SUPREME COURT OF PENNSYLVANIA
PENNSYLVANIA ENVIRONMENTAL
DEFENSE FOUNDATION,
Appellant
v.
TOM WOLF, GOVERNOR;
COMMONWEALTH OF
PENNSYLVANIA
Appellees

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No. 10 MAP 2015

PETITION FOR EXTRAORDINARY JURISDICTION OF
THE PENNSYLVANIA SUPREME COURT;
IN THE ALTERNATIVE,
APPLICATION FOR ENFORCEMENT OF REMAND ORDER

John E. Childe
Attorney for PEDF
I.D. No. 19221
1847 Center Street
Camp Hill, Pa. 17011
717-743-9811
childeje@aol.com
Attorney for Pennsylvania
Environmental Defense Foundation

 TABLE OF CONTENTS
Page
INTRODUCTION .................................................................................

1

PETITION FOR EXTRAORDINAY JURISDICTION .........................

1

Immediate Need to Protect Section 27 Public Trust Assets ...................

2

Respondents Violations of Section 27 –
General Appropriations Act of 2017.............................................

5

Respondents’ Joint Application for Limited Remand .............................

8

Respondents Violation of Section 27 –
2017 Fiscal Code Amendments ....................................................

9

Respondents Continued Attempts to Limit Supreme Court
Remand Order ..............................................................................

10

Respondents Misapprehend the Scope of the Remand ...........................

12

APPLICATION FOR EXPEDITED ENFORCEMENT
OF REMAND ORDER ...............................................................

14

 TABLE OF CITATIONS
Page
CASES
PEDF v. Commonwealth, 161 A.3d 911 (Pa. 2017) ...............................
PEDF v. Commonwealth, 108 A.3d 140 (Pa. Cmwlth. 2015) ................

passim
1, 2, 13

PENNSYLVANIA CONSTITUTION
Article I, Section 27 ...............................................................................

passim

Article IV, Section 15 .............................................................................

6

Article IV, Section 16 .............................................................................

6

STATUTES
42 Pa.C.S. § 726 .....................................................................................

1

58 Pa.C.S. § 2504 and 2505 ...................................................................

10

Administrative Code of 1929, § 613, 71 P.S. § 233 ...............................

5

Fiscal Code Amendments, Act of October 30, 2017, P.L. __, No. 44.....

4, 9-11

General Appropriations Act of 2017, Act of July 11, 2017, P.L. __,
No. 1A, § 1601 .............................................................................

4, 7, 11

Oil and Gas Lease Fund Act, 71 P.S. §§ 1331-1333 ..............................

6, 9

PENNSYLVANIA RULES OF APPELLATE PROCEDURE
Pa. R.A.P. 2140 ......................................................................................

4

Pa. R.A.P. 2591(b) ..................................................................................

1, 14

 TABLE OF CITATIONS (cont.)
OTHER
Appropriations Bill, House Bill 218, Printer’s No. 2196, § 1601 ..........

5, 6

Appropriations Bill, House Bill 218, Printer’s No. 2196, § 104(p) .......

5

EXHIBITS
Exhibit A – Excerpts from Supreme Court Docket Sheet for
Docket No. 10 MAP 2015
Exhibit B – Section 27 Public Trust Assets at Issue to Date

 INTRODUCTION
The Pennsylvania Environmental Defense Foundation ("PEDF"),
Appellant/Petitioner, submits this Petition For Extraordinary Jurisdiction to the
Supreme Court of Pennsylvania pursuant to 42 Pa.C.S. § 726; and, in the
alternative, submits this Application to the Supreme Court of Pennsylvania seeking
an order pursuant to Pa. R.A.P. 2591(b) directing the Commonwealth Court to
obey and otherwise enforce the Opinion and Order entered by the Supreme Court
on June 20, 2017 (Docket No. 10 MAP 2015), PEDF v. Commonwealth, 161 A.3d
911 (Pa. 2017) (PEDF II), which reversed, vacated and remanded the
Commonwealth Court Order entered on January 7, 2015 (Docket No. 228 MD
2012), PEDF v. Commonwealth, 108 A.3d 140 (Pa. Cmwlth. 2015) (PEDF I).
PETITION FOR EXTRAORDINARY JURISDICTION
1.

