pa env. defense foundation v. com. 911

911Pa.PA ENV. DEFENSE FOUNDATION v. COM.Cite as 161 A.3d 911 (Pa. 2017)

accident, the MVRs’ record of the stepsthe officers took, the persons they spokewith, and the state of the scene they en-countered became a record related to thatinvestigation. The exercise engaged in bythe Commonwealth Court and the Majori-ty to determine what was actually used orrelied upon from that record to file theinstant citations creates an additional re-sult-related element to the language ofSection 67.708(b)(16)(ii)’s exception. I dis-cern nothing in the plain language of Sec-tion 67.708(b)(16) that makes the questionof whether a record is related to a criminalinvestigation dependent on the results ofthat investigation.

For these reasons I conclude that theMVRs at issue in this case are, in theirentirety, related to the criminal investiga-tion conducted by the troopers at the acci-dent scene, and are not amenable to re-daction. Accordingly, I would reverse theorder of the Commonwealth Court to theextent it directed release of the redactedvideo portions of the MVRs. I respectfullydissent.

,

PENNSYLVANIA ENVIRONMENTALDEFENSE FOUNDATION,

Appellant

v.

COMMONWEALTH of Pennsylvania,and Governor of Pennsylvania, TomWolf, in his official capacity as Gover-nor, Appellees

No. 10 MAP 2015

Supreme Court of Pennsylvania.

ARGUED: March 9, 2016DECIDED: June 20, 2017

Background: Environmental organizationbrought declaratory judgment action

against Commonwealth, challenging, underthe Environmental Rights Amendment,the constitutionality of budget-related deci-sions that resulted in additional oil-and-gaslease sales. The Commonwealth Court, No.228 MD 2012, 108 A.3d 140, granted sum-mary relief to Commonwealth. Organiza-tion appealed.

Holdings: The Supreme Court, No. 10MAP 2015, Donohue, J., held that:

(1) laws that unreasonably impair theright to clean air, pure water, and envi-ronmental preservation are unconstitu-tional, rejecting Payne v. Kassab, 11Pa.Cmwlth. 14, 312 A.2d 86;

(2) proceeds from the sale of oil and gasfrom the public trust remain in thecorpus of the trust;

(3) assets of the natural resources trustare to be used only for conservationand maintenance purposes;

(4) appellate record was not sufficientlydeveloped to conclude whether all rev-enues generated by leases remained incorpus of trust;

(5) public trust provisions of the Environ-mental Rights Amendment are self-ex-ecuting; and

(6) statutory provisions relating to royal-ties are facially unconstitutional.

Reversed in part, vacated in part, andremanded.

Baer, J., concurred in part, dissented inpart, and filed opinion.

Saylor, C.J., filed dissenting statement.

1. Administrative Law and ProcedureO683

When reviewing the CommonwealthCourt’s decision on cross-motions for sum-

912 161 ATLANTIC REPORTER, 3d SERIESPa.

mary relief, the Supreme Court may grantrelief only if no material questions of factexist and the right to relief is clear. Pa.R. App. P. 1532(b).

2. Appeal and Error O893(1)As challenges to the constitutionality

of statutes present pure questions of law,the standard of review is de novo, and thescope of review is plenary.

3. Constitutional Law O990, 1030As with any constitutional challenge to

legislation, the challenger bears the heavyburden of demonstrating that the statuteclearly, plainly, and palpably violates theConstitution, as courts presume that theirsister branches act in conformity with theConstitution.

4. Constitutional Law O591, 592In interpreting constitutional lan-

guage, the fundamental rule of construc-tion is that the Constitution’s languagecontrols and must be interpreted in itspopular sense, as understood by the peoplewhen they voted on its adoption.

5. Constitutional Law O603, 604 Statutes O1184, 1242

As with the interpretation of statutes,if the language of a constitutional provisionis unclear, a court may be informed by theoccasion and necessity for the provision,the circumstances under which the amend-ment was ratified, the mischief to beremedied, the object to be attained, andthe contemporaneous legislative history. 1Pa. Cons. Stat. Ann. §§ 1921, 1922.

6. States O21(2)The General Assembly derives its

power from Article III of the state consti-tution which grants broad and flexible po-lice powers to enact laws for the purposesof promoting public health, safety, morals,and the general welfare. Pa. Const. art. 3,§ 1 et seq.

7. States O21(1)

The powers of the General Assemblyare expressly limited by fundamentalrights reserved to the people. Pa. Const.art. 1, § 1 et seq.

8. Environmental Law O4

The Environmental Rights Amend-ment places a limitation on the state’spower to act contrary to the right to cleanair, pure water, and to the preservation ofthe values of the environment, and whilethe subject of this right may be amenableto regulation, any laws that unreasonablyimpair the right are unconstitutional; re-jecting Payne v. Kassab, 11 Pa.Cmwlth.14, 312 A.2d 86. Pa. Const. art. 1, § 27.


Under the Environmental RightsAmendment, the ‘‘public natural re-sources’’ that are the common property ofall the people, including future genera-tions, include the state forest and parklands leased for oil and gas explorationand the oil and gas themselves. Pa. Const.art. 1, § 27.


The Environmental Rights Amend-ment establishes a public trust, pursuantto which the natural resources are thecorpus of the trust, the Commonwealth isthe trustee, and the people are the namedbeneficiaries. Pa. Const. art. 1, § 27.


Trustee obligations under the Envi-ronmental Rights Amendment are notvested exclusively in any single branch ofthe Commonwealth’s government, and in-stead all agencies and entities of the gov-ernment, both statewide and local, have afiduciary duty to act toward public naturalresources with prudence, loyalty, and im-partiality. Pa. Const. art. 1, § 27.



As a trustee under the EnvironmentalRights Amendment, the Commonwealthmust deal with its citizens as a fiduciary,measuring its successes by the benefits itbestows upon all its citizens in their utiliza-tion of natural resources under law; theCommonwealth may not act as a mereproprietor, pursuant to which it deals atarms’ length with its citizens, measuringits gains by the balance sheet profits andappreciation it realizes from its resourcesoperations. Pa. Const. art. 1, § 27.


As trustee under the EnvironmentalRights Amendment, the Commonwealth isa fiduciary obligated to comply with theterms of the trust and with standards gov-erning a fiduciary’s conduct. Pa. Const.art. 1, § 27.


The plain meaning of the terms ‘‘con-serve’’ and ‘‘maintain,’’ as used in the Envi-ronmental Rights Amendment, implicatesa duty to prevent and remedy the degrada-tion, diminution, or depletion of the publicnatural resources. Pa. Const. art. 1, § 27.

See publication Words and Phrasesfor other judicial constructions anddefinitions.


As a fiduciary under the Environmen-tal Rights Amendment, the Common-wealth has a duty to act toward the corpusof the trust, the public natural resources,with prudence, loyalty, and impartiality.Pa. Const. art. 1, § 27.

16. Trusts O179

Under trust law, the duty of prudencerequires a trustee to exercise such careand skill as a man of ordinary prudencewould exercise in dealing with his ownproperty. 20 Pa. Cons. Stat. Ann.

§§ 7774, 7780; Restatement (Second) ofTrusts § 174.

17. Trusts O173

The duty of loyalty imposes an obli-gation on the trustee to manage the corpusof the trust so as to accomplish the trust’spurposes for the benefit of the trust’s ben-eficiaries. Restatement (Second) of Trusts§ 186.

18. Trusts O173The duty of impartiality requires the

trustee to manage the trust so as to giveall of the beneficiaries due regard for theirrespective interests in light of the pur-poses of the trust. 20 Pa. Cons. Stat. Ann.§ 7773.

19. Environmental Law O4The environmental trust created by

the Environmental Rights Amendmentimposes two basic duties on the Common-wealth as the trustee: first, the Common-wealth has a duty to prohibit the degra-dation, diminution, and depletion of thepublic natural resources, whether theseharms might result from direct state ac-tion or from the actions of private parties,and second, the Commonwealth must actaffirmatively via legislative action to pro-tect the environment. Pa. Const. art. 1,§ 27.

20. Trusts O177Although a trustee is empowered to

exercise discretion with respect to theproper treatment of the corpus of thetrust, that discretion is limited by the pur-pose of the trust and the trustee’s fiducia-ry duties, and does not equate to meresubjective judgment.

21. Trusts O172, 177A trustee may use the assets of the

trust only for purposes authorized by thetrust or necessary for the preservation ofthe trust; other uses are beyond the scope


of the discretion conferred, even where thetrustee claims to be acting solely to ad-vance other discrete interests of the bene-ficiaries.


States O21(1)

Proceeds from the sale of oil and gasfrom the public trust, which was createdby the Environmental Rights Amendment,remain in the corpus of the trust. Pa.Const. art. 1, § 27.


In context of the entire Environmen-tal Rights Amendment, the phrase ‘‘for thebenefit of all the people’’ is unambiguousand clearly indicates that assets of thenatural resources trust are to be used forconservation and maintenance purposes;only within those parameters does theGeneral Assembly, or any other Common-wealth entity, have discretion to determinethe public benefit to which trust proceeds,generated from the sale of trust assets, aredirected. Pa. Const. art. 1, § 27.

24. Appeal and Error O1106(4)

Appellate record was not sufficientlydeveloped to conclude whether all reve-nues generated for Commonwealth by oiland gas leases remained in corpus of natu-ral resources trust under EnvironmentalRights Amendment, requiring remand toCommonwealth Court; even though royal-ties were unequivocally proceeds from saleof oil and gas resources and were part oftrust corpus, true purpose of up-front bo-nus bid payments was not stated in record,and could have represented payment forrental of leasehold interest in land, pay-ment for natural gas extracted, or someother purpose. Pa. Const. art. 1, § 27; 20Pa. Cons. Stat. Ann. § 8145; 72 Pa. Stat.Ann. §§ 1604-E, 1605-E.

25. Trusts O272.1

Proceeds from the sale of trust assetsare trust principal and remain part of thecorpus of the trust.

26. Trusts O272.1

When a trust asset is removed fromthe trust, all revenue received in exchangefor the trust asset is returned to the trustas part of its corpus.

27. Mines and Minerals O5.2(1)

The Commonwealth has a constitu-tional obligation to negotiate and structureoil and gas leases in a manner consistentwith its duties as trustee under the Envi-ronmental Rights Amendment; oil and gasleases may not be drafted in ways thatremove assets from the corpus of the trustor otherwise deprive the people, includingfuture generations, of the funds necessaryto conserve and maintain the public natu-ral resources. Pa. Const. art. 1, § 27.


The public trust provisions of the En-vironmental Rights Amendment are self-executing and do not require implementinglegislation to be effective. Pa. Const. art.1, § 27.

29. Mines and Minerals O5.2(1)

Statutory provisions relating to royal-ties from the Commonwealth’s oil and gasleases are facially unconstitutional underthe Environmental Rights Amendment, asthe provisions ignore the Commonwealth’sconstitutionally imposed fiduciary duty tomanage the corpus of the environmentalpublic trust for the benefit of the people toaccomplish its purpose and the provisionspermit the Commonwealth to use trustassets for non-trust purposes. Pa. Const.art. 1, § 27; 72 Pa. Stat. Ann. §§ 1602-E,1603-E.


30. Constitutional Law O656A statute is facially unconstitutional

only where no set of circumstances existunder which the statute would be valid.

31. Constitutional Law O656In determining whether a law is fa-

cially unconstitutional, a court must becareful not to go beyond the statute’s facialrequirements and speculate about hypo-thetical or imaginary cases.

32. Constitutional Law O656A facial challenge to the constitution-

ality of a statute must fail where the stat-ute has a plainly legitimate sweep.

33. Mines and Minerals O5.2(1)The Governor’s ability to override de-

cisions by the Department of Conservationand Natural Resources (DCNR) regardingoil and gas leasing is contingent upon theextent to which he does so in a mannerthat is faithful to his trustee obligationsunder the Environmental Rights Amend-ment, not his various other obligations.Pa. Const. art. 1, § 27.

34. States O127The legislature’s diversion of funds

from the Lease Fund, and from the De-partment of Conservation and Natural Re-sources’ (DCNR) exclusive control, doesnot, in and of itself, constitute a violationof the Environmental Rights Amendment;the DCNR is not the only agency commit-ted to conserving and maintaining publicnatural resources, and the General Assem-bly would not run afoul of the constitutionby appropriating trust funds to some otherinitiative or agency dedicated to effectuat-ing the Amendment. Pa. Const. art. 1,§ 27; 71 Pa. Stat. Ann. § 1331 et seq.

35. States O127The Lease Fund is not a constitutional

trust fund and need not be the exclusiverepository for proceeds from oil and gas

development under the EnvironmentalRights Amendment. Pa. Const. art. 1,§ 27; 71 Pa. Stat. Ann. § 1331 et seq.

West Codenotes

Held Unconstitutional

72 Pa. Stat. Ann. §§ 1602-E, 1603-E

Appeal from the Order of the Common-wealth Court at No. 228 MD 2012 datedJanuary 7, 2015

Thomas Y. Au, Esq., Diana Csank, Esq.,for Sierra Club, Amicus Curiae.

Thomas G. Collins, Esq., Kevin PatrickLucas, Esq., David James Porter, Esq.,Buchanan lngersoll & Rooney, P.C., forRepublican Caucuses of the PA House ofRepresentatives and PA Senate, AmicusCuriae.

John C. Dernbach, Esq., for WidenerUniversity Law School EnvironmentalLaw and Sustainability Center, AmicusCuriae.

Matthew Hermann Haverstick, Esq.,Mark Edward Seiberling, Esq., JoshuaJohn Voss, Esq., for Pennsylvania PublicUtility Commission, Amicus Curiae.

George Jugovic Jr., Esq., for Citizensfor Pennsylvania’s Future, Penn Future,Amicus Curiae.

Kevin Jon Moody, Esq., PennsylvaniaIndependent Oil and Gas Association, forPA Independent Oil & Gas Association,Amicus Curiae.

Jordan Berson Yeager, Esq., Curtin &Heefner LLP, for Delaware RiverkeeperNetwork and Pennsylvania Land Trust As-sociation, Amicus Curiae.

John E. Childe Jr., Esq., for Pennsylva-nia Environmental Defense Foundation,Appellant.


Sean Martin Concannon, Esq., Office ofGeneral Counsel, Stephen S. Aichele, Esq.,Audrey F. Miner, Esq., Pennsylvania De-partment of Conservation & Natural Re-sources (DCNR), for Wolf, Tom, Appellee.

Howard Greeley Hopkirk, Esq., Office ofAttorney General, for Commonwealth ofPennsylvania, Appellee.

Gregory R. Neuhauser, Esq., PA Officeof Attorney General, for Commonwealth ofPennsylvania and Wolf, Tom, Appellees.

SAYLOR, C.J., EAKIN, BAER, TODD,DONOHUE, DOUGHERTY, WECHT, JJ.

OPINION

JUSTICE DONOHUE

In 1971, by a margin of nearly four toone, the people of Pennsylvania ratified aproposed amendment to the PennsylvaniaConstitution’s Declaration of Rights, for-mally and forcefully recognizing their envi-ronmental rights as commensurate withtheir most sacred political and individualrights. Article I, Section 27 of the Pennsyl-vania Constitution provides:

The people have a right to clean air,pure water, and to the preservation ofthe natural, scenic, historic and estheticvalues of the environment. Pennsylva-nia’s public natural resources are thecommon property of all the people, in-cluding generations yet to come. Astrustee of these resources, the Common-wealth shall conserve and maintain themfor the benefit of all the people.

Pa. Const. art. I, § 27. In this case, weexamine the contours of the Environmen-tal Rights Amendment in light of a declar-atory judgment action brought by thePennsylvania Environmental DefenseFoundation (‘‘Foundation’’), an environ-mental advocacy entity, challenging, interalia, the constitutionality of statutory en-actments relating to funds generated from

the leasing of state forest and park landsfor oil and gas exploration and extraction.Because state parks and forests, includingthe oil and gas minerals therein, are partof the corpus of Pennsylvania’s environ-mental public trust, we hold that the Com-monwealth, as trustee, must manage themaccording to the plain language of Section27, which imposes fiduciary duties consis-tent with Pennsylvania trust law. We fur-ther find that the constitutional languagecontrols how the Commonwealth may dis-pose of any proceeds generated from thesale of its public natural resources. Afterreview, we reverse in part, and vacate andremand in part, the CommonwealthCourt’s order granting summary relief tothe Commonwealth and denying the Foun-dation’s application for summary relief.

