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Fractivists Use Pennsylvania Supreme Court As Weapon

delaware riverkeeper - Jim Willis reports

Jim Willis
Editor & Publisher, Marcellus Drilling News (MDN)

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Fractivists have succeeded (barely) in employing the Pennsylvania Supreme Court as a weapon of obstruction against natural gas development in the Commonwealth.

As they so often do, radical environmentalists are creating chaos and confusion; this time in Pennsylvania. As MDN reported, earlier this week the Pennsylvania Supreme Court, in a sharply divided 3-2 decision, sided with a virulent anti-drilling group, the Pennsylvania Environmental Defense Foundation, against the state in saying that any revenue generated from leasing and drilling on state-owned land MUST be used solely for conservation and the environment. The aim of the PA EDF is to disrupt Marcellus Shale drilling by any means necessary. This is one of those means.

Pennsylvania Supreme Court

The three liberal justices who rendered the decision (trial-lawyer-supported Christine Donohue authored the opinion) say the law is clear on intent that money raised from leasing state-owned lands for drilling must be used for environmental purposes. Now the PA EDF is arrogantly telling the State of Pennsylvania that the money raised from drilling can’t be used for general operating expenses of the Dept. of Conservation and Natural Resources (DCNR) — the very organization that oversees the state lands and is in charge of said leasing.

In the upcoming budget, due to be ratified by June 30th, PA Gov. Tom Wolf and the legislature had planned to use $100 million from the lease and royalty fund to “pay for DCNR’s daily operations or be transferred to another fund for statewide environmental and infrastructure projects.” But in an ominous threat, the EDF lawyer said spending money on DCNR operations “doesn’t comply with the court opinion on how the funds can be used.” Which begs the question: What in the world CAN you spend the $100 million raised from royalties and lease fees on?

In Gov. Tom Wolf’s proposed budget for the fiscal year that starts in July, roughly $100 million from oil and gas rents and royalties in the Oil and Gas Lease Fund was to pay for DCNR’s daily operations or be transferred to another fund for statewide environmental and infrastructure projects.

The House budget bill passed in April matched the governor’s proposal in terms of how much to transfer out of the lease fund for park and forest operations.

The Legislature and Wolf administration have a June 30 deadline to come to a budget agreement and already have significant disagreements about how to pay for the roughly $31.8 billion they expect to spend next fiscal year.

Aides to Senate Republican leaders have said they expect the Supreme Court decision to have minor, if any, budget ramifications because money from the lease fund will still be spent to support DCNR.

A spokesman for Mr. Wolf said the court decision is still under review.

But John Childe, an attorney for the Pennsylvania Environmental Defense Foundation, which won the Supreme Court case, said spending state forest drilling royalties on DCNR operations “doesn’t comply with the court opinion on how the funds can be used.”

He said the Legislature faces two obstacles if it wants to continue to use oil and gas money, instead of the state’s general budget fund, to pay for DCNR’s operations: the Supreme Court voided the specific provision that gave the General Assembly authority to move money out of the lease fund and it required gas royalties from public lands to be spent on conserving and maintaining public natural resources.

He could not say whether the foundation will object to the funding transfer if budget planners go through with it. “My client hasn’t decided that,” he said.*

Since when does the PA EDF get to decide exactly how the state will spend the money it raises? You may say, “But isn’t that what the lawsuit was about? What the state can and cannot spend that money on?” The lawsuit decision was quite narrow–what the state can’t spend its money on–it can’t spend it on non-conversation and non-environmental purposes. The DCNR is the state agency dedicated to conservation and environmental issues in the state. That is it’s mission. Everything it does, by definition, furthers that cause.

Let’s look at the Oil and Gas Lease Fund Act in its entirety, the very Act at the center of the lawsuit:

§ 1331. Source and use of fund

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”
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.

§ 1332. Need for and location of projects; acquisition of lands

It shall be within the discretion of the Secretary of Forests and Waters to determine the need for and the location of any project authorized by this act. The Secretary of Forests and Waters shall have the power to acquire in the name of the Commonwealth by purchase, condemnation or otherwise such lands as may be needed.

§ 1333. Appropriation

All the moneys from time to time paid into the “Oil and Gas Lease Fund” are specifically appropriated to the Department of Forests and Waters to carry out the purposes of this act. 71 P.S. §§ 1331-1333. As noted infra, the Department of Forests and Waters has been replaced by the Pennsylvania Department of Conservation and Natural Resources (DCNR) for purposes of the Lease Fund Act, see 71 P.S. § 1340.304(c).

How can DCNR administer conservation and environmental programs without paying salaries and expenses (i.e. general operating expenses) to run the very conservation and environmental programs the EDF professes to support in their lawsuit? To deny the DCNR the right to use lease/royalty money to fund the agency itself is bizarre. And now these wackos are holding the lawsuit victory like a gun to the head of the state–“You do what we say and what we want, or we’ll run back to the court.”

