Legislature(2005 - 2006)
05/06/2005 08:12 AM Joint BUD
| Audio | Topic |
|---|---|
| Start | |
| Ferc Order No. 2005 || Scr15 | |
| Other Committee Business | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SCR 15-LB&A TO LITIGATE GAS PIPELINE CASE 8:12:53 AM CHAIR THERRIAULT announced that the only order of business would be Senate Concurrent Resolution (SCR) 15, which authorizes the Joint Committee on Legislative Budget and Audit to enter into litigation regarding the Federal Energy Regulatory Commission (FERC) Order No. 2005. The fore mentioned order contained the regulations for conduct regarding the open season methodology for the gas pipeline. 8:13:19 AM JOE BALASH, Staff to Senator Therriault, Alaska State Legislature, turned to the memorandum from Legislative Legal and Research Services, which lays out the rationale behind the aforementioned resolution. He relayed that the Legislative Budget and Audit Committee, similar to Legislative Council, has the statutory authority to sue in the name of the legislature between sessions. Chevron filed its complaint in the district court of appeals in Washington D.C., on April 8, 2005, hence there is 30 days to intervene, which places the date on [May 8, 2005]. He offered that the delegation of the authority to the committee was necessary. 8:14:41 AM CHAIR THERRIAULT opined that the committee could have taken the action without the resolution if the court period to file had gone into the interim, but while the legislature is available the statutes require the legislature to prompt the action. 8:15:06 AM DONALD C. SHEPLER, Counsel, Legislative Budget and Audit Committee, characterized this as a technical, legal, procedural matter that has to be filed no later than [May 9, 2005]. He explained that the committee participated in the FERC rule and those proceedings have moved on to the court of appeals; this motion makes the committee a party to that appeal so that the committee can continue to take whatever action is appropriate to maintain the standing of the FERC order. With the approval of the committee, Mr. Shepler said that he was prepared to file this in the D.C. circuit on May 9, 2005. CHAIR THERRIAULT inquired as to when the next decision in the legal proceeding may come. MR. SHEPLER reminded the committee that FERC issued its order on February 9, 2005, to become effective 90 days after it was published in the federal register, which he estimated to be in mid-May. He related that a number of parties have filed for a rehearing of the FERC order and FERC has taken that under advisement. He related his belief that once FERC meets [May 18, 2005,] the commission might address the rehearing request. Once FERC acts on rehearing, it's expected that others would seek to appeal or possibly ask for further rehearing to the extent that FERC might make changes. He suspected that the aforementioned situation might "start the clock" for more appeals being filed in the court of appeals. He highlighted that under D.C. circuit rules, once the Legislative Budget and Audit Committee is made a party to the Chevron appeal the committee becomes a party to all of the appeals that are subsequently filed, appealing in the same order. Therefore, once the motion to intervene is filed, the committee will then be party to all the proceedings that go into the court of appeals. The federal statute under Order No. 2005 provides that all appeals from any FERC action under that statute have to be lodged in the Washington, D.C., circuit court of appeals and the court has to treat the appeals expeditiously. After the intervention a provision of time within which the respondent, FERC, has to file in order to dismiss the case on whatever grounds it may seek to do. Thereafter, the court will establish a briefing schedule for the appeal, which will most likely be established after the other appeals to be filed in 60 days after the order on rehearing comes out. At some point within the next 90 days, there ought to be established some sort of briefing schedule for all of the appeals of Order No. 2005, he added. The requirement that the judicial proceedings be expedited will [require] formal arguments on the appeal and then a decision. The exact timeline is undetermined because it depends upon the court's briefing schedule. However, some time within this month the FERC will dispose of the pending request for hearing, after which parties can then proceed to the court of appeals if they so choose, he added. 8:21:34 AM REPRESENTATIVE SAMUELS asked what the range of finality dates might be. MR. SHEPLER estimated that the final finality will be at the end of year. 8:21:58 AM CHAIR THERRIAULT related his opinion that other than filing in order to get placement in the court proceedings, the committee may choose to take no further action in the filing but it will receive all of the action brought to the court. MR. SHEPLER replied that the committee is not obligated to do anything. Since there was no appeal filed, because the order was perceived as favorable, the committee has no right to file any briefs. However, by being an intervener the committee becomes a party to the case and will receive copies of everything that is filed in the court proceedings on this appeal and all subsequent appeals for Order No. 2005. He added that the committee can only take actions if it's an intervener. 8:23:16 AM CHAIR THERRIAULT related his understanding that intervening on this case automatically makes the committee a party to any subsequent legal challenges brought forth by any party. He asked if the aforementioned is because the court consolidates all of the appeals cases. MR. SHEPLER answered that Court Rule 15(b) states that an intervener in a proceeding is [automatically] an intervener in all subsequently filed appeals for the Court of Appeals in the same case. He related his belief that any subsequent appeal would be consolidated into one oral argument and one court appeal decision. 8:24:26 AM REPRESENTATIVE SAMUELS moved that the Legislative Budget and Audit Committee authorize Mr. Shepler to file the motion in the U.S. Court of Appeals for the District of Columbia Circuit and to authorize the Chair to order further motions to be filed by the Legislative Budget and Audit Committee attorney during the interim on the same subject. CHAIR THERRIAULT, in response to Mr. Shepler, clarified that the Legislative Budget and Audit Committee would intervene on behalf of the legislature. MR. SHEPLER noted then, in that case, the draft [motion to intervene] may need to be reworded. He said he assumed that he would have the purview to do so. CHAIR THERRIAULT confirmed that. 8:25:27 AM A roll call vote was taken. Senators Hoffman, Stedman, Green, Wilken, and Therriault, and Representatives Samuels, Chenault, Hawker, Kerttula, and Meyer voted in favor of the motion to authorize Mr. Shepler to file the motion in the U.S. Court of Appeals for the District of Columbia Circuit and authorize the Chair to order further motions to be filed by the Legislative Budget and Audit Committee during the interim on the same subject. Therefore, the motion passed by a vote of 10-0.
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