Legislature(2005 - 2006)BUTROVICH 205
02/14/2006 01:30 PM Senate TRANSPORTATION
| Audio | Topic |
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| Start | |
| SB271 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 271 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE TRANSPORTATION STANDING COMMITTEE
February 14, 2006
1:40 p.m.
MEMBERS PRESENT
Senator Charlie Huggins, Chair
Senator John Cowdery, Vice Chair
Senator Gene Therriault
Senator Hollis French
MEMBERS ABSENT
Senator Albert Kookesh
COMMITTEE CALENDAR
SENATE BILL NO. 271
"An Act authorizing the commissioner of transportation and
public facilities to participate in certain federal highway
programs and relating to that authorization; relating to powers
of the attorney general to waive immunity from suit in federal
court related to those programs; and providing for an effective
date."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 271
SHORT TITLE: AUTHORIZE HWY PROGRAM PARTICIPATION
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/08/06 (S) READ THE FIRST TIME - REFERRALS
02/08/06 (S) TRA, FIN
02/14/06 (H) TRA AT 1:30 PM CAPITOL 17
WITNESS REGISTER
John MacKinnon, Deputy Commissioner
of Highways and Public Facilities
Department of Transportation and Public Facilities
3132 Channel Drive
Juneau, AK 99801-7898
POSITION STATEMENT: Presented SB 271 and answered questions.
Peter Putzier, Senior Assistant Attorney General
Transportation Section
Civil Division (Juneau)
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Answered questions relating to SB 271.
Bill Ballard, Statewide Environmental Coordinator
Division of Design and Engineering Services
Department of Transportation and Public Facilities
3132 Channel Drive
Juneau, AK 99801-7898
POSITION STATEMENT: Answered questions on SB 271.
ACTION NARRATIVE
CHAIR CHARLIE HUGGINS called the Senate Transportation Standing
Committee meeting to order at 1:40:16 PM. Present were Senators
Hollis French, John Cowdery and Chair Charlie Huggins. Senator
Gene Therriault arrived during the course of the meeting.
SB 271-AUTHORIZE HWY PROGRAM PARTICIPATION
CHAIR HUGGINS announced SB 271 to be up for consideration.
JOHN MacKINNON, Deputy Commissioner of Highways and Public
Facilities, Department of Transportation and Public Facilities
(DOTPF), began by indicating that members had been provided a
fact sheet relating to SAFETEA-LU [Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users] and
NEPA [National Environmental Policy Act of 1969].
He explained that passage of SAFETEA-LU in August 2005 included
a NEPA-delegation pilot program for five states only: Alaska,
California, Oklahoma, Ohio and Texas. The five states are
eligible to apply for delegation of the NEPA responsibilities
from the Secretary of Transportation. Secondarily, they also
may apply for delegation of some or all of the Secretary's
review and consultation under other federal environmental laws.
The scope of delegation will be determined through an
application to the Secretary and execution of a memorandum of
understanding (MOU).
He said this is a six-year pilot program from the date of
signing of SAFETEA-LU, August 10 [2005], and will terminate
August 10, 2011. The Secretary of Transportation is required to
promulgate regulations that establish this delegation
application. What those regulations will say isn't known, and
it isn't known whether NEPA delegation will be a good thing for
Alaska. However, the desire is to be in position in case it is
advantageous so that the state can move ahead and assume the
responsibility.
He explained that after the rule making is done, the state may
submit its application, and then public comment must be
solicited; after the application is approved, an MOU will be
executed, and then delegation may proceed. By the time the
rules come out and the state is ready to apply, a year might
have passed. He highlighted the opportunity to do this and
accelerate the NEPA process, if advantageous.
SENATOR THERRIAULT arrived at 1:44:30 PM.
MR. MacKINNON, in response to questions from Chair Huggins, said
[DOTPF] is in regular communication with the other five states.
He mentioned working with the Federal Highway Administration
(FHWA) about rule making. He said if it's a successful program,
there is a good probability of expansion [to other states].
Emphasizing this isn't a reduction in environmental protections,
he said the state will still have the federal rules to follow.