I. History and Enactment of the En-vironmental Rights Amendment

Section 27 contains an express state-ment of the rights of the people and theobligations of the Commonwealth with re-spect to the conservation and maintenanceof our public natural resources. In Robin-son Township v. Commonwealth, 623 Pa.564, 83 A.3d 901 (2013) (plurality), a plural-ity of this Court carefully reviewed thereasons why the Environmental RightsAmendment was necessary, the history ofits enactment and ratification, and the mis-chief to be remedied and the object to beattained. At the outset of this opinion, wereiterate this historical background, whichserves as an important reminder as weaddress the issues presented in the pres-ent case:

It is not a historical accident that thePennsylvania Constitution now placescitizens’ environmental rights on parwith their political rights. Approximatelythree and a half centuries ago, whitepine, Eastern hemlock, and mixed hard-wood forests covered about 90 percent ofthe Commonwealth’s surface of over 20


million acres. Two centuries later, thestate experienced a lumber harvestingindustry boom that, by 1920, had leftmuch of Pennsylvania barren. ‘‘Loggersmoved to West Virginia and to the lakestates, leaving behind thousands of dev-astated treeless acres,’’ abandoning saw-mills and sounding the death knell foronce vibrant towns. Regeneration of ourforests (less the diversity of species) hastaken decades.

Similarly, by 1890, ‘‘game’’ wildlifehad dwindled ‘‘as a result of deforesta-tion, pollution and unregulated huntingand trapping.’’ As conservationist JohnM. Phillips wrote, ‘‘In 1890, the gamehad practically disappeared from ourstateTTTT We had but few game lawsand those were supposed to be enforcedby township constables, most of whomwere politicians willing to trade withtheir friends the lives of our beasts andbirds in exchange for votes.’’ In 1895,the General Assembly created the Penn-sylvania Game Commission and, twoyears later, adopted a package of newgame laws to protect endangered popu-lations of deer, elk, waterfowl, and othergame birds. Over the following decades,the Game Commission sought to restorepopulations of wildlife, by managing andrestocking species endangered or extinctin Pennsylvania, establishing game pre-serves in state forests, and purchasingstate game lands. Sustained efforts ofthe Game Commission over more than acentury (coupled with restoration ofPennsylvania’s forests) returned a boun-ty of wildlife to the Commonwealth.

The third environmental event ofgreat note was the industrial exploita-tion of Pennsylvania’s coalfields from themiddle of the nineteenth well into thetwentieth century. During that time, thecoal industry and the steel industry itpowered were the keystone of Pennsyl-vania’s increasingly industrialized econo-

my. The two industries provided em-ployment for large numbers of peopleand delivered tremendous opportunitiesfor small and large investors. ‘‘[W]hencoal was a reigning monarch,’’ the indus-try operated ‘‘virtually unrestricted’’ byeither the state or federal government.The result, in the opinion of many, wasdevastating to the natural environmentof the coal-rich regions of the Common-wealth, with long-lasting effects on hu-man health and safety, and on the esth-etic beauty of nature. These negativeeffects include banks of burning or non-burning soft sooty coal and refuse; un-derground mine fires; pollution of wa-ters from acid mine drainage; subsi-dence of the soil; and landscapesscarred with strip mining pits and acidwater impoundments. In the mid–1960s,the Commonwealth began a massive un-dertaking to reclaim over 250,000 acresof abandoned surface mines and about2,400 miles of streams contaminatedwith acid mine drainage, which did notmeet water quality standards. The costof projects to date has been in the hun-dreds of millions of dollars, and the De-partment of Environmental Protectionhas predicted that an estimated 15 bil-lion dollars is in fact necessary to re-solve the problem of abandoned minereclamation alone. Id.

The overwhelming tasks of reclama-tion and regeneration of the Common-wealth’s natural resources, along withlocalized environmental incidents (suchas the 1948 Donora smog tragedy inwhich twenty persons died of asphyxia-tion and 7,000 persons were hospitalizedbecause of corrosive industrial smoke;the 1959 Knox Mine disaster in whichthe Susquehanna River disappeared intothe Pittston Coal Vein; the 1961 GlenAlden mine water discharge that killedmore than 300,000 fish; and the Centra-


lia mine fire that started in 1962, is stillburning, and led to the relocation of allresidents in 1984) has led to the gradualenactment of statutes protecting our en-vironment. The drafters of the Environ-mental Rights Amendment recognizedand acknowledged the shocks to our en-vironment and quality of life:

We seared and scarred our once greenand pleasant land with mining opera-tions. We polluted our rivers and ourstreams with acid mine drainage, withindustrial waste, with sewage. We poi-soned our ‘delicate, pleasant andwholesome’ air with the smoke of steelmills and coke ovens and with thefumes of millions of automobiles. Wesmashed our highways through fertilefields and thriving city neighborhoods.We cut down our trees and erectedeyesores along our roads. We uglifiedour land and we called it progress.

1970 Pa. Legislative Journal–House at2270 (quoting anonymous 1698 descrip-tion of Penn’s Woods air).

With these events in the recent collec-tive memory of the General Assembly,the proposed Environmental RightsAmendment received the unanimous as-sent of both chambers during both the1969–1970 and 1971–1972 legislative ses-sions. Pennsylvania voters ratified theproposed amendment of the citizens’Declaration of Rights on May 18, 1971,with a margin of nearly four to one,receiving 1,021,342 votes in favor and259,979 opposed.

The decision to affirm the people’senvironmental rights in a Declaration orBill of Rights, alongside political rights,is relatively rare in American constitu-tional law. In addition to Pennsylvania,Montana and Rhode Island are the onlyother states of the Union to do so. SeePa. Const. art. I, § 27 (1971); Mt.Const. art. II, § 3 (1889); R.I. Const.

art. I, § 17 (1970). Three other states—Hawaii, Illinois, and Massachusetts—ar-ticulate and protect their citizens’ envi-ronmental rights in separate articles oftheir charters. See Hi. Const. art. XI,§§ 1, 9 (1978); Ill. Const. art. XI, §§ 1,2 (1971–72); Ma. Const. amend. 49(1972). Of these three states, Hawaii andIllinois, unlike Pennsylvania, expresslyrequire further legislative action to vin-dicate the rights of the people. By com-parison, other state charters articulate a‘‘public policy’’ and attendant directionsto the state legislatures to pass laws forthe conservation or protection of eitherall or enumerated natural resources.See, e.g., Ak. Const. art. VIII, §§ 1–18(1959); Colo. Const. art. XXVII, § 1(1993); La. Const. art. IX, § 1 (1974);N.M. Const. art. XX, § 21 (1971); N.Y.Const. art. XIV, §§ 1–5 (1941); Tx.Const. art. XVI, § 59 (1917); Va. Const.art. XI, §§ 1–4 (1971). Some chartersaddress the people’s rights to fish andhunt, often qualified by the govern-ment’s right to regulate these activitiesfor the purposes of conservation. See,e.g., Ky. Const. § 255A (2012); Vt.Const. Ch. II, § 67 (1777); Wi. Const.art. I, § 26 (2003). Still other state con-stitutions simply authorize the expendi-ture of public money for the purposes oftargeted conservation efforts. See, e.g.,Or. Const. art. IX–H, §§ 1–6 (1970);W.V. Const. art. VI, §§ 55, 56 (1996).Finally, many of the remaining states donot address natural resources in theirorganic charters at all. See, e.g., Nv.Const. art. I, § 1 et seq.

That Pennsylvania deliberately chosea course different from virtually all of itssister states speaks to the Common-wealth’s experience of having the benefitof vast natural resources whose virtuallyunrestrained exploitation, while initiallya boon to investors, industry, and citi-zens, led to destructive and lasting con-


sequences not only for the environmentbut also for the citizens’ quality of life.Later generations paid and continue topay a tribute to early uncontrolled andunsustainable development financially, inhealth and quality of life consequences,and with the relegation to history booksof valuable natural and esthetic aspectsof our environmental inheritance. Thedrafters and the citizens of the Com-monwealth who ratified the Environ-mental Rights Amendment, aware ofthis history, articulated the people’srights and the government’s duties tothe people in broad and flexible termsthat would permit not only reactive butalso anticipatory protection of the envi-ronment for the benefit of current andfuture generations. Moreover, publictrustee duties were delegated concomi-tantly to all branches and levels of gov-ernment in recognition that the qualityof the environment is a task with bothlocal and statewide implications, and toensure that all government neither in-fringed upon the people’s rights norfailed to act for the benefit of the peoplein this area crucial to the well-being ofall Pennsylvanians.

Id. at 960–63 (footnotes and some citationsomitted).

II. Factual and Procedural Back-ground of the Present Case

While the issues in this case arise fromthe recent leasing of Commonwealth forestand park lands for Marcellus Shale gasextraction, the Commonwealth has a histo-ry of leasing its land to private parties foroil and gas exploration dating back to1947. Pa. Envtl. Def. Found. v. Com., 108A.3d 140, 143 (Pa. Cmwlth. 2015)(‘‘PEDF’’); see also Prelim. Inj. Hr’g Ex.R–8 at 35 (Governor’s Marcellus Shale Ad-visory Commission Report dated July 22,2011). In 1955, the Legislature enacted theOil and Gas Lease Fund Act (‘‘Lease FundAct’’), 71 P.S. §§ 1331–1333, requiring‘‘[a]ll rents and royalties from oil and gasleases’’ of Commonwealth land to be de-posited in the ‘‘Oil and Gas Lease Fund’’(‘‘Lease Fund’’) to be ‘‘exclusively used forconservation, recreation, dams, or floodcontrol or to match any Federal grantswhich may be made for any of the afore-mentioned purposes.’’ 71 P.S. § 1331.1

When enacted, the Lease Fund Act fur-ther provided the Secretary of Forests andWaters with the discretion ‘‘to determinethe need for and the location of any projectauthorized.’’ 71 P.S. § 1332. Additionally,the Lease Fund Act provided that ‘‘[a]llthe moneys from time to time paid’’ intothe Fund ‘‘are specifically appropriated to

1. In its entirety, the Oil and Gas Lease FundAct provides as follows:

§ 1331. Source and use of fundAll rents and royalties from oil and gasleases of any land owned by the Common-wealth, except rents and royalties receivedfrom game and fish lands, shall be placedin a special fund to be known as the ‘‘Oiland Gas Lease Fund’’ which fund shall beexclusively used for conservation, recre-ation, dams, or flood control or to matchany Federal grants which may be made forany of the aforementioned purposes.§ 1332. Need for and location of projects;acquisition of landsIt shall be within the discretion of the Sec-retary of Forests and Waters to determine

the need for and the location of any projectauthorized by this act. The Secretary ofForests and Waters shall have the power toacquire in the name of the Commonwealthby purchase, condemnation or otherwisesuch lands as may be needed.§ 1333. AppropriationAll the moneys from time to time paid intothe ‘‘Oil and Gas Lease Fund’’ are specifi-cally appropriated to the Department ofForests and Waters to carry out the pur-poses of this act. 71 P.S. §§ 1331–1333. Asnoted infra, the Department of Forests andWaters has been replaced by the Pennsylva-nia Department of Conservation and Natu-ral Resources (DCNR) for purposes of theLease Fund Act, see 71 P.S. § 1340.304(c).


the Department of Forests and Waters tocarry out the purposes of this act.’’ 71 P.S.§ 1333.

In 1995, the Legislature enacted theConservation and Natural Resources Act(‘‘CNRA’’), which created the PennsylvaniaDepartment of Conservation and NaturalResources (‘‘DCNR’’) as a ‘‘cabinet-leveladvocate’’ for the State parks, forests, andother natural resources. 71 P.S.§ 1340.101(b)(1). Referencing the Environ-mental Rights Amendment, Article I, Sec-tion 27, of the Pennsylvania Constitution,the CNRA indicates that the prior ‘‘struc-ture of the Department of EnvironmentalResources impede[d] the Secretary of En-vironmental Resources from devotingenough time, energy and money to solvingthe problems facing our State parks andforests,’’ such that the state parks andforests had ‘‘taken a back seat to otherenvironmental issues TTTT’’ 71 P.S.§ 1340.101(a)(7), (8).

The CNRA sets forth the DCNR’s pri-mary mission as follows:

[T]o maintain, improve and preserveState parks, to manage State forestlands to assure their long-term health,sustainability and economic use, to pro-vide information on Pennsylvania’s eco-logical and geologic resources and toadminister grant and technical assis-tance programs that will benefit riversconservation, trails and greenways, local

recreation, regional heritage conserva-tion and environmental education pro-grams across Pennsylvania.

71 P.S. § 1340.101(b)(1). To pursue thismission, the DCNR is ‘‘empowered tomake and execute contracts or leases inthe name of the Commonwealth for themining or removal of any valuable miner-als that may be found in State forests’’ ifthe DCNR determines that it ‘‘would befor the best interests of this Common-wealth.’’ 71 P.S. § 1340.302(a)(6). More-over, the DCNR replaced the Departmentof Forests and Waters as the relevantentity for purposes of the Lease Fund. 71P.S. § 1340.304. Accordingly, the CNRAaltered the Lease Fund to provide that ‘‘allmoneys’’ paid in to the Lease Fund were‘‘specifically appropriated to’’ the DCNR.71 P.S. § 1333.

In August 2008, after conducting an en-vironmental review,2 DCNR began its firstforay into the Marcellus Shale natural gasplay 3 by approving a lease sale of 74,000acres (‘‘2008 Leases’’). PEDF, 108 A.3d at143–44. The leases generated funds in theform of rents and royalties. The rentswere comprised of annual rental fees, anexample of which ranged from $20–35 peracre, in addition to large initial ‘‘bonuspayments’’ ranging in the millions of dol-lars. Id. at 144 (citing Prelim. Inj. Hr’g Ex.R–1). In addition, the leases further pro-

2. The DCNR’s findings were published andentitled, ‘‘August 2008 Oil and Gas Lease SaleState Forest Environmental Review.’’ Prelim.Inj. Hr’g Ex. R–5. The DCNR summarized itsconclusions:

This environmental review is based on the[Bureau of Forestry’s] deliberations on thescope, potential impacts and benefits ofthese deep gas plays. Based on these delib-erations, the [DCNR] decided to pursue thisopportunity under a portion of the StateForests where our management protocolswill support natural gas exploration anddevelopment as well as satisfy our legal

mandates to offer State Forest land for thispurpose.

Id. at 2 (unnumbered).

3. The U.S. Energy Information Administra-tion defines a ‘‘play’’ as ‘‘[a] set of known orpostulated oil and gas accumulations sharingsimilar geologic, geographic, and temporalproperties, such as source rock, migrationpathway, timing, trapping mechanism, andhydrocarbon type.’’ U.S. Energy InformationAdministration Glossary, http://www.eia.gov/tools/glossary/index.cfm (last visited June 15,2017).


vided for royalties when gas is extracted,with the payment based upon the amountof marketable gas extracted. Id. The Mar-cellus Shale leases dramatically increasedthe money flowing into the Lease Fund.Indeed, the cumulative proceeds fromCommonwealth oil and gas leases from1947–2008 totaled $165 million, where theoil and gas proceeds in 2009 alone exceed-ed $167 million, the bulk of which derivedfrom the initial bonus payments (which arecategorized under the lease terms as rent-al payments) from the 2008 Leases. Prel-im. Inj. Hr’g Ex. R–14 at 200–201 (‘‘2014Shale Gas Monitoring Report’’).

Following the 2008 Leases, the DCNR‘‘decided not to enter into further leasesfor natural gas extraction on State landspending study of the ‘Marcellus play’ anddevelopment within the 660,000 acres ofland already leased within the MarcellusShale region,’’ which included previouslyleased mineral rights and lands that werenot owned by the Commonwealth.4 PEDF,108 A.3d at 144. The former head of theDCNR testified that ‘‘we felt stronglythat[,] until we could further develop andmonitor what was going on[,] TTT we be-lieved there should be no further gas leas-ing because we were going to be watchinga tremendous amount of gas activity on thestate forest for the next 50 years.’’ Prelim.Inj. Hr’g. Notes of Testimony, 5/28/2015,at 36. Notwithstanding this concern, theDCNR received substantial pressure, asdescribed below, between 2008 and 2014from the executive and legislative branchesto lease more state land as a means toreduce the substantial shortfalls in Penn-sylvania’s general budgets.

