into the Lease Fund, once in the Lease
Fund, money is no longer earmarked or maintained in
separate accounts, but is instead “commingled.” Petitioner’s
Brief, Exhibit A, Commonwealth’s Answer and Objections to
First Set of Interrogatories, ¶¶3a, 3b, 3c. According to the
Commonwealth, “it is not possible to identify the originating
source of the total monies in the Lease Fund on a particular
day.” Id. Further compounding the problem are the transfers
of money from the Lease Fund to the General Fund and
beyond. As the money shuffles from one fund to the next,
money loses any trace of its originating source.
While money classified as trust principal must be spent on
trust purposes, money classified as income need not comply
with the same spending restrictions. PEDF III, 214 A.3d at
774. By commingling monies in the Lease Fund without
classification and by not maintaining adequate records, the
Commonwealth is neglecting its fiduciary duties. See 20 Pa.
C.S. § 7780. It is impossible for this Court to determine
whether the money appropriated and transferred from the
Lease Fund is trust principal, and whether trust principal is
being used in a constitutional manner. Thus, an accounting is
necessary to ensure that the assets of the trust are being used
only for purposes authorized by the trust or necessary for the
preservation of the trust in accordance with Section
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27. See PEDF II, 161 A.3d at 939; PEDF III, 214 A.3d at 774.
Therefore, we grant the Foundation’s Application for
Summary Relief in this regard and declare that the
Commonwealth, as trustee of Pennsylvania’s public natural
resources, is required to keep detailed accounts of the trust
monies derived from the oil and gas leases and track how they
are spent as part of its administration of the trust.
Id. at *17.
The Commonwealth did not file a cross-appeal from this holding. Thus, I disagree
with Justice Wecht’s claim that the Majority Opinion holds that the DCNR’s entire budget
is a reasonable cost of administering the trust. The Commonwealth unsuccessfully
sought that type of declaration from the Commonwealth Court, and we, like that court,
say only that the provisions are not facially unconstitutional. The Commonwealth must
comply with the Commonwealth Court’s order to keep detailed accounts, which permits
the PEDF to raise as-applied challenges.
Justice Wecht argues that there is no need to wait for an as-applied challenge and
says that the Majority misapplies the standard of review for facial challenges. Justice
Wecht opines that Sections 104(P) and 1601 of the General Appropriations Acts of 2017
and 2018 share the same flaws as the provisions struck in PEDF v. Commonwealth, 161
A.3d 911 (Pa. 2017) (“PEDF II”), as both cases involved “transferr[ing] trust assets from
the Lease Fund to pay for DCNR’s general operations.” Concurring and Dissenting Op.
at 6-7 (Wecht, J.). PEDF II and this case differ in one critical respect: the fund at issue in
PEDF II was funded entirely with trust assets, while the current fund may not be. The Oil
and Gas Lease Fund examined in PEDF II stated:
All rents and royalties from oil and gas leases of any land
owned by the Commonwealth, except rents and royalties
received from game and fish lands, shall be placed in a
special fund to be known as the “Oil and Gas Lease Fund”
[J-82-2021] [MO: Baer, C.J.] - 4
which fund shall be exclusively used for conservation,
recreation, dams, or flood control or to match any Federal
grants which may be made for any of the aforementioned
purposes.
PEDF II, 161 A.3d at 920 n.1.
Thus, every dollar put into that fund was from the sale of trust assets, and following
PEDF V each dollar must go to a trust purpose. The General Assembly, however, has
since reconstituted that fund. Section 1601.2-E states that the former Oil and Gas Lease
Fund exists as a special fund in the State Treasury and is funded from three sources:
(b) Sources.--The following shall be deposited into the fund:
(1) Rents and royalties from oil
and gas leases of land owned by
the Commonwealth, except rents
and royalties received from game
and fish lands.
(2) Amounts as provided under
section 5 of the act of October 8,
2012 (P.L. 1194, No. 147), known
as the Indigenous Mineral
Resources Development Act.
(3) Any other money appropriated
or transferred to the fund.
72 P.S. § 1601.2-E (footnote omitted).
The first source undeniably represents trust assets. At least facially, the second
source does as well.1 The third source does not so long as the “other money” transferred
1 The Indigenous Mineral Resources Development Act provides that “[s]ixty percent of
payments or royalties received by the department shall be deposited in the Oil and Gas
Lease Fund.” 71 P.S. § 1357.5. Those monies are generated from contracts or leases
for mineral extraction on certain State-owned land. 71 P.S. § 1357.3(a).
