                            [J-35-2016] [MO: Donohue, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                  MIDDLE DISTRICT




PENNSYLVANIA ENVIRONMENTAL         :            No. 10 MAP 2015
DEFENSE FOUNDATION,                :
                                   :            Appeal from the Order of the
                Appellant          :            Commonwealth Court at No. 228 MD
                                   :            2012 dated January 7, 2015
                                   :
          v.                       :            ARGUED: March 9, 2016
                                   :
                                   :
COMMONWEALTH OF PENNSYLVANIA, :
AND GOVERNOR OF PENNSYLVANIA,      :
TOM WOLF, IN HIS OFFICIAL CAPACITY :
AS GOVERNOR,                       :
                                   :
                Appellees          :


                      CONCURRING AND DISSENTING OPINION


JUSTICE BAER                                           DECIDED: June 20, 2017
        Through today’s decision, this Court takes several monumental steps in the

development of the Environmental Rights Amendment, Article I, Section 27 of the

Pennsylvania Constitution. I agree with many of the Majority’s holdings, including Part

IV.A.’s dismantling of the Commonwealth Court’s Payne1 test, which stood for nearly

fifty years, the confirmation that the public trust provisions of the amendment are self-

executing in Part IV.C., and the recognition in footnote 23 that all branches of the




1
    Payne v. Kassab, 312 A.2d 86 (Pa. Cmwlth. 1973).
Commonwealth are trustees of Pennsylvania’s natural resources.2            These holdings

solidify the jurisprudential sea-change begun by Chief Justice Castille’s plurality in

Robinson Township v. Commonwealth, 83 A.3d 901, 950-51 (Pa. 2013) (plurality),

which rejuvenated Section 27 and dispelled the oft-held view that the provision was

merely an aspirational statement. With this, I am in full agreement.

      Nevertheless, I dissent from the primary holding of the case declaring various

fiscal enactments unconstitutional or potentially unconstitutional based upon the

Majority’s conclusion that the proceeds from the sale of natural resources are part of the

“trust corpus” protected by Section 27. Maj. Op. at 34. I reject my colleagues’ reading

of Section 27, which I find to be unmoored from the amendment’s language and

purpose. As discussed below, the current decision imposes upon our sister branches of

government private trust principles that are absent from the constitutional language and

tangential to the forces motivating the adoption of Section 27.

      As articulated in the extensive passage of Robinson Township quoted by the

Majority, the Environmental Rights Amendment was enacted to address Pennsylvania’s

long history of environmental devastation resulting from the timber, hunting, and coal

industries, as well as environmental disasters in the 1950s and 60s. The Amendment

aimed to prevent further pollution and the wasting of Pennsylvania’s natural resources,

as well-documented in the legislative history of Section 27, relied upon by the Robinson

Township plurality.   Robinson Township, 83 A.3d at 960-963.           In contrast, there is

neither constitutional language nor legislative history addressing the financial proceeds

from the use or sale of natural resources. It simply was not considered during the




2
  I additionally concur with the holding that the Oil and Gas Lease Fund is not a
constitutional trust fund. Maj. Op. at 45.



                           [J-35-2016] [MO: Donohue, J.] - 2
passage of the amendment. Protection of natural resources, not funding, was the focus

of the amendment, and as expressed below, the two are not necessarily interrelated.

       Through their actions today employing private trust principles to direct that all

proceeds from Pennsylvania’s public natural resources be funneled into environmental

protection, my colleagues threaten to override the delicate process required of the

legislative and executive branches to achieve a constitutionally-mandated balanced and

fair budget.   Despite a lack of support in the language of Section 27, hundreds of

millions of dollars generated by the recent Marcellus Shale exploration on state land as

well as proceeds from oil, gas, coal, timber, game and other natural resources, will be

cordoned off from critical areas of the Commonwealth’s budget, including education,

infrastructure, and other public works, without consideration of whether such funding is

necessary to protect Pennsylvania’s public resources.3

       As described below, I reject the imposition of inflexible private trust requirements

and instead would interpret the language of Section 27 with an awareness of the public

trust doctrine as it applied to natural resources at the time of Pennsylvania’s enactment

of Section 27. Utilizing this doctrine and the necessary presumption that our sister

branches act in accordance with the Constitution, I conclude that the Pennsylvania

