PA Enviro Defense Fdn, Aplt. v. Commonwealth

[J-82-2021] [MO:Baer, C.J.]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

PENNSYLVANIA ENVIRONMENTAL : No. 65 MAP 2020

DEFENSE FOUNDATION, :

: Appeal from the Order of the

Appellant : Commonwealth Court at No. 358

: MD 2018 dated October 22, 2020.

:

v. : ARGUED: December 8, 2021

:

:

COMMONWEALTH OF PENNSYLVANIA, :

AND TOM WOLF, IN HIS OFFICIAL :

CAPACITY AS GOVERNOR OF :

PENNSYLVANIA, :

:

Appellees :

CONCURRING AND DISSENTING OPINION

JUSTICE WECHT DECIDED: August 5, 2022

Article I, Section 27 of the Pennsylvania Constitution, known as the Environmental

Rights Amendment (“ERA”), created a public trust to conserve and maintain

Pennsylvania’s public natural resources.1 In Pennsylvania Environmental Defense

Foundation v. Commonwealth, 161 A.3d 911, 938 (Pa. 2017) (PEDF II), this Court struck

1 Section 27 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.

PA. CONST. art. I, § 27.

down as facially unconstitutional certain budgetary appropriations authorizing the use of

trust corpus for the general operations of the Department of Conservation and Natural

Resources (“DCNR”).

Shortly thereafter, the Commonwealth once again appropriated trust corpus for

DCNR’s general operations for the 2017 and 2018 fiscal years.2 The Pennsylvania

Environmental Defense Foundation (“PEDF”) again challenged these legislative

appropriations as violating the ERA. The Majority rejects PEDF’s arguments and

approves of the 2017 and 2018 appropriations. According to the Majority, the

Commonwealth’s “use of trust assets to fund DCNR’s operations is within the authority of

the Commonwealth as trustee to incur costs in administering the Section 27 trust, absent

demonstration that these administrative costs are unreasonable or that the DCNR has

failed to act with prudence, loyalty, or impartiality in carrying out its fiduciary duties.” 3 I

disagree. The budgetary appropriations that the Majority upholds today share the same

constitutional infirmities that doomed the prior appropriations in PEDF II. The Majority’s

holding that the Commonwealth is entitled to use trust corpus to fund DCNR’s general

operations as a reasonable trustee expense cannot be squared with PEDF II.

The Majority further upholds legislation permitting the Commonwealth to

commingle trust assets with non-trust assets without accounting for how trust assets are

disbursed. In my view, this legislation is facially unconstitutional because it does not

demand of the Commonwealth, as trustee, transparent accounting to demonstrate that

its treatment of trust corpus conforms with the public trust established by the ERA.

2 General Appropriations Act of 2017, Act of July 11, 2017, P.L. 1279, No. 1A, §§

104(P), 1601; General Appropriations Act of 2018, Act of June 22, 2018, P.L. 1203, No.

1A, §§ 104(P), 1601.

3 Maj. Op. at 18.

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Accordingly, I dissent from the Majority’s holding in Parts III.A, III.D, and IV. PEDF

also raises a number of additional challenges that the Majority rejects in turn. I agree that

these additional challenges do not warrant relief. Accordingly, I join Parts I, II, III.B. III.C,

and III.E.

In 1955, the General Assembly established the Oil and Gas Lease Fund (“Lease

Fund”) to receive “all rents and royalties from oil and gas leases” executed on the

Commonwealth’s forest and park lands and to use these funds “exclusively for

conservation, recreation, dams, or flood control.”4 Against this backdrop, the ERA was

adopted in 1971 as part of Article I of the Pennsylvania Constitution.5

As we have explained, the ERA established an environmental public trust for the

benefit of the people that imposes fiduciary duties upon the Commonwealth as trustee.