During the 2009–10 budget process, theLegislature added Article XVI–E to theFiscal Code addressing Marcellus Shaleleasing (‘‘2009 Fiscal Code Amendments’’).Following a definitional section, the articleaddresses appropriations to the LeaseFund:

Notwithstanding any other provision oflaw and except as provided in section1603–E [providing for an annual appro-priation to DCNR of up to $50 million ofroyalties], no money in the [Lease Fund]from royalties may be expended unlessappropriated or transferred to the Gen-eral Fund by the General Assemblyfrom the fund. In making appropria-tions, the General Assembly shall con-sider the adoption of an allocation tomunicipalities impacted by a Marcelluswell.

72 P.S. § 1602–E. This provision wroughta dramatic change in the flow of royaltiesfrom the Lease Fund. While Section 1333of the Lease Fund Act previously providedfor the automatic appropriation of ‘‘allmoneys’’ (which would include both rentsand royalties) paid into the Lease Fund tobe appropriated to the DCNR, the newlyenacted Section 1602–E granted the Gen-eral Assembly authority over the royaltiesin the Lease Fund (other than Section1603–E’s $50 million annual appropriationto the DCNR) by providing that the ‘‘roy-alties may not be expended unless approp-riated or transferred to the General Fundby the General Assembly.’’ Id.

The next provision of the 2009 FiscalCode Amendments, Section 1603–E,5 limits

4. The acreage amounts utilized by the partiesare not entirely consistent. The specific num-ber of acres, however, is irrelevant to theissues before this Court.

5. 72 P.S. § 1603–E. Department of Conserva-tion and Natural Resources

Subject to the availability of money in thefund following transfers, up to $50,000,000from the fund from royalties shall be ap-propriated annually to the [DCNR] to carryout the purposes set forth in the act ofDecember 15, 1955 (P.L. 865, No. 256),entitled ‘‘An act requiring rents and royal-


the DCNR’s annual allocation of royaltiesto an amount ‘‘up to $50 million.’’ While$50 million was substantially greater thatany pre–2009 royalty receipts, it was notguaranteed and also functions to limit thepercentage of the Lease Fund royaltiesdirected to the DCNR, which is particular-ly relevant as the DCNR had anticipatedreceiving the full amount of the rents androyalties to allow it to oversee the rapidexpansion of drilling on state land when itdecided to enter into the 2008 Leases.Additionally, while the Lease Fund Actrequires that the funds generated by leas-ing be ‘‘exclusively used for conservation,recreation, dams, or flood control or tomatch [related] Federal grants,’’ 71 P.S.§ 1331, the newly-enacted Section 1603–Edesignates that preference be given in-stead ‘‘to the operation and maintenance ofState parks and forests.’’ 72 P.S. § 1603–E.

Section 1604–E of the 2009 Fiscal CodeAmendments also required a transfer of$60 million in fiscal year 2009–2010 fromthe Lease Fund to the General Fund,which was not restricted to conservationpurposes. 72 P.S. § 1604–E.6 Finally, theSupplemental General Appropriations Actof 2009 directed a transfer of $143 millionfrom the Lease Fund to the General Fund.

Act of Oct. 9, 2009, P.L. 779, No. 10A,§ 1912.

Thereafter, the DCNR abandoned itsself-imposed moratorium on leasing addi-tional state land for Marcellus Shale devel-opment ‘‘as a direct result of certain lineitems contained within the budget agree-ment and fiscal code for FY 2009–10.’’Prelim. Inj. Hr’g Ex. R–6 at 5 (unnum-bered) (FY 2009–2010 Oil & Gas LeaseSale State Forest Environmental Review).After again conducting an environmentalreview,7 the DCNR leased approximately32,000 acres of state forest land in January2010 (‘‘January 2010 Leases’’). Although,prior to the lease sale, the DCNR Secre-tary expressed significant concern regard-ing further leasing,8 the DCNR, in its pub-lished environmental review, concludedthat ‘‘the impending [lease] sale still meetsthe Bureau’s management guidelines andprotocols.’’ Id.

Again, following the January 2010 leas-es, the DCNR intended to halt any furtherleasing to allow study of the current leasesand to avoid overextending its ability tomanage them. Nevertheless, due to pres-sure from the Governor and pending bud-get transfers, the DCNR leased an addi-tional 33,000 acres in May 2010 (‘‘May 2010Leases’’) to generate funds after conduct-ing an environmental review.9 A few

ties from oil and gas leases of Common-wealth land to be placed in a special fundto be used for conservation, recreation,dams, and flood control; authorizing theSecretary of Forests and Waters to deter-mine the need for and location of suchprojects and to acquire the necessary land.’’The [DCNR] shall give preference to theoperation and maintenance of State parksand forests.

72 P.S. § 1603–E (footnote deleted).

6. 72 P.S. § 1604–E provides, ‘‘Notwithstand-ing section 1603–E or any other provision oflaw, in fiscal year 2009–2010 the amount of$60,000,000 shall be transferred from thefund to the General Fund.’’ 72 P.S. § 1604–E.

7. The DCNR’s November 2009 review waspublished as ‘‘FY 2009–10 Oil & Gas LeaseSale State Forest Environmental Review.’’Prelim. Inj. Hr’g Ex. R–6.

8. See Prelim. Inj. Hr’g Ex. P–3 (Letter ofDCNR Secretary Michael DiBerardinis toGovernor Edward Rendell, dated March 27,2009).

9. The DCNR’s review was published as ‘‘May2010 Oil & Gas Lease Offering State ForestEnvironmental Review.’’ Prelim. Inj. Hr’g Ex.R–7. The DCNR stated that the lease proposal‘‘seeks to minimize environmental and socialimpacts while returning the mandated $180million needed for the Commonwealth bud-


months later, the General Assembly enact-ed an appropriation for Fiscal Year 2010–2011 transferring $180 million from theLease Fund to the General Fund.10

Just before leaving office in January2011, Governor Rendell signed an execu-tive order imposing a moratorium on fu-ture leasing of state forest and park landsfor oil and gas development, finding thatfurther leasing would ‘‘jeopardize DCNR’sability to fulfill its duty to conserve andmaintain this public natural resource.’’Prelim. Inj. Hr’g Ex. P–8 at 2.

For the first three years of GovernorCorbett’s administration, the Fiscal Codewas not amended to provide transfers fromthe Lease Fund to the General Fund. In-stead, the General Appropriations Act for2011 and 2012 provided appropriations tothe DCNR from both the General Fundand the Lease Fund (specifically from roy-alties), in addition to the up to $50 millionin royalties provided annually by Section1603–E of the 2009 Fiscal Code Amend-ments and the continued flow of all rentalfees from oil and gas leases pursuant toSection 1333 of the Lease Fund Act.PEDF, 108 A.3d at 148–49. The 2013 Gen-eral Appropriations Act decreased the ap-propriation to the DCNR from the GeneralFund and increased the appropriationfrom the Lease Fund to the DCNR, result-ing in a larger portion of monies from theLease Fund being used to pay for theDCNR’s operational expenses, which hadpreviously been funded by the GeneralFund, and thus reduced the amount of

monies available for the DCNR’s conserva-tion activities. Id. at 149.

Although the first few years of the Cor-bett administration did not witness appro-priations from the Lease Fund directly tothe General Fund, Act 13 of 2012, whichamended the Lease Fund Act, requiredother transfers from the Lease Fund. Spe-cifically, Act 13 created the Marcellus Leg-acy Fund, which was funded in part byfees on unconventional wells but also byannual appropriations from the LeaseFund in increasing amounts beginningwith $20 million in 2013 and rising to $50million for all years after 2015. 58 Pa.C.S.§§ 2315(a.1), 2505.11 The monies in theMarcellus Legacy Fund are earmarked forthe Environmental Stewardship Fund andthe Hazardous Sites Cleanup Fund, pro-viding capital for projects not controlled bythe DCNR. Id.

In May 2014, Governor Corbett modifiedthe moratorium banning the leasing ofState lands and instead forbade any leas-ing that ‘‘would result in additional surfacedisturbances on state forest or state parklands.’’ Prelim. Inj. Hr’g Ex. P–8 at 3. Theorder further provided that the royaltiesfrom the additional leasing would be usedto repair the infrastructure of the forestand park lands, to acquire lands of ‘‘highconservation value or ecological impor-tance,’’ and to acquire private oil, gas, andmineral rights currently owned by privateparties under state surface lands. Id.

The 2014–2015 General AppropriationsAct again included increased appropria-tions of royalties from the Lease Fund tothe DCNR that were mirrored by de-

get.’’ Id. at 1 (unnumbered). The DCNR fur-ther concluded that the lease sale ‘‘conformedto the Bureau’s stated policy and goals.’’ Id.at 5.

10. In 2010, 72 P.S. § 1605–E, entitled ‘‘Addi-tional transfers’’ provided, ‘‘Notwithstandingsection 1603–E or any other provision of law,in fiscal year 2010–2011, the amount of

$180,000,000 shall be transferred from thefund to the General Fund.’’

11. It is unclear whether the transfers fromthe Lease Fund to the Marcellus Legacy Fundderive from royalties, rents, bonus bid pay-ments, or from some combination of the threesources.


creased appropriations from the GeneralFund to the DCNR. PEDF, 108 A.3d at151. In 2014, the Fiscal Code was amendedagain to address Marcellus Shale leasing(‘‘2014 Fiscal Code Amendments’’). Specifi-cally, Section 1605–E of the Fiscal Codewas amended to provide for an appropria-tion of $95 million from the Lease Fund tothe General Fund. 72 P.S. § 1605–E(b).12

The 2014 Fiscal Code Amendments alsoadded specific legislative findings in sup-port of the increased leasing of state landand the transfers of capital from the LeaseFund. These findings postulate that Mar-cellus Shale leasing ‘‘is necessary to obtainthe revenue necessary to effectuate theTTT General Appropriations Act of 2014.’’72 P.S. § 1601.1–E(1). Additionally, thefindings state that ‘‘[t]he fund is not aconstitutional trust.’’ 72 P.S. § 1601.1–E(6). After recognizing that the increase inthe Fund was due to the Marcellus Shaledevelopment, the Legislature indicatesthat ‘‘[t]he Commonwealth’s role as trusteeof the public’s natural resources is broader

and more comprehensive than just con-serving the State forest and parks.’’ 72P.S. § 1601.1–E(7), (8). It further affirma-tively instructs that ‘‘it is in the best inter-est of the Commonwealth to lease oil andgas rights in State forests and parks’’ ifthe DCNR employs lease protections andbest management practices and ‘‘maintainsa balance of money in the [Lease Fund] tocarry out [DCNR’s] obligation to protectState forest and park land and other envi-ronmental activities.’’ 72 P.S. § 1601.1–E(9)(iii). Finally, the statute provides thattransfers from the Fund to the GeneralFund are permissible if the balance ofmoney in the Fund is ‘‘adequate to achievethe purposes’’ of paragraph nine, 72 P.S.§ 1601.1–E(10), which directs the DCNRto make state forest and park land leasingdecisions based on all the Common-wealth’s interests.13 72 P.S. § 1601.1–E(9).

Distinguished Professor John C. Dern-bach of the Widener University LawSchool Environmental Law and Sustaina-bility Center 14 recently summarized the

12. Section 1605–E(b) provides, ‘‘Notwith-standing section 1603–E or any other provi-sion of law, in fiscal year 2014–2015, theamount of $95,000,000 shall be transferredfrom the fund to the General Fund.’’ 72 P.S.§ 1605–E. As with Sections 1604–E and1605–E(a), Section 1605–E(b) does not indi-cate on its face whether it relates to royalties,rents, or bonus bid payments, or some combi-nation of the three.

13. 72 P.S. § 1601.1–E, entitled ‘‘LegislativeFindings’’ includes the following as para-graph 9:

The General Assembly affirms its intentthat:(i) The [DCNR] should continue the opera-tion of the shale gas monitoring activitiesprogram to monitor, evaluate and reportthe impacts of shale gas activities in Stateforest and, in consultation with the Gover-nor’s Office, utilize data received from on-going monitoring to adjust its managementplanning and practices.(ii) The [DCNR] should consider the Stateforest and park lands as one of the Com-

monwealth’s interests when consideringwhether or not to lease additional Stateforest and park lands and determining whatis in the best interests of the Common-wealth. Interest involved in decisions relat-ing to leasing State forest and park landsshould not be made to the exclusion of allother interests of the Commonwealth.(iii) Notwithstanding any other law to thecontrary, it is in the best interest of theCommonwealth to lease oil and gas rightsin State forests and parks if the [DCNR]:(A) in consultation with the Governor,continues strong and effective lease protec-tions, best management practices and ongo-ing monitoring programs on the impact ofgas operations; and(B) maintains a balance of money in thefund to carry out the [DCNR’s] statutoryobligation to protect State forest and parkland and other environmental activities.

14. Writing in support of neither party, Profes-sor Dernbach filed a scholarly amicus brief inthe case at bar.


significance of Fiscal Code amendmentsfor purposes of the claims at bar:

Three legislative amendments to thestate fiscal code between 2008 and 2014redirected a total of $335 million thatwould have been used for conservationpurposes under the [Lease Fund Act] tothe general fund, where it is appropriat-ed for a variety of state governmentpurposes. In addition, the Legislatureprevented DCNR from spending any[Lease Fund Act] royalties without priorlegislative authorization. Finally, theLegislature began using [Lease Fund]revenue to support the overall budget ofDCNR, rather than obtaining that bud-get money from the general fund andusing [Lease Fund] money for conserva-tion purposes related to oil and gas ex-traction

John C. Dernbach, The Potential Mean-ings of a Constitutional Public Trust, 45Envtl. L. 463, 488 (2015) (footnotes omit-ted)).

Acknowledging the structural changes inthe source of the funding, the Common-wealth nevertheless emphasizes that thetotal annual appropriations to the DCNRfrom the various sources ranged between$69 million in 2012–2013 to $122 million in2014–2015 and further observes that theDCNR received approximately fifty per-cent of the over $926 million in total oiland gas lease revenues accumulated from

Fiscal Year 2008–2009 through Fiscal Year2014–2015 (then-projected). Common-wealth’s Brief at 18 (citing Respondent’sCross–Motion for Summary Relief, ExhibitM (Governor’s Budget Office Oil and GasLeasing Revenue and Uses Informationdated August 21, 2014)).

III. Commonwealth Court Proceed-ings

Appellant, the Foundation, brought aclaim in the Commonwealth Court underthe fiduciary provisions of the DeclaratoryJudgment Act against the Commonwealthof Pennsylvania and the Governor, in hisofficial capacity (collectively, ‘‘the Com-monwealth’’) regarding the 2009–2015 bud-get related decisions that resulted in theadditional lease sales.15 The Foundationcontends that these decisions violated therights of all Commonwealth citizens con-ferred by the Environmental RightsAmendment, the CNRA, and the LeaseFund Act. PEDF, 108 A.3d at 154. TheFoundation filed the initial action in March2012 and amended the action with regardto subsequent legislation. The case at baraddresses cross-applications for summaryrelief, which allow a court to grant reliefonly if a party’s ‘‘right to judgment is clearand no material issues of fact are in dis-pute.’’ Jubelirer v. Rendell, 598 Pa. 16, 953A.2d 514, 521 (2008) (citations omitted).16

15. The Declaratory Judgment Act provides inrelevant part:

§ 7535. Rights of fiduciaries and other per-sonsAny person interested, as or through anexecutor, administrator, trustee, guardian,or other fiduciary, creditor, devisee, lega-tee, heir, next of kin, or cestui que trust, inthe administration of a trust TTT may have adeclaration of rights or legal relations inrespect thereto:* * * *(2) To direct the executors, administra-tors, or trustees to do or abstain from doing

any particular act in their fiduciary capaci-ty.

42 Pa.C.S. § 7535.

16. Shortly after the Commonwealth Court is-sued its decision, and while the lawsuit waspending, Governor Wolf imposed a moratori-um on additional leases of state forest andpark land, effective January 29, 2015. SeeExec. Order: 2015–03—Leasing of State For-est and State Park Land for Oil and GasDevelopment, available at https://www.governor.pa.gov/executive orders/executive-order–2015–03–leasing-of-state-forest-and-state-park-land-for-oil-and-gas-development/.