“Notwithstanding any other provision of law, the Supreme Court may,

on its own motion or upon petition of any party, in any matter pending before any
court or magisterial district judge of this Commonwealth involving an issue of
immediate public importance; assume plenary jurisdiction of such matter at any
stage thereof and enter a final order or otherwise cause right and justice to be
done.” 42 Pa.C.S. § 726.
1

 Immediate Need to Protect Section 27 Public Trust Assets
2.

This case involves issues of immediate public importance – the

protection under Article I, Section 27 of the Pennsylvania Constitution (“Section
27”) of a concentration of Pennsylvania’s most valuable public natural resources in
the northcentral region known as the PA WILDS. These public natural resources
are a critical part of the social and economic wellbeing of the 12-county area of the
PA WILDS, where PEDF’s members live, work and recreate. And, the rights of
PEDF’s members under Section 27 have been, are being and will continue to be
impacted and degraded and diminished for at least the next 50 years. These impacts
are the direct result of Respondents’ past, continuing and almost certain future
actions to convert our State Forest into industrial development to extract and sell
natural oil and gas for revenue for the general budget of the Commonwealth.
3.
On June 20, 2017, this Court in PEDF II reversed in part and vacated
entirely the Commonwealth Court’s decision in PEDF I, which resolved cross
motions for summary judgment against PEDF and in favor of the Respondents. A
majority of the Supreme Court gave the following direction to guide the
Commonwealth Court on remand:
Having established … that all proceeds from the sale of our public
natural resources are part of the corpus of our environmental public
trust and that the Commonwealth must manage the entire corpus
according to the fiduciary obligations as trustee, the Commonwealth
Court’s decision cannot stand. In light of our specific holding that
section 1602-E and 1603-E [of the Fiscal Code] are facially
2

 unconstitutional, the pre-2008 appropriations scheme as set forth in
the [Oil and Gas] Lease Fund Act and [the Conservation and Natural
Resources Act] again controls, with all monies in the Lease Fund
specifically appropriated to the [Department of Conservation and
Natural Resources (“DCNR”)]. As to the remaining acts and
decisions [PEDF] challenges, we clarify that their constitutionality
depends upon whether they result from the Commonwealth’s
faithful exercise of its fiduciary duties vis a vis our public natural
resources and any proceeds derived from the sale thereof. For
example, the Governor’s ability to override decisions by the DCNR
regarding leasing is contingent upon the extent to which he does so in
a manner that is faithful to his trustee obligations, not his various
obligations.”
PEDF II, 161 A.3d at 939 (emphasis added). The Supreme Court concluded its
majority opinion with the following holding:
The Commonwealth (including the Governor and the General
Assembly) may not approach our public natural resources as a
proprietor, and instead must at all times fulfill its role as a trustee.
Because the legislative enactments at issue here do not reflect that the
Commonwealth complied with its constitutional duties, the order of
the Commonwealth Court with respect to the constitutionality of
1602-E and 1603-E is reversed, and the order is otherwise vacated in
all respects. The case is remanded to the Commonwealth Court for
further proceedings consistent with this Opinion.
Id. (emphasis added).
3.

On July 13, 2017, this Honorable Court remitted the record for this

case to the Commonwealth Court. (See copy of relevant entry in Supreme Court
Docket Sheet for this matter, attached as Exhibit A.)
4.
Pursuant to Pa. R.A.P. 2140, the Commonwealth Court is required to
establish a schedule for further proceedings following remand, or notify the parties
3

