[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 AND DISSENTING OPINION
JUSTICE WECHT DECIDED: August 5, 2022
Article I, Section 27 of the Pennsylvania Constitution, known as the Environmental
Rights Amendment (“ERA”), created a public trust to conserve and maintain
Pennsylvania’s public natural resources.1 In Pennsylvania Environmental Defense
Foundation v. Commonwealth, 161 A.3d 911, 938 (Pa. 2017) (PEDF II), this Court struck
1 Section 27 provides:
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.
down as facially unconstitutional certain budgetary appropriations authorizing the use of
trust corpus for the general operations of the Department of Conservation and Natural
Resources (“DCNR”).
Shortly thereafter, the Commonwealth once again appropriated trust corpus for
DCNR’s general operations for the 2017 and 2018 fiscal years.2 The Pennsylvania
Environmental Defense Foundation (“PEDF”) again challenged these legislative
appropriations as violating the ERA. The Majority rejects PEDF’s arguments and
approves of the 2017 and 2018 appropriations. According to the Majority, the
Commonwealth’s “use of trust assets to fund DCNR’s operations is within the authority of
the Commonwealth as trustee to incur costs in administering the Section 27 trust, absent
demonstration that these administrative costs are unreasonable or that the DCNR has
failed to act with prudence, loyalty, or impartiality in carrying out its fiduciary duties.” 3 I
disagree. The budgetary appropriations that the Majority upholds today share the same
constitutional infirmities that doomed the prior appropriations in PEDF II. The Majority’s
holding that the Commonwealth is entitled to use trust corpus to fund DCNR’s general
operations as a reasonable trustee expense cannot be squared with PEDF II.
The Majority further upholds legislation permitting the Commonwealth to
commingle trust assets with non-trust assets without accounting for how trust assets are
disbursed. In my view, this legislation is facially unconstitutional because it does not
demand of the Commonwealth, as trustee, transparent accounting to demonstrate that
its treatment of trust corpus conforms with the public trust established by the ERA.
2 General Appropriations Act of 2017, Act of July 11, 2017, P.L. 1279, No. 1A, §§
104(P), 1601; General Appropriations Act of 2018, Act of June 22, 2018, P.L. 1203, No.
1A, §§ 104(P), 1601.
3 Maj. Op. at 18.
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Accordingly, I dissent from the Majority’s holding in Parts III.A, III.D, and IV. PEDF
also raises a number of additional challenges that the Majority rejects in turn. I agree that
these additional challenges do not warrant relief. Accordingly, I join Parts I, II, III.B. III.C,
and III.E.
In 1955, the General Assembly established the Oil and Gas Lease Fund (“Lease
Fund”) to receive “all rents and royalties from oil and gas leases” executed on the
Commonwealth’s forest and park lands and to use these funds “exclusively for
conservation, recreation, dams, or flood control.”4 Against this backdrop, the ERA was
adopted in 1971 as part of Article I of the Pennsylvania Constitution.5
As we have explained, the ERA established an environmental public trust for the
benefit of the people that imposes fiduciary duties upon the Commonwealth as trustee.
We delineated the scope of this public trust in PEDF II: “The third clause of Section 27
establishes a public trust, pursuant to which the natural resources are the corpus of the
trust, the Commonwealth is the trustee, and the people are the named beneficiaries.”6
The purpose of the trust is the conservation and maintenance of Pennsylvania’s public
natural resources.7 The Commonwealth, as trustee, has the duty “to prevent and remedy
the degradation, diminution, or depletion of our public natural resources” and to act toward
the trust corpus with “prudence, loyalty, and impartiality.” 8 All proceeds from the sale of
4 71 P.S. § 1331 (repealed by Act 2017, Oct. 30, P.L. 725).
5 See Pennsylvania Envtl. Def. Found. v. Commonwealth, 255 A.3d 289, 314 (Pa.
2021) (“PEDF V”) (recognizing that the circumstances under which the trust is to be
administered are relevant to determining the intent of the settlors in creating the trust).
6 PEDF II, 161 A.3d at 931-32.
7 Id. at 935.
8 Id. at 932.
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trust assets remain part of the trust corpus.9 Trust assets can only be used for the trust
purpose of conservation and maintenance of the Commonwealth’s public natural
resources.