[J-82-2021] [MO: Baer, C.J.] - 5
to the fund is not from the sale of trust assets. As stated in Clifton v. Allegheny County,
969 A.2d 1197 (Pa. 2009), the following principles apply to a facial challenge.
Even under the “plainly legitimate sweep” standard, a statute
is only facially invalid when its invalid applications are so real
and substantial that they outweigh the statute’s “plainly
legitimate sweep.” Stated differently, a statute is facially
invalid when its constitutional deficiency is so evident that
proof of actual unconstitutional applications is unnecessary.
For this reason (as well as others), facial challenges are
generally disfavored. See Wash. State Grange, 552 U.S. at –
–––, 128 S.Ct. at 1191 (“Facial challenges are disfavored for
several reasons. Claims of facial invalidity often rest on
speculation. As a consequence, they raise the risk of
‘premature interpretation of statutes on the basis of factually
barebones records.’ ”) (quoting Sabri v. United States, 541
U.S. 600, 609, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004)).
Id. at 1223 n.37.
In PEDF II, the statutes were facially unconstitutional because they “plainly
ignore[d] the Commonwealth’s constitutionally imposed fiduciary duty to manage the
corpus of the environmental public trust for the benefit of the people to accomplish its
purpose—conserving and maintaining the corpus by, inter alia, preventing and remedying
the degradation, diminution and depletion of our public natural resources.” PEDF II, 161
A.3d at 938. As the Commonwealth Court in this case pointed out, the PEDF II provisions
authorized the General Assembly to take trust assets and appropriate them to the General
Fund, where they would be clearly spent on non-trust purposes. In terms of a plainly
legitimate sweep, the invalid applications of the PEDF II provisions were so evident that
proof of actual unconstitutional application was unnecessary.
That type of deficiency is not present here for two reasons. First, the Oil and Gas
Lease Fund may contain non-trust assets. Thus, on its face the statute is constitutional
[J-82-2021] [MO: Baer, C.J.] - 6
if the appropriation included non-trust asset monies which were sufficient to cover all non-
trust activities. Second, the appropriation of monies from the Oil and Gas Lease Fund to
the DCNR for, inter alia, “the payment of salaries, wages or other compensation and travel
expenses of the duly appointed officers and employees of the Commonwealth, for the
payment of fees for contractual services rendered, for the purchase or rental of goods
and services and for payment of any other expenses, as provided by law or by this act,”
Maj. Op. at 12 n.13 (quoting provisions), may include costs legitimately allocable to trust
administration. All members of the Court agree that at least some of these activities would
qualify as trust activity. Justice Dougherty observes that the DCNR’s “mission goals of
economic use of state forests, recreation, and heritage conservation are not explicitly
related to the trustees’ Article I, Section 27 duties to conserve and maintain public natural
resources.” Concurring and Dissenting Op. at 6 (Dougherty, J.). I express no view on
which set of activities would qualify as trust purposes and which would not. Facial
challenges are disfavored and at this juncture I fail to see how the Court can address
which of the DCNR’s activities qualify as trust activities. We lack any factual basis to rule
on that issue.
That said, I am highly sensitive to the possibility that the General Assembly has
violated its fiduciary duties by creating a funding scheme that forces DCNR to utilize trust
assets for non-trust purposes.2 PEDF II “solidif[ied] the jurisprudential sea-change begun
2 Justice Wecht states that “the challenged legislation facially permits the depletion of
trust corpus for non-trust purposes.” Concurring and Dissenting Op. at 8 (Wecht, J.). The
General Assembly may well have violated its fiduciary duties by failing to adequately fund
the Oil and Gas Lease Fund with sufficient non-trust assets. If so, that is a function of its
budgetary choices and not a function of the provisions as written. Unlike the PEDF II
statutes, the challenged provisions are constitutionally valid if the General Assembly
[J-82-2021] [MO: Baer, C.J.] - 7
by Chief Justice Castille’s plurality in Robinson Township v. Commonwealth, 83 A.3d 901,
950–51 (Pa. 2013) (plurality),” PEDF II, 161 A.3d at 940 (Baer, J., concurring and
dissenting), and nothing in today’s opinion undermines our precedents. Simultaneously,
we must presume good faith on the part of the General Assembly. The General
Assembly’s reconstitution of the Oil and Gas Lease Fund, and its potential inclusion of
funding from non-trust sources must be read at this juncture as facially complying with its
constitutional trustee duties.3 In this regard, the General Assembly and the Treasury, as
sufficiently funded the Oil and Gas Lease Fund with non-trust assets. Alternatively, the
provisions are valid if the DCNR did not spend trust revenues on non-trust purposes. We
are ill-equipped to decide, in the absence of an as-applied challenge with a developed
factual record and adversarial briefing, which of the activities funded by the Oil and Gas
Lease Fund constitute trust purposes.