 if it does not require further briefing. For the past six (6) months, the
Commonwealth Court has taken no action to implement this Honorable Court’s
remand order.
5.
Since this Honorable Court’s issuance of its opinion in PEDF II on
June 20, 2017, the Respondents have proceeded with addition actions that violate
Section 27 and their duties as trustees set forth in PEDF II.
6.
The Respondents have enacted the transfer of at least another
$96,000,000 from the corpus of the public trust established by Section 27 (“Public
Trust”) for purposes that do not conserve and maintain public natural resources as
required by Section 27.
7.
Respondents have also enacted amendments to the Fiscal Code that
undermine the protection of the corpus of the Public Trust by entirely repealing the
Oil and Gas Lease Fund Act and providing no new statutory scheme to replace the
protections provided by the prior act.
8.
With these new actions added to the previous transfers, the corpus of
the Public Trust and the benefits that inure to its beneficiaries, both current and
future generations, has been cumulatively depleted by more than $1.1 billion
($1,100,000,000.00) (see Exhibit B).
9.
All $1.1 billion of these Public Trust financial assets could have been
used to conserve and maintain our public natural resources, but are now lost to the
beneficiaries of the Public Trust.
10. Without this Court’s intervention, these losses to the Public Trust will
continue as they have since the 2009-2010 fiscal year budget cycle. The budget
4

 cycle for 2018-2019, the tenth cycle since the Respondents began depleting the
Section 27 Public Trust, begins the first full week in February in 2018 with the
submission of the Governor’s Executive Budget to the General Assembly as
required by Section 613 of the Administrative Code of 1929 (71 P.S. § 233).
Respondents Violations of Section 27 - General Appropriations Act of 2017
11.

On June 30, 2017, just 10 days after the PEDF II opinion was issued,

both the House and Senate of the General Assembly of Pennsylvania passed House
Bill 218, Printer’s No. 2196 ("Appropriations Bill") and presented it to the
Governor for signature. Section 1601 of the Appropriations Bill, entitled “Oil and
Gas Lease Fund Appropriation,” would appropriate $50,000,000 to Department of
Conservation and Natural Resources (“DCNR”) for general operations; $7,739,000
to DCNR for State Parks Operations; and $3,552,000 to DCNR for State Forests
Operation. Section 104(p) of the Appropriations Bill also would require DCNR to
spend these funds for the payment of DCNR’s annual operating expenses during
fiscal year 2017-2018. No funds would be appropriated to pay for projects needed
to conserve and maintain the public natural resources of our State Forests and
Parks consistent with the Oil and Gas Lease Fund Act (71 P.S. §§ 1331-1333).

5

 12.

By operation of law, the Governor had 10 days to either sign the

Appropriations Bills, veto it or any appropriation within it, or to do nothing, in
which case the Appropriations Bill would become law on July 11, 2017.1
13. In an effort to stop further depletion of the Public Trust by the
appropriation of more than $61,000,000 from the Oil and Gas Lease Fund for
DCNR’s annual operating expenses, PEDF filed an application for relief with the
Commonwealth Court on July 5, 2017, seeking a declaration that the pending
appropriations in Section 1601 of the Appropriations Bill passed by the House and
Senate were unconstitutional based on this Court’s direction in PEDF II. PEDF
also filed an application for relief for preliminary injunction on July 6, 2017 to
enjoin the spending of the more than $61,000,000 appropriated in Section 1601 for
DCNR’s annual operating expenses in the pending Appropriations Bill.2
14. PEDF filed its applications for relief on July 5-6, 2017 to advise the
Governor of its belief that Section 1601 of the pending Appropriations Bill violates
Section 27 based on this Court’s decision in PEDF II and to give the Governor the
opportunity to prevent further unconstitutional depletion of the Section 27 Public
Trust by vetoing the pending Appropriations Bill. The Governor took no action on
the pending bill, which therefore became law on July 11, 2017.
See Sections 15 and 16, Article IV of the Pennsylvania Constitution (giving the
Governor the authority to veto bills, including any item appropriating money in an
appropriations bill).
2 PEDF had also filed an application for relief on June 29, 2017 asking the
Commonwealth Court to determine that bonus payments made to obtain oil and
gas leases on State Forest land are part of the Section 27 Public Trust.
6
1

 15.

