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
ALASKA STATE LEGISLATURE
JOINT COMMITTEE ON LEGISLATIVE BUDGET AND AUDIT
May 6, 2005
8:12 a.m.
MEMBERS PRESENT
Senator Gene Therriault, Chair
Representative Ralph Samuels, Vice Chair
Senator Bert Stedman
Senator Lyda Green
Senator Lyman Hoffman
Representative Mike Chenault
Representative Mike Hawker
Representative Beth Kerttula
Senator Gary Wilken, alternate
Representative Kevin Meyer, alternate
MEMBERS ABSENT
Senator Ben Stevens
Representative Pete Kott
Representative Reggie Joule, alternate
COMMITTEE CALENDAR
FERC ORDER NO. 2005
OTHER COMMITTEE BUSINESS
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
DONALD C. SHEPLER, Counsel
Legislative Budget and Audit Committee
Washington, D.C.
POSITION STATEMENT: Explained the Federal Energy Regulatory
Commission (FERC) regulations governing the conduct of open
seasons for Alaska natural gas transportation projects.
JOE BALASH, Staff to Senator Therriault
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Offered information about Senate Concurrent
Resolution 15.
ACTION NARRATIVE
CHAIR GENE THERRIAULT called the Legislative Budget and Audit
Committee meeting to order at 8:12:08 AM. Senators Therriault,
Stedman, Hoffman, Wilken, and Representatives Samuels, Hawker,
Kerttula, and Meyer were present at the call to order. Senator
Green and Representative Chenault arrived as the meeting was in
progress.
^FERC ORDER NO. 2005
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.
^OTHER COMMITTEE BUSINESS
8:26:16 AM
MR. BALASH related that next Wednesday the committee will meet
to provide updates and feedback regarding what the federal
agencies have done in preparation for the receipt of a FERC
certificate on the Natural Gas Pipeline Act of 2004. He
explained that FERC was vested with the coordination authority
to oversee the permitting and certification of the pipeline and
will be speaking about the status of regulations on the federal
loan guarantees.
8:28:09 AM
SENATOR WILKEN requested that the Chair issue a request for
proposals (RFP) in order to "slow down a train that's running
down the tracks and it's rolling over our efforts ... to put
forth a high school qualifying exam that is valid and reliable."
He reminded the committee that the new qualifying exam was
implemented in April and was panned across the state as
inadequate and not a good measurement of the third through
eleventh grade students. He recalled that House Bill 146 was
when the legislature started the work on a high school
qualifying exam and approximately $20 million was spent to
develop a test. In 2001, the federal government instituted the
No Child Left Behind (NCLB). In December 2003, a new RFP was
issued and a new test was started but it has since been rushed
into existence and was administered in April of this year. As a
result of the April test, the commissioner is setting up the cut
scores for the tests in October. He related his belief that the
test is flawed in compilation, content, administration, and does
not reflect an adequate sampling of the population on which the
cut scores should be based. He requested the Chair to slow the
test down and write the commissioner a letter requesting that he
wait [to establish the cut scores]. He further requested that a
third party assess the situation.
SENATOR WILKEN read aloud a letter from his school district
explaining how difficult the tests were. The letter related
that normally these type of tests take between 2 to 3 hours, but
this test took 5 to 6 hours a day. Furthermore, the tests were
3 day tests and the math was on the third day when the fourth
graders were exhausted. The letter went on to relate that some
of the questions had no correct answers; the reading questions
were in the math books; test books were collated backwards and
thus some students took the test in reverse order. The fourth
through ninth graders had two test booklets that were 11x19
inches, one of which was the question book and the other was the
answer book. Furthermore, imbedded into the test were between
15 to 39 new questions that were the basis of the next level of
the test, although those questions haven't been verified or
validated. He opined that the test has failed.
SENATOR WILKEN turned to the report he requested from the
department and showed the committee how unintelligible the
report was because it was a photo file, which is unable to
change font sizes. The aforementioned is the typical kind of
frustration that one experiences when trying to deal with this
issue. He offered his belief that the state is rushing headlong
into millions of dollars in lawsuits. Furthermore, the school
boards are going to be overwhelmed from parents with children
who are spending 6 to 7 hours daily, 3 days a week taking a
cumbersome test. He asked the Chair to help slow down these
tests so the tests in October aren't based on a very bad picture
of where they're at today.
8:35:17 AM
SENATOR GREEN explained that she doesn't disagree, but pointed
out that there are two Health, Education and Social Services
Standing Committees and a House Special Committee on Education
[that can address this matter]. This is a policy issue not just
a Legislative Budget and Audit Committee position. All the
parties should be involved, she opined. She asked if there was
a crossover between the high school qualifying exams and the
grade level exams.
SENATOR WILKEN responded that there are two sections and both
have problems. Additionally, there are questions imbedded in
both.
8:36:18 AM
SENATOR GREEN replied there will always be questions imbedded
because that is how they prepare the next round of tests. She
opined that the committee needs to be careful before a letter is
sent out.
8:36:37 AM
CHAIR THERRIAULT said he would discuss the presented information
with Senator Wilken and the Chairs of the individual Health,
Education and Social Services Standing Committee regarding what
action they need to take versus what action this committee needs
to take.
8:37:10 AM
SENATOR WILKEN said he would distribute the earlier mentioned
letter from his district relating the problems one school
district had with the test.
8:37:28 AM
SENATOR GREEN encouraged members to gather information on this
matter and they could personally write opinions and ask
questions.
CHAIR THERRIAULT requested that Senator Wilken's staff make
packets with regard to what is the pertinent information for all
members to consider.
ADJOURNMENT
8:37:50 AM
There being no further business before the committee, the
Legislative Budget and Audit Committee meeting was adjourned at
8:37 a.m.
| Document Name | Date/Time | Subjects |
|---|