Legislature(2011 - 2012)CAPITOL 120
04/09/2011 12:30 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HJR4 | |
| HB215 | |
| SB31 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HJR 4 | TELECONFERENCED | |
| + | SB 31 | TELECONFERENCED | |
| += | HB 215 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 215 - JUDICIAL REVIEW OF PIPELINE PROJECT/ROW
12:54:18 PM
CHAIR GATTO announced that the next order of business would be
HOUSE BILL NO. 215, "An Act relating to the judicial review of a
right-of-way lease or the development or construction of an oil
or gas pipeline on state land." [Before the committee was the
proposed committee substitute (CS) for HB 215, Version 27-
LS0741\I, Bullock, 4/5/11, which had been adopted as the working
document on 4/6/11.]
12:55:50 PM
REPRESENTATIVE HOLMES made a motion to adopt Amendment 1,
labeled 27-LS0741\I.1, Bullock, 4/7/11, which read:
Page 6, line 19:
Delete "(b)"
Insert "(c)"
Page 6, line 20:
Delete all material and insert:
"* Sec. 6. AS 38.35.200 is amended by adding a new
subsection to read:"
Page 6, line 21:
Delete "(b)"
Insert "(c)"
REPRESENTATIVE PRUITT objected for the purpose of discussion.
12:56:20 PM
TOM WRIGHT, Staff, House Majority Office, Alaska State
Legislature, on behalf of the sponsor, Representative Mike
Chenault, Speaker, House of Representatives, indicating that
there had been discussions with the Department of Law (DOL) on
this issue, explained that Amendment 1 would provide for the
retention of existing AS 38.35.200(b), which currently allows
for a judicial review [based on the grounds that there was a
failure to follow the procedures set out in AS 38.35, or on the
grounds that there has been an abuse of discretion such that it
constitutes a denial of due process]. Under Amendment 1,
instead of repealing and reenacting AS 38.35.200(b), Version I's
Section 6 would simply add a new subsection (c) to AS 38.35.200.
Currently, existing subsection (b) pertains to all pipelines,
whereas what would become new subsection (c) under Amendment 1
would pertain only to natural gas pipelines.
REPRESENTATIVE PRUITT removed his objection.
CHAIR GATTO, after ascertaining that there were no further
objections, announced that Amendment 1 was adopted.
CHAIR GATTO relayed that the proposed amendment in members'
packets labeled 27-LS0741\I.2, Bullock, 4/7/11, would not be
offered; that proposed amendment read:
Page 1, line 2:
Delete "and"
Page 1, line 4, following "corridor":
Insert "; and providing for an effective date"
Page 7, following line 10:
Insert a new bill section to read:
"* Sec. 8. This Act takes effect immediately under
AS 01.10.070(c)."
12:59:03 PM
REPRESENTATIVE HOLMES made a motion to adopt Amendment 2,
labeled 27-LS0741\I.3, Bullock, 4/8/11, which read:
Page 6, line 21, following "law":
Insert "and except for an action described in (c)
of this section"
Page 7, following line 5:
Insert a new bill section to read:
"* Sec. 7. AS 38.35.200 is amended by adding a new
subsection to read:
(c) An appeal of a permitting decision by the
Department of Environmental Conservation under
AS 46.03 or AS 46.14 that is made under authority
delegated to the Department of Environmental
Conservation by the United States Environmental
Protection Agency is not
(1) subject to the limitation in (a)(2) of this
section;
(2) included in the actions described in (b) of
this section."
Renumber the following bill section accordingly.
REPRESENTATIVE PRUITT objected for the purpose of discussion.
MR. WRIGHT - indicating that the language of Amendment 2 was
suggested by the Department of Environmental Conservation (DEC),
and characterizing Amendment 2 as necessary - explained that all
legislation that could affect the state's primacy over its air
or water quality must be submitted to and reviewed by the
federal Environmental Protection Agency (EPA), which then
determines whether the legislation would violate federal
regulation and whether the state's primacy should therefore be
revoked. Adoption of Amendment 2 would ensure that the state's
primacy over its own air and water quality won't become an issue
under HB 215, thereby precluding the need for the EPA to become
involved. In terms of pipeline right-of-ways, he relayed, the
water-quality issues that need to be addressed are primarily
those pertaining to storm/water runoff and water discharge, and
[the sponsor] would prefer for the state to deal with the DEC on
these issues rather than with the EPA.
CHAIR GATTO indicated support for Amendment 2.
1:02:00 PM
REPRESENTATIVE CHENAULT, speaking as the sponsor of HB 215,
relayed that he reluctantly supports Amendment 2.
MR. WRIGHT suggested that the drafter be instructed to conform
the language of Amendment 2 with the changes effected by the
adoption of Amendment 1.
CHAIR GATTO and REPRESENTATIVE HOLMES acknowledged that point.
MR. WRIGHT, in response to comments and questions regarding
Version I's Section 5 - which is proposing to amend
AS 38.35.200(a) - explained that the language stipulating that
an objection to a right-of-way lease must be raised within the
later of either 60 days after the effective date of the bill, or
60 days after the publication of notice under AS 38.35.070, was
included in order to address the fact that the Alaska Gasline
Development Corporation (AGDC) has already applied for a
pipeline right-of-way under [the existing statute], and the
sponsor wanted to ensure that parties weren't precluded from
raising an objection under the proposed judicial-review
provisions just because the period for raising an objection
under the existing provisions had lapsed. This language would
provide such parties with the ability to raise an objection
anytime during the 60 days after the effective date of the bill.