The Commonwealth Court observed thatthe Foundation filed a brief in excess of100 pages raising over twenty issues fo-cused primarily on Section 27’s protectionof the Commonwealth’s natural resources.The court found that some of the issueswere inappropriate for decision under theDeclaratory Judgment Act (such as issuesrelating to budget proposals rather thanenactments) and dismissed others for fail-ure to join the lessees of the leases, whomthe court deemed indispensable parties.17

The court narrowed the remaining is-sues before it to three questions:

(1) Whether Sections 1602–E and1603–E of the Fiscal Code, which re-spectively provide that the General As-sembly shall appropriate all royaltymonies [of] the Lease Fund and that,subject to availability, up to $50 millionof the Lease Fund royalties shall beappropriated to [the] DCNR, violateArticle I, § 27;(2) Whether the General Assembly’stransfers/appropriations from the LeaseFund violate Article I, § 27; and(3) Who within the Commonwealth hasthe duty and thus bears the responsibili-ty to make determinations with respectto the leasing of State lands for oil andnatural gas extraction.

PEDF, 108 A.3d at 155.

The Commonwealth Court recognizedthat the Foundation’s challenges to someextent overlapped with legislative policydecisions resulting from the need to bal-ance the state budget. While observingthat the review of legislative appropriationdecisions is generally outside the authorityof the courts, the court opined that thepropriety of the use of special fund money,such as money from the Lease Fund, is a

legal question subject to judicial review. Itfurther concluded that ‘‘a decision to leaseCommonwealth property protected by theConstitution and held in trust for the bene-fit of all current and future Pennsylvaniansis an appropriate subject of judicial scruti-ny.’’ Id.

Initially, the Commonwealth Court rec-ognized that this Court recently addressedSection 27 in Robinson Township. Thecourt properly observed that RobinsonTownship was a plurality decision in whichformer-Chief Justice Castille, joined byJustice Todd and former-Justice McCaf-fery, wrote expansively on Section 27. Jus-tice Baer concurred on a wholly differentground, while Chief Justice Saylor andformer-Justice Eakin wrote in dissent. TheCommonwealth Court noted that none ofthe responsive opinions adopted the plural-ity’s view of Section 27. Thus, the Com-monwealth Court found ‘‘the plurality’sconstruction of Section 27 persuasive onlyto the extent it is consistent with bindingprecedent from [the CommonwealthCourt] and the Supreme Court on thesame subject.’’ PEDF, 108 A.3d at 156n.37.

The Commonwealth Court, therefore,determined that its prior decision in Paynev. Kassab, 11 Pa.Cmwlth. 14, 312 A.2d 86(1973) (Payne I ), controlled the questionspresented in the case at bar, even thoughthe plurality in Robinson Township criti-cized the test announced in Payne I as‘‘lack[ing] foundation’’ in Section 27.PEDF, 108 A.3d at 159 (citing RobinsonTwp., 83 A.3d at 966–67). The Common-wealth Court in Payne I set forth a three-part test to determine whether a use ofCommonwealth land violated Section 27:

(1) Was there compliance with all ap-plicable statutes and regulations rele-

17. The Commonwealth Court denied theCommonwealth’s request for a declaration re-garding the Governor’s authority to override

decisions of the DCNR in regard to oil andgas leasing. PEDF, 108 A.3d at 173.


vant to the protection of the Common-wealth’s public natural resources?(2) Does the record demonstrate a rea-sonable effort to reduce the environmen-tal incursion to a minimum?(3) Does the environmental harmwhich will result from the challengeddecision or action so clearly outweighthe benefits to be derived therefromthat to proceed further would be anabuse of discretion?

Id. at 158 (quoting Payne I, 312 A.2d at94).

Notably, this Court affirmed the judg-ment in Payne I without adopting thethree-part test, instead concluding that the‘‘elaborate safeguards’’ of the challengedstatute provided adequate protection suchthat breach of the trust created by Section27 would not occur. Payne v. Kassab, 468Pa. 226, 361 A.2d 263, 273 (1976) (PayneII ).

A. Constitutionality of Sections1602–E and 1603–E of the FiscalCode under Article I, Section 27

The Commonwealth Court first ad-dressed the Foundation’s challenge thatSections 1602–E and 1603–E of the 2009Fiscal Code Amendments violated Section27. As noted, these provisions altered thestatus quo which had previously appropri-ated to the DCNR all monies in the LeaseFund under the Lease Fund Act, 71 P.S.§ 1333. The change, the Foundation ar-gued, violated Section 27 because it (1)took away DCNR’s ability to use the reve-nues to mitigate the damage from oil andgas exploration, (2) removed DCNR’s abili-ty to act as trustee because the funds wereplaced in the General Fund, potentially fornon-conservation purposes, and (3) elimi-nated revenues that would otherwise havebuilt the corpus of the Lease Fund toprotect Pennsylvania’s natural resources.PEDF, 108 A.3d at 160.

Looking first to the plain language ofSection 1602–E, the Commonwealth Courtobserved that the section merely trans-ferred control over the royalties (but notthe rents) from oil and gas leases from theDCNR to the General Assembly, which, aspart of the Commonwealth, was also boundto safeguard the Commonwealth’s naturalresources under Article I, Section 27. Ad-ditionally, the court recognized that Sec-tion 1602–E did not change the DCNR’sdecision making authority regarding thegranting of leases. The court held that theprovision ‘‘does not by itself infringe uponthe rights afforded the people’’ and doesnot ‘‘reflect a failure by the General As-sembly to act consistent with its trusteeobligations under Article I, Section 27.’’ Id.at 161. It further highlighted that theLease Fund is not a constitutional creationbut rather is a special fund created bylegislative enactment, which could be al-tered by subsequent legislative action. Id.at 160. Accordingly, the court concludedthat the Foundation failed to demonstratethat Section 1602–E ‘‘clearly, plainly, andpalpably’’ violated Section 27. Id. at 161.

Turning to Section 1603–E of the 2009Fiscal Code Amendments, which trans-ferred up to $50 million of royalties annu-ally from the Lease Fund to the DCNR,the Commonwealth Court acknowledgedthe Foundation’s argument that the trans-fer of the $50 million acted to limit thefunding of the DCNR, as it had previouslyreceived all royalties from the Lease Fund.The court redefined this challenge as aclaim that the transfer did not provideadequate funding for DCNR to protect theCommonwealth’s natural resources, as op-posed to addressing the Foundation’sbroader argument that the Common-wealth, specifically Governor Rendell,failed to abide by his various duties astrustee by limiting the funding of theDCNR. Id.


The Commonwealth Court reviewedcase law addressing constitutional chal-lenges based on inadequate funding of apart of government. PEDF, 108 A.3d at161–66. The Commonwealth Court ob-served that while this Court has been will-ing to act to protect the ‘‘independence ofthe judicial branch,’’ the CommonwealthCourt has not been willing to intervene inregard to the Legislature’s authority todetermine the funding of Commonwealthagencies. Id. at 161–64 (citing, inter alia,County of Allegheny v. Commonwealth,517 Pa. 65, 534 A.2d 760 (1987) (holdinglegislative acts requiring counties to fundthe local court system to be unconstitution-al) and Commonwealth ex rel. Carroll v.Tate, 442 Pa. 45, 274 A.2d 193 (1971) (ad-dressing court funding in Philadelphia)), at164–66 (citing, inter alia, Mental HealthAssociation in Pennsylvania v. Corbett, 54A.3d 100 (Pa. Cmwlth. 2012) (dismissingchallenge based on inadequacy of fundingfor Department of Public Welfare’s mentalhealth and intellectual disability services)).

Reiterating its reluctance to ‘‘secondguess’’ the amounts appropriated by theGeneral Assembly to Commonwealth agen-cies, the Commonwealth Court appliedwhat it viewed as this Court’s requirementthat a challenger demonstrate that ‘‘theamount funded is so inadequate that itimpairs the proper functioning’’ of theDCNR. Id. at 166. It concluded that theFoundation ‘‘presented no evidence thatthe current funding appropriated to theDCNR from all sources is inadequate—i.e.,that the funding is so deficient that theDCNR cannot conserve and maintain ourState natural resources.’’ Id. Accordingly,the court granted the Commonwealth’smotion for summary relief, concluding thatthe Foundation failed to demonstrate that

Sections 1602–E and 1603–E violate theConstitution.

B. Constitutionality of Section 1604–E, Section 1605–E, and othertransfers of money from theLease Fund

In regard to Sections 1604–E and 1605–E and the other budgetary transfers, seesupra at 922–24, the Foundation arguedthat the money generated by oil and gasexploration ‘‘must be committed to further-ing the purposes, rights, and protectionsafforded’’ under Section 27, rather thanbeing intermingled with the General Fund.Id. at 167. Considering the constitutionallanguage, the Commonwealth Court heldthat Section 27 ‘‘does not expressly com-mand that all revenues derived from thesale or leasing of the Commonwealth’s nat-ural resources must be funneled to thosepurposes and those purposes only.’’ Id. at168.

The court reiterated that the LeaseFund was merely a statutory special fund,rather than a trust fund, and opined thatthere was ‘‘no constitutional mandate thatmonies derived from the leasing of Statelands for oil and natural gas developmentbe reinvested into the conservation andmaintenance of the Commonwealth’s publicnatural resources.’’ Id. at 169. Accordingly,the Commonwealth Court again held thatthe Foundation failed to demonstrate thatthe Fiscal Code Amendments, General Ap-propriations Act transfers, and Act 13transfers from the Lease Fund to the Gen-eral Fund violate the EnvironmentalRights Amendment, because funds ap-peared to be used for the general ‘‘benefitof all the people.’’ Id. The court, therefore,denied summary relief to the Foundation,granting in substantial part the Common-wealth’s cross-motion for summary relief.18

18. Sections 1602–E and 1603–E affect theappropriation of royalties to the DCNR, ini-

tially re-appropriating all such payments tothe General Assembly, before authorizing a


IV. Analysis

The Foundation filed a direct appeal asof right from the final order of the Com-monwealth Court, pursuant to 42 Pa.C.S.§ 723(a), raising ten issues. We enter-tained oral argument to examine the fol-lowing two overarching issues:

1. The proper standards for judicialreview of government actions and legis-lation challenged under the Environ-mental Rights Amendment, Article I,Section 27 of the Pennsylvania Constitu-tion, in light of Robinson Township v.Commonwealth, 623 Pa. 564, 83 A.3d901 (2013) (plurality);2. Constitutionality under Article I,[Section] 27 of Section 1602–E and 1603–E of the Fiscal Code and the GeneralAssembly’s transfers/appropriationsfrom the Lease Fund.

[1–5] Given that we are reviewing theCommonwealth Court’s decision on cross-motions for summary relief pursuant toPa.R.A.P. 1532(b),19 we may grant reliefonly if no material questions of fact existand the right to relief is clear. See Jubelir-er, 953 A.2d at 521. Additionally, as chal-

lenges to the constitutionality of statutespresent pure questions of law, our stan-dard of review is de novo, and our scope ofreview is plenary. See Robinson Twp., 83A.3d at 943. As with any constitutionalchallenge to legislation, the challengerbears the heavy burden of demonstratingthat the statute ‘‘clearly, plainly, and pal-pably violates the Constitution,’’ as we pre-sume that our sister branches act in con-formity with the Constitution. Stilp v.Commonwealth, 588 Pa. 539, 905 A.2d 918,939 (2006). In interpreting constitutionallanguage, ‘‘the fundamental rule of con-struction which guides [this Court] is thatthe Constitution’s language controls andmust be interpreted in its popular sense,as understood by the people when theyvoted on its adoption.’’ Ieropoli v. AC & SCorp., 577 Pa. 138, 842 A.2d 919, 925(2004). As with our interpretation of stat-utes, if the language of a constitutionalprovision is unclear, we may be informedby ‘‘the occasion and necessity for theprovision; the circumstances under whichthe amendment was ratified; the mischiefto be remedied; the object to be attained;

transfer of some royalty money back to theDCNR. The Commonwealth Court indicatedthat Sections 1604–E and 1605–E resulted inthe transfer of ‘‘bonus payment revenue’’ (anelevated ‘‘first annual rental payment’’) fromthe Lease Fund to the General Fund, afterforcing DCNR to generate the same throughadditional leasing. See PEDF, 108 A.3d at146–48; accord Foundation’s Brief at 76. Ac-cording to the Foundation, the General Ap-propriation Act of 2009 also resulted in thetransfer of bonus bid payments to the GeneralFund. See Foundation’s Brief at 76.The Commonwealth Court additionally con-sidered, in regard to the Commonwealth’scross-motion for summary relief, whether theGovernor or only the DCNR has authority toenter natural gas leases. The court noted thatthe CNRA provides the DCNR with exclusiveauthority ‘‘to make and execute contracts orleases in the name of the Commonwealth forthe extraction of oil and natural gas on Statelands and to determine whether doing so is in

the best interest of the Commonwealth.’’ Id.at 171 (citing 71 P.S. § 1340.302(a)(6)). It,therefore, denied the Commonwealth relief onthis point, concluding that the ultimate deci-sion lay with the DCNR, although recognizingthat the General Assembly and the Governorcould attempt to influence it. Id. at 172. JudgeCohn Jubelirer joined the majority opinionwith the exception of the section addressingwhether the Governor or the DCNR had deci-sion-making authority in regard to futureleases, which she deemed advisory, becauseno future leasing decisions had as of thenbeen made.

19. Rule 1532(b), entitled ‘‘Summary relief,’’provides as follows: ‘‘At any time after thefiling of a petition for review in an appellateor original jurisdiction matter the court mayon application enter judgment if the right ofthe applicant thereto is clear.’’ Pa.R.A.P.1532(b).


and the contemporaneous legislative histo-ry.’’ Robinson Twp., 83 A.3d at 945 (citing1 Pa.C.S. §§ 1921, 1922).

A. Proper Standard of Judicial Re-view

The parties, various amici, and the plu-rality in Robinson Township all reject thethree-part test developed by the Common-wealth Court in Payne I as the appropri-ate standard for examining Section 27challenges. The Commonwealth observesthat the Payne I test has been criticized as‘‘ill-fitted’’ to the language of Section 27and as frustrating the development of a‘‘coherent environmental rights jurispru-dence.’’ Commonwealth’s Brief at 25 (citingRobinson Township, 83 A.3d at 964). Simi-larly, the Foundation urges ‘‘the issues inthis case do not fit the mold of the Paynetest crafted by the Commonwealth Court.’’Foundation’s Reply Brief at 5 (discussingthe Robinson Township plurality’s threepart criticism of the Payne test).20

We agree. The Payne I test, which isunrelated to the text of Section 27 and thetrust principles animating it, strips theconstitutional provision of its meaning. SeeRobinson Twp., 83 A.3d at 967; see alsoDernbach, The Potential Meanings of aConstitutional Public Trust, 45 Envtl. L.463, 499 (2015). Accordingly, we reject the

test developed by the CommonwealthCourt as the appropriate standard for de-ciding Article I, Section 27 challenges.

Instead, when reviewing challenges tothe constitutionality of Commonwealth ac-tions under Section 27, the proper stan-dard of judicial review lies in the text ofArticle I, Section 27 itself as well as theunderlying principles of Pennsylvania trustlaw in effect at the time of its enactment.We must therefore carefully examine thecontours of the Environmental RightsAmendment to identify the rights of thepeople and the obligations of the Common-wealth guaranteed thereunder.

B. The Contours of Section 27

[6, 7] This is not the first time we havebeen called upon to address the rights andobligations set forth in the EnvironmentalRights Amendment. We did so in Robin-son Twp., and we rely here upon the state-ment of basic principles thoughtfully devel-oped in that plurality opinion.21 To start,the General Assembly derives its powerfrom Article III of the Pennsylvania Con-stitution which grants broad and flexiblepolice powers to enact laws for the pur-poses of promoting public health, safety,morals, and the general welfare. Id. at 946.These powers, however, are expressly lim-ited by fundamental rights reserved to the

20. In Robinson Township, the plurality ex-plained the significant drawbacks of the Com-monwealth Court’s Payne test:

[T]he test poses difficulties both obviousand critical. First, the Payne test describesthe Commonwealth’s obligations—both astrustee and under the first clause of Section27—in much narrower terms than the con-stitutional provision. Second, the test as-sumes that the availability of judicial reliefpremised upon Section 27 is contingentupon and constrained by legislative action.And, finally, the Commonwealth Court’sPayne decision and its progeny have theeffect of minimizing the constitutionalduties of executive agencies and the judicial

branch, and circumscribing the abilities ofthese entities to carry out their constitution-al duties independent of legislative control.