We delineated the scope of this public trust in PEDF II: “The third clause of Section 27

establishes a public trust, pursuant to which the natural resources are the corpus of the

trust, the Commonwealth is the trustee, and the people are the named beneficiaries.”6

The purpose of the trust is the conservation and maintenance of Pennsylvania’s public

natural resources.7 The Commonwealth, as trustee, has the duty “to prevent and remedy

the degradation, diminution, or depletion of our public natural resources” and to act toward

the trust corpus with “prudence, loyalty, and impartiality.” 8 All proceeds from the sale of

4 71 P.S. § 1331 (repealed by Act 2017, Oct. 30, P.L. 725).

5 See Pennsylvania Envtl. Def. Found. v. Commonwealth, 255 A.3d 289, 314 (Pa.

2021) (“PEDF V”) (recognizing that the circumstances under which the trust is to be

administered are relevant to determining the intent of the settlors in creating the trust).

6 PEDF II, 161 A.3d at 931-32.

7 Id. at 935.

8 Id. at 932.

[J-82-2021] [MO: Baer, C.J.] - 3

trust assets remain part of the trust corpus.9 Trust assets can only be used for the trust

purpose of conservation and maintenance of the Commonwealth’s public natural

resources.

When the legislature created DCNR in 1995, it provided that “all moneys” paid into

the Lease Fund were appropriated directly to DCNR.10 Beginning in 2009, however, the

General Assembly enacted budgetary legislation that transferred money in the Lease

Fund to pay for government operations. In particular, Sections 1602-E and 1603-E

pertained to fiscal year 2009 and provided that money in the Lease Fund could only be

expended if it was first “appropriated or transferred to the General Fund by the General

Assembly,” or if it was part of an annual appropriation for DCNR of $50 million.

Additionally, those provisions required that preference be given not to conservation but

“to the operation and maintenance of State parks and forests.”11 In 2013, and again in

2014-2015, the General Appropriations Acts decreased the appropriation to DCNR from

the General Fund and simultaneously increased the appropriation to DCNR from the

Lease Fund. This resulted “in a larger portion of monies from the Lease Fund being used

to pay for DCNR’s operational expenses, which had previously been funded by the

General Fund, and thus reduced the amount of monies available for DCNR’s conservation

activities.”12

The ERA was implicated in a series of challenges brought by PEDF to these

budgetary enactments, all of which were premised upon the argument that using funds

generated by the environmental trust for non-trust purposes was unconstitutional. In

9 Id.

10 71 P.S. § 1333 (repealed by Act 2017, Oct. 30, P.L. 725).

11 72 P.S. §§ 1602-E-1603-E; see also PEDF II, 161 A.3d at 921-22.

12 PEDF II, 161 A.3d at 923; see also PEDF V, 255 A.3d at 294–95.

[J-82-2021] [MO: Baer, C.J.] - 4

PEDF II, we agreed that all royalties from oil and gas leases on State forest and park

lands must be returned to the trust corpus. Several years later, in PEDF V, this Court

further held that all income generated from such oil and gas leases must be returned to

the corpus to benefit the conservation and maintenance of the public natural resources

for all people as a matter of trust law.

These challenges to legislative appropriations that diminished the constitutional

trust established by the ERA indicated that using money in the Lease Fund for purposes

unrelated to the conservation and maintenance of public natural resources violated the

Commonwealth’s fiduciary duties. Applying trust principles, this Court struck down as

facially unconstitutional Sections 1602-E and 1603-E, concluding that “without any

question, these legislative amendments permit the trustee to use trust assets for non-trust

purposes, a clear violation of the most basic of a trustee’s fiduciary obligations.”13 In

reaching this conclusion, we observed that the legislative and executive branches had

restricted the allocation of Lease Fund monies to DCNR by using the Lease Fund to

support DCNR’s overall budget instead of funding DCNR from the Commonwealth’s

General Fund, the effect of which was to reduce the amount of money available for

conservation purposes.14

In our constitutional analysis, we repeatedly distinguished between DCNR’s

conservation activities and its general operations. For example, we observed that, “while

the Lease Fund Act requires that the funds generated by leasing be ‘exclusively used for

conservation, recreation, dams, or flood control,’” Section 1603-E “designates that

preference be given instead ‘to the operation and maintenance of State parks and

13 PEDF II, 161 A.3d at 938.

14 Id. at 925; see also PEDF V, 255 A.3d at 294-95.

[J-82-2021] [MO: Baer, C.J.] - 5

forests.’”15 We likewise compared DCNR’s “operational expenses” to its “conservation

activities,”16 and DCNR’s “overall budget” to its “conservation purposes.”17 In finding

Section 1603-E to be unconstitutional, we relied upon the legislation’s requirement that

DCNR “give preference to the operation and maintenance of State parks and forests” as

opposed to “conservation purposes.”18 While the latter priority aligns with the trust

purpose of conservation and maintenance of public natural resources, the former did not.

