Landmark Pennsylvania case curbs governor’s power to OK fracking

Source: DollarPhotoClub

In a landmark ruling, Pennsylvania’s Commonwealth Court decided on Wednesday that the governor does not have the right to overrule decisions made by the Department of Conservation and Natural Resources about whether to lease state lands for oil and gas development.

At the same time it found that the state Legislature is within rights to use proceeds from oil and gas production on state forest lands for general state budget purposes.

The case was launched in March 2012 by the Pennsylvania Environmental Defence Foundation which argued that hundreds of millions of dollars generated by oil and gas leases on state land should be used exclusively for conservation of state lands, and contested the Legislature’s use of revenue from those leases to help balance Pennsylvania’s budgets.

In 2009 alone, the Legislature transferred $143 million in lease revenue from the fund to help balance the state budget, as well as channelled millions of dollars in lease fund money to pay for DCNR’s operations.

In an opinion written by Judge P. Kevin Brobson he explained that “there is no constitutional mandate that monies derived from the leasing of state lands for oil and natural gas development be reinvested into the conservation and maintenance of the commonwealth’s public natural resources.”

Commonwealth Court also turned aside the foundation’s argument that the state has underfunded DCNR in violation of the law. The group presented no evidence that DCNR”s funding is inadequate, the judges found.

The judges declined to address the foundation’s challenges to lease sales from 2008 and 2010 due to lack of jurisdiction.

At the same time the Court did not uphold Gov. Corbett’s contention that governors have the authority to override DCNR decisions regarding the awarding or denial of leases.

“This is not to say that the Governor, as the chief executive, and the General Assembly are precluded from attempting to influence DCNR’s leasing decisions,” Judge Brobson wrote. But based on the 1995 Conservation and Natural Resources Act, “the ultimate decision lies exclusively with DCNR, and DCNR, therefore, is accountable for making the decision to lease and, if challenged, justifying it.”

The Commonwealth Court’s decision is not final as both parties can appeal it to the state Supreme Court, although it is not likely that an appeal will be lodged by Mr Corbett’s legal team. Patrick Henderson, Mr. Corbett’s top energy adviser, said the administration’s lawyers are still reviewing the opinion, but he called the decision “a very resounding victory for the authority of both the executive and the legislative branch.”

“We’re appreciative, pleased, but not surprised with the ruling simply because we’ve always believed that this was a matter of policy choices, and it was clearly permissible under both the statute and the constitution,” he said.

John Childe, an attorney for Pennsylvania Environmental Defense Foundation, on the other hand has already stated that he will appeal the decision of the Court.

“I’m disappointed the court refused to deal with the basic constitutional questions that I raised,” he told The Pittsburgh Post Gazette.

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