Environmental Rights; Justiciability
Pennsylvania Environmental Defense Foundation v. Commonwealth, – A.3d –, 2021 WL 5227124 (Nov. 21, 2021), original jurisdiction, appeal docket 65 MAP 2021
This case comes before the Supreme Court for the third time. In PEDF I, the Supreme Court remanded the case to Commonwealth Court to determine the constitutionality of the Commonwealth’s transfers of the payments from the Oil and Gas Lease Fund to the General Fund to pay for general government operations. In PEDF II, the Supreme Court again remanded the case to Commonwealth Court after holding that all the amounts the state received when it leased state lands for oil and gas development had to be appropriated to conservation and protection of public natural resources. Now, in PEDF III, the Supreme Court will consider whether PEDF’s amended petition for review in Commonwealth Court asking for the return of $1.3 billion in state forest drilling revenue to DCNR’s Oil and Gas Lease Fund in compliance with the Supreme Court’s decision was properly dismissed for failure to raise a controversy that is ripe for review and to state a cognizable claim for mandamus. As Commonwealth Court summarized:
It is the Foundation’s position that, as demonstrated throughout the [2016 State Forest Resource Management Plan (SFRMP)], DCNR has been and is continuing to violate its fiduciary duties, under the ERA with respect to its management and administration of our State Forests’ natural resources, and it asks us to make various declarations to this effect. The Foundation also asks us to compel DCNR to amend the 2016 SFRMP to ensure that DCNR manages State Forests’ natural resources consistent with its trustee duties under the ERA.
Slip op. at 8-9. Commonwealth Court concluded that “the amended petition for review fails to raise a controversy that is ripe for review because the Foundation has not alleged that DCNR has committed a concrete government act triggering rights or remedies of an affected party that can be reviewed by this Court,” reasoning that:
Undeniably, the 2016 SFRMP discusses the economic benefits to the Commonwealth of State Forest products. In the section of the 2016 SFRMP titled “Timber and Forest Products,” the 2016 SFRMP states that “timber and other forest products on [S]tate [F]orest lands are managed to promote and maintain desired landscape conditions and provide sustainable social and economic benefits to the [C]ommonwealth.” (2016 SFRMP at 8.) The 2016 SFRMP also explains that
Pennsylvania’s [S]tate [F]orests contain an abundance of high-quality forest products, an integral part of the materials base of the [C]ommonwealth’s $19 billion per year forest products industry, which employs nearly 58,000 people. Both Pennsylvania’s consumers and the general economy benefit from this regionally important supply of forest products, including timber. Timber sales generate significant revenue for the [C]ommonwealth. From 2008 to 2014, Pennsylvania received income from timber sales averaging approximately $22.5 million per year.
Id. at 9.
It further explains that Pennsylvania’s State Forests have been leased for valuable oil and gas reserves since 1947. Id. at 14. In 2009, shale-gas development began on State Forest lands. Id. at 12. According to the 2016 SFRMP, subsurface geologic resources are managed to provide long-term benefits to Commonwealth citizens while adhering to the principles of ecosystem management. Id. at 13. The 2016 SFRMP reports that [t]he forest lands also provide economic benefits to the [C]ommonwealth through leasing for natural gas development, supplying approximately $100 million in annual revenues to the [C]ommonwealth from lease agreements and gas royalties, and additionally contributing to local communities.
Id. at 20.
Contrary to the Foundation’s view, these statements in and of themselves are simply not actionable. In fact, the Supreme Court in PEDF recounted similar facts. See PEDF, 161 A.3d at 919-21. Aside from these statements, which basically recount the state of affairs before PEDF was decided, the Foundation does not cite any instances where DCNR is, at present, using money from the extraction and sale of State Forests’ oil and natural gas for purposes other than conserving and maintaining the public natural resources of our State Forests. Finding a constitutional violation based on statements in the 2016 SFRMP, without reference to any particular action on the part of DCNR, would take us into the realm of speculation and conjecture.
Accordingly, because the Foundation has failed to articulate any imminent injuries occasioned by adoption of the 2016 SFRMP, and has failed to anchor its amended petition for review on any particular action taken by DCNR, we must conclude that the matter is not ripe, and no controversy is present that could permit us to enter a declaratory judgment. Our disposition should not be understood to foreclose the possibility that a claim under the ERA might ripen if DCNR implements its forest resources plan in a manner which violates the ERA. Should the Foundation find that a definite course of action or inaction on the part of DCNR is objectionable, there may be no impediment to judicial review at that time.
Slip op. at 29-30. Moreover, insofar as PEDF’s amended petition included declarations regarding legal validity, the court concluded that such declarations “would be in the abstract, and thus, an impermissible advisory opinion.” Slip op. at 32.
Finally, the court found that PEDF failed to state a cognizable claim for mandamus, concluding that:
The Foundation seeks to compel DCNR to amend the 2016 SFRMP in the ways outlined in the amended petition for review. However, the Foundation does not have a clear right to such relief. It points to no legislative enactments or regulatory provisions, and we have found none, that mandate DCNR to develop and maintain a forest resource management plan in the first place. Because the Foundation seeks to compel DCNR to do something it is not mandated to do, mandamus will not lie, and we sustain DCNR’s preliminary objections as to the mandamus claims.
Slip op. at 33.