Because Sections 1602-E and 1603-E of the Fiscal Code prioritized Lease Fund assets

to pay for DCNR’s general operations, rather than conservation, it was unconstitutional.19

In PEDF V, the Court continued to distinguish “operation and maintenance” from

“conservation, recreation, dams, or flood control” as well as DCNR’s “overall budget” from

“conservation purposes.”20

PEDF’s present challenge is levied against, inter alia, Sections 1601 and 104(p)

of the General Appropriations Acts of 2017 and 2018, which appropriated funds from the

Lease Fund to pay for DCNR’s general operations. These provisions suffer from the

same constitutional defects identified in Sections 1602-E and 1603-E in PEDF II. Each

provision transferred trust assets from the Lease Fund to pay for DCNR’s general

15 PEDF II, 161 A.3d at 922.

16 Id. at 923.

17 Id. at 925 (observing that “the Legislature began using [Lease Fund] revenue to

support the overall budget of DCNR, rather than obtaining that budget money from the

[G]eneral [F]und and using [Lease Fund] money for conservation purposes related to oil

and gas extraction”) (quoting John C. Dernbach, The Potential Meaning of a

Constitutional Public Trust, 45 ENVTL. L. 463, 488 (2015)).

18 Id. at 937-38.

19 Id.

20 PEDF V, 255 A.3d at 294-95.

[J-82-2021] [MO: Baer, C.J.] - 6

operations. The budgetary appropriations challenged herein unconstitutionally

appropriate trust funds to pay for DCNR’s general operating expenses to the same extent

as former sections 1602-E and 1603-E. Under PEDF II, they should suffer the same fate.

Our analysis in PEDF II recognized that using trust assets to fund DCNR’s general

operations reduced the amount of money available to pay for conservation activities and

was inconsistent with the Commonwealth’s Section 27 trustee duties. The constitutional

obligation to conserve and maintain “implicates a duty to prevent and remedy the

degradation, diminution, or depletion of our public natural resources.”21 Using funds from

the trust corpus to fund DCNR’s general operations would deplete, degrade, and diminish

the very public natural resources DCNR is required to conserve and maintain. Under our

precedent, legislation that attempts to use the corpus of the environmental trust to fund

anything other than conserving and maintaining the corpus is unconstitutional.

The Majority reads PEDF II’s rejection of Sections 1602-E and 1603-E as being

premised upon the unrestricted transfer of trust assets to the General Fund, rather than

upon the use of trust assets to fund DCNR’s general operations.22 I disagree. Woven

throughout our constitutional analysis of these budgetary provisions is a repeated

distinction between DCNR’s conservation activities and its operational expenses. Our

constitutional holding flowed directly from our recognition of this distinction.

The Majority also deems the entirety of DCNR’s operational budget to amount to

the costs of administering the environmental trust, for which the use of trust assets is

permitted absent a showing that these costs “are unreasonable or that the DCNR has

21 PEDF II, 161 A.3d at 932.

22 Maj. Op. at 18, n.17.

[J-82-2021] [MO: Baer, C.J.] - 7

failed to act with prudence, loyalty, or impartiality.”23 Once again, I cannot agree.

