Legislature(1999 - 2000)

03/23/2000 01:55 PM House FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
HOUSE BILL NO. 290                                                                                                              
                                                                                                                                
An Act relating to stranded gas pipeline carriers and                                                                           
to the intrastate regulation by the Regulatory                                                                                  
Commission of Alaska of pipelines and pipeline                                                                                  
facilities of stranded gas pipeline carriers.                                                                                   
                                                                                                                                
LORALI MEIER, STAFF, REPRESENTATIVE BEVERLY MASEK, stated                                                                       
that before a North Slope natural gas pipeline project can                                                                      
proceed, certain amendments to existing State statutes would                                                                    
be required. These changes are intended to:                                                                                     
? 1) Apply to all potential North Slope natural gas                                                                             
pipeline projects,                                                                                                              
? 2) Clarify respective State and federal jurisdictions                                                                         
in regulating such projects,                                                                                                    
? 3) Be complementary to a non-discriminatory federal                                                                           
process which will apply to any export volumes of North                                                                         
Slope natural gas,                                                                                                              
? 4) Provide for local (in State) gas transportation and                                                                        
sales; and                                                                                                                      
? 5) Provide needed exemption from public utility                                                                               
designation for a North Slope natural gas pipeline                                                                              
project.                                                                                                                        
                                                                                                                                
Ms. Meier noted that HB 290 would amend the Pipeline Act (AS                                                                    
42.06) to define a North Slope natural gas pipeline and                                                                         
would clarify that the Regulatory Commission of Alaska's                                                                        
(RCA) authority in regulating a North Slope natural gas                                                                         
pipeline, extends only to the intrastate transportation of                                                                      
gas through such a system, so as to define a fair,                                                                              
predictable and timely process to identify and dedicate                                                                         
sufficient initial capacity in a North Slope natural gas                                                                        
pipeline.  Also it would establish the criteria for needed                                                                      
pipeline system expansions over the life of a North Slope                                                                       
natural gas pipeline system to accommodate increased demand                                                                     
for in State gas supplies.                                                                                                      
                                                                                                                                
Ms. Meier pointed out that HB 290 would amend the Public                                                                        
Utilities Act (AS 42.05) to clarify that North Slope natural                                                                    
gas pipeline systems are exempt from the requirement of                                                                         
operating as a public utility.  The bill would also amend                                                                       
the right-of-way Leasing Act (AS 38.35) to limit the                                                                            
requirement of common carriage for North Slope natural gas                                                                      
pipeline systems to the transportation of intrastate gas                                                                        
volumes.                                                                                                                        
                                                                                                                                
Ms. Meier stated that HB 290 would define the types of                                                                          
intrastate transportation services that would be available                                                                      
in a North Slope natural gas pipeline system.  The                                                                              
legislation will provide that the North Slope natural gas                                                                       
pipeline carrier may charge separate rates for those                                                                            
services.  Additionally, they would charge a reservation fee                                                                    
for reserving capacity in a North Slope natural gas pipeline                                                                    
system.                                                                                                                         
                                                                                                                                
Ms. Meier concluded that collectively, these changes are                                                                        
intended to provide greater certainty and predictability in                                                                     
the regulation of North Slope natural gas pipeline systems.                                                                     
The increased certainty would enhance the ability of gas                                                                        
export project sponsors to market Alaska's North Slope                                                                          
natural gas reserves, to compete more effectively with                                                                          
alternative export projects and to attract the large                                                                            
investments required to construct and operate the pipeline                                                                      
and related facilities.                                                                                                         
                                                                                                                                
In response to Co-Chair Mulder, Ms. Meier explained that the                                                                    
proposed legislation was the "second phase" of the Stranded                                                                     
Gas Act.  She added that the Stranded Gas Act established a                                                                     
regulatory framework for a natural gas pipeline system.  It                                                                     
applies to any project as well but is not project specific.                                                                     
                                                                                                                                
Representative J. Davies asked the significance of why the                                                                      
pipeline would not be operated as a private carrier but                                                                         
instead it would be operated as a common carrier.  Ms. Meier                                                                    
replied that any project sponsor would not want to                                                                              
distribute natural gas to a residential area.  They would                                                                       
want to leave that up to the Fairbanks Natural Gas Industry.                                                                    
The local distribution companies will act as public                                                                             
utilities.                                                                                                                      
                                                                                                                                