When the legislature created DCNR in 1995, it provided that “all moneys” paid into
the Lease Fund were appropriated directly to DCNR.10 Beginning in 2009, however, the
General Assembly enacted budgetary legislation that transferred money in the Lease
Fund to pay for government operations. In particular, Sections 1602-E and 1603-E
pertained to fiscal year 2009 and provided that money in the Lease Fund could only be
expended if it was first “appropriated or transferred to the General Fund by the General
Assembly,” or if it was part of an annual appropriation for DCNR of $50 million.
Additionally, those provisions required that preference be given not to conservation but
“to the operation and maintenance of State parks and forests.”11 In 2013, and again in
2014-2015, the General Appropriations Acts decreased the appropriation to DCNR from
the General Fund and simultaneously increased the appropriation to DCNR from the
Lease Fund. This resulted “in a larger portion of monies from the Lease Fund being used
to pay for DCNR’s operational expenses, which had previously been funded by the
General Fund, and thus reduced the amount of monies available for DCNR’s conservation
activities.”12
The ERA was implicated in a series of challenges brought by PEDF to these
budgetary enactments, all of which were premised upon the argument that using funds
generated by the environmental trust for non-trust purposes was unconstitutional. In
9 Id.
10 71 P.S. § 1333 (repealed by Act 2017, Oct. 30, P.L. 725).
11 72 P.S. §§ 1602-E-1603-E; see also PEDF II, 161 A.3d at 921-22.
12 PEDF II, 161 A.3d at 923; see also PEDF V, 255 A.3d at 294–95.
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PEDF II, we agreed that all royalties from oil and gas leases on State forest and park
lands must be returned to the trust corpus. Several years later, in PEDF V, this Court
further held that all income generated from such oil and gas leases must be returned to
the corpus to benefit the conservation and maintenance of the public natural resources
for all people as a matter of trust law.
These challenges to legislative appropriations that diminished the constitutional
trust established by the ERA indicated that using money in the Lease Fund for purposes
unrelated to the conservation and maintenance of public natural resources violated the
Commonwealth’s fiduciary duties. Applying trust principles, this Court struck down as
facially unconstitutional Sections 1602-E and 1603-E, concluding that “without any
question, these legislative amendments permit the trustee to use trust assets for non-trust
purposes, a clear violation of the most basic of a trustee’s fiduciary obligations.”13 In
reaching this conclusion, we observed that the legislative and executive branches had
restricted the allocation of Lease Fund monies to DCNR by using the Lease Fund to
support DCNR’s overall budget instead of funding DCNR from the Commonwealth’s
General Fund, the effect of which was to reduce the amount of money available for
conservation purposes.14
In our constitutional analysis, we repeatedly distinguished between DCNR’s
conservation activities and its general operations. For example, we observed that, “while
the Lease Fund Act requires that the funds generated by leasing be ‘exclusively used for
conservation, recreation, dams, or flood control,’” Section 1603-E “designates that
preference be given instead ‘to the operation and maintenance of State parks and
13 PEDF II, 161 A.3d at 938.
14 Id. at 925; see also PEDF V, 255 A.3d at 294-95.
[J-82-2021] [MO: Baer, C.J.] - 5
forests.’”15 We likewise compared DCNR’s “operational expenses” to its “conservation
activities,”16 and DCNR’s “overall budget” to its “conservation purposes.”17 In finding
Section 1603-E to be unconstitutional, we relied upon the legislation’s requirement that
DCNR “give preference to the operation and maintenance of State parks and forests” as
opposed to “conservation purposes.”18 While the latter priority aligns with the trust
purpose of conservation and maintenance of public natural resources, the former did not.
Because Sections 1602-E and 1603-E of the Fiscal Code prioritized Lease Fund assets
to pay for DCNR’s general operations, rather than conservation, it was unconstitutional.19
In PEDF V, the Court continued to distinguish “operation and maintenance” from
“conservation, recreation, dams, or flood control” as well as DCNR’s “overall budget” from
“conservation purposes.”20
PEDF’s present challenge is levied against, inter alia, Sections 1601 and 104(p)
of the General Appropriations Acts of 2017 and 2018, which appropriated funds from the
Lease Fund to pay for DCNR’s general operations. These provisions suffer from the
same constitutional defects identified in Sections 1602-E and 1603-E in PEDF II. Each
provision transferred trust assets from the Lease Fund to pay for DCNR’s general
15 PEDF II, 161 A.3d at 922.
16 Id. at 923.
17 Id. at 925 (observing that “the Legislature began using [Lease Fund] revenue to
support the overall budget of DCNR, rather than obtaining that budget money from the
[G]eneral [F]und and using [Lease Fund] money for conservation purposes related to oil
and gas extraction”) (quoting John C. Dernbach, The Potential Meaning of a
Constitutional Public Trust, 45 ENVTL. L. 463, 488 (2015)).
