Legislature(2005 - 2006)HOUSE FINANCE 519

05/03/2006 08:30 AM FINANCE

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Confirmation Hearings: TELECONFERENCED
Alaska Mental Health Trust Authority
State Assessment Review Board
Moved Out of Committee
Moved HCS CSSB 274(FIN) Out of Committee
Moved Out of Committee
Moved Out of Committee
Moved Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
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."                                                                            
JOHN    MACKINNON,    DEPUTY    DIRECTOR,    DEPARTMENT    OF                                                                   
TRANSPORTATION AND PUBLIC FACILITIES,  related aspects of the                                                                   
National Environmental  Policy Act (NEPA).  Alaska  is one of                                                                   
five  states   participating  in  a  federal   pilot  program                                                                   
delegating  the review  and approval  of  NEPA documents  and                                                                   
related environmental  approvals.  The duration  of the pilot                                                                   
program is six years and is limited  to highway projects.  He                                                                   
explained   when  the   NEPA  process   is  required   for  a                                                                   
construction  job.  Most  NEPA activity involves  categorical                                                                   
exclusions.   The  bill allows  decisions to  be made at  the                                                                   
state level, rather than at the federal level.                                                                                  
9:41:33 AM                                                                                                                    
Mr.  MacKinnon addressed  the fiscal  notes.   He noted  that                                                                   
federal  funds pay  90 percent  of the cost  of the  program.                                                                   
Participation in  this pilot project  adds four  positions to                                                                   
Department of  Transportation and  Public Facilities  and one                                                                   
to the Department of Law.                                                                                                       
Mr.  MacKinnon referred  to  the sovereign  immunity  waiver.                                                                   
Any suit brought  against the state for a NEPA  action can be                                                                   
done  in federal  court.    Mr.  MacKinnon related  two  past                                                                   
lawsuits,  in  which  the  state  prevailed.    He  addressed                                                                   
potential costs as a result of a potential lawsuit.                                                                             
Mr.  MacKinnon  emphasized  that  the bill  does  not  lessen                                                                   
environmental protection.                                                                                                       
9:44:21 AM                                                                                                                    
Representative  Holm said  he appreciates  the local  control                                                                   
aspect.   He  noted  that legislators  don't  have to  assume                                                                   
these  duties until  2011  and  wondered if  it  would it  be                                                                   
better  to  participate  in  the program  right  away.    Mr.                                                                   
MacKinnon clarified  that the  pilot program is  scheduled to                                                                   
sunset in 2011.   The responsibilities of the  program can be                                                                   
assumed immediately.   The state's  liability does  not apply                                                                   
to any  current NEPA  action, only  to environmental  actions                                                                   
assumed under the pilot program.                                                                                                
Representative  Holm asked what  the liability is  for future                                                                   
actions of state  employees.  He referred to  past high costs                                                                   
for court  cases.  He wondered  what the potential  liability                                                                   
Mr.  MacKinnon replied  that there  is  little potential  for                                                                   
liability.  Representative Holm  said his point is that it is                                                                   
easier to  sue in  state court  than in  federal court.   Mr.                                                                   
MacKinnon replied  that the pilot program requires  any suits                                                                   
to  be  brought  in  federal   court.    Representative  Holm                                                                   
countered  that they  would have  to be  defended in  federal                                                                   
court, which isn't  the case today.  Mr.  MacKinnon continued                                                                   
to  explain that  the benefits  of the  program outweigh  any                                                                   
potential liability.                                                                                                            
Representative Holm said his concern  is that there is no way                                                                   
to "escape under  those rules".  He returned to  the issue of                                                                   
expense for  silt litigation.   He proposed great  savings by                                                                   
exercising  common   sense.     Mr.  MacKinnon   agreed  with                                                                   
Representative  Holm's frustrations  regarding silt  blankets                                                                   
and fences.                                                                                                                     
Mr. MacKinnon referred to a graph  that explained the effects                                                                   
of federal environmental laws  on transportation construction                                                                   
9:50:32 AM                                                                                                                    
Co-Chair  Meyer summarized  that  the benefits  outweigh  the                                                                   
risks.  He asked  if the fiscal note requires  four positions                                                                   
to implement this bill.  Mr. MacKinnon said yes.                                                                                
Representative Kerttula asked  how long it would take for the                                                                   
federal government  to turn  the program  over to the  state.                                                                   
Mr. MacKinnon said  the federal government is  now working on                                                                   
the rules,  but they are behind.   He related the  process of                                                                   
turning    the   responsibility    over    to   the    state.                                                                   
Representative Kerttula asked  if Commissioner Barton prefers                                                                   
to assume  all responsibility.   Mr.  MacKinnon said  that is                                                                   
correct.   Representative  Kerttula  asked  if  the state  is                                                                   
assuming anything yet.  Mr. MacKinnon said not yet.                                                                             
9:53:40 AM                                                                                                                    
Representative  Kerttula  asked  how may  cases  the  federal                                                                   
government has to defend every year under NEPA.                                                                                 
PETER   PUTZIER,    SENIOR   ASSISTANT   ATTORNEY    GENERAL,                                                                   
TRANSPORTATION  SECTION, DEPARTMENT  OF  LAW, responded  with                                                                   
details  about  two  previous  lawsuits within  the  last  20                                                                   
years.  Representative  Kerttula said she had  not considered                                                                   
that  a  lawsuit could  be  a  part  of a  group  of  claims.                                                                   
Representative Kerttula asked  what the state's role would be                                                                   
for such a lawsuit.   Mr. Putzier said the intent  is to only                                                                   
defend claims against NEPA.                                                                                                     
GARY OLSON,  CHAIRMAN, ALASKA MOOSE FEDERATION,  related that                                                                   
his  organization appreciates  the intent  of the  bill.   He                                                                   
recalled  lawsuits  down  south  because of  animals  on  the                                                                   
highways.   He spoke  of ways  to prevent similar  litigation                                                                   
and listed steps to keep moose off highways.                                                                                    
9:58:56 AM                                                                                                                    
Representative  Foster   MOVED  to  REPORT  SB   271  out  of                                                                   
Committee   with    individual   recommendations    and   the                                                                   
accompanying fiscal notes.  There  being NO OBJECTION, it was                                                                   
so ordered.                                                                                                                     
SB   271  was   REPORTED  out   of  Committee   with  a   "no                                                                   
recommendation" and with fiscal  note #1 by the Department of                                                                   
Transportation  and Public  Facilities and  with zero  fiscal                                                                   
note #2 by the Department of Environmental Conservation.                                                                        

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