Robinson Twp., 83 A.3d at 967.

21. In Robinson Township, this Court consid-ered the constitutionality of portions of Act 13of 2012, which amended the PennsylvaniaLease Fund Act with substantial benefits tothe natural gas industry in response to theMarcellus Shale boom. Notably, some of theFoundation’s challenges in the case at barwere triggered by separate provisions of Act13, specifically those provisions that createdthe Marcellus Legacy Fund. See 58 Pa.C.S.§§ 2315(a.1), 2505.


people in Article I of our Constitution. Id.at 946. Specifically, Section 1 affirms,among other things, that all citizens ‘‘havecertain inherent and indefeasible rights.’’Id. at 948 (quoting Pa. Const. art. I, § 1).As forcefully pronounced in Section 25, therights contained in Article I are ‘‘exceptedout of the general powers of governmentand shall forever remain inviolate.’’ Id.(quoting Pa. Const. art. I, § 25).

[8] Among the ‘‘inherent and indefeasi-ble’’ rights in Article I of the PennsylvaniaConstitution are the rights set forth in theEnvironmental Rights Amendment, whichwe quote again for ease of discussion:

The people have a right to clean air,pure water, and to the preservation ofthe natural, scenic, historic and estheticvalues of the environment. Pennsylva-nia’s public natural resources are thecommon property of all the people, in-cluding generations yet to come. Astrustee of these resources, the Common-wealth shall conserve and maintain themfor the benefit of all the people.

Pa. Const. art. I, § 27. This constitutionalprovision grants two separate rights to thepeople of this Commonwealth. The firstright is contained in the first sentence,which is a prohibitory clause declaring theright of citizens to clean air and purewater, and to the preservation of natural,scenic, historic and esthetic values of theenvironment. Robinson Twp., 83 A.3d at951. This clause places a limitation on the

state’s power to act contrary to this right,and while the subject of this right may beamenable to regulation, any laws that un-reasonably impair the right are unconstitu-tional. Id.

[9] The second right reserved by Sec-tion 27, set forth in its second sentence, isthe common ownership by the people, in-cluding future generations, of Pennsylva-nia’s public natural resources. Id. at 954.The ‘‘public natural resources’’ referencedin this second sentence include the stateforest and park lands leased for oil and gasexploration and, of particular relevance inthis case, the oil and gas themselves. Id. at955; see also Pa. L. Journal, 154th GeneralAssembly, No. 118, Reg. Sess., 2271–75(1970). In a statement offered to the Gen-eral Assembly in connection with the pro-posed Environmental Rights Amendment,Professor Robert Broughton explainedthat the provision was initially drafted as‘‘Pennsylvania’s natural resources, includ-ing the air, waters, fish, wildlife, and thepublic lands and property of the Common-wealth TTTT’’ but was revised to removethe enumerated list and thereby discour-age courts from limiting the scope of natu-ral resources covered. Pa. L. Journal,154th General Assembly, No. 118, Reg.Sess., 2274 (1970) (Broughton Analysis).22

[10–12] The third clause of Section 27establishes a public trust, pursuant towhich the natural resources are the corpusof the trust, the Commonwealth 23 is the

22. The sentence was also amended to includethe term ‘‘public’’ to indicate that it did notapply to purely private property rights. How-ever, Representative Kury opined that thetrust nevertheless applied to ‘‘resourcesowned by the Commonwealth and also tothose resources not owned by the Common-wealth, which involve a public interest.’’ Pa.L. Journal, 154th General Assembly, No. 118,Reg. Sess., 2271–72 (1970) (statement by Rep.Kury).

23. Trustee obligations are not vested exclu-sively in any single branch of Pennsylvania’sgovernment, and instead all agencies and en-tities of the Commonwealth government, bothstatewide and local, have a fiduciary duty toact toward the corpus with prudence, loyalty,and impartiality. See Robinson Twp., 83 A.3dat 956–57; see also Pa. L. Journal, 154thGeneral Assembly, No. 118, Reg. Sess., 2269,2271 (1970).Importantly, in addition to its trustee obli-gations, the DCNR also has a statutory re-


trustee, and the people are the namedbeneficiaries. Robinson Twp., 83 A.3d at955–56. The terms ‘‘trust’’ and ‘‘trustee’’carry their legal implications under Penn-sylvania law at the time the amendmentwas adopted. See Appeal of Ryder, 365 Pa.149, 74 A.2d 123, 124 (1950) (providing that‘‘words having a precise and well-settledlegal meaning must be interpreted’’ ac-cordingly); see also Robinson Twp., 83A.3d at 956 (citing Pa.C.S. § 1903). Nota-bly, Professor Broughton explained thatthe Commonwealth’s role was plainly in-tended to be that of a ‘‘trustee,’’ as op-posed to ‘‘proprietor.’’ See Pa. L. Journal,154th General Assembly, No. 118, Reg.Sess., 2269, 2273 (1970) (Broughton Analy-sis). As a trustee, the Commonwealth mustdeal ‘‘with its citizens as a fiduciary, meas-uring its successes by the benefits it bes-tows upon all its citizens in their utilizationof natural resources under law.’’ Id. UnderSection 27, the Commonwealth may not actas a mere proprietor, pursuant to which it‘‘deals at arms[’] length with its citizens,measuring its gains by the balance sheetprofits and appreciation it realizes from itsresources operations.’’ Id.

[13–15] The Robinson Township plu-rality aptly described the Commonwealth’sduties as the trustee of the environmentaltrust created by the people of Pennsylva-nia as follows:

As trustee, the Commonwealth is a fidu-ciary obligated to comply with the terms

of the trust and with standards govern-ing a fiduciary’s conduct. The explicitterms of the trust require the govern-ment to ‘‘conserve and maintain’’ thecorpus of the trust. See Pa. Const. art. I,§ 27. The plain meaning of the termsconserve and maintain implicates a dutyto prevent and remedy the degradation,diminution, or depletion of our publicnatural resources. As a fiduciary, theCommonwealth has a duty to act towardthe corpus of the trust—the public natu-ral resources—with prudence, loyalty,and impartiality.

Robinson Twp., 83 A.3d at 956–57.

[16–18] Under Pennsylvania trust law,the duty of prudence requires a trustee to‘‘exercise such care and skill as a man ofordinary prudence would exercise in deal-ing with his own property.’’ In re Menden-hall, 484 Pa. 77, 398 A.2d 951, 953 (1979)(quoting Restatement (Second) of Trusts§ 174).24 The duty of loyalty imposes anobligation to manage the corpus of thetrust so as to accomplish the trust’s pur-poses for the benefit of the trust’s benefi-ciaries. See Metzger v. Lehigh Valley Trust& Safe Deposit Co., 220 Pa. 535, 69 A.1037, 1038 (1908); see also In re Hartje’sEstate, 345 Pa. 570, 28 A.2d 908, 910 (1942)(citing Restatement (Second) of Trusts§ 186 for the proposition that ‘‘the trusteecan properly exercise such powers andonly such powers as (a) are conferred upon

sponsibility ‘‘to maintain, improve and pre-serve State parks, to manage State forestlands to assure their long-term health, sus-tainability and economic use.’’ See 71 P.S.§ 1340.101. To pursue this mission, theDCNR is empowered with exclusive authority‘‘to make and execute contracts or leases inthe name of the Commonwealth for the min-ing or removal of any valuable minerals thatmay be found in State forests’’ when, andonly when, the DCNR determines that doingso is in the best interests of the Common-wealth. 71 P.S. § 1340.302(a)(6).

24. The Uniform Trust Act confirms that theduty to administer with prudence involves‘‘considering the purposes, provisions, distri-butional requirements and other circum-stances of the trust and TTT exercising reason-able care, skill and caution.’’ 20 Pa.C.S.§ 7774. In furtherance of this duty, the trus-tee ‘‘shall keep adequate records of the ad-ministration of the trust’’ and ‘‘shall keeptrust property separate from the trustee’s ownproperty.’’ 20 Pa.C.S. § 7780.


him in specific words by the terms of thetrust, or (b) are necessary or appropriateto carry out the purposes of the trust andare not forbidden by the terms of thetrust’’). The duty of impartiality requiresthe trustee to manage the trust so as togive all of the beneficiaries due regard fortheir respective interests in light of thepurposes of the trust. 20 Pa.C.S. § 7773;Estate of Sewell, 487 Pa. 379, 409 A.2d 401,402 (1979) (citing Restatement (Second) ofTrusts § 183).25

[19–21] Pennsylvania’s environmentaltrust thus imposes two basic duties on theCommonwealth as the trustee. First, theCommonwealth has a duty to prohibit thedegradation, diminution, and depletion ofour public natural resources, whetherthese harms might result from direct stateaction or from the actions of private par-ties. Robinson Twp., 83 A.3d at 957. Sec-ond, the Commonwealth must act affirma-tively via legislative action to protect theenvironment. Id. at 958 (citing Geer v.Connecticut, 161 U.S. 519, 534, 16 S.Ct.600, 40 L.Ed. 793 (1896) (trusteeship forthe benefit of state’s people implies legisla-tive duty ‘‘to enact such laws as will bestpreserve the subject of the trust, and se-cure its beneficial use in the future to thepeople of the state’’)). Although a trustee isempowered to exercise discretion with re-spect to the proper treatment of the cor-pus of the trust, that discretion is limitedby the purpose of the trust and the trus-tee’s fiduciary duties, and does not equate‘‘to mere subjective judgment.’’ Id. at 978(citing Struthers Coal & Coke Co. v. UnionTrust Co., 227 Pa. 29, 75 A. 986, 988 (1910);In re Sparks’ Estate, 328 Pa. 384, 196 A.

48, 57 (1938)). The trustee may use theassets of the trust ‘‘only for purposes au-thorized by the trust or necessary for thepreservation of the trust; other uses arebeyond the scope of the discretion con-ferred, even where the trustee claims to beacting solely to advance other discrete in-terests of the beneficiaries.’’ Id. (citingMetzger, 69 A. at 1038); see also Hartje’sEstate, 28 A.2d at 910 (‘‘giving of [an]unrestricted bond’’ was ‘‘neither ‘neces-sary’ nor ‘appropriate’ to the carrying outof the purposes of the trust; hence, theexistence of [trustee’s] power to do so byinference must be denied’’).

[22] The Commonwealth argues thatthe revenue obtained from the dispositionof trust assets need not be returned to thecorpus of the trust or otherwise dedicatedto trust purposes, for two reasons. First,the Commonwealth contends that the En-vironmental Rights Amendment is ‘‘silent’’as to the use of proceeds from the sale ofnatural resources, and ‘‘addresses neitherthe appropriations process nor funding forconservation purposes.’’ See Common-wealth’s Brief at 39. This is plainly inaccu-rate, as Section 27 expressly creates atrust, and pursuant to Pennsylvania law ineffect at the time of enactment, proceedsfrom the sale of trust assets are part of thecorpus of the trust. See, e.g., McKeown’sEstate, 263 Pa. 78, 106 A. 189, 190 (1919)(‘‘Being a sale of assets in the corpus ofthe trust, presumptively all the proceedsare principalTTTT’’). The unavoidable resultis that proceeds from the sale of oil andgas from Section 27’s public trust remainin the corpus of the trust.26

25. Justice Baer’s contention that our holdingtoday ‘‘cordons off’’ hundreds of millions ofdollars from other budgetary uses is inaccu-rate. See Concurring and Dissenting Opinionat 940–41. In so contending, Justice Baeraddresses a question never raised by the par-ties and thus not presently before us.

26. The Commonwealth Court posited that‘‘where the drafters of the Pennsylvania Con-stitution intended to dedicate a tranche ofmoney to a particular purpose, they did soexpressly,’’ as in Article VIII, § 11(a) (relatingto Motor Licensing Fund) (MVL Fund) andArticle VIII, § 16 (relating to Land and Water


Second, the Commonwealth insists thatthe concluding phrase of Section 27, ‘‘forthe benefit of all the people,’’ confers dis-cretion upon the General Assembly to di-rect the proceeds from oil and gas develop-ment toward any uses that benefit all thepeople of the Commonwealth, even if thoseuses do nothing to ‘‘conserve and main-tain’’ our public natural resources. Com-monwealth’s Brief at 41 (citing PEDF, 108A.3d at 168). We are wholly unconvinced.The phrase ‘‘for the benefit of all of thepeople’’ may not be read in isolation anddoes not confer upon the Commonwealth aright to spend proceeds on general budget-ary items. Pa. Const. art I, § 27. TheCommonwealth’s fiduciary duty to ‘‘con-serve and maintain’’ our public natural re-

sources is a duty owed to the beneficiariesof the public trust, namely ‘‘the people,including generations yet to come,’’ as setforth in the second sentence of Section 27.Id. The ‘‘people,’’ in turn, are those en-dowed with ‘‘a right to clean air, purewater, and to the preservation of the natu-ral, scenic, historic and esthetic values ofthe environment,’’ as set forth in the firstsentence of Section 27. Id.

[23] Accordingly, the EnvironmentalRights Amendment mandates that theCommonwealth, as a trustee, ‘‘conserveand maintain’’ our public natural resourcesin furtherance of the people’s specificallyenumerated rights. Thus understood incontext of the entire amendment, the

Conservation and Reclamation Fund) (LWCRFund). PEDF, 108 A.3d at 168 n.46. The Com-monwealth urges us to adopt this reasoning,see Commonwealth’s Brief at 40, but we areunpersuaded. As described herein, the cre-ation of a trust in the Environmental RightsAmendment obviates the need for additionallanguage indicating that funds should be dedi-cated for a specific purpose. Section 27 itselfestablishes that the purpose of the trust is to‘‘conserve and maintain’’ the public naturalresources and basic trust principles requirethat the proceeds from their sale remain partof the corpus. By contrast, the MVL Fund andthe LWCR Fund provisions do not containtrust language.

The Commonwealth additionally urges us toadopt a line of reasoning it claims is consis-tent not with the treatment of trust proceedsunder Pennsylvania trust law but, instead,with the ‘‘public trust doctrine.’’ Id. at 43–45(discussing the seminal public trust doctrinecase, Illinois Central Railroad Co. v. Illinois,146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018(1892), wherein the United States SupremeCourt held that Illinois could not divest itselfof certain land and water because doing sowould deprive the public of its right to the useand enjoyment thereof). The Commonwealth’sargument is unavailing.As an initial matter, Illinois Central Railroadhas nothing to do with the proper treatmentof proceeds from the sale of trust assets. Moreto the point, while we appreciate that Section

27 establishes a public trust, we also recog-nize that the ‘‘public trust doctrine’’ does notset forth universally applicable black letterlaw and that Pennsylvania has no establishedpublic trust principles applicable to Section27. Scholars of public trust law, includingProfessor Joseph L. Sax—whose article, ThePublic Trust Doctrine in Natural ResourceLaw: Effective Judicial Intervention, 68 Mich.L. Rev. 471 (1970), is discussed in the legisla-tive history for Section 27—acknowledge thatthe ‘‘amorphous’’ public trust concept merelyprovides a potential tool through which citi-zens may attempt to develop a comprehensiveapproach to natural resource management.Id. at 474, 546 (presenting a compendium ofpublic trust cases from around the countryreflecting legal theories ‘‘as diverse as law-yers’ imaginations are fertile’’); see also Com-monwealth’s Brief at 44 n.22 (citing WilliamH. Rodgers Jr., Handbook on EnvironmentalLaw, § 2.16 (West Pub. Co. 1977), for theproposition that ‘‘[a]ny attempt at a short-hand statement of the principles of publictrust doctrine must come with a disclaimer:the constitutional and legislative variationsamong the states approach the infiniteTTT’’).At most, the public trust doctrine provides aframework for states to draft their own publictrust provisions, which (like many trust in-struments) will ultimately be interpreted bythe state courts. In Pennsylvania, establishedprivate trust principles provide this Courtwith the necessary tools to properly interpretthe trust created by Section 27.


phrase ‘‘for the benefit of all the people’’ isunambiguous and clearly indicates that as-sets of the trust are to be used for conser-vation and maintenance purposes. See Rob-inson Twp., 83 A.3d at 957 (holding thatthe ‘‘explicit terms of the trust require thegovernment to ‘conserve and maintain’ thecorpus of the trust’’). Only within thoseparameters, clearly set forth in the text ofSection 27, does the General Assembly, orany other Commonwealth entity, have dis-cretion to determine the public benefit towhich trust proceeds—generated from thesale of trust assets—are directed.