18 Id. at 937-38.
19 Id.
20 PEDF V, 255 A.3d at 294-95.
[J-82-2021] [MO: Baer, C.J.] - 6
operations. The budgetary appropriations challenged herein unconstitutionally
appropriate trust funds to pay for DCNR’s general operating expenses to the same extent
as former sections 1602-E and 1603-E. Under PEDF II, they should suffer the same fate.
Our analysis in PEDF II recognized that using trust assets to fund DCNR’s general
operations reduced the amount of money available to pay for conservation activities and
was inconsistent with the Commonwealth’s Section 27 trustee duties. The constitutional
obligation to conserve and maintain “implicates a duty to prevent and remedy the
degradation, diminution, or depletion of our public natural resources.”21 Using funds from
the trust corpus to fund DCNR’s general operations would deplete, degrade, and diminish
the very public natural resources DCNR is required to conserve and maintain. Under our
precedent, legislation that attempts to use the corpus of the environmental trust to fund
anything other than conserving and maintaining the corpus is unconstitutional.
The Majority reads PEDF II’s rejection of Sections 1602-E and 1603-E as being
premised upon the unrestricted transfer of trust assets to the General Fund, rather than
upon the use of trust assets to fund DCNR’s general operations.22 I disagree. Woven
throughout our constitutional analysis of these budgetary provisions is a repeated
distinction between DCNR’s conservation activities and its operational expenses. Our
constitutional holding flowed directly from our recognition of this distinction.
The Majority also deems the entirety of DCNR’s operational budget to amount to
the costs of administering the environmental trust, for which the use of trust assets is
permitted absent a showing that these costs “are unreasonable or that the DCNR has
21 PEDF II, 161 A.3d at 932.
22 Maj. Op. at 18, n.17.
[J-82-2021] [MO: Baer, C.J.] - 7
failed to act with prudence, loyalty, or impartiality.”23 Once again, I cannot agree.
Whether trust corpus can be used to pay for DCNR’s general operations would depend
upon whether the general operations are “necessary or appropriate to carry out the
purposes of the trust and are not forbidden by the terms of the trust.” 24 In PEDF II, we
described the challenged budgetary appropriations as decreasing the appropriation to
DCNR from the General Fund and increasing the appropriation from the Lease Fund to
DCNR, “resulting in a larger portion of monies from the Lease Fund being used to pay for
DCNR’s operational expenses, which had previously been funded by the General Fund,
and thus reduced the amount of monies available for DCNR’s conservation activities.” 25
Because those appropriations unconstitutionally used the trust corpus as a funding
source to offset decreases in appropriations to DCNR from the General Fund, they were
invalid under the ERA. Deeming the entirety of DCNR’s budget to be a reasonable cost
of trust administration today is therefore contrary to our holding in PEDF II to strike fiscal
code provisions that authorized the use of the Lease Fund to pay for DCNR’s general
operations.
The Majority shrugs away any tension between our reasoning in PEDF II and
today’s holding because the case sub judice presents a facial challenge. Accordingly,
the Majority explains, we do not have to determine which of DCNR’s responsibilities
qualify as trust purposes.26 I cannot agree. In relying upon this distinction, the Majority
overlooks the fact that PEDF II was also a facial challenge. This Court was able there to
23 Id. at 18.
24 Restatement (Second) of Trusts § 188 (1959); Maj. Op. at 16, n.15.
25 Id. at 923.
26 Maj. Op. at 17, n.16.
[J-82-2021] [MO: Baer, C.J.] - 8
examine the legislation, and we determined that it misappropriated trust corpus. The
same is true here.
More importantly, the Majority has inverted the analysis. Because PEDF is
bringing a facial challenge, this Court must address whether the challenged legislation
facially permits the depletion of trust corpus for non-trust purposes. To do so, we must
address what parts of DCNR’s general operations are or are not related to conservation.
If a portion of trust corpus is being diverted for non-trust purposes, then PEDF’s facial
challenge would be successful. In explicitly leaving open the possibility that trust corpus
will be spent on things unrelated to the conservation and maintenance of public natural
resources (which might then be struck down in an as-applied challenge),27 the Majority is
sanctioning the unconstitutional use of trust corpus for non-trust purposes. This we
cannot do.