Environmental Defense Foundation failed to meet its burden to prove the statutes

“clearly, palpably, and plainly violat[e] the Constitution.” Stilp v. Commonwealth, 905

A.2d 918, 939 (Pa. 2006). Accordingly, I would affirm the Commonwealth Court’s order



3
  I recognize that the Majority has limited its holding to royalties and has remanded to
the Commonwealth Court to determine whether other payments constitute proceeds
from the sale of trust assets, which would be deemed part of the trust corpus, as
opposed to income generated by the assets, which would not be deemed part of the
corpus of the trust under private trust principles. Maj. Op. at 36. As I dissent from the
stringent application of private trust duties relating to the corpus of the trust, I need not
determine the validity of this dichotomy.



                            [J-35-2016] [MO: Donohue, J.] - 3
granting, in substantial part, summary relief to the Commonwealth and denying the

Foundation’s application for summary relief.

       A. The Language and History of Section 27.

       Analysis of the issues in this case begins with the language of Section 27, which

provides as follows:

              The people have a right to clean air, pure water, and to the
              preservation of the natural, scenic, historic and esthetic
              values of the environment. Pennsylvania’s public natural
              resources are the common property of all the people,
              including generations yet to come. As trustee of these
              resources, the Commonwealth shall conserve and maintain
              them for the benefit of all the people.
PA. CONST. art. I, § 27. The Majority correctly observes that “the fundamental rule of

construction which guides [this Court] is that the Constitution’s language controls and

must be interpreted in its popular sense, as understood by the people when they voted

on its adoption.” Ieropoli v. AC&S Corp., 842 A.2d 919, 925 (Pa. 2004). Moreover,

“technical words and phrases and such others as have acquired a peculiar and

appropriate meaning . . . shall be construed according to such peculiar and appropriate

meaning or definition.” 1 Pa.C.S. § 1903(a).

       I agree with the plurality in Robinson Township and the Majority in the case at

bar that Section 27 contains two enforceable rights.          Maj. Op. at 29; Robinson

Township, 83 A.3d at 950-952. The first sentence of Section 27 provides a “right to

clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic

values of the environment.” The second and third sentences, relevant to the case at

hand, combine to create the people’s right to have Pennsylvania’s natural resources

conserved and maintained.      Specifically, the second sentence declares that “public

natural resources are the common property of all the people, including generations yet




                            [J-35-2016] [MO: Donohue, J.] - 4
to come,” and the third sentence requires the Commonwealth to act “as trustee” of the

resources and to “conserve and maintain them for the benefit of all the people.”

       While the Majority imposes upon the Commonwealth private trust duties through

the Uniform Trust Act, I do not find that the language of the Section 27 supports this

analysis. Notably, Section 27 does not speak in terms of the people as “beneficiaries,”

nor does it define the resources in terms of the “corpus of the trust.” Instead, it broadly

provides that the resources are the “common property” of the people.                Common

ownership, however, does not grant individuals rights commensurate with private

ownership. As aptly observed by the United States Supreme Court, “the right that we all

possess to use the public lands is not the ‘property’ right of anyone.” College Sav. Bank

v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 673 (1999).

       Rather than imposing private trust principles on the expansive rights granted by

Section 27, I follow the lead of the plurality opinion in Robinson Township and rely upon

the legislative history detailing the drafting and approval of Section 27 utilizing the public

trust doctrine.   Robinson Township, 83 A.3d at 955-56.          Included in this legislative

history is a statement by Representative Franklin Kury, the drafter and primary

proponent of the Amendment (“Kury Statement”), integrating a legal analysis of the

Amendment by Duquesne University Professor Robert Broughton (“Broughton

Analysis”).   1970 Pa. Legislative Journal - House at 2269-82 (April 14, 1970).4

4
   I recognize and concur with the proposition that statements made by individual
legislators are of limited value in determining the intent of the General Assembly as a
whole regarding a statutory enactment, given that the individuals speak only for
themselves. Notwithstanding, in this case, I find value in Representative Kury’s
statement and his submission of Professor Broughton’s analysis as Kury authored the
proposed constitutional amendment. Moreover, he drafted questions and answers
circulated to inform the general public of the intent of the proposal prior to them voting to
adopt the constitutional amendment. Exhibit UU to Petitioner’s Brief in Opposition to
Respondents’ Cross Motion for Summary Judgment and Petitioner’s Reply to
Respondents’ Response to Petitioner’s Motions for Summary Judgment (reproducing
(continued…)

                             [J-35-2016] [MO: Donohue, J.] - 5
Professor Broughton repeatedly explained that the second and third sentences of

Section 27 “have the purpose of placing Pennsylvania among the jurisdictions which

adhere to the public trust theory of public natural resource management.” 5 1970 Pa.