On July 13, 2017, the date this Court remitted the record in this case

to the Commonwealth Court following issuance of its decision in PEDF II, PEDF
filed an application for relief asking the Commonwealth Court to determine that
lease and bonus payments for oil and gas extraction on our State Forests are part of
the Section 27 Public Trust consistent with this Court’s remand.
16. Also on July 13, 2017, PEDF re-filed its application for relief with the
Commonwealth Court seeking a declaration that Section 1601 of the General
Appropriation Act of 2017, which had become law,3 violates Section 27. PEDF
also re-filed on this date its application for relief asking the Commonwealth Court
to enjoin the Respondents from spending the more than $61,000,000 in Public
Trust assets appropriated for DCNR’s annual operating expenses in fiscal year
2017-2018 until the Court decided if such spending violated Section 27; and PEDF
also asked for expedited consideration.
17. The Respondents answered each of PEDF’s applications for relief, but
the Commonwealth Court has not taken any action on any of them.
Respondents’ Joint Application for Limited Remand
18.

Respondents then jointly filed an application for relief asking the

Commonwealth Court to strike PEDF’s applications for relief challenging the new
appropriation of Section 27 Public Trust assets to pay DCNR’s annual operating

3 Act

of July 11, 2017, P.L. __, No. 1A, §1601.
7

 expenses for fiscal year 2017-2018. The basis for Respondents’ application is that
this Honorable Court’s remand in PEDF II only allows the Commonwealth Court
to consider the narrow and limited question of whether bonus payments paid for
the right to extract the oil and gas from State Forests are part of the corpus of the
Public Trust. Respondents Joint Application, ⁋⁋ 13-17.
19. PEDF responded to the Respondent’s application for relief on July 26,
2017.
20.

The Commonwealth Court has not taken any action on Respondents’

joint application, including its assertion that this Honorable Court’s remand is
narrow and limited to a single issue, or PEDF’s response.

8

 Respondents Violation of Section 27 - 2017 Fiscal Code Amendments
21.

On October 30, 2017, the Respondents amended the Fiscal Code to

repeal the entire Oil and Gas Lease Fund Act.4 The Fiscal Code amendments also
created a new fund, also named “the Oil and Gas Lease Fund,” but with no
protective provisions similar to those in the prior Oil and Gas Lease Fund Act; no
separation of Public Trust assets from oil and gas leases on State lands from other
sources of funds that can be deposited into the fund; and no role for DCNR or any
other agency with expertise in managing the public natural resource on our public
lands in deciding the use of the funds.5 The General Assembly has complete
control over the use of the new Oil and Gas Lease Fund.
22. The 2017 Fiscal Code amendments authorize annual transfers from
the Oil and Gas Lease Fund beginning in fiscal year 2017-2018 totaling
$35,000,000 to the Marcellus Legacy Fund for projects that do not conserve and
maintain the public natural resources of our State Forests and Parks as required by
Section 27.6
4 Act

of October 30, 2017, P.L. __, No. 44, § 20 (repealing the Oil and Gas Lease
Fund Act, 71 P.S. §§ 1331-1333).
5 Id., § 3.2 (revising definition of “Oil and Gas Lease Fund Act” to mean the new
fund being created, not the former fund), and § 3.3 (adding § 1601.2-E (Oil and
Gas Lease Fund) to continue use of this special fund without any of the safeguards
of the prior act).
6 Id., § 3.3 (adding § 1601.2-E(e) authorizing these transfers; similar transfers were
previously authorized by Act 13 of 2012 (58 Pa.C.S. § 2504 and 2505, which are
repealed by § 20(2) the 2017 Fiscal Code amendments).
9

 23.

Section 1720-F of the 2017 Fiscal Code amendments mandates that

DCNR spend $2,250,000 of funds appropriated to DCNR for fiscal year 2017-2018
to operate and maintain a single State Park without any requirement for DCNR to
evaluate the needs of this park in comparison to the needs of the overall park
system consistent with its Section 27 trustee duties.
24. Section 1726-G of the 2017 Fiscal Code amendments authorize the
Respondents to transfer $300 million from unnamed special funds, which could
include the Oil and Gas Lease Fund, to the General Fund to pay for the fiscal year
2017-2018 appropriations.
Respondents Continued Attempts to Limit Supreme Court Remand Order
25.