By arguing that proceeds obtained fromthe sale of our natural resources are notpart of the corpus of the trust, the Com-monwealth improperly conceives of itselfas a mere proprietor of those public natu-ral resources, rather than as a trustee. Inthe Commonwealth’s view, it may disposeof our public natural resources as it sochooses and for any purpose it so con-ceives, so long as such disposition broadlybenefits the public (apparently without re-gard to ‘‘generations yet to come’’). SeeCommonwealth’s Brief at 45. As such, iturges us to substantially diminish its fidu-ciary obligation to prevent and remedy thedegradation of our natural resources. Wedecline to do so.

[24–26] The Foundation contends thatall revenues generated by oil and gas leas-es remain in the corpus of the trust. Weare without sufficient advocacy to rule onthe correctness of this proposition. Wenote again that Pennsylvania trust law dic-tates that proceeds from the sale of trustassets are trust principal and remain partof the corpus of the trust. McKeown’s Es-tate, 106 A. at 190. When a trust asset isremoved from the trust, all revenue re-ceived in exchange for the trust asset is

returned to the trust as part of its corpus.See Bolton v. Stillwagon, 410 Pa. 618, 190A.2d 105, 109 (1963) (explaining that when‘‘the relation of trustee and [beneficiary]has once been established as to certainproperty in the hands of the trustee, nomere change of trust property from oneform to another will destroy the relation’’).As a result, royalties—monthly paymentsbased on the gross production of oil andgas at each well—are unequivocally pro-ceeds from the sale of oil and gas re-sources. See Petitioner’s Brief for Sum-mary Judgment, Pet. Ex. X. They are partof the corpus of the trust and the Com-monwealth must manage them pursuant toits duties as trustee.

Conversely, it is less clear how to cate-gorize other revenue streams. See general-ly In re Rosenblum’s Estate, 459 Pa. 201,328 A.2d 158, 163 (1974) (in a case notinvolving oil and gas leases, holding thatrents from realty held by a trust havetraditionally been treated as income (andpayable directly to the trust’s beneficia-ries) rather than principal).27 See also In reMcKeown’s Estate, 106 A. at 190; Restate-ment (Second) of Trusts § 233; 20 Pa.C.S.§ 8145. For example, the record on appealis undeveloped regarding the purpose ofup-front bonus bid payments, and thus nofactual basis exists on which to determinehow to categorize this revenue. While werecognize that the leases designate thesepayments, among others, as ‘‘rental pay-ments,’’ such a classification does not shedany light on the true purpose of the pay-ment, e.g., rental of a leasehold interest inthe land, payment for the natural gas ex-tracted, or some other purpose. In con-struing Sections 1604–E and 1605–E, tothe extent that the lease agreements re-flect the generation of revenue streams for

27. Unlike a sale or other disposition that de-prives the trust of any further benefit from thetrust asset, at the end of a rental period, the

trust retains the trust asset in its entirety in itscorpus.


amounts other than for the purchase of theoil and gas extracted, it is up to the Com-monwealth Court, in the first instance andin strict accordance and fidelity to Penn-sylvania trust principles, to determinewhether these funds belong in the corpusof the Section 27 trust.

[27] In this regard, it must be remem-bered that the Commonwealth, as trustee,has a constitutional obligation to negotiateand structure leases in a manner consis-tent with its Article 1, Section 27 duties.Oil and gas leases may not be drafted inways that remove assets from the corpusof the trust or otherwise deprive the trustbeneficiaries (the people, including futuregenerations) of the funds necessary to con-serve and maintain the public natural re-sources.

On remand, the parties should be giventhe opportunity to develop arguments con-cerning the proper classification, pursuantto trust law, of any payments called ‘‘rent-al payments’’ under the lease terms. Tothe extent such payments are consider-ation for the oil and gas that is extracted,they are proceeds from the sale of trustprincipal and remain in the corpus. Theseproceeds remain in the trust and must bedevoted to the conservation and mainte-nance of our public natural resources, con-

sistent with the plain language of Section27.

C. Need for Implementing Legisla-tion

The Foundation contends that Section27 is self-executing, based in part on theplurality opinion in Robinson Township.Foundation’s Brief at 49–50. While theCommonwealth does not take a position onthis issue, the Republican Caucus, as ami-cus, argues that Section 27 is not self-executing. Republican Caucus’ Brief at 48–60. It analyzes decisions from others statesregarding their environmental rightsamendments and observes that, while afew states have specific language dictatingthat the amendment is self-executing, nostate has read the language of the amend-ment as self-executing when the languagedoes not explicitly so provide. Id. at 56–60.

The plurality in Robinson Township rec-ognized that our prior case law has notresolved the issue of whether Section 27 isself-executing or whether it requires im-plementing legislation to be effective, atleast in regard to an attempt to enforcethe people’s rights against owners of pri-vate property.28 Robinson Township, 83A.3d at 964–65; see also Dernbach, ThePotential Meanings of a ConstitutionalPublic Trust, 45 Envtl. L. at 474–75.

28. This question, regarding whether Section27 was self-executing in regard to privateproperty, divided the Court in Commonwealthv. National Gettysburg Battlefield, 454 Pa.193, 311 A.2d 588 (1973), where the Com-monwealth attempted to enjoin the owners ofproperty adjoining the Gettysburg battlefieldfrom constructing an observation towerclaiming that the tower would violate thepeople’s right to the historic and aestheticvalues of the site. In a plurality opinion, twojustices concluded that the Section 27 claimshould be dismissed because the provisionrequired legislative action to be effective, id.at 595; one justice concurred with the dis-missal without opinion, id.; two justices

found that the Commonwealth’s claim failedon the merits, while acknowledging the Com-monwealth’s ability to act as trustee (presum-ably without further legislative action), id. at595–96; and two justices would have grantedthe injunction based on Section 27, specifical-ly finding the provision to be self-executing,id. at 597. As noted in Robinson Township,this Court previously misstated that a plurali-ty of the justices in Gettysburg concluded thatthe Section 27 was not self-executing in Unit-ed Artists’ Theater Circuit, Inc. v. City of Phila-delphia, 535 Pa. 370, 635 A.2d 612, 620(1993), when in fact only two justices specifi-cally found it to require legislative action.Robinson Twp., 83 A.3d at 940.


Although refusing to speak to whetherthe right was self-executing for purposesof enforcement against private property,this Court in Payne II, nevertheless con-cluded that the trust provisions in thesecond and third sentences of Section 27do not require legislative action in order tobe enforced against the Commonwealth inregard to public property. In Payne II, westated:

There can be no question that theAmendment itself declares and creates apublic trust of public natural resourcesfor the benefit of all the people (includ-ing future generations as yet unborn)and that the Commonwealth is made thetrustee of said resources, commanded toconserve and maintain them. No imple-menting legislation is needed to enunci-ate these broad purposes and establishthese relationships; the [A]mendmentdoes so by its own ipse dixit.

Payne II, 361 A.2d at 272.

[28] Former Chief Justice Castille ech-oed this concept in the Robinson Town-ship plurality, concluding that the Com-monwealth’s obligations as trustee ‘‘createa right in the people to seek to enforce theobligations.’’ Robinson Township, 83 A.3dat 974.29 Accordingly, we re-affirm our pri-or pronouncements that the public trustprovisions of Section 27 are self-executing.

D. Foundation’s Challenges

In the Commonwealth Court, theFoundation sought declarations that theCommonwealth has certain duties as con-stitutional trustee and that various actsor decisions by the Governor and Gener-al Assembly violated those constitutionalduties. As noted, the challenged acts anddecisions primarily relate to the propri-

ety of the Commonwealth’s use of reve-nue generated from oil and gas leasesfor purposes not authorized by Section27. Also implicated is the propriety ofthe Commonwealth’s decision-makingprocess with respect to leasing stateland. See Foundation’s Reply Brief at 13(arguing that leasing and selling thestate park and forest land, and the oiland gas thereon for the purpose of gen-erating revenue for the General Fund isimproper because balancing the budget‘‘is not one of the purposes of thetrust’’). Having determined that proceedsrepresenting payment for extracted oiland gas remain as part of the corpus ofour environmental public trust, and thatroyalties are unquestionably such pro-ceeds, we are able to make specific rul-ings with respect to only some of thechallenged legislation.

[29] Sections 1602–E and 1603–E re-late exclusively to royalties. On their face,these amendments lack any indication thatthe Commonwealth is required to contem-plate, let alone reasonably exercise, itsduties as the trustee of the environmentalpublic trust created by the EnvironmentalRights Amendment. The Commonwealthitself readily acknowledges that revenuegenerated by oil and gas leases is nowspent in a multitude of ways entirely unre-lated to the conservation and maintenanceof our public natural resources. See Com-monwealth’s Brief at 46. Section 1602–Emerely requires the General Assembly to‘‘consider’’ allocating these funds to munic-ipalities impacted by a Marcellus well. Sec-tion 1603–E limits DCNR’s allocation fromthe Lease Fund to ‘‘up to $50,000,000’’from royalties and requires DCNR to‘‘give preference to the operation and

29. We additionally find support in Section27’s legislative history, in which ProfessorBroughton opined that the Amendment‘‘would immediately create rights to prevent

the government (state, local, or an authority)from taking positive action which undulyharms environmental quality.’’ LegislativeJournal–House at 2281 (Broughton Analysis).


maintenance of State parks and forests’’rather than to conservation purposes.30

Again, however, there is no indication thatthe General Assembly considered the pur-poses of the public trust or exercised rea-sonable care in managing the royalties in amanner consistent with its Section 27 trus-tee duties.

[30–32] We hold, therefore, that sec-tions 1602–E and 1603–E, relating to roy-alties, are facially unconstitutional.31 Theyplainly ignore the Commonwealth’s consti-tutionally imposed fiduciary duty to man-age the corpus of the environmental publictrust for the benefit of the people to ac-complish its purpose—conserving andmaintaining the corpus by, inter alia, pre-venting and remedying the degradation,diminution and depletion of our public nat-ural resources.32 See Robinson Twp., 83A.3d at 957. Without any question, these

legislative enactments permit the trusteeto use trust assets for non-trust purposes,a clear violation of the most basic of atrustee’s fiduciary obligations. Id. at 978(‘‘[T]he trustee may use the assets of thetrust only for purposes authorized by thetrust or necessary for the preservation ofthe trust; other uses are beyond the scopeof the discretion conferred, even where thetrustee claims to be acting solely to ad-vance other discrete interests of the bene-ficiaries.’’); see also 20 Pa.C.S. § 7780(providing that the duty to administer atrust with prudence involves ‘‘consideringthe purposes’’ of the trust and ‘‘the exer-cise of reasonable care, skill, and caution’’).To the extent the remainder of the FiscalCode amendments transfer proceeds fromthe sale of trust assets to the GeneralFund, they are likewise constitutionally in-firm.

30. We reject the Commonwealth Court’s re-framing of the Foundation’s challenge to Sec-tion 1603–E as a contention that the GeneralAssembly is failing to fund DCNR’s missionadequately under Section 27. See PEDF, 108A.3d at 161. Properly understood, the Foun-dation’s challenge relates to whether Section1603–E reflects the appropriate exercise ofthe Commonwealth’s fiduciary obligations asthe Section 27 trustee, not whether DCNR’sbudget is sufficient. See id. (quoting Founda-tion’s Brief to Commonwealth Court at 93–94); see also Foundation’s Reply Brief at 7.

31. A statute is facially unconstitutional onlywhere no set of circumstances exist underwhich the statute would be valid. Clifton v.Allegheny Cty., 600 Pa. 662, 969 A.2d 1197,1222 (2009) (citing Wash. State Grange v.Wash. State Republican Party, 552 U.S. 442,449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008)).‘‘In determining whether a law is faciallyinvalid, [a court] must be careful not to gobeyond the statute’s facial requirements andspeculate about ‘hypothetical’ or ‘imaginary’cases.’’ United States v. Raines, 362 U.S. 17,22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960) (‘‘Thedelicate power of pronouncing an Act of Con-gress unconstitutional is not to be exercisedwith reference to hypothetical cases thusimagined.’’)). A facial challenge ‘‘must failwhere the statute has a ‘plainly legitimate

sweep.’ ’’ Clifton, 969 A.2d at 1222 (quotingGrange, 552 U.S. at 449, 128 S.Ct. 1184).

32. The Commonwealth avers that robust leaseterms, pre-leasing analysis, and monitoringprograms to discover the impacts of leasingjustify the Commonwealth’s appropriation ofproceeds for non-trust purposes. See Com-monwealth’s Brief at 33–34. These ‘‘justifica-tions’’ do not answer the question of whetherit is proper for the Commonwealth to spendproceeds from those leases on anything otherthan ‘‘remedy[ing] the degradation, diminu-tion or depletion’’ of our public natural re-sources. The Foundation, conversely, takesthe position that there is a ‘‘backlog of pro-jects necessary to conserve and maintain ourState Forests and Parks that are estimated tocost several billion dollars.’’ Foundation’sBrief at 72. The Commonwealth’s generalizedassertions and the Foundation’s staggering es-timates do not provide any basis to determinewhether the appropriations to the GeneralFund were made pursuant to the proper exer-cise of the Commonwealth’s fiduciary dutiesas trustee. Moreover, the Commonwealth’spublic natural resources extend beyond thegeographic boundaries of our state parks andforests.


Based on its conclusion that no revenuefrom the leasing and sale of trust assets ispart of the corpus of the trust as well asits interpretation of Section 27’s plain lan-guage, including the Commonwealth’s fidu-ciary obligations that arise therefrom, theCommonwealth Court denied the Founda-tion’s application for summary relief. Iterroneously concluded that all of the Gen-eral Assembly’s transfers and appropria-tions from the Lease Fund were whollyproper because they appeared generally tobenefit all the people of the Common-wealth and ‘‘there is no constitutional man-date that monies derived from the leasingof State lands for oil and gas developmentbe reinvested into the conservation andmaintenance of the Commonwealth’s natu-ral resources.’’ PEDF, 108 A.3d at 169.

[33] Having established, to the con-trary, that all proceeds from the sale ofour public natural resources are part ofthe corpus of our environmental publictrust and that the Commonwealth mustmanage the entire corpus according to itsfiduciary obligations as trustee, the Com-monwealth Court’s decision cannot stand.In light of our specific holding that sec-tions 1602–E and 1603–E are facially un-constitutional, the pre–2008 appropriationsscheme as set forth in the Lease Fund Actand the CNRA again controls, with allmonies in the Lease Fund specifically ap-propriated to the DCNR. As to the re-maining acts and decisions the Foundationchallenges, we clarify that their constitu-tionality depends upon whether they resultfrom the Commonwealth’s faithful exerciseof its fiduciary duties vis a vis our publicnatural resources and any proceeds de-rived from the sale thereof. For example,the Governor’s ability to override decisionsby the DCNR regarding leasing is contin-gent upon the extent to which he does soin a manner that is faithful to his trustee

obligations, not his various other obli-gations.

[34, 35] We also clarify that the legisla-ture’s diversion of funds from the LeaseFund (and from the DCNR’s exclusivecontrol) does not, in and of itself, consti-tute a violation of Section 27. As describedherein, the legislature violates Section 27when it diverts proceeds from oil and gasdevelopment to a non-trust purpose with-out exercising its fiduciary duties as trus-tee. The DCNR is not the only agencycommitted to conserving and maintainingour public natural resources, and the Gen-eral Assembly would not run afoul of theconstitution by appropriating trust fundsto some other initiative or agency dedicat-ed to effectuating Section 27. By the sametoken, the Lease Fund is not a constitu-tional trust fund and need not be the ex-clusive repository for proceeds from oiland gas development. However, if pro-ceeds are moved to the General Fund, anaccounting is likely necessary to ensurethat the funds are ultimately used in accor-dance with the trustee’s obligation to con-serve and maintain our natural resources.