Legislative Journal - House at 2273 (Broughton Analysis), 2275 (observing that the

“primary purpose” of the final two sentences was “to constitutionally affirm that the

public trust doctrine applied to the management of public natural resources in

Pennsylvania”). Moreover, as explained below, the terminology used by the drafters of

Section 27 evokes the public trust doctrine.

       1. The public trust doctrine.

       The public trust doctrine has been part of common law for centuries even though

it has not been “clearly enunciated” in Pennsylvania. Id. at 2275 (Broughton Analysis).

The lack of clarity of the doctrine, however, does not permit us to ignore the intent of the

legislators drafting the amendment nor the voters adopting it, which was to employ

public trust principles. In other words, we should not fall back upon precepts of private

trust law merely because they are familiar to us.         Instead, we should attempt to

understand the underpinnings of the public trust doctrine invoked by Section 27.

       As Broughton explained, the public trust doctrine, at base, invokes a fiduciary-like

construct whereby the government has “the duty to manage, use, and/or consume the

property of the public solely for the benefit of the public.” 1970 Pa. Legislative Journal–


(…continued)
John C. Dernbach and Edmund J. Sonnenberg, A Legislative History of Article I,
Section 27 of the Constitution of the Commonwealth of Pennsylvania, 24 Widener L.J.
181 (2015) (including Representative Franklin L. Kury’s 1971 Question and Answer
Sheet in favor of Pa. House of Representatives, Joint Resolution 3)).
5
  While the Majority relies upon Professor’s Broughton’s explanation that the
Commonwealth must act as a trustee rather than a proprietor, Maj. Op. at 31, it fails to
acknowledge that the professor utilized this dichotomy in describing the public trust
doctrine, which the Majority relegates to a footnote. Maj. Op. at 34 n.26.



                            [J-35-2016] [MO: Donohue, J.] - 6
House at 2273 (Broughton Analysis). The concept of a public trust derives from English

common law securing the public’s ability to navigate, conduct commerce, and fish along

the seashore and rivers and to travel and hunt in dedicated public common areas.

Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial

Intervention, 68 Mich. L. Rev. 471, 475-76 (1969) (hereinafter “The Public Trust

Doctrine”); Joseph L. Sax, Liberating the Public Trust Doctrine from its Historical

Shackles, 14 U.C. Davis L. Rev. 185, 189-91 (1980-81).           In language reflected in

Section 27, the sovereign is deemed to hold the lands “as trustee of a public trust for the

benefit of the people.” National Audubon Society v. Superior Court, 658 P.2d 709, 718

(Cal. 1983) (citation omitted).

       Until the late 1960s, the concept had been applied primarily to navigable

waterways and designated parklands, including fishing and hunting rights. Indeed, a

few of our sister states incorporated public trust provisions regarding navigable

waterways and state lands into their constitutions long before Pennsylvania’s adoption

of Section 27.6 In connection with the environmental rights awakening during the years

immediately preceding the 1971 adoption of Section 27, a movement developed to

expand the previously limited public trust doctrine to encompass natural resources

generally. The expansion of the doctrine is largely credited to Professor Joseph Sax’s

seminal 1969 article, The Public Trust Doctrine in Natural Resource Law: Effective

Judicial Intervention, supra, which was relied upon by Professor Broughton in the

legislative proceedings related to the adoption of Section 27.



6
  See, e.g., VA. CONST. art. XI, § 3 (previously included as Section 175 of the Virginia
Constitution of 1902, protecting the state’s oyster bed and imposing specific limitations
on the government); WA. CONST. art. 15, § 1 (incorporating the public trust doctrine to
protect harbors and tide waters); see also Sax, The Public Trust Doctrine, 68 Mich. L.
Rev. at 547 n.230-233.



