Legislature(2005 - 2006)HOUSE FINANCE 519
05/03/2006 08:30 AM FINANCE
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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 is. 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 delays. 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.