JIM EASON, REPRESENTATIVE, ANS LNG SPONSOR GROUP, ANCHORAGE,                                                                    
spoke to the group's membership.  He reiterated that the                                                                        
intent of the bill is straightforward and was written to                                                                        
provide clarity of federal and State regulations for a                                                                          
pipeline.  Additionally, it is intended that the regulatory                                                                     
commission would regulate the intrastate portion, the part                                                                      
in the State available for use.  The Department of Energy                                                                       
would regulate the export portion.                                                                                              
                                                                                                                                
Mr. Eason clarified that the legislation provides for a                                                                         
system to establish how much gas would need to be moved to                                                                      
insure that such a project would be creating a system large                                                                     
enough to be able to compete in projected demand for instate                                                                    
use.                                                                                                                            
                                                                                                                                
Mr. Eason emphasized that the most important purpose of the                                                                     
legislation is to provide certainty to the market and to                                                                        
insure that the volume of gas needed to contract will be                                                                        
available for a long period of time.  He added that it is                                                                       
important to insure that the need to guarantee the gas in                                                                       
State is accommodated, which could be accomplished through                                                                      
the oversight of the regulatory commission.                                                                                     
                                                                                                                                
KEN BOYD, (TESTIFIED VIA TELECONFERENCE), DIRECTOR, DIVISON                                                                     
OF OIL AND GAS, DEPARTMENT OF NATURAL RESOURCES, offered to                                                                     
answer questions of the Committee.  He noted that the bill                                                                      
is outside the Division of Oil and Gas and involves the RCA                                                                     
and the State Pipeline Coordinators Office.                                                                                     
                                                                                                                                
Representative J. Davies asked about the volume limit.  Mr.                                                                     
Eason responded that the regulatory commission would approve                                                                    
the construction of a line larger than any previously                                                                           
constructed before the commission.  He believed that the                                                                        
cost could be assessed fairly.  The intent of the language                                                                      
would insure that the pipeline sponsor would not be required                                                                    
to build a line.                                                                                                                
                                                                                                                                
Representative J. Davies questioned the language                                                                                
"substantiated by written commitments and contract"                                                                             
previously mentioned.  He asked if that would include more                                                                      
than the sponsor group.  Ms. Eason did not believe that it                                                                      
would specifically include the sponsor and its contracts, as                                                                    
it would be for export purposes.  The intent is that the                                                                        
regulatory commission could monitor the in state use.  It is                                                                    
important that there a system be in place, which could                                                                          
expand the capacity as in State demand grows.  It is                                                                            
critical to have some idea of the expected demand in the                                                                        
State.                                                                                                                          
                                                                                                                                
ROGER MARKS, (TESTIFIED VIA TELECONFERENCE), DEPARTMENT OF                                                                      
REVENUE, ANCHORAGE, noted that he had been coordinating                                                                         
review of the bill for the Administration.  The                                                                                 
Administration endorses the bill except for one problem on                                                                      
the tariff structure.  He noted that Nan Thompson was on                                                                        
line to address that concern.                                                                                                   
                                                                                                                                
JERRY MCCUTCHEON, (TESTIFIED VIA TELECONFERENCE), ANCHORAGE,                                                                    
stated that there is no such thing as stranded gas as                                                                           
associated with an oil reservoir.  He noted that there were                                                                     
only two that he knew about which could qualify for stranded                                                                    
gas.  He did not believe that the proposal would be                                                                             
beneficial to the residents of the State.  He emphasized                                                                        
that the gas line would cost half of the actual recoverable                                                                     
oil.                                                                                                                            
                                                                                                                                
NAN THOMPSON, (TESTIFIED VIA TELECONFERENCE), REGULATORY                                                                        
COMMISSION OF ALASKA, ANCHORAGE, stated that the interest of                                                                    
the Regulatory Commission would be to protect the interest                                                                      
of potential instate users.  She noted that from her                                                                            
perspective, the bill is "almost" there, with only one more                                                                     
issue remaining.  That issue is the tariffing methodology.                                                                      
The issue has been raised but has not been discussed                                                                            
thoroughly enough for everyone to understand the                                                                                
implications of it.  She asked to assist in that endeavor.                                                                      
                                                                                                                                