                            [J-35-2016] [MO: Donohue, J.] - 7
       A few principles can be distilled from the common law public trust doctrine,

specifically in regard to the use and sale of resources. First, courts have generally

safeguarded the public’s continued use of trust property for its original purpose and

have disfavored the sale of trust land to private parties where the conveyance does not

support the purposes of the trust. See Sax, The Public Trust Doctrine, 68 Mich. L. Rev.

at 477. Notwithstanding this general precept, the public trust doctrine does not forbid

the state from developing, leasing, or even disposing of portions of trust property. Id. at

485-89.

       Indeed, courts and scholars have recognized that “[a]s a matter of practical

necessity the state may have to approve appropriations despite foreseeable harm to the

public trust uses.” National Audubon Society, 658 P.2d at 728. These actions may be

deemed permissible if the governmental entity has considered the effect of the action

and attempted to “preserve, so far as consistent with the public interest, the uses

protected by the trust.” Id. The public trust doctrine, therefore, aims to limit but not

eliminate the rate of alienation of the trust property in order to protect public

expectations. Sax, Liberating the Public Trust Doctrine from its Historical Shackles, 14

U.C. Davis L. Rev. at 191-93; see also John C. Dernbach, The Potential Meanings of a

Constitutional Public Trust, 45 Envtl. L. 463, 484 (2015).

       Although it is permissible to dispose of portions of protected property, a

government may be deemed to run afoul of its duties under the public trust if it disposes

of excessive portions of the relevant property, especially for less than fair market value,

or engages in transactions related to the public resources which benefit private entities

rather than the public generally. Sax, The Public Trust Doctrine, 68 Mich. L. Rev. at

488-89 (emphasizing that disposition of trust property cannot be of “such amplitude that




                            [J-35-2016] [MO: Donohue, J.] - 8
the state will effectively have given up its authority to govern”), 537 (observing that

public trust properties should not be used to benefit private entities).

       A court faced with a questionable transaction will look to whether the legislative

body clearly intended to dispose of the public trust property and may deem revocable

any conveyances that are inconsistent with the purpose of the public trust.           See

National Audubon Society, 658 P.2d at 721 (discussing Illinois Central Railroad Co. v.

Illinois, 146 U.S. 387, 453-54 (1892), in which the Supreme Court allowed Illinois to

revoke a conveyance of nearly all the submerged lands of the Chicago waterfront to a

private railroad).   Importantly for purposes of this case, the doctrine encourages

government entities to utilize any proceeds gained from the disposition of public

property for the benefit of the general public. Sax, The Public Trust Doctrine, 68 Mich.

L. Rev. at 547 (observing that disposition of public trust property “may be made only for

full market value and that revenues from them must be devoted to replacement of

specific trust uses or to statewide public purposes”) (emphasis added). Thus, prior to

getting into the specifics of the Pennsylvania Constitution, it is notable that the classic

public trust doctrine does not contemplate what the majority holds. Monies from the

sale of natural resources need not remain as the “corpus” of the environmental trust, but

rather may be used for the general benefit of the public.

       2. The Public Trust of Section 27.

       Applying this summary of the public trust doctrine to the Pennsylvania

Constitution, I observe that, consistent with my analysis above, the language of Section

27 does not employ private trust principles. Instead, Section 27 is broadly phrased to

require the Commonwealth to “conserve and maintain” the public’s natural resources for

the benefit of all the people, including future generations. The phrasing invokes the

original common law public trusts relating to navigable waterways described above,




                            [J-35-2016] [MO: Donohue, J.] - 9
pursuant to which the government acts as trustee “with a duty to manage, use, and/or

consume the property of the public solely for the benefit of the people.” 1970 Pa.

Legislative Journal–House at 2273 (Broughton Analysis).

       Conspicuously missing from Section 27 is any specific financial constraint. The

Commonwealth’s obligation is to conserve and maintain the public’s natural resources

regardless of the Commonwealth’s current financial status. Thus, in the absence of

funds from natural resources, the Commonwealth would be obligated to draw upon the

general budget to provide any needed funds for conservation and maintenance.

Conversely, if the Commonwealth experiences a windfall to the tune of a billion dollars

from natural resources, the Commonwealth would still be required to fund conservation

and maintenance needs but would not have to let any excess proceeds sit idle while

critical public projects were left unfunded. Instead, the Commonwealth may use the

excess in its sound discretion for the public’s health, safety, and welfare, whether that

be for education, infrastructure, or other necessary programs.           The majority holds

otherwise by mistakenly viewing this public trust as a private trust.

