Ron Evans | Corbett ignoring environmental duty

May 20, 2014 

Does the governor have the right to break the law? Absolutely not.

Two years ago, Pennsylvania Environmental Defense Foundation attorney John Childe went straight to the top, bringing legal action against Gov. Tom Corbett for his failure to protect state lands against the destructive impacts of the Marcellus Shale gas industry. Childe declared that the governor violated not only Article I, Section 27 of the state constitution but also the Conservation and Natural Resources Act and the Oil and Gas Lease Act.

Article I, Section 27 of the state constitution states “The people have a right to clean air, pure water, and to the natural, scenic, historic, and aesthetic values of the environment. ... As trustee of these resources, the (c)ommonwealth shall conserve and maintain them for the benefit of all the people.”

These words are more than a statement of policy. They create a legally enforceable duty of the governor to protect our environment.

This was confirmed by the recent plurality opinion of the state Supreme Court regarding Act 13. That decision is very powerful guidance for the Commonwealth Court when it rules on PEDF’s current legal action against Corbett.

Another important part of the Supreme Court’s Act 13 opinion requires that each branch of government, before proceeding on an action that might affect constitutionally protected interests, must consider the environmental effects.

Realizing the ruinous punch of the 700,000 acres of state forest lands leased, DCNR performed a landmark study that determined all remaining state lands were too environmentally sensitive to be leased. Then-Gov. Ed Rendell subsequently issued an executive order creating a moratorium against additional leasing.

Recently, Corbett proposed to rescind that drilling moratorium and force DCNR to issue additional gas leases for both state park and state forest lands. Childe has updated PEDF’s original challenge to Gov. Corbett to include this new violation.

The Oil and Gas Lease Act mandates that money from the leasing of state lands be set aside in the Oil and Gas Lease Fund for the stewardship of our public lands. Over $400 million of this money has already been illegally transferred out of the Oil and Gas Lease Fund and diverted to the general budget. And Corbett wants to misappropriate $192 million more for fiscal year 2014-15.

With the Act 13 reversal, Pennsylvania’s Supreme Court has determined the governor and the General Assembly are not above the law. Hopefully, it will continue to determine that the environmental rights of the people, as guaranteed by the state constitution and supported by other legislative mandates, prevail.

The people spoke when they voted overwhelmingly 43 years ago to ratify Article I, Section 27. Ever since then, every elected public official in Pennsylvania has sworn to uphold our constitution.

Corbett took that oath Jan. 17, 2011. Now, because the governor has ignored his sworn oath to uphold the state constitution, PEDF is using the power of the courts to hold him accountable for his actions. If our governor’s illegal actions are not stopped by the courts, they are most certain to continue, if not escalate.

Our constitutional right to clean air and water is far from over.

While all Commonwealth Court decisions to date have been in PEDF’s favor, this case will determine the future of all our state lands.

Legal action is not cheap, but it is effective and cannot be ignored.

PEDF’s track record is outstanding. Of the past 126 legal actions initiated, Childe has won 96 percent for this statewide nonprofit that operates solely with volunteers and allocates nearly all of its funds to litigation.

Ron Evans is president of the Pennsylvania Environmental Defense Foundation in Bellefonte. He can be contacted at revans@consultmchugh.com

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