3 After our decision in PEDF II, as a matter of law, Article I, Section 27 fiduciary duties
are incorporated into all legislative and executive action at all levels of the
Commonwealth’s governance. It is, in my view, unnecessary to pronounce the existence
of mandatory constitutional fiduciary duties in legislation or orders relating to Article I,
Section 27 trust assets. Any such pronouncement is surplusage and thus, I do not quibble
with the language chosen by the General Assembly in Section 1601.2-E(c) of the Fiscal
Code.
Relatedly, Justice Wecht states that the change in the Lease Fund’s structure does not
warrant a different outcome because “[t]he lack of any accounting obligation or restriction
of the use of trust assets solely for trust purposes on the part of the Commonwealth as
trustee clearly, plainly, and palpably violates the Constitution.” Concurring and Dissenting
Op. at 14 (Wecht, J.). Again, I do not see how the absence or presence of this language
is relevant. For example, government agencies cannot discriminate on the basis of race,
but this would not make every statute dealing with governmental benefits unconstitutional
unless the agencies are explicitly told by the General Assembly not to discriminate on the
basis of race in making benefit eligibility determinations. Those obligations exist
regardless of whether the General Assembly chooses to explicitly codify them. The same
is true of the Commonwealth’s fiduciary duties. I therefore disagree that the “burden for
enforcing the Commonwealth’s constitutional fiduciary duties” falls to third parties in the
absence of this language. Id. at 14 n.39. Inserting language requiring the Commonwealth
to maintain an account would not guarantee that the funds will be spent in accordance
with the Commonwealth’s trust duties. Whether explicitly stated or not, from a citizen’s
[J-82-2021] [MO: Baer, C.J.] - 8
the depository for Oil and Gas Lease Fund monies, must account for the trust asset
portion of the fund and the DCNR must account for the expenditure of those trust assets.
This requirement follows from our recognition in PEDF II that “[t]rustee obligations are not
vested exclusively in any single branch of Pennsylvania’s government, and instead all
agencies and entities of the Commonwealth government, both statewide and local, have
a fiduciary duty to act toward the corpus with prudence, loyalty, and impartiality.” PEDF
II, 161 A.3d at 931 n.23.
The Commonwealth Court has already concluded that because the
Commonwealth failed to maintain adequate records by not classifying monies in the
Lease Fund and tracking expenditures of trust assets, it neglected its fiduciary duties.
PEDF IV, 2020 WL 6193643 at *17. It further declared that the Commonwealth is required
“to maintain accurate records of the Lease Fund and track trust principal as part of its
trustee duties[.]”4 Id. Pursuant to our decision in PEDF V, the Commonwealth Court’s
limitation of the account to principal is obsolete and a detailed account must be
maintained for all revenue generated from oil and gas leasing activity. 5
perspective it is simply unknown whether the Commonwealth complied with its fiduciary
duties unless and until a challenge to the account is brought.
4 Justice Wecht argues that the scope of this order is unclear and asks whether the
Commonwealth must continue to comply with this directive. The obvious answer is yes.
The Commonwealth Court did nothing more than to recognize that those fiduciary duties
are imposed on the Commonwealth as trustee of the Article I, Section 27 trust assets.
Those fiduciary duties exist by operation of law, and they are imposed even if the
Commonwealth Court had not issued the order. See nn. 3 and 6.
5 Because the PEDF III opinion was on appeal when the Commonwealth Court issued
its decision, the panel “strongly suggest[ed] that the Commonwealth account for and track
all monies derived from the oil and gas leases, not just royalties and other trust principal.”