In his concurring and dissenting opinion, Justice Dougherty opines that the
budgetary legislation challenged in this case is facially unconstitutional. In reaching this
conclusion, Justice Dougherty observes that DCNR’s responsibilities extend beyond
conservation, including managing the economic use of state forests, recreation, and
heritage conservation. To the extent that DCNR’s general operations are broader than
the trust purpose of conservation and maintenance of public natural resources, Justice
Dougherty believes that using trust corpus to fund these general operations is facially
unconstitutional.28 As explained herein, I agree. In particular, DCNR’s statutory duties
include managing state forest lands to assure their economic use.29 The statutory
directive to exploit the Commonwealth’s public natural resources for their economic use
27 See id. at 27.
28 Concurring and Dissenting Op. at 5 (citing 71 P.S. § 1340.101(b)(1)).
29 71 P.S. § 1340.101(b)(1).
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presents an obvious conflict with the constitutional obligation to use the trust corpus solely
to prevent the degradation, diminution, and depletion of these resources.
Using lease fund money to fund DCNR’s general operations is constitutional only
to the extent that general operations further the trust purpose of conservation and
maintenance of public natural resources. Because Sections 104(P) and 1601 reflect no
limitation on the use of trust corpus to fund DCNR, I would hold that they are facially
unconstitutional under PEDF II. With these budgetary appropriations, the Commonwealth
is deploying public natural resources to raise revenue and offset its obligation to fund
government operations. On this basis alone, I would hold that PEDF has lodged a
successful facial challenge.
The Commonwealth’s obligation to fund our government exists independently from
the Commonwealth’s duties as trustee. “From the perspective of the settlors, the ERA
was enacted when the Commonwealth was already devoting the revenues generated by
mineral leases to conservation purposes.”30 Redirecting those revenues to general
operations is inconsistent with the backdrop against which the ERA was enacted. A
trustee’s ability to use trust corpus to cover reasonable trustee expenses alleviates the
expenses associated with being trustee. It does not relieve the Commonwealth of its
independent obligation to fund government operations.
If the Commonwealth is permitted to use trust corpus to fund DCNR’s general
operations, then the public natural resources that the Commonwealth is obligated to
conserve and maintain are depleted, degraded, and diminished in order to fulfill the
Commonwealth’s obligation to fund the costs of government. The Commonwealth would
alleviate its funding obligation through its trustee duties, degrading the corpus of the same
trust it has the duty to conserve and maintain. In using the corpus of the trust to replace
30 PEDF V, 155 A.3d at 314.
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appropriations from the General Fund, the Commonwealth is failing to preserve the trust
corpus for the benefit of the people and to protect their rights “to clean air, pure water,
and to the preservation of the natural, scenic, historic and esthetic values” of the public
natural resources.31 It is inconsistent with the Commonwealth’s duty as trustee under the
ERA “to conserve and maintain” our public natural resources to deplete this trust corpus
to pay for DCNR’s general operating costs.32
Although I disagree with the Majority’s analysis of Sections 104(P) and 1601, I
observe that the Majority does not foreclose an as-applied challenge to budgetary
appropriations that are not necessary or appropriate to carry out the purpose of the trust. 33
Generally speaking, a trustee who seeks to encumber the trust with expenses incurred in
maintaining and administering the trust has the burden of justifying those expenses.34
Every expenditure must be made in accord with the terms of the trust itself.35 The
Commonwealth should not perceive a rejection of PEDF’s facial challenge as approving
of characterizing every expense associated with DCNR as a reasonable cost of
administering the trust.
31 PA. CONST. art. I, § 27.
32 Id.
33 Maj. Op. at 16 n.15.
34 See, e.g., In re Strickler's Estate, 47 A.2d 134, 135 (Pa. 1946) (“Where a fiduciary
claims credit for disbursements made by him the burden rests upon the fiduciary to justify
them. Proper vouchers or equivalent proof must be produced in support of such credits.”);
In re Union Real Estate Investment Co. First Mortgage 6% Gold Bonds Due July 1, 1941,
1 A.2d 662, 666 (Pa. 1938) (requiring a trustee to “justify every expenditure as a proper
one according to the terms of the instrument under which it is acting, or the power and
authority conferred upon it”); Mintz v. Brock, 44 A. 417 (1899) (providing that it is the duty
of the trustee to sustain the account of all moneys paid with regard to the business relating
to the trust).