Whether trust corpus can be used to pay for DCNR’s general operations would depend

upon whether the general operations are “necessary or appropriate to carry out the

purposes of the trust and are not forbidden by the terms of the trust.” 24 In PEDF II, we

described the challenged budgetary appropriations as decreasing the appropriation to

DCNR from the General Fund and increasing the appropriation from the Lease Fund to

DCNR, “resulting in a larger portion of monies from the Lease Fund being used to pay for

DCNR’s operational expenses, which had previously been funded by the General Fund,

and thus reduced the amount of monies available for DCNR’s conservation activities.” 25

Because those appropriations unconstitutionally used the trust corpus as a funding

source to offset decreases in appropriations to DCNR from the General Fund, they were

invalid under the ERA. Deeming the entirety of DCNR’s budget to be a reasonable cost

of trust administration today is therefore contrary to our holding in PEDF II to strike fiscal

code provisions that authorized the use of the Lease Fund to pay for DCNR’s general

operations.

The Majority shrugs away any tension between our reasoning in PEDF II and

today’s holding because the case sub judice presents a facial challenge. Accordingly,

the Majority explains, we do not have to determine which of DCNR’s responsibilities

qualify as trust purposes.26 I cannot agree. In relying upon this distinction, the Majority

overlooks the fact that PEDF II was also a facial challenge. This Court was able there to

23 Id. at 18.

24 Restatement (Second) of Trusts § 188 (1959); Maj. Op. at 16, n.15.

25 Id. at 923.

26 Maj. Op. at 17, n.16.

[J-82-2021] [MO: Baer, C.J.] - 8

examine the legislation, and we determined that it misappropriated trust corpus. The

same is true here.

More importantly, the Majority has inverted the analysis. Because PEDF is

bringing a facial challenge, this Court must address whether the challenged legislation

facially permits the depletion of trust corpus for non-trust purposes. To do so, we must

address what parts of DCNR’s general operations are or are not related to conservation.

If a portion of trust corpus is being diverted for non-trust purposes, then PEDF’s facial

challenge would be successful. In explicitly leaving open the possibility that trust corpus

will be spent on things unrelated to the conservation and maintenance of public natural

resources (which might then be struck down in an as-applied challenge),27 the Majority is

sanctioning the unconstitutional use of trust corpus for non-trust purposes. This we

cannot do.

In his concurring and dissenting opinion, Justice Dougherty opines that the

budgetary legislation challenged in this case is facially unconstitutional. In reaching this

conclusion, Justice Dougherty observes that DCNR’s responsibilities extend beyond

conservation, including managing the economic use of state forests, recreation, and

heritage conservation. To the extent that DCNR’s general operations are broader than

the trust purpose of conservation and maintenance of public natural resources, Justice

Dougherty believes that using trust corpus to fund these general operations is facially

unconstitutional.28 As explained herein, I agree. In particular, DCNR’s statutory duties

include managing state forest lands to assure their economic use.29 The statutory

directive to exploit the Commonwealth’s public natural resources for their economic use

27 See id. at 27.

28 Concurring and Dissenting Op. at 5 (citing 71 P.S. § 1340.101(b)(1)).

29 71 P.S. § 1340.101(b)(1).

[J-82-2021] [MO: Baer, C.J.] - 9

presents an obvious conflict with the constitutional obligation to use the trust corpus solely

to prevent the degradation, diminution, and depletion of these resources.

Using lease fund money to fund DCNR’s general operations is constitutional only

to the extent that general operations further the trust purpose of conservation and

maintenance of public natural resources. Because Sections 104(P) and 1601 reflect no

limitation on the use of trust corpus to fund DCNR, I would hold that they are facially

unconstitutional under PEDF II. With these budgetary appropriations, the Commonwealth

is deploying public natural resources to raise revenue and offset its obligation to fund

government operations. On this basis alone, I would hold that PEDF has lodged a

successful facial challenge.

The Commonwealth’s obligation to fund our government exists independently from

the Commonwealth’s duties as trustee. “From the perspective of the settlors, the ERA

was enacted when the Commonwealth was already devoting the revenues generated by

mineral leases to conservation purposes.”30 Redirecting those revenues to general

operations is inconsistent with the backdrop against which the ERA was enacted. A

trustee’s ability to use trust corpus to cover reasonable trustee expenses alleviates the

expenses associated with being trustee. It does not relieve the Commonwealth of its

independent obligation to fund government operations.