Editor’s Note: One need only check out the PA EDF web page to see Jim’s characterization of them as radicals in exactly correct. Their home page is one unending diatribe against natural gas development. The organization, which apparently consists largely of one lawyer, is supported by groups ranging from Pennsylvania Trout Unlimited (heretofore much more balanced in its approach) to the Google funded Responsible Drilling Alliance.

Many want the money spent on their projects and on the Growing Greener environmental slush fund, which has been used to support one radical environmental initiative after another, including groups who regularly sue the Commonwealth. Now the Pennsylvania Supreme Court has become their fractivist tool, using Pennsylvania’s environmental amendment as a club on their behalf. It’s a disgusting abuse of the system, akin to insider trading.

A lawyer friend wrote to me after the decision with the following observations:

This case can cause litigation that goes all the way up to the Supreme Court of the United States.  It ultimately leads back to a takings issue.  It also holds a whole host of other contradictions that will be litigated.  For example, take a look at page 29.  When setting forth Article 1, Section 27, the language itself and the Court’s explanation use the term “esthetic.” If “esthetic” is a right that protestors can use by and through a private action based on that PA constitutional right, then the whole body of zoning case law that says esthetics do not give you standing in court is out the window.   This whole idea that PADEP is not the entity that protects the Commonwealth’s citizens’ rights as set forth in Art. 1, Sec. 27 is nonsense. Every citizen should not get to be an uber-regulator and be allowed to bring an action based on their general rights to clean air and water so that the proprietor of any business must answer to the protestor/citizen in addition to the PADEP.   As you can see, this issue, once again, reverts back to the property rights and how they are under attack in this state and in this country. 

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7 thoughts on “Fractivists Use Pennsylvania Supreme Court As Weapon

  1. Huh? The EDF’s mission is what again now? Sorry but Mr Willis is adding to the mess and chaos that surrounds this issue because the very last thing anyone needs right now is to read more misinformation.

    By the way it looks like the NY DEC is mentioned in relation to this current bill about the pipeline permitting process.

    http://www.naturalgasintel.com/articles/110880-industry-backed-house-bill-streamlining-natgas-pipeline-reviews-advances

  2. https://www.edf.org/energy/oil-and-gas-policy

    Oh sorry. I thought Jim was talking about edf, which might be one of the few environmental organizations out there right now that is not fighting natrual gas. Thats quite a big change in the last 5 years. Never heard of this other group pedf.

    The breakthrough insitution folks also are some people who are not antifracking and anti natrual gas. That might be it though.

    Sierra club, nrdc, Greenpeace, friendsofearth, earthworks, food and water watch, biodiversity folks etc and on it goes…all are either for a ban on fracking everywhere or in some way part of the antifracking pipeline resistance movement. In NY Audubon groups were even promoting the port Ambrose lng export conspirafy theory and that was because of fracking.

  3. Fracktivists and concerned citizens seek Justice and found some…thank you Supreme Court..
    Your continued name-calling and defaming of concerned citizens and groups just weakens your case…
    I learned that the hard way…

    • Found justice? Why would you not want lease money from state owned land be sent back to the PA agency that manages that land? Keep visiting those NYS parks and just move up there too. Your “complaints” are hollow anymore in the Commonwealth

    • I really think they should stop drilling, lay off all the people involved in drilling and fracking in PA. Plug the wells or sell the shares to the state. Elimante those nasty pipelines and leave the great state of PA to themselves. I’m sure your state can survive on all the talent you have hanging out in all the major money making corporations shoveling. Money into you state coffers. Get real. Stop the stupidity. You people are dumb. Maybe the forks using horse and carriages in your state see it coming. They can survive without energy can you idiots in town. What great victory…….

  4. http://www.roanoke.com/news/politics/northam-still-feeling-the-heat-from-anti-pipeline-activists/article_00e386b9-23d4-5dd9-9ee8-3e5ff3ce8f2f.html

    Hmm. Looks like yet another piece of news about politics and a natural gas pipeline. Imagine that.

    One wonders why there has never been a news story about the antifracking pipeline resistance movement when there are and have been so many individual stories in the news about all kinds of “resisted” pipelines?

  5. Fake News Alert!!!

    First, it was not a “sharply divided 3-2 decision.” I don’t know how one could possibly miss this basic fact, but here we are (it was actually a 5-1 decision). See below for a reasonably accurate description of the decision.

    http://www.jdsupra.com/legalnews/pennsylvania-supreme-court-completes-85897/

    This post also somehow manages to miss the most significant consequence of the case, which is that the Court rejected the Payne v. Kassab balancing test. This is important because this test has largely acted to limit the applicability of the Environmental Rights Amendment in cases brought before the Environmental Hearing Board and the State Courts.

    Also, with regard to the purported lawyer’s comment in the Editor’s Note, the consistent use of the word “esthetic” erodes his/her credibility a bit considering that the word is spelled “aesthetic” in the context of environmental legal jurisprudence. This is environmental law, not skincare.

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