35 Union Real Estate, 1 A.2d at 666.
[J-82-2021] [MO: Baer, C.J.] - 11
I recognize that the Lease Fund at issue today is not the same Lease Fund that
we evaluated in PEDF II. In particular, Section 1601.2-E(b) now establishes three funding
sources for the Lease 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(b).
The consequence of Section 1601.2-E(b), taken together with Sections 104(P) and
1601 of the General Appropriations Acts, is that trust corpus and non-trust corpus are
commingled in the Lease Fund, and that expenditures from the Lease Fund are being
made for trust and non-trust purposes alike. The use of non-trust corpus for non-trust
purposes, even if these funds pass through the Lease Fund, is of no moment to the ERA.
The ERA is violated when trust corpus is expended for non-trust purposes. To ensure
constitutional compliance, the Commonwealth, as trustee, is responsible for tracking
every dollar that constitutes trust corpus from the moment it is generated until the moment
it is spent on conservation. The Commonwealth, therefore, violates its fiduciary duties
under the ERA whenever it permits commingling without an accounting.36
There presently is no requirement to account for the source of dollars as they are
deposited into the Lease Fund under Section 1601.2-E(b), nor to identify the purpose for
which that money is spent under Sections 104(P) and 1601. Without such accounting,
36 See, e.g., 20 Pa.C.S. § 7780(a) (requiring a trustee to maintain “adequate records
of the administration of the trust”); id. § 7780(b) (requiring a trustee to “keep trust property
separate from the trustee’s own property”).
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the Commonwealth fails to ensure the constitutional collection and disbursement of
assets belonging to the trust. The Commonwealth presently is failing to account for the
origin of the assets in the Lease Fund, to account for how Lease Fund money is spent,
or to establish whether the expenses that the Commonwealth claims as a trustee are
reasonable. Indeed, as the Commonwealth conceded in the Commonwealth Court, under
the current state of the law, “it is not possible to identify the originating source of the total
monies in the Lease Fund on a particular day.”37
In the Commonwealth Court, PEDF sought a declaration that the Commonwealth
must maintain detailed accounting of monies in the Lease Fund and how the money is
used. Relying upon its own precedent in Pennsylvania Environmental Defense
Foundation v. Commonwealth, 214 A.3d 749 (Pa. Cmwlth. 2019), which this Court
reversed in PEDF V, the Commonwealth Court held that money classified as trust
principal must be spent on trust purposes, while money classified as income need not
comply with spending restrictions.38 By failing to account for money in the Lease Fund,
the Commonwealth was, according to the Commonwealth Court, neglecting its fiduciary
duties. To remedy this breach, the Commonwealth Court imposed an accounting
obligation to ensure that trust assets—which, at that time, was understood solely as trust
principal—are being used constitutionally.
The Commonwealth does not rely upon the current configuration of the Lease
Fund to save Sections 104(P) and 1601. Nor could the Commonwealth make such an
argument without an accounting to support it. Rather, like the Majority, the
37 Pennsylvania Env. Defense Found. v. Commonwealth, 358 M.D. 2018, 2020 WL
6193643, *17 (Cmwlth. Ct. Oct. 22, 2020).
38 Id. at *17.
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Commonwealth argues that it is entitled to use the Lease Fund to pay for DCNR’s general
operations as a trustee expense related to conservation.
I am not convinced that the change wrought in the Lease Fund by Section 1601.2-
E(b) warrants a departure from PEDF II. The 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. The
extent to which we can evaluate the constitutionality of Lease Fund expenditures depends
upon the Commonwealth’s adherence to its constitutional duty as fiduciary to maintain
accurate accounts of money flowing into and out of the Lease Fund, an obligation with
which the Commonwealth has made no effort to comply.39
The possibility that only non-trust corpus in the Lease Fund is being expended
upon DCNR’s non-conservation activities is not plausible. As developed in the
Commonwealth Court below, of the funds available in the Lease Fund to pay the
$61,291,000 appropriated for DCNR’s annual budget in 2017-2018, eighty-five percent
was derived from royalties paid under state forest oil and gas leases, and another fourteen
percent was derived from bonus and rental payments paid under those leases.40 This
39 I disagree with Justice Donohue that the lack of a statutory accounting obligation
is irrelevant to the statute’s constitutionality. See Concurring Op. (Donohue, J.), at 9, n.3.