The Commonwealth (including the Gov-ernor and General Assembly) may not ap-proach our public natural resources as aproprietor, and instead must at all timesfulfill its role as a trustee. Because thelegislative enactments at issue here do notreflect that the Commonwealth compliedwith its constitutional duties, the order ofthe Commonwealth Court with respect tothe constitutionality of 1602–E and 1603–Eis reversed, and the order is otherwisevacated in all respects. The case is re-manded to the Commonwealth Court forfurther proceedings consistent with thisOpinion.

Justices Todd, Dougherty and Wechtjoin the opinion.


Justice Baer files a concurring anddissenting opinion.

Chief Justice Saylor files a dissentingopinion.

Former Justice Eakin did notparticipate in the consideration or decisionof this case.

CONCURRING AND DISSENTINGOPINION

JUSTICE BAER

Through today’s decision, this Courttakes several monumental steps in the de-velopment of the Environmental RightsAmendment, Article I, Section 27 of thePennsylvania Constitution. I agree withmany of the Majority’s holdings, includingPart IV.A.’s dismantling of the Common-wealth Court’s Payne 1 test, which stoodfor nearly fifty years, the confirmation thatthe public trust provisions of the amend-ment are self-executing in Part IV.C., andthe recognition in footnote 23 that allbranches of the Commonwealth are trus-tees of Pennsylvania’s natural resources.2

These holdings solidify the jurisprudentialsea-change begun by Chief Justice Cas-tille’s plurality in Robinson Township v.Commonwealth, 623 Pa. 564, 83 A.3d 901,950–51 (2013) (plurality), which rejuvenat-ed Section 27 and dispelled the oft-heldview that the provision was merely anaspirational statement. With this, I am infull agreement.

Nevertheless, I dissent from the pri-mary holding of the case declaring variousfiscal enactments unconstitutional or po-tentially unconstitutional based upon theMajority’s conclusion that the proceedsfrom the sale of natural resources are partof the ‘‘trust corpus’’ protected by Section

27. Maj. Op. at 933. I reject my colleagues’reading of Section 27, which I find to beunmoored from the amendment’s languageand purpose. As discussed below, the cur-rent decision imposes upon our sisterbranches of government private trust prin-ciples that are absent from the constitu-tional language and tangential to theforces motivating the adoption of Section27.

As articulated in the extensive passageof Robinson Township quoted by theMajority, the Environmental RightsAmendment was enacted to addressPennsylvania’s long history of environ-mental devastation resulting from thetimber, hunting, and coal industries, aswell as environmental disasters in the1950s and 60s. The Amendment aimed toprevent further pollution and the wastingof Pennsylvania’s natural resources, aswell-documented in the legislative historyof Section 27, relied upon by the Robin-son Township plurality. Robinson Town-ship, 83 A.3d at 960–963. In contrast,there is neither constitutional languagenor legislative history addressing the fi-nancial proceeds from the use or sale ofnatural resources. It simply was not con-sidered during the passage of the amend-ment. Protection of natural resources, notfunding, was the focus of the amendment,and as expressed below, the two are notnecessarily interrelated.

Through their actions today employingprivate trust principles to direct that allproceeds from Pennsylvania’s public natu-ral resources be funneled into environmen-tal protection, my colleagues threaten tooverride the delicate process required ofthe legislative and executive branches toachieve a constitutionally-mandated bal-

1. Payne v. Kassab, 11 Pa.Cmwlth. 14, 312A.2d 86 (1973).

2. I additionally concur with the holding thatthe Oil and Gas Lease Fund is not a constitu-tional trust fund. Maj. Op. at 940.


anced and fair budget. Despite a lack ofsupport in the language of Section 27, hun-dreds of millions of dollars generated bythe recent Marcellus Shale exploration onstate land as well as proceeds from oil,gas, coal, timber, game and other naturalresources, will be cordoned off from criti-cal areas of the Commonwealth’s budget,including education, infrastructure, andother public works, without considerationof whether such funding is necessary toprotect Pennsylvania’s public resources.3

As described below, I reject the imposi-tion of inflexible private trust require-ments and instead would interpret the lan-guage of Section 27 with an awareness ofthe public trust doctrine as it applied tonatural resources at the time of Pennsylva-nia’s enactment of Section 27. Utilizing thisdoctrine and the necessary presumptionthat our sister branches act in accordancewith the Constitution, I conclude that thePennsylvania Environmental DefenseFoundation failed to meet its burden toprove the statutes ‘‘clearly, palpably, andplainly violat[e] the Constitution.’’ Stilp v.Commonwealth, 588 Pa. 539, 905 A.2d 918,939 (2006). Accordingly, I would affirm theCommonwealth Court’s order granting, insubstantial part, summary relief to theCommonwealth and denying the Founda-tion’s application for summary relief.

A. The Language and History of Sec-tion 27.

Analysis of the issues in this case beginswith the language of Section 27, whichprovides as follows:

The people have a right to clean air,pure water, and to the preservation of

the natural, scenic, historic and estheticvalues of the environment. Pennsylva-nia’s public natural resources are thecommon property of all the people, in-cluding generations yet to come. Astrustee of these resources, the Common-wealth shall conserve and maintain themfor the benefit of all the people.

PA. CONST. art. I, § 27. The Majority cor-rectly observes that ‘‘the fundamental ruleof construction which guides [this Court] isthat the Constitution’s language controlsand must be interpreted in its popularsense, as understood by the people whenthey voted on its adoption.’’ Ieropoli v. AC& S Corp., 577 Pa. 138, 842 A.2d 919, 925(2004). Moreover, ‘‘technical words andphrases and such others as have acquireda peculiar and appropriate meaning TTT

shall be construed according to such pecu-liar and appropriate meaning or defini-tion.’’ 1 Pa.C.S. § 1903(a).

I agree with the plurality in RobinsonTownship and the Majority in the case atbar that Section 27 contains two enforce-able rights. Maj. Op. at 931; RobinsonTownship, 83 A.3d at 950–952. The firstsentence of Section 27 provides a ‘‘right toclean air, pure water, and to the preserva-tion of the natural, scenic, historic andesthetic values of the environment.’’ Thesecond and third sentences, relevant to thecase at hand, combine to create the peo-ple’s right to have Pennsylvania’s naturalresources conserved and maintained. Spe-cifically, the second sentence declares that‘‘public natural resources are the commonproperty of all the people, including gener-ations yet to come,’’ and the third sentence

3. I recognize that the Majority has limited itsholding to royalties and has remanded to theCommonwealth Court to determine whetherother payments constitute proceeds from thesale of trust assets, which would be deemedpart of the trust corpus, as opposed to incomegenerated by the assets, which would not be

deemed part of the corpus of the trust underprivate trust principles. Maj. Op. at 935. As Idissent from the stringent application of pri-vate trust duties relating to the corpus of thetrust, I need not determine the validity of thisdichotomy.


requires the Commonwealth to act ‘‘astrustee’’ of the resources and to ‘‘conserveand maintain them for the benefit of all thepeople.’’

While the Majority imposes upon theCommonwealth private trust dutiesthrough the Uniform Trust Act, I do notfind that the language of the Section 27supports this analysis. Notably, Section 27does not speak in terms of the people as‘‘beneficiaries,’’ nor does it define the re-sources in terms of the ‘‘corpus of thetrust.’’ Instead, it broadly provides thatthe resources are the ‘‘common property’’of the people. Common ownership, howev-er, does not grant individuals rights com-mensurate with private ownership. As apt-ly observed by the United States SupremeCourt, ‘‘the right that we all possess to usethe public lands is not the ‘property’ rightof anyone.’’ College Sav. Bank v. FloridaPrepaid Postsecondary Educ. ExpenseBd., 527 U.S. 666, 673, 119 S.Ct. 2219, 144L.Ed.2d 605 (1999).

Rather than imposing private trust prin-ciples on the expansive rights granted bySection 27, I follow the lead of the plurali-ty opinion in Robinson Township and relyupon the legislative history detailing thedrafting and approval of Section 27 utiliz-ing the public trust doctrine. Robinson

Township, 83 A.3d at 955–56. Included inthis legislative history is a statement byRepresentative Franklin Kury, the drafterand primary proponent of the Amendment(‘‘Kury Statement’’), integrating a legalanalysis of the Amendment by DuquesneUniversity Professor Robert Broughton(‘‘Broughton Analysis’’). 1970 Pa. Legisla-tive Journal–House at 2269–82 (April 14,1970).4 Professor Broughton repeatedly ex-plained that the second and third sen-tences of Section 27 ‘‘have the purpose ofplacing Pennsylvania among the jurisdic-tions which adhere to the public trust theo-ry of public natural resource manage-ment.’’ 5 1970 Pa. Legislative Journal–House at 2273 (Broughton Analysis), 2275(observing that the ‘‘primary purpose’’ ofthe final two sentences was ‘‘to constitu-tionally affirm that the public trust doc-trine applied to the management of publicnatural resources in Pennsylvania’’). More-over, as explained below, the terminologyused by the drafters of Section 27 evokesthe public trust doctrine.

1. The public trust doctrine.

The public trust doctrine has been partof common law for centuries even thoughit has not been ‘‘clearly enunciated’’ inPennsylvania. Id. at 2275 (Broughton Anal-

4. I recognize and concur with the propositionthat statements made by individual legislatorsare of limited value in determining the intentof the General Assembly as a whole regardinga statutory enactment, given that the individu-als speak only for themselves. Notwithstand-ing, in this case, I find value in RepresentativeKury’s statement and his submission of Pro-fessor Broughton’s analysis as Kury authoredthe proposed constitutional amendment.Moreover, he drafted questions and answerscirculated to inform the general public of theintent of the proposal prior to them voting toadopt the constitutional amendment. ExhibitUU to Petitioner’s Brief in Opposition to Re-spondents’ Cross Motion for Summary Judg-ment and Petitioner’s Reply to Respondents’Response to Petitioner’s Motions for Sum-

mary Judgment (reproducing John C. Dern-bach and Edmund J. Sonnenberg, A Legisla-tive History of Article I, Section 27 of theConstitution of the Commonwealth of Pennsyl-vania, 24 Widener L.J. 181 (2015) (includingRepresentative Franklin L. Kury’s 1971 Ques-tion and Answer Sheet in favor of Pa. Houseof Representatives, Joint Resolution 3)).

5. While the Majority relies upon Professor’sBroughton’s explanation that the Common-wealth must act as a trustee rather than aproprietor, Maj. Op. at 932, it fails to ac-knowledge that the professor utilized thisdichotomy in describing the public trustdoctrine, which the Majority relegates to afootnote. Maj. Op. at 933–34 n.26.


ysis). The lack of clarity of the doctrine,however, does not permit us to ignore theintent of the legislators drafting theamendment nor the voters adopting it,which was to employ public trust princi-ples. In other words, we should not fallback upon precepts of private trust lawmerely because they are familiar to us.Instead, we should attempt to understandthe underpinnings of the public trust doc-trine invoked by Section 27.

As Broughton explained, the public trustdoctrine, at base, invokes a fiduciary-likeconstruct whereby the government has‘‘the duty to manage, use, and/or consumethe property of the public solely for thebenefit of the public.’’ 1970 Pa. LegislativeJournal–House at 2273 (Broughton Analy-sis). The concept of a public trust derivesfrom English common law securing thepublic’s ability to navigate, conduct com-merce, and fish along the seashore andrivers and to travel and hunt in dedicatedpublic common areas. Joseph L. Sax, ThePublic Trust Doctrine in Natural Re-source Law: Effective Judicial Interven-tion, 68 Mich. L. Rev. 471, 475–76 (1969)(hereinafter ‘‘The Public Trust Doctrine’’);Joseph L. Sax, Liberating the PublicTrust Doctrine from its Historical Shack-les, 14 U.C. Davis L. Rev. 185, 189–91(1980–81). In language reflected in Section27, the sovereign is deemed to hold thelands ‘‘as trustee of a public trust for thebenefit of the people.’’ National AudubonSociety v. Superior Court, 33 Cal.3d 419,189 Cal.Rptr. 346, 658 P.2d 709, 718 (1983)(citation omitted).

Until the late 1960s, the concept hadbeen applied primarily to navigable water-ways and designated parklands, including

fishing and hunting rights. Indeed, a fewof our sister states incorporated publictrust provisions regarding navigable wa-terways and state lands into their consti-tutions long before Pennsylvania’s adop-tion of Section 27.6 In connection with theenvironmental rights awakening duringthe years immediately preceding the 1971adoption of Section 27, a movement devel-oped to expand the previously limitedpublic trust doctrine to encompass naturalresources generally. The expansion of thedoctrine is largely credited to ProfessorJoseph Sax’s seminal 1969 article, ThePublic Trust Doctrine in Natural Re-source Law: Effective Judicial Interven-tion, supra, which was relied upon byProfessor Broughton in the legislativeproceedings related to the adoption ofSection 27.

A few principles can be distilled fromthe common law public trust doctrine, spe-cifically in regard to the use and sale ofresources. First, courts have generallysafeguarded the public’s continued use oftrust property for its original purpose andhave disfavored the sale of trust land toprivate parties where the conveyance doesnot support the purposes of the trust. SeeSax, The Public Trust Doctrine, 68 Mich.L. Rev. at 477. Notwithstanding this gen-eral precept, the public trust doctrine doesnot forbid the state from developing, leas-ing, or even disposing of portions of trustproperty. Id. at 485–89.

Indeed, courts and scholars have recog-nized that ‘‘[a]s a matter of practical neces-sity the state may have to approve appro-priations despite foreseeable harm to thepublic trust uses.’’ National Audubon So-ciety, 658 P.2d at 728. These actions may

6. See, e.g., VA. CONST. art. XI, § 3 (previouslyincluded as Section 175 of the Virginia Con-stitution of 1902, protecting the state’s oysterbed and imposing specific limitations on thegovernment); WA. CONST. art. 15, § 1 (incorpo-

rating the public trust doctrine to protectharbors and tide waters); see also Sax, ThePublic Trust Doctrine, 68 Mich. L. Rev. at 547n.230–233.


be deemed permissible if the governmentalentity has considered the effect of theaction and attempted to ‘‘preserve, so faras consistent with the public interest, theuses protected by the trust.’’ Id. The pub-lic trust doctrine, therefore, aims to limitbut not eliminate the rate of alienation ofthe trust property in order to protect pub-lic expectations. Sax, Liberating the PublicTrust Doctrine from its Historical Shack-les, 14 U.C. Davis L. Rev. at 191–93; seealso John C. Dernbach, The PotentialMeanings of a Constitutional PublicTrust, 45 Envtl. L. 463, 484 (2015).

Although it is permissible to dispose ofportions of protected property, a govern-ment may be deemed to run afoul of itsduties under the public trust if it disposesof excessive portions of the relevant prop-erty, especially for less than fair marketvalue, or engages in transactions related tothe public resources which benefit privateentities rather than the public generally.Sax, The Public Trust Doctrine, 68 Mich.L. Rev. at 488–89 (emphasizing that dispo-sition of trust property cannot be of ‘‘suchamplitude that the state will effectivelyhave given up its authority to govern’’),537 (observing that public trust propertiesshould not be used to benefit private enti-ties).

A court faced with a questionable trans-action will look to whether the legislativebody clearly intended to dispose of thepublic trust property and may deem revo-cable any conveyances that are inconsis-tent with the purpose of the public trust.See National Audubon Society, 658 P.2dat 721 (discussing Illinois Central Rail-road Co. v. Illinois, 146 U.S. 387, 453–54,13 S.Ct. 110, 36 L.Ed. 1018 (1892), inwhich the Supreme Court allowed Illinoisto revoke a conveyance of nearly all thesubmerged lands of the Chicago water-front to a private railroad). Importantlyfor purposes of this case, the doctrine en-

courages government entities to utilize anyproceeds gained from the disposition ofpublic property for the benefit of the gen-eral public. Sax, The Public Trust Doc-trine, 68 Mich. L. Rev. at 547 (observingthat disposition of public trust property‘‘may be made only for full market valueand that revenues from them must bedevoted to replacement of specific trustuses or to statewide public purposes’’) (em-phasis added). Thus, prior to getting intothe specifics of the Pennsylvania Constitu-tion, it is notable that the classic publictrust doctrine does not contemplate whatthe majority holds. Monies from the sale ofnatural resources need not remain as the‘‘corpus’’ of the environmental trust, butrather may be used for the general benefitof the public.