Ms. Thompson noted that Co-Chair Therriault had asked for a                                                                     
list of items that would be excluded from a utility pipeline                                                                    
tariff. There are Alaska Public Utility Commission (APUC)                                                                       
decisions excluding the following types of expenses from                                                                        
utility rates, but no comparable decision excluding them                                                                        
from pipeline rates:                                                                                                            
? Public relations costs                                                                                                        
? Lobbying expenses                                                                                                             
? Charitable contributions                                                                                                      
? Association dues                                                                                                              
? Extraordinary management compensation                                                                                         
? Research and development costs                                                                                                
? Acquisition adjustments                                                                                                       
? Pensions and employee benefits                                                                                                
Ms. Thompson noted that only imagination and conscience                                                                         
limit the types of expenses, which a pipeline owner could                                                                       
ask be included in the tariff. The sponsor group correctly                                                                      
noted that RCA would have the authority to exclude these                                                                        
expenses when they are presented for review.  However, RCA                                                                      
could not exclude them with the assurance that the pipeline                                                                     
owner would not appeal.  An appeal could mean time delays                                                                       
and uncertainty in the business environment and additional                                                                      
legal expenses for RCA and carriers. The carriers would be                                                                      
entitled to argue that those legal expenses should be                                                                           
included in their rates.                                                                                                        
Ms. Thompson noted that the difference between the utility                                                                      
and pipeline tariff methodology, and how it affects RCA's                                                                       
decision-making process, is well-ar1iculated in a 1992                                                                          
pipeline decision which states that:                                                                                            
"The methodology the Commission uses to determine the                                                                           
value of the property of public utilities is set by                                                                             
statute, A.S. 42.05.441 (b) reads as follows: `In                                                                               
determining the value for rate-making purposes of                                                                               
public utility property used and useful in rendering                                                                            
service to the public, the commission shall be guided                                                                           
by the acquisition cost, or, if lower, the original                                                                             
cost of the property to the person first devoting it to                                                                         
public service, less accrued depreciation. plus                                                                                 
materials and supplies and a reasonable allowance for                                                                           
cash working capital when required.'  There is no                                                                               
similar provision under AS 42.06. Thus, the Commission                                                                          
is free to determine the appropriate way to value                                                                               
pipeline property for the purposes of ratemaking."                                                                              
Ms. Thompson noted that the Alaska Public Utilities                                                                             
Commission (APUC) went on, in that forty-page opinion, to                                                                       
discuss the options and arguments of the parties and make a                                                                     
decision.  RCA can determine what is just and reasonable,                                                                       
but the lack of case law in this area to guide the RCA and                                                                      
the pipeline owners creates room for arguments.  She noted                                                                      
that arguments mean delay and litigation expenses and a less                                                                    
predictable environment for instate shippers.  The RCA would                                                                    
generally follow its utility tariff decisions, except where                                                                     
the Federal Energy Regulatory Commission (FERC), the federal                                                                    
agency with pipeline jurisdiction, has a different rule.                                                                        
Thus, a prospective in-state shipper would have to reference                                                                    
federal case law to predict the likely outcome of a pipeline                                                                    
tariff case.                                                                                                                    
Ms. Thompson advised that the APUC has set rates for only                                                                       
two oil pipelines in this State. The Kenai Pipeline case                                                                        
cited above was one, and Cook Inlet Pipeline was the other.                                                                     
Both cases were extensively litigated. The APUC has set                                                                         
tariffs for all other oil pipelines based on settlements                                                                        
between the affected parties.                                                                                                   
Ms. Thompson concluded that APUC has set rates for only one                                                                     
gas pipeline under the pipeline statute. The affected                                                                           
parties agreed to those rates as part of a comprehensive                                                                        
settlement package that has no predetermined value.  All                                                                        
other gas pipeline tariffs have been set using a utility                                                                        
tariff methodology.                                                                                                             
                                                                                                                                
Co-Chair Therriault asked for clarification of what was                                                                         
involved in the various tariff methodologies.  Ms. Thompson                                                                     
stated that in the utility statute #381, lists all the                                                                          
exclusions and the exceptions to it.  She indicated that the                                                                    
other differences have been derived from decision-making                                                                        
laws.  She admitted that this is difficult to articulate and                                                                    
offered to provide it in writing to the members.  Ms.                                                                           
Thompson pointed out that if there were a clear rule, it                                                                        
would be easier to predict the outcome. She offered to                                                                          
provide a comprehensive list.                                                                                                   
                                                                                                                                
Co-Chair Therriault noted that the interest is that the                                                                         
tariff gets applied against the value of the resource or                                                                        
passed on to the users.  Ms. Thompson commented that                                                                            
ultimately the impact of this would be, that if the                                                                             
utilities have to pay less, those lower costs would be                                                                          
passed on to their consumers.                                                                                                   
                                                                                                                                
Mr. Eason responded to comments made by the previous                                                                            
speakers.  He observed that the focus of testimony had been                                                                     
the issue of lobbying and regulatory costs. Mr. Eason                                                                           
believed, based on prior conversations, that case law exists                                                                    
dealing with their handling of utility tariff issues. He                                                                        
added that concerns of costs were directed where the                                                                            
regulatory commissioner was dealing with "settled" tariffs.                                                                     
                                                                                                                                