       In rejecting the applicability of the public trust doctrine, the Majority criticizes the

Commonwealth’s reliance on Illinois Central Railroad, the seminal decision of the United

States Supreme Court on the public trust doctrine. The Majority opines that Illinois

Central Railroad “has nothing to do with the proper treatment of proceeds from the sale

of trust assets.” Maj. Op. at 34 n.26. The Majority is correct that the High Court did not

discuss the proceeds of the sale, but it fails to recognize why. Illinois Central Railroad

does not address the proceeds for the same reason Section 27 does not address the

revenues from the sale of natural resources.           Simply, the public trust doctrine is

focused upon preserving the public’s access to and enjoyment of the protected land and

resources. It aims to prevent the destruction or privatization of public assets but has




                            [J-35-2016] [MO: Donohue, J.] - 10
nothing to do with creating a balance sheet accounting of assets as would be necessary

under private trust law.

       Consistent with the public trust doctrine’s principle that the government should

protect the public’s access to trust property and limit the rate of alienation, I agree with

Representative Kury who explained Section 27 as requiring that government actors

demonstrate that a proposed action benefits the public interest in cases where the

action might also impair natural resources. 1969 Pa. Legislative Journal-House at 722

(June 2, 1969) (Statement submitted by Rep. Franklin Kury). He emphasized that the

public interest in the environment should be “weighed against the interests of those who

would detract from or diminish [the natural resources] before - not after - action is

taken.” Id. Consistent with Representative Kury’s observations, Section 27’s invocation

of the public trust doctrine and the explicit reference to future generations precludes the

“wasting of resources,” but does not forbid the use of the resources for the current

benefit of the public. 1970 Pa. Legislative Journal–House at 2273 (Broughton Analysis).

       Accordingly, I agree with the Robinson Township plurality which opined that the

Commonwealth has a prohibitory obligation “to refrain from performing its trustee duties

respecting the environment unreasonably” and an affirmative obligation to act to protect

the environment. Robinson Township, 83 A.3d at 957-58. Moreover, I further recognize

that many of the basic principles underlying the public trust doctrine overlap with

traditional duties of private trustees, including the requirement that a trustee act in the

public’s interest which requires loyalty, impartiality, and prudence. Id. at 957. Thus, I

agree with the Majority and Robinson Township plurality to the extent they hold that the

Commonwealth, as trustee under Section 27’s public trust, should (1) exercise the duty

of loyalty by administering the trust solely for the benefit of all the people, including

future generations, (2) abide by the duty of impartiality by balancing the interests of all




                           [J-35-2016] [MO: Donohue, J.] - 11
the beneficiaries, including balancing the interests of current versus future generations,

and (3) act with prudence by managing the resources with ordinary skill and caution.

However, nothing in the history of Section 27 as detailed herein suggests that monies

unnecessary to the conservation and maintenance of the environment must be cabined

off from other pressing needs of the people of this Commonwealth. The Majority’s

holding in this regard is in error. 7

       Thus, I turn to specific issues regarding the interpretation of the Amendment

raised by the parties before this Court.

       B. Analysis of the Foundation’s challenges

       1. “Trust corpus”



7
  I observe that the above-listed principles governing Section 27’s public trust align with
the Supreme Court of Hawaii’s interpretation of their similar constitutional amendment,
which provides:

               For the benefit of present and future generations, the State
               and its political subdivisions shall conserve and protect
               Hawaii’s natural beauty and all natural resources, including
               land, water, air, minerals and energy sources, and shall
               promote the development and utilization of these resources
               in a manner consistent with their conservation and in
               furtherance of the self-sufficiency of the State.

               All public natural resources are held in trust by the State for
               the benefit of the people.

HAW . CONST. art. 11, § 1. The Hawaiian high court recognized that the plain language
of its constitution “manifests the framers' intent to incorporate the notion of the public
trust into [the] constitution.” In re Water Use Permit Applications, 9 P.3d 409, 443 (Haw.
2000) (citing this Court’s decision in Payne v. Kassab, 361 A.2d 263, 272 (Pa. 1976)
(“There can be no question that the [constitution] declares and creates a public trust of
public natural resources for the benefit of all people”)). The court explained that the
“basic purpose of the trust” was to “reserv[e] the resource for use and access by the
general public without preference or restriction” rather than for private commercial gain.
Id. at 450.



