The Budget & Protecting the Public Trust

No one will dispute that the now-annual spectacle of the Commonwealth budget reflects poorly on the current state of governance in Harrisburg. What hasn’t been acknowledged enough, however, is the surreptitious use of this spectacle to undermine environmental protections.

Over the past several years the state budget – more particularly the state Fiscal Code – has become a preferred vehicle to quickly and quietly change the rules for environmental oversight and enforcement. Because the budget has become a perennial crisis, and necessitates omnibus legislation that is almost impossible to unravel once set in motion, it becomes very easy for legislators to insert provisions requested by industry that bypass public disclosure and participation, not to mention independent consideration by members of the Senate and House.

Davitt Woodwell photo 2016 (3)
Davitt Woodwell

The most recent example happened this week. On Wednesday evening the Senate inserted provisions in Fiscal Code legislation (House Bill 1327) that abrogated regulations long in the making regarding rulemaking for oil and gas operations, and placed additional constraints on implementation of the federal Clean Power Plan in Pennsylvania.

In a matter of hours, the Senate swiftly approved this legislation without any debate on the merits of these provisions, shutting out public notice and involvement altogether and without a single prior vote by the Senate on the more than a dozen individual changes made to law in the bill.

No doubt the House, facing similar demands almost six months past the deadline for approval of a state budget, will likely follow suit.

The Clean Power Plan, and the standards applicable to oversight of the oil and gas industry, have nothing to do with the budget. To make matters worse, there is a growing dismissiveness by the General Assembly to this wholly inappropriate practice – evidenced yesterday by a response from the spokesperson for the Senate Republicans on the language invalidating environmental rulemaking.

Consider that the rulemaking being undermined is required by legislation already passed by the General Assembly and signed into law in 2012. Rulemaking will have undergone more than three years of public analysis and dialog, including 12 public hearings, two public comment periods, and more than a dozen meetings of a technical advisory board. To arbitrarily throw this process and product out the window without any public consideration or involvement is an affront to good governance.

It is also likely unconstitutional. Article III, Section 3 of the Pennsylvania Constitution contains language that directs the legislature to follow what is commonly referred to as the “single subject rule”. Stated plainly, the legislature is not allowed to use one piece of legislation, including omnibus bills, to advance separate or unrelated provisions. This section of the Constitution was adopted specifically to prevent the very activity that is now taking place annually by the General Assembly with respect to environmental laws.

This practice needs to stop. The public has a fundamental right to have full knowledge of, and opportunity to participate in, the laws that affect their health and environment. These laws must be considered on their own merits, and in plain sight.

The General Assembly has a clear constitutional duty, reflected in Article I, Section 27 of the state Constitution, to protect public health and the environment. Using the budget as a means to subvert or substantively change environmental laws violates that public trust, and is wholly inappropriate by the laws of our Commonwealth and the principles of good governance.

The Governor and General Assembly should take all efforts to end this affront today, tomorrow, and in years and budgets to come. It is their duty and responsibility to the people of Pennsylvania.

Now is the time to start.