Mr. Eason stated that the rate making involved has been a                                                                       
different process than he would have envisioned. Mr. Eason                                                                      
noted that other pipeline disputes have been resolved                                                                           
through settlement to determine what would and would not be                                                                     
allowed as a tariff.                                                                                                            
                                                                                                                                
Mr. Eason advised that Ang Lng had accurately reflected                                                                         
their understanding of the Commissioner's authority.  He did                                                                    
not foresee the likelihood of disputes coming at that point.                                                                    
The decisions of permitting and certificating, and the terms                                                                    
would be addressed by the Commission.  Mr. Eason added that                                                                     
Ang Lng, consequently, does not see the same urgency to                                                                         
establish the ratemaking methodology at this time.                                                                              
                                                                                                                                
Mr. Eason stated that they are opposed to enclosing a                                                                           
utility rate making methodology. He noted that under either                                                                     
statute, the chairman has broad authority to allow or                                                                           
disallow changes. He emphasized that the proposed                                                                               
legislation does not allow anything to happen which the                                                                         
regulatory commissioner can not portray.  HB 290 would                                                                          
foreclose any discussion of rates on return and methodology.                                                                    
                                                                                                                                
Mr. Eason commented that the Commissioner pointed out that                                                                      
there are existing pipelines in the State that are regulated                                                                    
under the utilities act.  He noted that all of those                                                                            
pipelines requested that inclusion.  None of them were                                                                          
required to do that.  He reiterated that any project                                                                            
developed to move North Slope natural gas, would be the only                                                                    
pipeline required to file tariffs under the proposed system.                                                                    
                                                                                                                                
Co-Chair Therriault asked Ms. Thompson to respond to the                                                                        
"just and reasonable" reference which would preclude many                                                                       
unjustified expenses.                                                                                                           
                                                                                                                                
Ms. Thompson agreed with Mr. Eason that all of the current                                                                      
pipelines using the utility tariff making methodology have                                                                      
requested that treatment. She thought that Mr. Eason was                                                                        
suggesting the opposite of her argument which is that the                                                                       
pipeline owners do stand to have less of a recovery.  Under                                                                     
either tariffing methodology, the commission is responsible                                                                     
for guaranteeing that the rates are just and reasonable.                                                                        
They would get a fair rate of return under either                                                                               
methodology.  It is more likely, because of the uncertainty                                                                     
in the legal field that they stand a chance to make even a                                                                      
little more under a pipeline methodology.  She agreed that                                                                      
was something that RCA could control and that the public                                                                        
would have the opportunity to comment.                                                                                          
                                                                                                                                
Ms. Thompson noted that her concern was with the potential                                                                      
in state users who are trying to decide even before they see                                                                    
the tariff, if they want to participate in the project.  The                                                                    
way that the bill is written, when the pipeline is being                                                                        
designed, the utilities would have to make a decision on how                                                                    
much gas they would want to use in the next several years to                                                                    
insure an adequate capacity to accommodate that.  Ms.                                                                           
Thompson stated that it would be easier to make that                                                                            
business decision if there were some certainty in what the                                                                      
shipping rates were going to be.  Ms. Thompson continued,                                                                       
the in-state shipper will have a better idea of what they                                                                       
are going to pay in order to make a better business decision                                                                    
regarding whether or not they will want to participate.                                                                         
                                                                                                                                
Ms. Thompson noted that Mr. Eason's initial comments were                                                                       
regarding the settlement.  Most of the pipeline tariffs in                                                                      
the State have been settled between the parties.  She                                                                           
believed that a settlement would not be likely to occur in                                                                      
the case proposed by Mr. Eason.  The concern is that when                                                                       
there are a number of potential users, that group would be                                                                      
too big to make it likely to reach a settlement.  The impact                                                                    
is that there is not much case law or precedence in this                                                                        
State regarding what is an acceptable settlement.  She                                                                          
stated that it would be easier to make the decision if the                                                                      
shipping rates were known.                                                                                                      
                                                                                                                                
Representative G. Davis asked if the proposed amendment                                                                         
would address Ms. Thompson's concern.  Ms. Thompson replied                                                                     
that the change required to change a utility methodology so                                                                     
to promote the in-state use of gas should be left to the in-                                                                    
State users.                                                                                                                    
                                                                                                                                
Mr. Eason advised that Chairman Thompson is fully committed                                                                     
to the public's interest.  He believed that her view was                                                                        
that the public interest is advanced by the utility rate                                                                        
making methodology.                                                                                                             
                                                                                                                                