Unlike a constitutional equal protection challenge, a challenge to the constitutionality of a
statute under the ERA implicates the Commonwealth’s fiduciary duties “to act toward the
corpus of the trust—the public natural resources—with prudence, loyalty, and
impartiality.” PEDF II, 161 A.3d at 932. Indeed, in PEDF II, we observed that, “if proceeds
are moved to the General Fund, an accounting is likely necessary to ensure that the funds
are ultimately used in accordance with the trustee's obligation to conserve and maintain
our natural resources.” Id. at 939. Because the legislation at issue in this case facially
requires no accounting, it shifts the cost burden for enforcing the Commonwealth’s
constitutional fiduciary duties to third parties who must then find and spend funds and
other resources needed to challenge the legislation in court. This is a facial violation of
the Commonwealth’s fiduciary duties.
40 Section 104(P) of the General Appropriations Act of 2017 directed transfers from
the Lease Fund to named agencies “for the payment of salaries, wages or other
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means that ninety-nine percent of the Lease Fund was trust corpus. In 2018, the
Commonwealth appropriated $48,798,000 from the Lease Fund to pay for DCNR’s
annual budget which, again, was almost all derived from oil and gas leases. Considering
the non-conservation purposes to which this money is put (as developed herein as well
as in Justice Dougherty’s Concurring and Dissenting Opinion), it is not plausible that trust
fund corpus is not being expended for non-trust purposes.41
To the extent that Justice Donohue believes that the Commonwealth Court’s order
directing the Commonwealth to maintain accurate accounts saves the budgetary
legislation from facial unconstitutionality, I cannot agree. First, the legal foundation of the
Commonwealth Court’s order is shaky at best, tied as it is to a prior Commonwealth Court
decision that this Court reversed in PEDF V. Second, the scope of the Commonwealth
Court’s order is unclear. When must the Commonwealth comply with the directive to
provide an accounting? Is this a routine obligation, or is it dependent upon a third party
challenge to particular disbursements? Is it prospective, or does it relate to the 2017 and
2018 budgetary legislation? Assuming that the obligation applies to the present dispute,
the Commonwealth already has indicated that it is impossible for it to know from one day
to the next the source of money in the Lease Fund. We cannot in good faith uphold
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…”
Section 1601 of the General Appropriations Act of 2017 provided for the following
expenditures from the Lease Fund to DCNR: $50,000,000 for general operations,
$7,739,000 for state park operations, and $3,552,000 for state forest operations.
41 Although, as Justice Donohue observes, DCNR’s entire budget exceeded the
transfers from the Lease Fund, see Concurring Op. (Donohue, J.), at 11, n.7, there is no
limitation on the face of the legislation that limits the use of trust corpus to trust purposes.
In this respect, I agree with Justice Dougherty that the legislative transfers from the Lease
Fund in this case are facially unconstitutional to the same extent as the provisions we
struck down in PEDF II and PEDF V. See Concurring and Dissenting Op. at 12.
[J-82-2021] [MO: Baer, C.J.] - 15
legislation of apparent unconstitutionality by relying upon an unpublished, unappealed
intermediate appellate court order premised upon reversed precedent with which the
Commonwealth believes it cannot comply.
Third, attempting to save the challenged legislation from a facial challenge by
linking the statutes to the Commonwealth Court’s order implicitly recognizes that the
statutes, on their face, clearly, plainly, and palpably violate the constitution. The statutes
as they stand do not comport with the constitutional fiduciary requirement of an
accounting.
Fourth, in rejecting the present facial challenge, the Majority and Justice Donohue
favor shifting any claims of unconstitutionality to as-applied challenges based upon
whatever accounting the Commonwealth believes it must comply. This is untenable. The
ERA imposes fiduciary obligations upon the Commonwealth of constitutional magnitude.
These obligations make the Commonwealth accountable, as trustee, to track and disclose
every dollar of trust corpus. Without this obligation appearing on the face of the legislation
itself, Section 1601.2-E(b)cannot withstand constitutional scrutiny. Rejecting this facial
challenge shifts to third parties such as PEDF the expense and burden of sifting through
the Commonwealth’s accounting in order to lodge as-applied challenges to particular
disbursements. Relying upon third parties to monitor the Commonwealth’s compliance
with its constitutional obligations is no substitute for judicial review of unconstitutional
statutes.
The result of the Majority’s analysis is the unavoidable degradation, diminution,
and depletion of the constitutional trust corpus. Because trust assets return to the trust
corpus and cannot be used for non-trust purposes, I dissent from Parts III.A, III.D, and IV
of the Majority Opinion. I join Parts I, II, III.B, III.C, and III.E.
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