January 01, 2018

Citizen Enforcement under the Public Trust Doctrine

Lisa A. Decker

Plaintiffs have always turned to the courts with creative legal theories to overcome real or assumed roadblocks to enforcement by government or its agencies. With the perceived rollbacks in environmental regulatory enforcement by the Trump administration, plaintiffs continue to turn to the courts. One of the more recent theories relied on by plaintiffs, particularly to enforce environmental laws, is the so-called public trust doctrine—the concept that the government holds resources such as land, air, water, wildlife, or fisheries in trust for its citizens and, therefore, must consider and protect the environment and the public by promulgating rules and taking government action. A recent Pennsylvania Supreme Court decision serves as a primary example and has widespread implications, including in the context of climate change issues.

On June 20, 2017, a majority of the Pennsylvania Supreme Court broadly interpreted the Environmental Rights Amendment of the state constitution, reaffirming and extending its landmark decision in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013). Pa. Envtl. Def. Found. (PEDF) v. Commonwealth, No. 10 MAP 2015 (Pa. June 20, 2017). The decision cements in place the Commonwealth’s role as trustee for public natural resources pursuant to Article I, Section 27 of the Pennsylvania Constitution (adopted in 1971), which provides:

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 plaintiff, PEDF, challenged a series of statutory enactments relating to funds generated from the leasing of state forest and park lands for oil and gas extraction. In 1995, the legislature created the Pennsylvania Department of Conservation and Natural Resources (DCNR), which was empowered to make and execute contracts and leases for mining or removal of any valuable minerals that may be found in state forests if doing so was in the best interests of the Commonwealth, including collecting monies in a lease fund. Beginning in 2008, various legislation eliminated previous requirements that dedicated natural gas resource lease revenues from state lands to the DCNR and had restricted the use of those revenues to conservation purposes, instead allowing some of that money to flow into the general fund. (Per an authority cited in the decision, between 2008 and 2014, $335 million was redirected from conservation purposes to the general fund. PEDF v. Commonwealth at 17.)

In PEDF v. Commonwealth, the plaintiffs appealed the January 7, 2015, summary judgment ruling by the commonwealth court holding that diverting income from the DCNR to the general fund was proper. The commonwealth court’s opinion reasoned that, although the Pennsylvania Supreme Court had ruled in a plurality opinion in Robinson Township that the Environmental Rights Amendment did not allow the state to limit localities authority to regulate the impact of oil and gas operations within their jurisdictions under Act 13 because it improperly interfered with local governments’ constitutional duties to act as trustees under the constitutional provision, such plurality opinion was not binding, and the proper test (not expressly overturned by the supreme court in Robinson Township) was the three-part test established in Payne v. Kassab, 312 A.2d 86, 94 (Pa. Commw. Ct. 1973). The commonwealth court held that the Commonwealth’s duties as trustee under the Environmental Rights Amendment must be balanced against other duties owed to the people of the Commonwealth. PEDF v. Commonwealth, No. 228 M.D. 2012 (Pa. Commw. Ct. Jan. 7, 2015). Applying that balancing test, the lower court determined that the Commonwealth had not violated the Environmental Rights Act by the legislative acts under challenge.

In reversing the commonwealth court, the supreme court adopted broad language that reaffirmed the breadth of the Robinson Township decision and the rights available under Article I, Section 27 of the Pennsylvania Constitution. In so ruling, the supreme court rejected the Payne v. Kassab test, id. at 27–28, holding that the constitutional standard set forth by the plurality in Robinson Township applied, id. at 28–31. The supreme court held that as the trustee, the Commonwealth has “a duty to prohibit the degradation, diminution, and depletion of our public natural resources,” id. at 31, and “must act affirmatively via legislative action to protect the environment.” Id. at 32–33. As such, applying trust law, the disposition of natural resources and related revenues from state lands is governed by a trustee’s duty with respect to the corpus of a trust, requiring that the corpus not be diminished or wasted. Id. at 33–34. The court ruled that any royalties obtained must remain part of the DCNR’s lease fund, although it remanded to the commonwealth court the question as to whether the way other funds were spent or allocated would be consistent with the commonwealth’s duty as a trustee for natural resources. Id. at 38.

The supreme court also rejected an argument that Article I, Section 27 is not “self-executing” and requires implementing legislation. It reaffirmed its prior holding in Payne v. Kassab, 361 A.2d 263, 272 (Pa. 1976) (Payne II), that, with respect to public property,

there can be no question that the Environmental Rights Amendment itself declares and creates a public trust of public natural resources for the benefit of all the people (including future generations as yet unborn) and that the Commonwealth is made the trustee of said resources, commanded to conserve and maintain them. No implementing legislation is needed to enunciate these broad purposes and establish these relationships.