If the Commonwealth is permitted to use trust corpus to fund DCNR’s general

operations, then the public natural resources that the Commonwealth is obligated to

conserve and maintain are depleted, degraded, and diminished in order to fulfill the

Commonwealth’s obligation to fund the costs of government. The Commonwealth would

alleviate its funding obligation through its trustee duties, degrading the corpus of the same

trust it has the duty to conserve and maintain. In using the corpus of the trust to replace

30 PEDF V, 155 A.3d at 314.

[J-82-2021] [MO: Baer, C.J.] - 10

appropriations from the General Fund, the Commonwealth is failing to preserve the trust

corpus for the benefit of the people and to protect their rights “to clean air, pure water,

and to the preservation of the natural, scenic, historic and esthetic values” of the public

natural resources.31 It is inconsistent with the Commonwealth’s duty as trustee under the

ERA “to conserve and maintain” our public natural resources to deplete this trust corpus

to pay for DCNR’s general operating costs.32

Although I disagree with the Majority’s analysis of Sections 104(P) and 1601, I

observe that the Majority does not foreclose an as-applied challenge to budgetary

appropriations that are not necessary or appropriate to carry out the purpose of the trust. 33

Generally speaking, a trustee who seeks to encumber the trust with expenses incurred in

maintaining and administering the trust has the burden of justifying those expenses.34

Every expenditure must be made in accord with the terms of the trust itself.35 The

Commonwealth should not perceive a rejection of PEDF’s facial challenge as approving

of characterizing every expense associated with DCNR as a reasonable cost of

administering the trust.

31 PA. CONST. art. I, § 27.

32 Id.

33 Maj. Op. at 16 n.15.

34 See, e.g., In re Strickler's Estate, 47 A.2d 134, 135 (Pa. 1946) (“Where a fiduciary

claims credit for disbursements made by him the burden rests upon the fiduciary to justify

them. Proper vouchers or equivalent proof must be produced in support of such credits.”);

In re Union Real Estate Investment Co. First Mortgage 6% Gold Bonds Due July 1, 1941,

1 A.2d 662, 666 (Pa. 1938) (requiring a trustee to “justify every expenditure as a proper

one according to the terms of the instrument under which it is acting, or the power and

authority conferred upon it”); Mintz v. Brock, 44 A. 417 (1899) (providing that it is the duty

of the trustee to sustain the account of all moneys paid with regard to the business relating

to the trust).

35 Union Real Estate, 1 A.2d at 666.

[J-82-2021] [MO: Baer, C.J.] - 11

I recognize that the Lease Fund at issue today is not the same Lease Fund that

we evaluated in PEDF II. In particular, Section 1601.2-E(b) now establishes three funding

sources for the Lease Fund:

(1) Rents and royalties from oil and gas leases of land owned by the

Commonwealth, except rents and royalties received from game and fish

lands.

(2) Amounts as provided under section 5 of the act of October 8, 2012 (P.L.

1194, No. 147),known as the Indigenous Mineral Resources Development

Act.

(3) Any other money appropriated or transferred to the fund.

72 P.S. § 1601.2-E(b).

The consequence of Section 1601.2-E(b), taken together with Sections 104(P) and

1601 of the General Appropriations Acts, is that trust corpus and non-trust corpus are

commingled in the Lease Fund, and that expenditures from the Lease Fund are being

made for trust and non-trust purposes alike. The use of non-trust corpus for non-trust

purposes, even if these funds pass through the Lease Fund, is of no moment to the ERA.

The ERA is violated when trust corpus is expended for non-trust purposes. To ensure

constitutional compliance, the Commonwealth, as trustee, is responsible for tracking

every dollar that constitutes trust corpus from the moment it is generated until the moment

it is spent on conservation. The Commonwealth, therefore, violates its fiduciary duties

under the ERA whenever it permits commingling without an accounting.36

There presently is no requirement to account for the source of dollars as they are

deposited into the Lease Fund under Section 1601.2-E(b), nor to identify the purpose for

which that money is spent under Sections 104(P) and 1601. Without such accounting,

36 See, e.g., 20 Pa.C.S. § 7780(a) (requiring a trustee to maintain “adequate records

of the administration of the trust”); id. § 7780(b) (requiring a trustee to “keep trust property

separate from the trustee’s own property”).