2. The Public Trust of Section 27.

Applying this summary of the publictrust doctrine to the Pennsylvania Consti-tution, I observe that, consistent with myanalysis above, the language of Section 27does not employ private trust principles.Instead, Section 27 is broadly phrased torequire the Commonwealth to ‘‘conserveand maintain’’ the public’s natural re-sources for the benefit of all the people,including future generations. The phrasinginvokes the original common law publictrusts relating to navigable waterways de-scribed above, pursuant to which the gov-ernment acts as trustee ‘‘with a duty tomanage, use, and/or consume the propertyof the public solely for the benefit of thepeople.’’ 1970 Pa. Legislative Journal–House at 2273 (Broughton Analysis).

Conspicuously missing from Section 27is any specific financial constraint. TheCommonwealth’s obligation is to conserveand maintain the public’s natural resourcesregardless of the Commonwealth’s currentfinancial status. Thus, in the absence offunds from natural resources, the Com-


monwealth would be obligated to drawupon the general budget to provide anyneeded funds for conservation and mainte-nance. Conversely, if the Commonwealthexperiences a windfall to the tune of abillion dollars from natural resources, theCommonwealth would still be required tofund conservation and maintenance needsbut would not have to let any excess pro-ceeds sit idle while critical public projectswere left unfunded. Instead, the Common-wealth may use the excess in its sounddiscretion for the public’s health, safety,and welfare, whether that be for education,infrastructure, or other necessary pro-grams. The majority holds otherwise bymistakenly viewing this public trust as aprivate trust.

In rejecting the applicability of the pub-lic trust doctrine, the Majority criticizesthe Commonwealth’s reliance on IllinoisCentral Railroad, the seminal decision ofthe United States Supreme Court on thepublic trust doctrine. The Majority opinesthat Illinois Central Railroad ‘‘has noth-ing to do with the proper treatment ofproceeds from the sale of trust assets.’’Maj. Op. at 933–34 n.26. The Majority iscorrect that the High Court did not discussthe proceeds of the sale, but it fails torecognize why. Illinois Central Railroaddoes not address the proceeds for thesame reason Section 27 does not addressthe revenues from the sale of natural re-sources. Simply, the public trust doctrineis focused upon preserving the public’s ac-cess to and enjoyment of the protectedland and resources. It aims to prevent thedestruction or privatization of public assetsbut has nothing to do with creating abalance sheet accounting of assets aswould be necessary under private trustlaw.

Consistent with the public trust doc-trine’s principle that the governmentshould protect the public’s access to trust

property and limit the rate of alienation, Iagree with Representative Kury who ex-plained Section 27 as requiring that gov-ernment actors demonstrate that a pro-posed action benefits the public interest incases where the action might also impairnatural resources. 1969 Pa. LegislativeJournal–House at 722 (June 2, 1969)(Statement submitted by Rep. FranklinKury). He emphasized that the public in-terest in the environment should be‘‘weighed against the interests of thosewho would detract from or diminish [thenatural resources] before—not after—ac-tion is taken.’’ Id. Consistent with Repre-sentative Kury’s observations, Section 27’sinvocation of the public trust doctrine andthe explicit reference to future generationsprecludes the ‘‘wasting of resources,’’ butdoes not forbid the use of the resources forthe current benefit of the public. 1970 Pa.Legislative Journal–House at 2273(Broughton Analysis).

Accordingly, I agree with the RobinsonTownship plurality which opined that theCommonwealth has a prohibitory obli-gation ‘‘to refrain from performing itstrustee duties respecting the environmentunreasonably’’ and an affirmative obli-gation to act to protect the environment.Robinson Township, 83 A.3d at 957–58.Moreover, I further recognize that manyof the basic principles underlying the pub-lic trust doctrine overlap with traditionalduties of private trustees, including therequirement that a trustee act in the pub-lic’s interest which requires loyalty, impar-tiality, and prudence. Id. at 957. Thus, Iagree with the Majority and RobinsonTownship plurality to the extent they holdthat the Commonwealth, as trustee underSection 27’s public trust, should (1) exer-cise the duty of loyalty by administeringthe trust solely for the benefit of all thepeople, including future generations, (2)abide by the duty of impartiality by bal-ancing the interests of all the beneficiaries,


including balancing the interests of currentversus future generations, and (3) act withprudence by managing the resources withordinary skill and caution. However, noth-ing in the history of Section 27 as detailedherein suggests that monies unnecessaryto the conservation and maintenance of theenvironment must be cabined off from oth-er pressing needs of the people of thisCommonwealth. The Majority’s holding inthis regard is in error.7

Thus, I turn to specific issues regardingthe interpretation of the Amendmentraised by the parties before this Court.

B. Analysis of the Foundation’s chal-lenges

1. ‘‘Trust corpus’’

At the heart of the Foundation’s chal-lenges to the various Pennsylvania legisla-tive enactments addressed below is its con-tention that the provisions violate Section27 by transferring Lease Fund moniesfrom exclusively funding the DCNR’s con-servation activities to providing funding

for the Commonwealth’s General Fund,which can then be used for non-conserva-tion activities. Underlying this issue iswhether the proceeds from the sale ofnatural resources, such as the rents androyalties gained from the leases of oil andgas rights on Commonwealth land, shouldbe considered part of the ‘‘corpus’’ of theSection 27 trust as would be the case for atraditional private trust. My colleagues inthe Majority adopt the Foundation’s viewthat the proceeds of Pennsylvania’s naturalresources, which include the oil and gas atissue in this case, are part of the ‘‘corpus’’of the Section 27 trust, which can be usedonly for conservation and maintenance ofPennsylvania’s public natural resources.Maj. Op. at 935.

As noted above, I disagree. Section 27 issilent regarding the creation of a ‘‘corpus’’and in no way suggests that the proceedsfrom the sale of natural resources shouldbe included in such a corpus. Instead, thefocus of Section 27 is on the natural re-sources themselves, not the money gainedfrom the resources.8 The trustee’s duties

7. I observe that the above-listed principlesgoverning Section 27’s public trust align withthe Supreme Court of Hawaii’s interpretationof their similar constitutional amendment,which provides:

For the benefit of present and future gener-ations, the State and its political subdivi-sions shall conserve and protect Hawaii’snatural beauty and all natural resources,including land, water, air, minerals and en-ergy sources, and shall promote the devel-opment and utilization of these resources ina manner consistent with their conservationand in furtherance of the self-sufficiency ofthe State.All public natural resources are held intrust by the State for the benefit of thepeople.

HAW. CONST. art. 11, § 1. The Hawaiian highcourt recognized that the plain language of itsconstitution ‘‘manifests the framers’ intent toincorporate the notion of the public trust into[the] constitution.’’ In re Water Use PermitApplications, 94 Hawai’i 97, 9 P.3d 409, 443(2000) (citing this Court’s decision in Payne v.

Kassab, 468 Pa. 226, 361 A.2d 263, 272 (1976) (‘‘There can be no question that the[constitution] declares and creates a publictrust of public natural resources for the bene-fit of all people’’)). The court explained thatthe ‘‘basic purpose of the trust’’ was to ‘‘re-serv[e] the resource for use and access by thegeneral public without preference or restric-tion’’ rather than for private commercial gain.Id. at 450.

8. Moreover, the Commonwealth observes thatin contrast to Section 27’s silence, other con-stitutional provisions clearly indicate whenfunds should be dedicated for specific pur-poses, such as the Motor Vehicle LicensingFund, PA. CONST. art. VIII, § 11 (entitled:‘‘Gasoline taxes and motor license fees re-stricted’’), and the Land and Water Conserva-tion and Reclamation Fund, PA. CONST. artVIII, § 16 (indicating, prior to the adoption ofSection 27, that the fund created in the sec-tion was to be ‘‘used for the conservation andreclamation of land and water resources ofthe Commonwealth’’ and includes a list of


are to ‘‘conserve and maintain’’ the re-sources, not the money.

Moreover, Section 27 does not requirethat the Commonwealth conserve andmaintain the resources for the benefit ofthe environment, but rather for the ‘‘bene-fit of all the people,’’ which includes boththe enjoyment of the natural environmentbut also the utilization of the resources,without waste, for the current benefit ofthe public. My conclusion is buttressed bythe specific alterations of the language ofSection 27 during the drafting process toallow for the Commonwealth’s continueddisposition of natural resources, includingthrough logging and hunting, without anysuggestion in the text of the Amendmentthat the funds had to be reinvested in thetrust or used solely for trust purposes.

Originally, Section 27’s third sentenceprovided, ‘‘As trustee of these resources,the Commonwealth shall preserve andmaintain them in their natural state forthe benefit of all the people.’’ H.R. 958,Printer’s No. 1105 (Apr. 21, 1969). Duringthe drafting process, the word ‘‘conserve’’was substituted for ‘‘preserve,’’ and thephrase ‘‘in their natural state’’ was re-moved. The substitution of ‘‘conserve’’ wasmade to allay fears that ‘‘courts mightinterpret the word ‘preserve’ restrictively,to mean that if [the Department of Forestand Waters] authorized trees to be cut onCommonwealth land, or the Game Com-mission licensed hunters to harvest game,

this would not be ‘preserving’ them.’’ 1970Pa. Legislative Journal–House at 2273(Broughton Analysis).

Instead, the use of the term ‘‘conserve’’requires that the resources be used pru-dently. As commonly understood, when agoverning body during a drought issues anorder for the public to ‘‘conserve water,’’the public may unquestionably still usewater for drinking, bathing, and otherhousehold uses but should be careful toavoid wasteful use. Moreover, the removalof the phrase ‘‘in their natural state’’ em-phasizes that the drafters of Section 27’slanguage did not intend to freeze the cur-rent status of the natural resources nor toprevent the Commonwealth’s ability to uti-lize the resources. Taken together, thesetwo changes demonstrate that the drafterscontemplated the continued, but judicious,use of the resources rather than ‘‘someform of environmental absolutism.’’ Dern-bach Brief at 18.

Moreover, the questions and answersdrafted by Representative Kury explainingthe amendment to the voters did not sug-gest that any, let alone all, of the proceedsfrom the uses of natural resources wouldbe devoted to the preservation of the envi-ronment; rather, the focus was upon re-quiring the government to ‘‘consider thepeople’s rights before it acts,’’ which isconsistent with the public trust principlesdiscussed above.9

specific uses). The absence of such designa-tion in Section 27 regarding the proceeds ofthe well-established process of selling or leas-ing natural resources suggests, according tothe Commonwealth, that the voters did notintend to encompass within the Section 27corpus the proceeds from such sales includingnatural gas rents and royalties.

9. The purpose of the Amendment was ex-plained to the voters as follows:

Q. Will the amendment make any real dif-ference in the fight to save the environ-ment?

A. Yes, once Joint Resolution 3 is passedand the citizens have a legal right to adecent environment under the State Consti-tution, every governmental agency or pri-vate entity, which by its actions may havean adverse effect on the environment, mustconsider the people’s rights before it acts. Ifthe public’s rights are not considered, thepublic could seek protection of its legalrights in the environment by an appropriatelaw suit. The Resolution would benefit all ofthe people, and would go a long way to-ward tempering any individual, company,


Nevertheless, while I would hold thatthe proceeds may be used for publicpurposes other than conservation, theCommonwealth must act in a trustee-likecapacity in regard to disposing of theunderlying natural resources, as dis-cussed above. Further, the legislativeand executive branches must considerthe funding level required by the DCNRand other conservation bodies to allowthem to fulfill the Commonwealth’s con-stitutional duty to maintain and conservethe people’s natural resources. However,once the Commonwealth has conscien-tiously fulfilled these duties, it is not re-quired to take the illogical step of leav-ing substantial monies unused in a fundfor the environment while being unableto meet other pressing needs of the peo-ple. In deciding otherwise, the Majorityis redrafting the Constitution to its ownliking, ignoring the public trust doctrine,and usurping the appropriate role of thelegislature in first assuring the conserva-tion and maintenance of the environmentand then meeting other pressing needsof the citizenry.

2. Statutory challenges

Having rejected the Foundation’s claimthat the funds generated by oil and gasleases on Commonwealth land must beheld regardless of whether the Common-wealth’s obligation to conserve and main-tain the environment have been satisfied,the Foundation’s arguments relating to theFiscal Code Amendments and related bud-getary decisions become amorphous. TheFoundation’s overarching claim is that the

respective Governors breached their fidu-ciary duty because they did not investigatethe impact of the budgetary changes onthe DCNR’s ability to fulfill its constitu-tional and statutory duties, under theCNRA, to conserve and maintain the pub-lic natural resources. Foundation Brief at49, 52, 55–56.

I accept the Foundation’s assertion thatit is not challenging the sufficiency of thefunding provided to the DCNR nor theDCNR’s decision to enter into the leases,but instead challenges the failure of theGovernors to investigate the impact of thechanges on the DCNR and the threat ofthe budgetary pressure to lease. Founda-tion Reply Brief at 38. I further agree withthe Foundation that the Governor and allCommonwealth entities have a fiduciaryduty as trustee of the people’s naturalresources to consider the effect of anycontemplated action on the natural re-sources. See Robinson Township, 83 A.3dat 952.

A general duty to consider, however,does not translate into a justiciable causeof action. Courts are not equipped to de-termine what level of consideration is re-quired. For example, should a court evalu-ate the proper consideration based on howmany hours were spent contemplating theeffects, how much money was expendedresearching the potential harms, or someindeterminate measure of how seriouslyour sister branches weighed the issue.These determinations are not only ill-de-fined but are entirely within the politicalrealm reserved to the General Assemblyand Governor.

or governmental body which may have anadverse impact on our natural or historicassets.In short, the amendment will incorporatethree broad principles into our legal sys-tem:1. The people have the right to a decentenvironment.

2. Our public natural resources belong toall the people, including future generations.3. The State is the trustee of these naturalresources for future generations.

Representative Franklin L. Kury’s 1971 Ques-tion and Answer Sheet in favor of Pa. Houseof Representatives, Joint Resolution 3, supraat 942 n.4.

949Pa.COMMONWEALTH v. DIXONCite as 161 A.3d 949 (Pa.Super. 2017)

Accordingly, I would affirm the Com-monwealth Court’s dismissal of the Foun-dation’s claims that the Governors violatedtheir fiduciary duties in regard to the bud-getary provisions.

DISSENTING OPINION

CHIEF JUSTICE SAYLOR

I join the central analysis of the dissent-ing opinion authored by Justice Baer,based on the recognition that the Environ-mental Rights Amendment is an embodi-ment of the public trust doctrine.

,

1

PENNSYLVANIA INDEPENDENTOIL & GAS ASSOCIATION,

Appellant

v.

COMMONWEALTH of Pennsylvania,DEPARTMENT OF ENVIRONMEN-

TAL PROTECTION, Appellee

No. 96 MAP 2016

Supreme Court of Pennsylvania.

DECIDED: June 20, 2017

Appeal from the Order of the Common-wealth Court at No. 321 MD 2015 datedSeptember 1, 2016

ORDER

PER CURIAM

AND NOW, this 20th day of June, 2017,the Order of the Commonwealth Court isAFFIRMED.

,

2

COMMONWEALTH of Pennsylvania

v.

Willie Frank DIXON, II, Appellant

No. 1633 MDA 2016

Superior Court of Pennsylvania.

Submitted February 27, 2017

Filed May 1, 2017

Background: Defendant was convictedpursuant to plea of nolo contendere of rapeby forcible compulsion of female under 16years old, and the Court of Common Pleas,Franklin County, Criminal Division, No.CP–28–CR–0001698–2014, Jeremiah D.Zook, J., entered judgment of sentence.Defendant appealed.

Holding: The Superior Court, No. 1633MDA 2016, Stevens, P.J.E., held that de-fendant was not eligible for award of credittowards the term of his sentence for timethat defendant served on pretrial homeconfinement with electronic monitoring.

Affirmed.

1. Criminal Law O273.4(1)

A plea of guilty constitutes a waiver ofall nonjurisdictional defects and defensesand waives the right to challenge anythingbut the legality of the sentence and thevalidity of the plea.

2. Criminal Law O1023(11)

A claim based upon the failure to givecredit for time served is a challenge impli-cating the legality of one’s sentence, whichis appealable as of right. 42 Pa. Cons.Stat. Ann. § 9760.

pa env. defense foundation v. com. 911

Documents