Since PEDF first filed its Petition for Review initiating this action on

March 6, 2012, the Respondents have continued to take actions that have depleted
the Section 27 Public Trust. PEDF has amended its initial petition twice and filed
an addendum to its amended petition to include these additional actions as the case
has progressed.
26. On December 5, 2017, PEDF filed a second addendum to its amended
petition to challenge the new actions taken by Respondents to further deplete the
Section 27 Public Trust through the General Appropriations Act of 2017 and the
2017 Fiscal Code amendments.
27. Respondents would not consent to PEDF’s filing of its second
addendum to its amended petition; therefore, PEDF filed an application for relief
10

 asking the Commonwealth Court to grant it permission to file this second
addendum.
28. On December 26, 2017, Respondents filed their opposition to PEDF’s
application to file it second addendum, again asserting that this Honorable Court’s
remand in PEDF II is only for the narrow and limited purpose of determining
whether bonus payments for lease rights to extract the oil and gas from State
Forests are part of the corpus of the Section 27 Public Trust; and that issues not
encompassed within the remand may not be further considered by the
Commonwealth Court in this case.
29. The Respondents are arguing, contrary to the clear language of the
Supreme Court Opinion, that all the issues of the Second Amended Petition have
somehow dissolved with the Remand.
30. No basis in fact or law supports this argument.
Respondents Misapprehend the Scope of the Remand
31.

The issues pending before the Commonwealth Court in this case are

not limited to the single issue of whether bonus payments to obtain leases from
DCNR to extract oil and gas from State Forest land are part of the corpus of the
Section 27 Public Trust.
32. On April 21, 2014, PEDF filed its Motion for Summary Judgment and
a supporting brief on all the declarations (A-O) set forth in its Second Amended
Petition (filed on December 20, 2013) relating to actions taken by the
11

 Commonwealth and then Governors Rendell and Corbett to lease State Forest land
and sell natural gas on the State Forest to raise general revenue to balance budgets
beginning with the 2009-2010 fiscal year without consideration of their trustee
obligations under Section 27.
33. On July 10, 2014, PEDF filed an addendum to its Motion for
Summary Judgment and a supporting brief on the two additional declarations (P-Q)
set forth in its Addendum to its Second Amended Petition for Review (filed on
March 18, 2014) related to actions taken by the Respondents to use proceeds from
the sale of natural gas from the State Forest to balance the fiscal year 2014-2015
budget without consideration of their Section 27 trustee obligations.
34. On January 7, 2015, the Commonwealth Court issued it opinion and
order in PEDF I denying PEDF’s Motion for Summary Judgment in its entirety.
35. When this Honorable Court reversed the PEDF I decision in part,
vacated the remainder of the PEDF I order, and remanded the case to the
Commonwealth Court for further consideration consistent with its decision in
PEDF II, it did not limit the scope of PEDF’s pending action.
36. The Commonwealth Court’s refusal to respond to this Court’s remand
in a timely manner or respond to any of the applications for relief currently
pending in this matter has been detrimental to the corpus of the Public Trust and to
the rights of PEDF’s members under Section 27.

12

 37.

This refusal to respond has resulted in further depletion of critical

public natural resources protected as part of the Section 27 Public Trust, and
necessary for both the present and future conservation of the Public Trust.
38. For the above cited reasons, PEDF requests that this Honorable Court
assume plenary jurisdiction of these important matters to ensure timely resolution
and protection of the constitutional rights of PEDF’s members.

13

 APPLICATION FOR EXPEDITED ENFORCEMENT
OF REMAND ORDER
39.