The advantage is more control over the timeframe. It's not
unusual for some environmental documents to sit on a desk
somewhere for weeks or months. When the state is responsible,
it's easy to pick up a phone and move the process along. The
goal is greater accountability in the state, including elected
officials and the department, and a more streamlined process
that saves time.
CHAIR HUGGINS asked about legal ramifications.
1:47:15 PM
PETER PUTZIER, Senior Assistant Attorney General, Transportation
Section, Civil Division (Juneau), Department of Law (DOL),
agreed there'd be no change or lessening of environmental
protections. The State of Alaska would be "standing in the
shoes" of FHWA. There'd be no change in how the law is applied,
but the state would have more immediate control over it.
He explained that [SB 271] contains a requirement that was part
of SAFETEA-LU, a waiver of Eleventh Amendment immunity. He said
it shouldn't be of particular concern because NEPA is primarily
a procedural statute that relates to deciding about different
levels of environmental action, including a categorical
exclusion, an environmental assessment (EA) or an environmental
impact statement (EIS). Usually, challenges are along the lines
of [requests for] injunctive relief, trying to halt the process
or have a court rule that something must be done again. Thus
there is potential exposure to attorney fees.
He continued, saying it's stated upfront in the bill because
it's required. The bill says the attorney general "may" decide
to waive Eleventh Amendment immunity, language chosen because of
a potential separation-of-powers issue. Instead of the
legislature saying "shall," this simply authorizes the attorney
general to make that waiver. Indicating DOL had reviewed it, he
said the department sees no particular concerns that the state
should have.
CHAIR HUGGINS asked whether the state would be assuming the
liability.
MR. PUTZIER affirmed that.
CHAIR HUGGINS asked whether that causes Mr. Putzier concern.
MR. PUTZIER reiterated that it's primarily a procedural statute.
More often than not, someone says that rather than an EA, an EIS
should have been done, for example; then the court decides which
process should have been followed, or the court might kick the
matter back and require additional studies or consideration of
other alternatives or impacts. He opined that those kinds of
rulings aren't of particular concern to the state.
1:50:55 PM
MR. PUTZIER, in response to Senator French, noted three primary
references to federal statutes on page 2 of SB 271: 23 U.S.C.
325, 23 U.S.C. 326 and 23 U.S.C. 327. The first involves
recreational trails and transportation-enhancement activities.
He said at this point there is no intent by the state to adopt
that authority, to his knowledge, but another administration
might have a different philosophy. It was included because if
it isn't authorized through legislation, the ability to opt in
at some point would be lost. The second, 23 U.S.C. 326, is a
delegation of categorical exclusions. Certain categories of
projects are defined as not requiring an EIS. Thus it's a
statutory list of certain projects that don't require further
analysis.
SENATOR FRENCH asked what sorts of projects wouldn't need an
EIS.
MR. MacKINNON replied that it would be a repavement project or
small reconstruction of a roadway. Each year the department
does about 150 categorical exclusions, does fewer than 10
environmental assessments and, on average, starts or completes 2
environmental impact statements. In further response, he
offered a correction, saying that in the overall scheme of
things, [DOTPF] performs all the work for an EIS or an EA; it is
done either by the department or, primarily, through
consultants, but with [FHWA] oversight. The NEPA delegation
would remove that federal oversight and put it within [DOTPF]
headquarters, "through a firewall."
MR. PUTZIER, in further response to Senator French, explained
that 23 U.S.C. 327 is the NEPA pilot program.
1:54:28 PM
SENATOR FRENCH referred to the fiscal notes from DOTPF and the
Department of Environmental Conservation (DEC). He asked
whether DOL is concerned about expenses that may be incurred as
it defends against these injunctions and so forth.
MR. PUTZIER pointed out that the analysis in the DOTPF [fiscal
note] indicates DOL anticipates adding one position. He
surmised it would be an attorney skilled in the area of
environmental litigation, and NEPA in particular. He said this
is a specialty field for which the department doesn't currently
do defense work; rather, the [FHWA] attorneys in San Francisco
usually undertake that defense.
SENATOR FRENCH asked whether lawsuits would be filed in federal
court. Suggesting such lawsuits would be brought by public-
interest litigants, he cited the Knik Arm Bridge as an example.
He asked whether this might stir up a hornet's nest in taking
over the responsibility for defending such suits.