PEDF IV, 2020 WL 6193643 at *17 n.23. Given our precedent, the DCNR must track
[J-82-2021] [MO: Baer, C.J.] - 9
In sum, I recognize the concerns voiced by Justices Dougherty and Wecht, but for
the reasons stated, this facial challenge cannot succeed.6 The Commonwealth’s
how it spends those revenues, separating trust proceeds from non-trust proceeds. This
duty, as well as others, is imposed by trust law, as the Commonwealth Court decision
recognized. “As for the accounting, under Pennsylvania trust law, a trustee must maintain
‘adequate records of the administration of the trust.’” Id. at *16 (quoting 20 Pa. C.S. §
7780(a)). In addition, ‘[a] trustee shall keep trust property separate from the trustee’s own
property’ 20 Pa. C.S. § 7780(b). Trustees also have reporting duties. See generally 20
Pa.C.S. § 7780.3.
6 Justice Wecht claims that I “attempt[ ] to save the challenged legislation from a facial
challenge by linking the statutes to the Commonwealth Court’s order,” thereby “implicitly
recogniz[ing] that the statutes … violate the constitution.” Concurring and Dissenting Op.
at 15 (Wecht, J.). To be clear, the statutes are not facially unconstitutional, because the
challenged statutes allow for the General Assembly to fund the DCNR with non-trust
assets. The Commonwealth Court’s order addresses operational fiduciary breaches not
facial constitutional infirmities with the statutes. Moreover, the Commonwealth Court’s
order belies the notion that the Majority and the Commonwealth Court hold that the
DCNR’s expenditures of the appropriated funds is immune from challenge.
Furthermore, Justices Dougherty and Wecht appear to view the conclusion that the
provisions are not facially unconstitutional as equivalent to a holding that they are
definitively constitutional. But the standard of review for facial challenges accepts that
the statute may well include some unconstitutional applications. In Clifton v. Allegheny
Cnty., 969 A.2d 1197 (Pa. 2009), wherein this Court applied the “plainly legitimate sweep”
standard, we disagreed with the trial court’s conclusion that property assessment laws
were facially unconstitutional. While agreeing the laws were unconstitutional as-applied,
we nonetheless determined that the facial challenge failed because the challengers
“relie[d] on evidence of the provisions’ inequitable application here, and … it appears
there are circumstances where the base year provisions could be constitutionally
applied[.]” Id. at 1224. The question is simply whether the unconstitutionality is so
apparent that actual proof is unnecessary. In PEDF II, there was no possibility that the
statute was constitutional. Here, actual proof is necessary because the provisions on
their face do not violate our constitution. Moreover, the stricter standard for facial
challenges as discussed by the Majority, Maj. Op. at 10, cannot possibly be met given the
potential constitutional application premised on the possibility of additional non-trust asset
funding so that the DCNR did not spend trust assets on non-trust purposes. A
constitutional application dooms the facial challenge. See Schall v. Martin, 467 U.S. 253,
264 (1984) (a facial challenge fails where “at least some” constitutional applications exist).
[J-82-2021] [MO: Baer, C.J.] - 10
preparation of the detailed accounts will allow as-applied challenges to be filed. I
therefore join the Majority’s Opinion with the understanding that any as-applied challenge
will ensure that the Commonwealth is not, in fact, diverting trust assets to non-trust
purposes.7
Justice Todd joins this concurring opinion.
7 The Commonwealth Court expressed skepticism that the Commonwealth is fully
compliant with its duty to adequately fund the Oil and Gas Lease Fund. See PEDF IV,
2020 WL 6193643 at *17 n.22 (“Based upon a rough estimate of the monies deposited
into and diverted from the Lease Fund, we are extremely concerned that the
Commonwealth may not be administering the trust funds with ‘loyalty, impartiality, and
prudence.’”) (citations omitted).
Relatedly, Justice Wecht asserts that the factual record proves that the statute is facially
unconstitutional because “of the funds available in the Lease Fund to pay the $61,291,000
appropriated for DCNR’s annual budget in 2017-2018 … ninety-nine percent … was trust
corpus.” Id. at 14. These figures are correctly reported from the Commonwealth Court’s
opinion but the DCNR’s entire budget exceeded $61,291,000. The Office of the Budget
lists an appropriation of $106,961,000 to the DCNR. (Available at
https://www.budget.pa.gov/Publications%20and%20Reports/CommonwealthBudget/Pa
ges/PastBudgets2015-16To2006-07.aspx). This indicates that an additional $45,670,000
was provided to DCNR. We do not know the source of these funds or how these pools
of money were spent. I thus do not share Justice Wecht’s confidence that the actual
operation of the statute was unconstitutional.
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