REPRESENTATIVE PRUITT removed his objection to the motion to
adopt Amendment 2.
CHAIR GATTO, after ascertaining that there were no further
objections, announced that Amendment 2 was adopted.
1:12:06 PM
RUTH HAMILTON HEESE, Senior Assistant Attorney General,
Environmental Section, Civil Division (Juneau), Department of
Law (DOL), indicating that she was representing the DEC, relayed
that Amendment 2 addresses her client's concern regarding state
primacy.
1:12:42 PM
JOHN HUTCHINS, Assistant Attorney General, Oil, Gas & Mining
Section, Civil Division (Juneau), Department of Law (DOL),
indicating that he was representing the Department of Natural
Resources' office of State Pipeline Coordinator, relayed that
his client is generally supportive of HB 215. In response to
questions, he confirmed that [with the adoption of Amendment 1,
existing AS 38.35.200(b)] would remain unchanged, and what has
become proposed AS 38.35.200(c) would pertain to intrastate
natural gas pipelines - but not just to their right-of-ways -
with the Alaska Superior Court having exclusive jurisdiction -
but none to issue an injunction before the issuance of a final
judgment. He offered his understanding that AS 38.35 sets out
the criteria for what could constitute an intrastate pipeline,
and that [the bill] would apply in situations involving a right-
of-way lease granted under AS 38.35. In response to further
questions, he surmised that if the Alaska Superior Court
ultimately determines that the state official responsible for a
particular permitting decision was incorrect, then an injunction
would be needed to "unwind" whatever had been done since that
permitting decision was made.
MS. HAMILTON HEESE concurred.
REPRESENTATIVE HOLMES noted that AS 38.35.020 says in part:
(a) Rights-of-way on state land including rights-of-
way over, under, along, across, or upon the right-of-
way of a public road or highway or the right-of-way of
a railroad or other public utility, or across, upon,
over, or under a river or other body of water or land
belonging to or administered by the state ....
MR. HUTCHINS, in response to questions, offered his belief that
proposed AS 38.35.200(c) wouldn't constitute a violation of the
separation of powers doctrine, and wouldn't amend a court rule.
He acknowledged, however, that he still has some uncertainty
regarding the latter point. In response to comments, he
explained that a court has equitable powers to unwind actions
that have been taken, so although the court can't issue an
injunction to restrain something that has already been done, it
can craft satisfactory relief.
REPRESENTATIVE GRUENBERG pointed out, though, that if an
objection were to be raised in order to protect a stream, for
example, and the case goes on for a while, by the time the court
is finally allowed under the bill to issue an injunction, it
could be too late to protect that stream because the damage
would have already been done.
MR. HUTCHINS surmised that if the legislature wants to ensure
that the court does have the ability to issue an injunction in
situations where there is the possibility of irreparable harm
occurring, the [proposed] statute would need to be changed.
REPRESENTATIVE GRUENBERG said he is concerned about how long it
could be before the court would have jurisdiction under the bill
to address such harm via an injunction.
MR. HUTCHINS mentioned that the court could issue a final
judgment, and thus also an injunction, in the initial case,
before any appeal. In response to a question, he indicated that
that's his interpretation of the proposed language in Section 6
that reads, "except in conjunction with a final judgment on a
claim filed under this subsection, the superior court may not
grant injunctive relief". In response to another question, he
offered his belief that there aren't any constitutional problems
with that provision, but agreed to research the issue further.
REPRESENTATIVE KELLER suggested that the bill be moved from
committee and any problems with it be dealt with when it's heard
on the House floor.
REPRESENTATIVE GRUENBERG relayed that he didn't want to delay
the bill, but is troubled by its proposal to limit the court's
ability to grant injunctive relief.
1:35:01 PM
MERRICK PEIRCE, Chief Financial Officer (CFO); Member, Board of
Directors, Alaska Gasline Port Authority (AGPA), indicating that
his organization is proposing an intrastate natural gas pipeline
project, expressed concern that along with other pieces of
legislation, HB 215 appears to be intended to foster a competing
intrastate natural gas pipeline project - one, he opined, that
wouldn't be in the best interest of Alaska - and relayed that he
is therefore skeptical of any effort to limit judicial review
for such a project. He also offered his understanding of what
that competing intrastate natural gas pipeline project would and
would not entail compared to the one his organization is
proposing, and advice regarding what a successful project should
entail. In conclusion, he indicated a preference that the bill
not be moved from committee.
REPRESENTATIVE PRUITT offered his belief that with regard to
intrastate natural gas pipelines, it would be in the best
interest of Alaska for its options to be left open.
CHAIR GATTO characterized HB 215 as being part of the solution
for Alaska's future.
REPRESENTATIVE THOMPSON, pointing out that the bill isn't
stipulating that a particular route be used, opined that HB 215
would benefit any and all pipelines.
CHAIR GATTO, after ascertaining that no one else wished to
testify, closed public testimony on HB 215.
REPRESENTATIVE GRUENBERG said that he supports the bill strongly
but just wants to be sure that it is doesn't violate the
constitution, and relayed that he would therefore continue
working with the sponsor and the DOL to address his concerns.
1:46:46 PM
REPRESENTATIVE THOMPSON moved to report the proposed CS for
HB 215, Version 27-LS0741\I, Bullock, 4/5/11, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 215(JUD) was
reported from the House Judiciary Standing Committee.
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