(TAPE CHANGE HFC OO - 81, SIDE 1)                                                                                               
                                                                                                                                
Mr. Eason noted that they both believe that the majority of                                                                     
the pipeline tariffs settlements are established by                                                                             
settlement.  The concern voiced by Ms. Thompson is that                                                                         
there will not be a settlement.  Mr. Eason, however,                                                                            
disagreed.  He advised that a small group is undertaking                                                                        
this task and that they would want to "sit down and settle".                                                                    
                                                                                                                                
He observed that Mr. Eason spoke to promoting the use of in-                                                                    
State gas.  He noted that there have been lengthy                                                                               
discussions with in-State users of gas.  In the process of                                                                      
designing the language to determine the threshold, those                                                                        
users suggested that fears expressed by Ms. Thompson were                                                                       
premature and inappropriate.                                                                                                    
                                                                                                                                
Co-Chair Therriault stated that he wants the gas-line to be                                                                     
developed and that he wants the best price possible for his                                                                     
constituents without jeopardizing the pipeline. He noted                                                                        
that he sympathized with what the price to the consumer                                                                         
would be.  Mr. Eason emphasized that the difficulty is that                                                                     
no one knows the answers.  Millions of dollars are being                                                                        
spent with uncertainty of whether a market exists and                                                                           
whether or not the cost can be cut significantly to maintain                                                                    
the safety and integrity of the pipeline.  Within that mix                                                                      
lays are all the concerns regarding the future prices of gas                                                                    
and he recognized that everyone has valid concerns.                                                                             
                                                                                                                                
Mr. Eason noted that the issue is that they can not define                                                                      
the sensitivities on the fiscal side.  Those discussions                                                                        
will happen in public settings when the facts and numbers                                                                       
are on the table.  He asked if it made sense to have a                                                                          
pipeline act and a utilities act if enough methodology is                                                                       
not available to use it.  The Legislature decided to have                                                                       
both and to have provisions for either party to present                                                                         
their arguments. Mr. Eason reiterated that this would be the                                                                    
first time that a project would be required to file a rate-                                                                     
making methodology.  He acknowledged that it would be a                                                                         
large policy step; the final implications are not yet known.                                                                    
This project would be regulated under the pipeline act and                                                                      
tariffed under the other.  The situation will be and will                                                                       
establish a one-time deal.                                                                                                      
                                                                                                                                
Co-Chair Therriault stated that what is allowed under "just                                                                     
and reasonable" would provide more certainty for the in-                                                                        
State user and for Ang Lng.  Ms. Eason disagreed.  He stated                                                                    
that the commission has the authority to specify what would                                                                     
be disallowed, and could include items that have already                                                                        
been established under existing case law.  He noted that Ms.                                                                    
Thompson's concern is that there is and has been litigation                                                                     
over whether or not they have the authority to exclude                                                                          
certain items after they have already been settled.  Mr.                                                                        
Eason believed that was a very different scenario than what                                                                     
this case presents.                                                                                                             
                                                                                                                                
Ms. Thompson countered that the statute states that both the                                                                    
utility and the pipeline tariffing statutes that the                                                                            
Commission will approve just and reasonable rates.  The                                                                         
utility has a couple of specific exclusions.  There is case                                                                     
law, which defines what is reasonable and just, and the                                                                         
treatment in certain kinds of expenses which are allowable.                                                                     
                                                                                                                                
Ms. Thompson stated that when a party has an economic                                                                           
interest, there is not clear precedent case law, then the                                                                       
lawyers will have a difficult time proceeding with that                                                                         
case.  It could end up in an appeal which would then have to                                                                    
go to the Superior Court.  She noted that she was troubled                                                                      
that in those situations, the prospective in-State users                                                                        
would not know what they would be required to pay.                                                                              
                                                                                                                                
Co-Chair Therriault requested that Ms. Thompson provide a                                                                       
list of those items which are not allowed, under the utility                                                                    
method.  He advised that HB 290 would be HELD in Committee.                                                                     
He advised that there was an amendment, 1-LS1269\K.4,                                                                           
Chenoweth, 3/24/00, in member's packets that addressed the                                                                      
use of the resource.  [Copy on File].                                                                                           
                                                                                                                                
Mr. Eason stated that he had concern with the title change                                                                      
recommended by the amendment.                                                                                                   
                                                                                                                                
Mr. Boyd added that he shared Mr. Eason's concern with the                                                                      
title change in the amendment.  He believed that the                                                                            
amendment would place local need above the projected revenue                                                                    
need of the State as a whole.                                                                                                   
                                                                                                                                
HB 290 was HELD in Committee for further consideration.                                                                         

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