Former Rendell-era conservation officials are set to testify in Commonwealth Court over the Pennsylvania Environmental Defense Foundation’s lawsuit seeking to halt Department of Conservation and Natural Resources-related budget transfers. Gov. Tom Corbett’s fiscal year 2014-15 budget proposal seeks to transfer $75 million from the Oil and Gas Lease Fund to the General Fund by allowing drilling underneath state forest and park land using adjacent private property or existing well pads. Corbett issued the order immediately allowing the additional drilling as long there are “no additional surface disturbance impacts on state forest or park lands.” In light of that order, the foundation is seeking a preliminary injunction and an expedited ruling because of the June 30 budget deadline. and an expedited ruling because of the June 30 budget deadline. The foundation’s lawsuit also seeks to halt two other Corbett budget proposals. One is the proposed transfer of about $118 million from the Oil and Gas Lease Fund to DCNR to pay for administrative expenses — a practice that started in the 2008-09 fiscal year under then-Gov. Ed Rendell. The cumulative transfers approved by Rendell totaled $383 million, and Corbett and the Legislature have continued to make transfers of various amounts. The PEDF says on its website that more than $400 million has been transferred since the 2008-09 fiscal year. The foundation argues that such transfers are unconstitutional as the fund’s monies were meant to be spent exclusively on conservation, recreation, dams and flood control.
The other budget proposal moves $35 million from the Oil and Gas Lease Fund to the Marcellus Legacy Fund, and then transfers that to the Environmental Stewardship Fund. That is a continuation of a transfer that was established by Act 13, the state law regulating Marcellus Shale development. The foundation said it would sue Rendell in 2010 but didn’t because he halted leasing of state forest and park land, said PEDF legal counsel John Childe. Rendell approved the leasing of about 130,000 acres of state forest and park land before he halted the practice shortly before leaving office in 2010. Childe said PEDF eventually filed the lawsuit in March 2012 because Corbett, while he continued Rendell practice of transferring Oil and Gas Lease Fund monies, did so to replace funding for DCNR’s operations. The lawsuit essentially is asking the court to get involved in state budget negotiations, since it is only seeking the stoppage of a proposal, which the courts have generally avoided. In the past, however, the courts have ruled on challenges to an enacted budget. Set to testify in Commonwealth Court is former DCNR secretary John Quigley, who helped write the Rendell moratorium. Michael DiBerardinis, who resigned in 2009 to serve as Philadelphia Deputy Mayor of Environmental and Community Resources, also was set to testify, but will not due to a scheduling conflict, foundation chair Ron Evans said.The foundation also lists two other former DCNR officials: former State Parks Director John Norbeck and former DCNR deputy secretary for conservation and technical service Cynthia Dunn. Both now work for environmental advocacy group PennFuture: Dunn is President and CEO, and Norbeck is Vice President and COO. Rendell’s forestry director James Grace also is listed among testifiers on the foundation’s website. The hearing is set to start at the Pennsylvania Judicial Center at 11 a.m. The injunction request claims Corbett ordered the budgetary transfers “without evaluating the direct and cumulative impacts to the more than 900,000 acres of State Park and State Forest land currently subject to oil and gas extraction, without determining the cost to mitigate these impacts; and without soliciting any public input on the people’s rights to these public natural resources, the proposed impacts to them, or the use of the Oil and Gas Lease Fund.” The foundation’s complaint relies heavily on the Pennsylvania Constitution’s “Environmental Rights Amendment,” which was given sharp teeth by the state Supreme Court’s ruling upended portions of Act 13, the state law regulating Marcellus Shale drilling. The lawsuit says that section of the constitution creates a public trust consisting of natural resources, including state parks and forest land, and the people of the commonwealth are the beneficiary. The foundation says a preliminary injunction is needed to prevent “irreparable harm.” “Without this injunction, the Respondents [Corbett, Commonwealth of Pennsylvania] will direct DCNR to execute leases of additional State Park and State Forest lands, committing these lands to oil and gas extraction for decades. These leases, once executed, cannot be rescinded and the commitment of these public natural resources to development will be irreversible. The natural gas, itself a nonrenewable public natural resource, cannot be replaced after it is extracted,” the injunction request states. Corbett’s DCNR officials have said “no additional surface impacts” means drilling horizontally underneath state forest land from an adjacent pad on private lands or from already leased state forest and park land. They acknowledge that additional drilling will mean more drilling rigs, truck traffic and noise, but they don’t consider those to be additional surface impacts. DCNR deputy secretary Dan Devlin said the proposal means “disturbing a surface that’s already been disturbed.” “This assertion misses the point that the commitment to extraction of the natural gas on these lands itself is an irreparable injury,” the lawsuit claims. “In addition, the contention that the surface impact from the shale gas development will be limited is speculative without identification of the specific tracts to be leased and an analysis of the direct and cumulative impacts to these tracts and the surrounding lands.”