MR. PUTZIER answered that he believes the threat of litigation
would exist either way. It just would be a different set of
attorneys defending it. He said he doesn't foresee additional
time constraints or negative repercussions to the state. The
defense would be done in-house, so to speak, within Alaska. He
emphasized that the best estimate, after talking to FHWA counsel
in San Francisco, is that one attorney likely would suffice.
MR. MacKINNON added that he doesn't believe Knik Arm or any
other ongoing environmental document would be shifted over to
the department. This is for new environmental documents, for
new projects, once the pilot program is in place and the MOU is
executed.
He offered his belief that in the last 20 years, the state or
federal government has been sued on two environmental documents:
the Iliamna-Nondalton bridge, an EA for which the department is
now refreshing the EA to make it comply, as well as the Whittier
Tunnel. "We prevailed on both of those," he added.
MR. PUTZIER added that the program has flexibility. It isn't
all or nothing. Although the final rule making hasn't been
completed by FHWA, his understanding is based on reading the
statutes and informal discussions with FHWA. If a project is
foreseen to be problematic beyond the state's ability to do it,
possibly the state could give particular projects to FHWA for
its oversight.
MR. MacKINNON remarked that the language says, in essence, that
the department may assume responsibility for any or all, which
[DOTPF] is interpreting as the ability to pick and choose.
SENATOR FRENCH said it seems, if the duties are assumed, that
immunity must be surrendered. Thus it really isn't a "may" in
that regard.
MR. PUTZIER agreed that FHWA wouldn't proceed unless the
attorney general provided some kind of formal waiver of
immunity. He pointed out that it could be "NEPA-wide" or on a
project-by-project basis. He said it's still open for
discussion with FHWA.
SENATOR FRENCH cautioned about surrender of immunity. He noted,
however, that it seems the testifiers envision passing sometimes
on assuming those responsibilities and surrendering immunity,
and only would accept projects when there is a comfort level.
MR. PUTZIER replied, "That's correct. We have thought about
that, and that's on the table right now."
CHAIR HUGGINS asked whether there would be a series of MOUs, by
project.
MR. PUTZIER answered that the structure likely could take
several forms. There could be a master agreement that sets out
general duties, and then agreements on a project-by-project
basis. Because FHWA's final rule making isn't completed,
however, it isn't clear exactly how the program will run. Thus
[SB 271] simply provides authority to continue those discussions
with FHWA. It doesn't adopt anything.
CHAIR HUGGINS observed that the language talks about 270 days to
have the regulations.
MR. MacKINNON noted that the clock started August 10 [2005],
when the [federal] bill was signed into law.
CHAIR HUGGINS mentioned positions for $650,000. He offered his
experience that, whatever number of positions is called for,
there usually is "creep over" because the task is larger than
envisioned. He asked whether that's a genuine concern.
MR. MacKINNON agreed it's a genuine concern. He pointed out
that these are CIP [capital improvement project] receipts; this
provides a bit of comfort, since the project pays for these
positions - it's not general fund money. He opined that if it
improves the performance and speeds up the process of getting
these projects out, it's a worthwhile investment.
CHAIR HUGGINS asked about recruitment of people who have
critical skills, and competition in that area.
MR. MacKINNON agreed a valid concern is that people will be lost
to other agencies - not just environmental analysts, but also
engineers and right-of-way agents. What the department can do
is offer good wages, benefits and a great place to work, he
suggested.
CHAIR HUGGINS asked whether this is well-intended legislation by
[Congressman] Young that will help Alaska, or was pushed by
FHWA, perhaps at the state's expense.
MR. MacKINNON suggested FHWA personnel, if pressured for a
reply, would say they don't like this. He added that it's well-
intentioned legislation by Congressman Young and other members
of the [U.S. House] Transportation Committee.
2:04:45 PM
BILL BALLARD, Statewide Environmental Coordinator, Division of
Design and Engineering Services, Department of Transportation
and Public Facilities, informed members that he is the
department's lead representative for this pilot program. In
response to Chair Huggins, he said the biggest advantage is that
it gives control for project oversight and approval to the
department so it can set the priorities and have a consistent
set of rules, thereby being able to expedite the project-
approval process.