[J-82-2021] [MO: Baer, C.J.] - 12

the Commonwealth fails to ensure the constitutional collection and disbursement of

assets belonging to the trust. The Commonwealth presently is failing to account for the

origin of the assets in the Lease Fund, to account for how Lease Fund money is spent,

or to establish whether the expenses that the Commonwealth claims as a trustee are

reasonable. Indeed, as the Commonwealth conceded in the Commonwealth Court, under

the current state of the law, “it is not possible to identify the originating source of the total

monies in the Lease Fund on a particular day.”37

In the Commonwealth Court, PEDF sought a declaration that the Commonwealth

must maintain detailed accounting of monies in the Lease Fund and how the money is

used. Relying upon its own precedent in Pennsylvania Environmental Defense

Foundation v. Commonwealth, 214 A.3d 749 (Pa. Cmwlth. 2019), which this Court

reversed in PEDF V, the Commonwealth Court held that money classified as trust

principal must be spent on trust purposes, while money classified as income need not

comply with spending restrictions.38 By failing to account for money in the Lease Fund,

the Commonwealth was, according to the Commonwealth Court, neglecting its fiduciary

duties. To remedy this breach, the Commonwealth Court imposed an accounting

obligation to ensure that trust assets—which, at that time, was understood solely as trust

principal—are being used constitutionally.

The Commonwealth does not rely upon the current configuration of the Lease

Fund to save Sections 104(P) and 1601. Nor could the Commonwealth make such an

argument without an accounting to support it. Rather, like the Majority, the

37 Pennsylvania Env. Defense Found. v. Commonwealth, 358 M.D. 2018, 2020 WL

6193643, *17 (Cmwlth. Ct. Oct. 22, 2020).

38 Id. at *17.

[J-82-2021] [MO: Baer, C.J.] - 13

Commonwealth argues that it is entitled to use the Lease Fund to pay for DCNR’s general

operations as a trustee expense related to conservation.

I am not convinced that the change wrought in the Lease Fund by Section 1601.2-

E(b) warrants a departure from PEDF II. The lack of any accounting obligation or

restriction of the use of trust assets solely for trust purposes on the part of the

Commonwealth as trustee clearly, plainly, and palpably violates the Constitution. The

extent to which we can evaluate the constitutionality of Lease Fund expenditures depends

upon the Commonwealth’s adherence to its constitutional duty as fiduciary to maintain

accurate accounts of money flowing into and out of the Lease Fund, an obligation with

which the Commonwealth has made no effort to comply.39

The possibility that only non-trust corpus in the Lease Fund is being expended

upon DCNR’s non-conservation activities is not plausible. As developed in the

Commonwealth Court below, of the funds available in the Lease Fund to pay the

$61,291,000 appropriated for DCNR’s annual budget in 2017-2018, eighty-five percent

was derived from royalties paid under state forest oil and gas leases, and another fourteen

percent was derived from bonus and rental payments paid under those leases.40 This

39 I disagree with Justice Donohue that the lack of a statutory accounting obligation

is irrelevant to the statute’s constitutionality. See Concurring Op. (Donohue, J.), at 9, n.3.

Unlike a constitutional equal protection challenge, a challenge to the constitutionality of a

statute under the ERA implicates the Commonwealth’s fiduciary duties “to act toward the

corpus of the trust—the public natural resources—with prudence, loyalty, and

impartiality.” PEDF II, 161 A.3d at 932. Indeed, in PEDF II, we observed that, “if proceeds

are moved to the General Fund, an accounting is likely necessary to ensure that the funds

are ultimately used in accordance with the trustee's obligation to conserve and maintain

our natural resources.” Id. at 939. Because the legislation at issue in this case facially

requires no accounting, it shifts the cost burden for enforcing the Commonwealth’s

constitutional fiduciary duties to third parties who must then find and spend funds and

other resources needed to challenge the legislation in court. This is a facial violation of

the Commonwealth’s fiduciary duties.