                             [J-35-2016] [MO: Donohue, J.] - 12
       At the heart of the Foundation’s challenges to the various Pennsylvania

legislative enactments addressed below is its contention that the provisions violate

Section 27 by transferring Lease Fund monies from exclusively funding the DCNR’s

conservation activities to providing funding for the Commonwealth’s General Fund,

which can then be used for non-conservation activities. Underlying this issue is whether

the proceeds from the sale of natural resources, such as the rents and royalties gained

from the leases of oil and gas rights on Commonwealth land, should be considered part

of the “corpus” of the Section 27 trust as would be the case for a traditional private trust.

My colleagues in the Majority adopt the Foundation’s view that the proceeds of

Pennsylvania’s natural resources, which include the oil and gas at issue in this case,

are part of the “corpus” of the Section 27 trust, which can be used only for conservation

and maintenance of Pennsylvania’s public natural resources. Maj. Op. at 37.

       As noted above, I disagree. Section 27 is silent regarding the creation of a

“corpus” and in no way suggests that the proceeds from the sale of natural resources

should be included in such a corpus. Instead, the focus of Section 27 is on the natural

resources themselves, not the money gained from the resources.8 The trustee’s duties

are to “conserve and maintain” the resources, not the money.



8
  Moreover, the Commonwealth observes that in contrast to Section 27‘s silence, other
constitutional provisions clearly indicate when funds should be dedicated for specific
purposes, such as the Motor Vehicle Licensing Fund, PA. CONST. art. VIII, § 11 (entitled:
“Gasoline taxes and motor license fees restricted”), and the Land and Water
Conservation and Reclamation Fund, PA. CONST. art VIII, § 16 (indicating, prior to the
adoption of Section 27, that the fund created in the section was to be “used for the
conservation and reclamation of land and water resources of the Commonwealth” and
includes a list of specific uses). The absence of such designation in Section 27
regarding the proceeds of the well-established process of selling or leasing natural
resources suggests, according to the Commonwealth, that the voters did not intend to
encompass within the Section 27 corpus the proceeds from such sales including natural
gas rents and royalties.



                            [J-35-2016] [MO: Donohue, J.] - 13
      Moreover, Section 27 does not require that the Commonwealth conserve and

maintain the resources for the benefit of the environment, but rather for the “benefit of

all the people,” which includes both the enjoyment of the natural environment but also

the utilization of the resources, without waste, for the current benefit of the public. My

conclusion is buttressed by the specific alterations of the language of Section 27 during

the drafting process to allow for the Commonwealth’s continued disposition of natural

resources, including through logging and hunting, without any suggestion in the text of

the Amendment that the funds had to be reinvested in the trust or used solely for trust

purposes.

      Originally, Section 27’s third sentence provided, “As trustee of these resources,

the Commonwealth shall preserve and maintain them in their natural state for the

benefit of all the people.” H.R. 958, Printer’s No. 1105 (Apr. 21, 1969). During the

drafting process, the word “conserve” was substituted for “preserve,” and the phrase “in

their natural state” was removed. The substitution of “conserve” was made to allay

fears that “courts might interpret the word ‘preserve’ restrictively, to mean that if [the

Department of Forest and Waters] authorized trees to be cut on Commonwealth land, or

the Game Commission licensed hunters to harvest game, this would not be ‘preserving’

them.” 1970 Pa. Legislative Journal–House at 2273 (Broughton Analysis).

      Instead, the use of the term “conserve” requires that the resources be used

prudently. As commonly understood, when a governing body during a drought issues

an order for the public to “conserve water,” the public may unquestionably still use water

for drinking, bathing, and other household uses but should be careful to avoid wasteful

use. Moreover, the removal of the phrase “in their natural state” emphasizes that the

drafters of Section 27’s language did not intend to freeze the current status of the

natural resources nor to prevent the Commonwealth’s ability to utilize the resources.




                           [J-35-2016] [MO: Donohue, J.] - 14
Taken together, these two changes demonstrate that the drafters contemplated the

continued, but judicious, use of the resources rather than “some form of environmental

absolutism.” Dernbach Brief at 18.

