The Pennsylvania Supreme Court has rejected the long-standing test for analyzing claims brought under Article I, Section 27 of the Pennsylvania Constitution, commonly known as the Environmental Rights Amendment (ERA). In its June 20, 2017 decision in Pennsylvania Environmental Defense Foundation (PEDF) v. Commonwealth, the Supreme Court set aside the test from Payne v. Kassab that has been used since 1973, and held that the Commonwealth’s oil and gas rights are “public natural resources” under the ERA and that any revenues derived from the sale of those resources must be held in trust and only expended to conserve and maintain public natural resources.
The Supreme Court’s opinion in PEDF is an important step in the ongoing judicial re-examination of the ERA. However, the impact of the Court’s decision on environmental and land use issues beyond the relatively narrow facts of this case remains unclear.
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The Pittsburgh Post-Gazette reports that Pennsylvania Governor-Elect Tom Wolf has announced the nominations of individuals to head some of the state agencies. He announced the nomination of John Quigley, who served as the Secretary of the Department of Conservation and Natural Resources under Governor Rendell, to be Secretary of the Department of Environmental Protection. The Governor-Elect also announced Cindy Dunn to serve as Secretary of the Department of Conservation and Natural Resources. The Governor-Elect expects to have a full Cabinet announced by the time he is sworn in on January 20th.
As reported by Law360, Representative Rick Mirabito, D-Lycoming, recently introduced House Bill 2318, which, if passed into law, would require the Pennsylvania Department of Conservation and Natural Resources to provide notice and require public input before leasing state forest lands for unconventional gas development. Specifically, the bill provides for a public comment period and at least one public hearing or meeting before any land could be leased by the DCNR. In addition, the public would have access to detailed development plans, including locations of well pads, impoundments, access roads, pipelines, compressor stations and other related structures and facilities, during the comment period. The DCNR would also have to provide an analysis of potential impacts of the proposed development on ecological, recreational, cultural and aesthetic resources.
Earlier this week, the Senate of Pennsylvania unanimously confirmed Ellen Ferretti as Secretary of the Department of Conservation and Natural Resources (DCNR), and in a 42-8 vote, also confirmed Chris Abruzzo as Secretary of the Department of Environmental Protection (DEP). Abruzzo’s background is mainly in prosecution but he also worked as Deputy Chief of Staff to Governor Corbett and in the drug enforcement section of the Pennsylvania Attorney General’s office. Ellen Ferretti previously served as DCNR’s Deputy Secretary for Parks & Forestry and has worked on environmental issues both in and out of government. Both nominees have already been serving in their respective positions; Abruzzo since April, and Ferretti since June.
On September 20th, Governor Corbett announced that he nominated Ellen Ferretti of Luzerne County as Secretary of the Department of Conservation and Natural Resources (DCNR) and E. Christopher Abruzzo of Dauphin County as Secretary of the Department of Environmental Protection (DEP). Ms. Ferretti had been serving as deputy secretary for parks and forestry until she was named interim secretary of the DCNR in June. Mr. Abruzzo was serving as Governor Corbett’s deputy chief of staff until he was appointed interim secretary of the DEP in April. The Pittsburgh Post-Gazette reports that both nominations will be subject to state Senate approval.
On March 8, 2013, Pennsylvania State Representative Greg Vitali (D-Delaware County) introduced legislation, House Bill 950, to permanently ban Marcellus Shale leasing on “lands owned and managed by the Department of Conservation and Natural Resources” (DCNR). In 2010, then-Governor Ed Rendell imposed by executive order a moratorium on additional leasing of state forests for drilling. Vitali said his legislation is needed because Governor Tom Corbett could lift the Rendell moratorium at any time. According to Vitali’s press release, House Bill 950 would not affect drilling on private land, nor would it prevent drilling on the more than 700,000 acres of state forest already available for drilling.