He further responded that the litigation side doesn't give him a
lot of concern. He's the senior person in the environmental
staff and has been doing this for 25 years. In that time, there
have been only two or three court cases. He explained, "We are
threatened an awful lot but, by and large, our staff does a very
good job. And we haven't ... been challenged except for those
few times, and we've prevailed."
CHAIR HUGGINS mentioned litigation involving the Whittier
Tunnel. He asked about the timeframe and approximate dollars at
stake.
MR. BALLARD said he didn't know; he'd been working in the
private sector for a short time then. He added that he thought
it cost about three years for the project. That case went to
the 9th Circuit [Court of Appeals], where the state prevailed.
He recalled that the issue was whether Section 4(f) of the
federal Department of Transportation Act applied to the project.
That is one of the most extreme environmental regulations, he
asserted. Section 4(f) applies to parks, recreational areas,
wildlife refuges and historic sites; it says the Secretary of
Transportation will not approve a project that affects those
resources unless there is no prudent or feasible alternative.
SENATOR FRENCH referred to Mr. Ballard's statement that "we've
prevailed" and asked whether it was the state or federal
government that was sued.
MR. BALLARD clarified that it was the federal government, and it
was the project that prevailed. Under FHWA regulations, state
transportation agencies are authorized to prepare environmental
documents on behalf of FHWA, with FHWA oversight and approval.
Thus the state prepared that document, and [FHWA] approved it.
He added, "They're the action agency, so ... they represented
that project in federal court."
2:09:51 PM
SENATOR FRENCH remarked that it sounds like a good situation:
Alaska's state workers get to make decisions, but the federal
government defends those in court and spends its money on
federal attorneys backing up the state. He asked how much money
the federal government spent defending that suit - the kinds of
legal expenses that the state will be putting itself on the hook
for if SB 271 is implemented.
MR. MacKINNON agreed to get that information for Senator French.
CHAIR HUGGINS commented that Senator French brought up a good
point. He said he trusts that [Congressman] Don Young was
trying to do the right thing for Alaska, but expressed concern
about getting caught in an unintended trap. He requested
further information about the benefits.
MR. MacKINNON replied that having it overseen by Alaskans allows
the state to tailor the documents to Alaska. He said he, too,
is concerned about additional cost to the state, and added that
he suspects the defense of a lawsuit over an environmental
document would be paid for out of federal project funds, as
happens currently.
CHAIR HUGGINS asked whether basically the same types of people
would be doing the project, but the state would have control.
MR. MacKINNON affirmed that. He reported that one of the many
steps in an environmental document, especially an EIS, is that
it goes through regular reviews for what is called legal
sufficiency - whether the document and procedure being used
comply with NEPA and are legally sufficient. "We regularly get
those reviews from [FHWA], and then the project - the document -
goes out for public review towards the end," he added.
2:13:38 PM
CHAIR HUGGINS suggested the need to develop a comfort level with
this new concept and then revisit the issue.
MR. PUTZIER offered a final point: Assuming the state was
defending a lawsuit brought in federal court, the state would be
subject to the Equal Access to Justice Act (EAJA). The
plaintiffs would have to prevail, first of all, and then the
court would have to make a finding that the state's position was
not "substantially justified." Thus no automatic liability
would accrue to the state. The plaintiffs suing the state would
have to jump some hurdles before the state would have to pay for
their attorney fees.
CHAIR HUGGINS asked Mr. Putzier to rate his degree of concern
about liability, on a scale of 1 to 10.
2:15:09 PM
MR. PUTZIER replied that it's only about 3 because it isn't a
big unknown. "Primarily, it's talking about 'procedurally, go
back and do something over again,'" he added. Agreeing that
potential liability must be weighed against the benefits, he
opined that the benefits discussed by Mr. MacKinnon probably
outweigh the relative risk of an attorney-fee award.
MR. MacKINNON added that the lawsuits cannot be prevented.
However, the state can do its best job in preparing the
environmental documents so they're as defensible as possible,
and then go through the process.
CHAIR HUGGINS asked whether anyone else wished to discuss the
liability issue and then concluded the hearing. [SB 271 was
held over.]
There being no further business to come before the committee,
Chair Huggins adjourned the meeting at 2:16:45 PM.
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