         Moreover, the questions and answers drafted by Representative Kury explaining

the amendment to the voters did not suggest that any, let alone all, of the proceeds from

the uses of natural resources would be devoted to the preservation of the environment;

rather, the focus was upon requiring the government to “consider the people’s rights

before it acts,” which is consistent with the public trust principles discussed above.9

9
    The purpose of the Amendment was explained to the voters as follows:

               Q. Will the amendment make any real difference in the fight
               to save the environment?

               A. Yes, once Joint Resolution 3 is passed and the citizens
               have a legal right to a decent environment under the State
               Constitution, every governmental agency or private entity,
               which by its actions may have an adverse effect on the
               environment, must consider the people’s rights before it acts.
               If the public’s rights are not considered, the public could
               seek protection of its legal rights in the environment by an
               appropriate law suit. The Resolution would benefit all of the
               people, and would go a long way toward tempering any
               individual, company, or governmental body which may have
               an adverse impact on our natural or historic assets.

               In short, the amendment will incorporate three broad
               principles into our legal system:

               1. The people have the right to a decent environment.
               2. Our public natural resources belong to all the people,
               including future generations.
               3. The State is the trustee of these natural resources for
               future generations.

Representative Franklin L. Kury’s 1971 Question and Answer Sheet in favor of Pa.
House of Representatives, Joint Resolution 3, supra at 5 n.4.



                            [J-35-2016] [MO: Donohue, J.] - 15
         Nevertheless, while I would hold that the proceeds may be used for public

purposes other than conservation, the Commonwealth must act in a trustee-like

capacity in regard to disposing of the underlying natural resources, as discussed above.

Further, the legislative and executive branches must consider the funding level required

by the DCNR and other conservation bodies to allow them to fulfill the Commonwealth’s

constitutional duty to maintain and conserve the people’s natural resources. However,

once the Commonwealth has conscientiously fulfilled these duties, it is not required to

take the illogical step of leaving substantial monies unused in a fund for the environment

while being unable to meet other pressing needs of the people. In deciding otherwise,

the Majority is redrafting the Constitution to its own liking, ignoring the public trust

doctrine, and usurping the appropriate role of the legislature in first assuring the

conservation and maintenance of the environment and then meeting other pressing

needs of the citizenry.

         2. Statutory challenges

         Having rejected the Foundation’s claim that the funds generated by oil and gas

leases     on   Commonwealth       land   must   be   held   regardless    of   whether   the

Commonwealth’s obligation to conserve and maintain the environment have been

satisfied, the Foundation’s arguments relating to the Fiscal Code Amendments and

related budgetary decisions become amorphous. The Foundation’s overarching claim

is that the respective Governors breached their fiduciary duty because they did not

investigate the impact of the budgetary changes on the DCNR’s ability to fulfill its

constitutional and statutory duties, under the CNRA, to conserve and maintain the

public natural resources. Foundation Brief at 49, 52, 55-56.

         I accept the Foundation’s assertion that it is not challenging the sufficiency of the

funding provided to the DCNR nor the DCNR’s decision to enter into the leases, but




                             [J-35-2016] [MO: Donohue, J.] - 16
instead challenges the failure of the Governors to investigate the impact of the changes

on the DCNR and the threat of the budgetary pressure to lease. Foundation Reply Brief

at 38. I further agree with the Foundation that the Governor and all Commonwealth

entities have a fiduciary duty as trustee of the people’s natural resources to consider the

effect of any contemplated action on the natural resources. See Robinson Township,

83 A.3d at 952.

       A general duty to consider, however, does not translate into a justiciable cause of

action. Courts are not equipped to determine what level of consideration is required.

For example, should a court evaluate the proper consideration based on how many

hours were spent contemplating the effects, how much money was expended

researching the potential harms, or some indeterminate measure of how seriously our

sister branches weighed the issue. These determinations are not only ill-defined but are

entirely within the political realm reserved to the General Assembly and Governor.

       Accordingly, I would affirm the Commonwealth Court’s dismissal of the

Foundation’s claims that the Governors violated their fiduciary duties in regard to the

budgetary provisions.




                           [J-35-2016] [MO: Donohue, J.] - 17
