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Pennsylvania Judge Will Wait Until After Budget to Rule on Forest Leasing

A judge in Pennsylvania said he will wait until after the state budget is enacted before considering an environmental group's request to halt oil and natural gas leasing under state parks and forests.

Meanwhile, a state lawmaker has introduced a bill that would require the Pennsylvania Department of Conservation and Natural Resources (DCNR) to notify the public and receive public comments for any proposed unconventional drilling on state forest land.

In a four-page memorandum and order issued last Thursday, Commonwealth Court Judge Kevin Brobson ordered the Pennsylvania Environmental Defense Foundation (PEDF) to file an application with the court requesting a status conference after the final enactment of the state budget for the 2014-2015 fiscal year (FY). Brobson said the conference would be scheduled "as expeditiously as possible" following agreement on a budget.

"The court is mindful that any decision on the application [for an injunction against leasing on state lands], one way or another, during the pending budget process could affect the negotiations and decision making of legislators and the governor's office that are inherent in that process," Brobson wrote. "Such interference runs afoul of the principle of separation of powers.

"Although this court may determine whether challenged legislative enactments are unlawful, there is no place carved out in our constitution for the court to rule on the legality of budget proposals."

Last month, Pennsylvania Gov. Tom Corbett issued an executive order lifting a moratorium on new oil and gas leases in state parks and forests and replacing it with a measure that will allow such leases, provided the drilling occurs on nearby land and surfaces in the parks and forests are not disturbed (see Shale Daily, May 23).

PEDF contends that two items in the FY 2014-2015 budget violate state laws. They are $75 million in revenue to the general fund generated through "non-surface impact leasing," and about $117.5 million of monies to support operating expenses at DCNR.

Rep. Rick Mirabito (D-Williamsport) introduced HB 2318 last Friday to amend the state Conservation and Natural Resources Act. It would require DCNR to hold one public comment period and at least one public hearing or meeting "before leasing state forest lands for unconventional gas development or otherwise authorizing any major unconventional gas development project on state forest lands."

HB 2318 would also require DCNR to provide "public access during the comment period to detailed development plans, including locations of all well pads, impoundments, access roads, pipelines, compressor stations and other related structures and facilities." The bill also calls for "public access during the comment period to a state forest environmental review that analyzes potential impacts of the proposed development on ecological, recreational, cultural and aesthetic resources and public health; discusses avoidance and mitigation measures; [and] analyzes development alternatives."

In an interview posted online by the Pennsylvania House Democratic Caucus, Mirabito said the impetus for his bill began last year after two energy companies requested access to their mineral rights under the Loyalsock State Forest. DCNR held a private meeting to discuss the proposal, but after a public uproar, it held a public hearing and participated in an online forum on the proposal (see Shale Daily, April 23, 2013; April 1, 2013).

"There was a lot of controversy about why it was a closed-door meeting," Mirabito said in the interview, which was posted on June 2. In response, he held a policy hearing that was open to the public. "It made it clear to me that the public wants to be engaged, but they need the tools.

"What this legislation does is it empowers the public by requiring DCNR -- when they're going to drill on state land with unconventional gas wells -- to hold a public meeting and a comment period, [and for DCNR] to share with the public their analysis of what's going to happen both in terms of the ecology, the environment and the recreational activities."

HB 2318 was referred to the House Committee on Environmental Resources and Energy last Friday.

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