One of the biggest environmental disasters in Pennsylvania, and indeed the nation as a whole, has been the mismanagement of wildlife in the united states. At the turn of the century, there were few deer, turkey, and bear left in Pennsylvania. Species like the eastern mountain lion, the eastern elk, and the passenger pigeon, were all wiped from the face of the earth. The problem was a compound issue. Hunting was, for the most part, unregulated in Pennsylvania, and wildlife populations were depleted near urban areas, as wildlife was a significant source of food for the growing nation. Market hunters would push further and further into the wilderness to locate meat to send back to urban regions. The drastic reduction of game was exacerbated through the advancements of the timber and iron industries in the commonwealth. The timber industry would fell any tree of economic value. The Iron industry relied on charcoal for many years, as the source of heat to create pig iron. There were hundreds of charcoal pig iron furnaces dotting the commonwealth, each burning as much as an acre of timber per day. Combined, these industries turned Pennsylvania into a near moonscape.
This was however, but one piece of the environmental puzzle. Other environmental disasters spurred the voters of Pennsylvania to ratify article I section 27 of the Pennsylvania state constitution. It is comprised of only three sentences which are collectively known as the Environmental Rights Amendment (ERA). They read, “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.”
The interpretation of this amendment would be left to the judiciary of the commonwealth. Over a forty-year period the ERA has been interpreted as a relatively powerless directive to be considered by the legislature when enacting laws. The longest standing test for compliance with the ERA was known as the Payne test which was devised by the commonwealth court. The test essentially held that if all other environmental laws were satisfied, then so too was the ERA. This test stood until 2017 when the supreme court decided Pennsylvania Environmental Defense Foundation v. Commonwealth. This case specifically invalidated the transfer of revenues generated by natural gas leases from the Oil and Gas Lease Fund to the Pennsylvania General Fund. The decision of the court rested in its interpretation of the ERA, as creating a trust in which all of the Commonwealth’s natural resources are held for the benefit of all Pennsylvanians. As with any trust, when resources are sold from the corpus, the proceeds generated in the sale are to be returned to the trust. When the commonwealth’s natural gas is sold, the funds are to be returned to the trust, to be used for conservation.
The court did not decide whether the revenues generated through leases themselves (as opposed to gas royalties) were also to be returned into the trust. This point was remanded to the commonwealth court for further deliberation. This however was unnecessary, as all of the authority cited by the Supreme Court in its decision to remand, recognize that the purpose of the trust is dispositive on how lease revenues are to be spent. Here the purpose of the trust is specifically to conserve and maintain the natural resources of the commonwealth. It is thus likely that Pennsylvania’s courts will hold that revenues generated through such leases are to be used for conservation, as is the purpose of the trust.
This may also cause a change in the spending of revenues generated through hunting and fishing. Millions of dollars are generated annually through the sale of hunting licenses, fishing licenses, and leases and easements on and over state land. Because these licenses allow individuals to bring wildlife into their ownership, and these leases and easements are sales of proprietary interests, they all involve selling a portion trust property. For this reason, it is likely in my opinion, that in the near future we will see the revenues generated through these avenues earmarked for conservation purposes only.
Pa. Const. Art. 1. § 27
Payne v. Kassab, 312 A.2d 86 (Pa. Commw. Ct. 1973)
J.T. Fleegle, History of the Whitetail, Pennsylvania Game Commission, (http://www.pgc.pa.gov/Wildlife/WildlifeSpecies/White-tailedDeer/LifeTimesoftheWhitetail/Pages/HistoryoftheWhitetail.aspx)
In re Estate of Rosenblum, 328 A.2d 158 (PA 1974)
Haak Estate, 67 A.2d 449 (Pa. Super. Ct. 1949)
Restat 2d of Trusts, § 233 (2012)
20 Pa. Cons. Stat. Ann. § 8103 (LexisNexis, Lexis Advance through 2017 Regular Session Acts 1-55; P.S. documents are current through 2017 Regular Session Acts 1-34)