Id. at 39–40.

The supreme court also emphasized that “the Commonwealth’s obligations as trustee ‘create a right in the people to seek to enforce the obligations.’” Id. at 40 (citing Robinson Township, 83 A.3d at 974). The supreme court left undecided whether Article I, Section 27 is self-executing or requires implementing legislation to be effective when attempting to enforce the people’s rights against owners of private property. Id. at 39. Considering the broad interpretation of the Environmental Rights Amendment, future application of the PEDF decision may color decisions regarding the correct balance between private property rights and environmental protection and tilt the balance in favor of environmental protection.

Based on the sweeping recognition of the Pennsylvania Supreme Court that the Commonwealth serves as the public trustee of its natural resources under Article I, Section 27 and that such rights are fundamental, the PEDF decision may have particular significance with respect to future litigation that seeks to enforce the Commonwealth’s duty to address climate change issues. Note that the commonwealth court and the supreme court avoided deciding the issue in Funk v. Wolf, 144 A.3d 228 (Pa. Commw. Ct. 2016), aff’d without opinion (Pa. Mar. 28, 2017), where the commonwealth court rejected an attempt to invoke mandamus to support broad action on climate change, but suggested that rights under the Environmental Rights Amendment might be exercised through an appropriately drafted rulemaking petition directed to the Environmental Quality Board seeking action under the Pennsylvania Air Pollution Control Act.

Although Pennsylvania is in the minority of states that have a constitutional environmental rights amendment, that has not prevented plaintiffs from aggressively using variations of the public trust doctrine to effectuate change, especially with respect to protecting the environment. In May 2017, Colorado’s attorney general petitioned the Colorado Supreme Court to review the ruling of the Colorado Court of Appeals in Martinez v. Colorado Oil and Gas Conservation Commission (COGCC), No. 16CA0564 (Colo. Ct. App. Mar. 23, 2017), which overturned a lower court ruling holding that the COGCC did not have to comply with a petition filed by teenagers to conduct a rulemaking to promulgate a rule to suspend the issuance of oil and gas permits allowing drilling of “a well for oil and gas unless the best available science demonstrates, and an independent, third party organization confirms, that drilling can occur in a manner that does not cumulatively, with other actions, impair Colorado’s atmosphere, water, wildlife, and land resources, does not adversely impact human health and does not contribute to climate change.” Martinez at 3. The plaintiffs also relied on the public trust doctrine as a basis for their claim.

The COGCC denied the petition because the request went beyond the statutory authority delegated to the COGCC, which the COGCC argued required it to promulgate rules by balancing the development of oil and gas resources with the protection of public health, safety, and welfare. Id. at 5. In contrast, the petition would have required the COGCC to consider the public health, safety, and welfare ahead of responsible oil and gas development. Id. at 20–21. The court of appeals held that the unambiguous language of the statute did not require the COGCC to balance between (1) oil and gas production and (2) public health, safety, and environmental and wildlife impacts, but that such oil and gas production must be “completed subject to the protection of public health, safety, and welfare, including protection of the environment and wildlife resources.” Id. at 12. The court of appeals did clarify that its decision did not address the merits of whether the COGCC should adopt the plaintiffs’ proposed rule. Id. at 20–21. Finally, the court of appeals declined to address the plaintiffs’ argument that in not considering their proposed rule the COGCC violated the Colorado Constitution and the public trust. Id. at 21. The Colorado Supreme Court has not yet indicated whether it will grant certiorari to review the case.

Another high-profile case relying on the public trust doctrine to enforce action to protect climate change has now been set for trial on February 5, 2018, in federal district court in Eugene, Oregon. Juliana et al. v. United States, No. 6:15-cv-1517-TC (D. Or). Juliana was filed in 2015 by 21 children and young adults seeking sweeping changes in federal climate change efforts and government programs that subsidize or foster the development of fossil fuels. The case is one of many related legal actions brought by youth in all 50 states. The plaintiffs argue that their constitutional and public trust rights are being violated by the United States government’s alleged failure to rein in fossil fuel development and address climate change.

As the cases play out in court and new cases are filed, there will no doubt continue to be ongoing developments in the use of public trust arguments to enforce through the courts perceived deficiencies of government authorities in protecting the public health and environment, particularly as the new administration works through how and what environmental regulations it will enforce and promulgate.

Lisa A. Decker

Ms. Decker is senior counsel in Denver, Colorado, for WPX Energy, Inc., a Tulsa-based publicly traded oil and gas exploration and production company, and a member of the editorial board of Natural Resources & Environment. She may be reached at lisa.decker@wpxenergy.com.