In the alternative, if this Honorable Court does not grant PEDF’s

Petition For Extraordinary Jurisdiction, PEDF requests that this Honorable Court
issue an order to the Commonwealth Court pursuant to Pa. R.A.P. 2591(b)
clarifying that the remand is not limited as the Respondents assert and directing the
Commonwealth Court to issue a schedule for expedited consideration of the
important remaining requests for declaratory relief still pending in this case,
including declarations related to recent actions taken by the Respondents that
impact the Section 27 Public Trust as set forth in the addendum that PEDF filed to
its petition on December 5, 2017.
40. The allegations in ⁋⁋ 1-33 above are incorporated by reference into
this application.
41. The Commonwealth Court has taken no action to date in response to
this Honorable Court’s remand in PEDF II. Immediate action is necessary to halt
the depletion of Section 27 Public Trust assets currently occurring, as well as
further depletion likely to occur during the 2018-2019 fiscal year budget process.

42.

For the reasons set forth in this application, PEDF requests this

Honorable Court to issue the requested order to Commonwealth Court for
14

 expedited compliance with remand order, and expedited determination of the
2017 actions raised in PEDF’s Second Addendum to the Second Amended Petition.
Respectfully,
_________________________
John E. Childe
Attorney for PEDF
I.D. No. 19221
1847 Center Street
Camp Hill, Pa. 17011
717-743-9811
childeje@aol.com
Attorney for PEDF
Date: January 2, 2018

15

 EXHIBIT A

Excerpts from Supreme Court Docket Sheet for
Docket No. 10 MAP 2015

EXHIBIT B
Section 27 Public Trust Assets at Issue to Date
Beginning in the 2009-10 fiscal year, the Respondents began reducing General Fund
appropriations for DCNR’s annual operating expenses and instead appropriating revenue from
the Oil and Gas Lease Fund, which is part of the Section 27 Public Trust, to pay these expenses.
The table below summarizes this shift.
Source
General Fund*
O&G Lease Fund**
Total
Source
General Fund*
O&G Lease Fund**
Total

DCNR OPERATING FUNDS (Thousands)
FY 07-08 FY 08-09 FY 09-10
FY 10-11
98,963
101,617
87,374
77,285
NA***
NA***
18,549
24,002
98,963
101,617
105,923
101,287
FY 13-14 FY 14-15 FY 15-16 FY 16-17
24,614
23,878
56,805
100,929
100,813
132,299
85,770
59,561
125,427
156,177
142,575
160,490

FY 11-12
50,459
59,805
110,264

FY 12-13
47,844
67,823
115,667
FY 17-18
94,402
61,291
155,693

With the recent appropriation from the Oil and Gas Lease Fund to pay DCNR operating expenses
for the 2017-18 fiscal year, Respondents have now authorized spending $609,913,000 from the
Section 27 Public Trust to replace General Fund appropriations for DCNR operating expenses
since 2009.
The above depletion of the Section 27 Public Trust to reduce appropriations from the General
Fund is in addition to the $383,000,000 transferred directly from the Oil and Gas Lease Fund to
the General Fund for statewide general government operations during the 2009-2010 and 20102011 fiscal years. See Section 1912 of the Supplemental Appropriations Act of 2009; 72 P.S. §§
1604-E and 1605-E.
In addition, Respondents will have transferred $135,000,000 from the Oil and Gas Lease Fund to
the Marcellus Legacy Fund by the conclusion of the 2017-2018 fiscal year. 58 Pa.C.S. §§ 2504
and 2505; 71 P.S. § 1601.2-E(e).**
In total, Respondents have removed over $1.1 billion in assets from the Section 27 Public Trust
since 2009.

_______________________
* Governor’s Executive Budgets, FY 2007-08 through FY 2017-18, DCNR Summaries by Fund
and Appropriation; Section 211 of the General Appropriations Act of 2017 (FY 2017-2018).
** Governor’s Executive Budgets, FY 2007-08 through FY 2017-18, Oil and Gas Lease Fund
Actual Disbursements (available disbursements for FY 2016-17); Section 1601 of the General
Appropriations Act of 2017 (FY 2017-2018).
*** Disbursements from the Oil and Gas Lease Fund for FY 07-08 and FY 08-09 were
$4,250,000 and $12,156,000, respectively; these funds were used for purposes authorized by the
Oil and Gas Lease Fund Act and were not used for DCNR operating costs.