40 Section 104(P) of the General Appropriations Act of 2017 directed transfers from

the Lease Fund to named agencies “for the payment of salaries, wages or other

[J-82-2021] [MO: Baer, C.J.] - 14

means that ninety-nine percent of the Lease Fund was trust corpus. In 2018, the

Commonwealth appropriated $48,798,000 from the Lease Fund to pay for DCNR’s

annual budget which, again, was almost all derived from oil and gas leases. Considering

the non-conservation purposes to which this money is put (as developed herein as well

as in Justice Dougherty’s Concurring and Dissenting Opinion), it is not plausible that trust

fund corpus is not being expended for non-trust purposes.41

To the extent that Justice Donohue believes that the Commonwealth Court’s order

directing the Commonwealth to maintain accurate accounts saves the budgetary

legislation from facial unconstitutionality, I cannot agree. First, the legal foundation of the

Commonwealth Court’s order is shaky at best, tied as it is to a prior Commonwealth Court

decision that this Court reversed in PEDF V. Second, the scope of the Commonwealth

Court’s order is unclear. When must the Commonwealth comply with the directive to

provide an accounting? Is this a routine obligation, or is it dependent upon a third party

challenge to particular disbursements? Is it prospective, or does it relate to the 2017 and

2018 budgetary legislation? Assuming that the obligation applies to the present dispute,

the Commonwealth already has indicated that it is impossible for it to know from one day

to the next the source of money in the Lease Fund. We cannot in good faith uphold

compensation and travel expenses of the duly appointed officers and employees of the

Commonwealth, for the payment of fees for contractual services rendered, for the

purchase or rental of goods and services and for payment of any other expenses…”

Section 1601 of the General Appropriations Act of 2017 provided for the following

expenditures from the Lease Fund to DCNR: $50,000,000 for general operations,

$7,739,000 for state park operations, and $3,552,000 for state forest operations.

41 Although, as Justice Donohue observes, DCNR’s entire budget exceeded the

transfers from the Lease Fund, see Concurring Op. (Donohue, J.), at 11, n.7, there is no

limitation on the face of the legislation that limits the use of trust corpus to trust purposes.

In this respect, I agree with Justice Dougherty that the legislative transfers from the Lease

Fund in this case are facially unconstitutional to the same extent as the provisions we

struck down in PEDF II and PEDF V. See Concurring and Dissenting Op. at 12.

[J-82-2021] [MO: Baer, C.J.] - 15

legislation of apparent unconstitutionality by relying upon an unpublished, unappealed

intermediate appellate court order premised upon reversed precedent with which the

Commonwealth believes it cannot comply.

Third, attempting to save the challenged legislation from a facial challenge by

linking the statutes to the Commonwealth Court’s order implicitly recognizes that the

statutes, on their face, clearly, plainly, and palpably violate the constitution. The statutes

as they stand do not comport with the constitutional fiduciary requirement of an

accounting.

Fourth, in rejecting the present facial challenge, the Majority and Justice Donohue

favor shifting any claims of unconstitutionality to as-applied challenges based upon

whatever accounting the Commonwealth believes it must comply. This is untenable. The

ERA imposes fiduciary obligations upon the Commonwealth of constitutional magnitude.

These obligations make the Commonwealth accountable, as trustee, to track and disclose

every dollar of trust corpus. Without this obligation appearing on the face of the legislation

itself, Section 1601.2-E(b)cannot withstand constitutional scrutiny. Rejecting this facial

challenge shifts to third parties such as PEDF the expense and burden of sifting through

the Commonwealth’s accounting in order to lodge as-applied challenges to particular

disbursements. Relying upon third parties to monitor the Commonwealth’s compliance

with its constitutional obligations is no substitute for judicial review of unconstitutional

statutes.

The result of the Majority’s analysis is the unavoidable degradation, diminution,

and depletion of the constitutional trust corpus. Because trust assets return to the trust

corpus and cannot be used for non-trust purposes, I dissent from Parts III.A, III.D, and IV

of the Majority Opinion. I join Parts I, II, III.B, III.C, and III.E.

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