Legislature(2011 - 2012)CAPITOL 120
04/06/2011 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB215 | |
| HB171 | |
| HB1 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 215 | TELECONFERENCED | |
| + | SB 31 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 171 | TELECONFERENCED | |
| += | HB 1 | TELECONFERENCED | |
HB 215 - JUDICIAL REVIEW OF PIPELINE PROJECT/ROW
1:07:34 PM
CHAIR GATTO announced that the first order of business would be
HOUSE BILL NO. 215, "An Act relating to the judicial review of a
right-of-way lease or the development or construction of an oil
or gas pipeline on state land."
1:08:31 PM
REPRESENTATIVE THOMPSON moved to adopt the proposed committee
substitute (CS) for HB 215, Version 27-LS0741\I, Bullock,
4/5/11, as the working document.
REPRESENTATIVE HOLMES objected for the purpose of discussion.
1:10:11 PM
REPRESENTATIVE CHENAULT, as the sponsor, explained that the
objective of HB 215 is to prohibit the filing of lawsuits that
have the potential to delay construction of intrastate natural
gas pipelines. Proposing to modify current statute, HB 215's
provisions would only apply to right-of-ways on state land.
Under the bill, claims may be filed only by an applicant, a
competing applicant, or a person who has a direct financial
interest affected by the lease of a right-of-way; the requests
for judicial review must be filed within 60 days of the
publication of notice for a right-of-way lease application;
judicial review may only be granted for claims challenging the
validity of the statute, or claims [asserting] a denial of
rights [provided by] the Alaska State Constitution; any claim
not filed within the 60-day timeframe would be barred; and all
claims must be filed with the Alaska Superior Court, which would
have exclusive jurisdiction to determine the proceeding but no
jurisdiction to grant any injunctive relief with the exception
of the issuance of a final judgment. House Bill 215 was modeled
after 43 U.S.C. 1652(d) - the federal Trans-Alaska Pipeline
Authorization Act (TAPAA) adopted in 1973 - and is similar to
legislation passed in 1973 - that being Senate Bill 3.
CHAIR GATTO, noting that [both existing and proposed AS
38.35.200(a)] would allow those who have a direct financial
interest affected by the lease of a right-of-way to seek
judicial review, asked whether environmental groups or the
American Civil Liberties Union (ACLU) would be considered to
have such an interest.
1:13:43 PM
TOM WRIGHT, Staff, House Majority Office, Alaska State
Legislature, on behalf of the sponsor, Representative Mike
Chenault, Speaker, House of Representatives, offered his
understanding that such entities wouldn't have standing to seek
such a review. He then went on to explain that Version I
incorporates a change suggested by the Alaska Gasline
Development Corporation (AGDC). Specifically, Section 1 of
Version I, by altering AS 38.34.050(c)(3), would exempt the AGDC
- as a subsidiary of the Alaska Housing Finance Corporation
(AHFC) - from having to include in its right-of-way lease
certain of the covenants outlined in proposed AS 38.35.120
related to common carriers; this change would ensure that the
AGDC's proposed natural gas pipeline, as a contract-carrier
pipeline, could obtain a right-of-way lease under AS 38.35. He
characterized the existing statutory language as redundant and
prohibitive towards the development of an intrastate natural gas
pipeline.
MR. WRIGHT explained that Sections 2-4 provide conforming
changes to AS 38.35.100(d) and AS 38.35.120(a) and (b) related
to Section 1's proposed changes. In response to a question, he
offered his understanding that an intrastate natural gas
pipeline would fall under the purview of the Regulatory
Commission of Alaska (RCA), and that HB 215 would not apply to
the proposed natural gas pipeline authorized under the Alaska
Gasline Inducement Act (AGIA). He then went on to explain that
Version I's Section 5 would ensure that only the applicant, a
competing applicant, or a person who has a direct financial
interest affected by the lease of a right-of-way would have
standing to seek a judicial review, with the applicant
himself/herself being able to seek such a review at any time;
this is intended to limit the ability of those who are simply
opposed to the construction of natural gas pipelines to stop
such necessary projects in Alaska.
MR. WRIGHT explained that Section 6 - again, modeled on the
TAPAA - is intended to preclude lawsuits against any phase of
development or construction after a right-of-way has been
issued. Under Section 6, [claims] must be brought within 60
days from the [date of the particular action in question], and
must be filed with the Alaska Superior Court, which, except in
conjunction with the issuance of a final judgment, would have no
jurisdiction to grant injunctive relief, whether it be in the
form of a temporary restraining order, a preliminary injunction,
a permanent injunction, or a stay against the issuance of a
right-of-way, permit, lease, certificate, license, or other
authorization.
MR. WRIGHT, in conclusion, added that conforming changes were
made throughout Version I such that the bill would apply to the
construction of all natural gas pipelines within the state.
1:20:41 PM
REPRESENTATIVE HOLMES sought clarification regarding whether
such pipelines must be entirely within the state in order for
the bill to apply.
REPRESENTATIVE CHENAULT offered his understanding that that
would be the case: HB 215 would only apply to state-issued
right-of-ways on state land.
REPRESENTATIVE PRUITT sought clarification that the bill could
also apply in situations involving a natural gas pipeline's
"spur line" if that spur line were entirely within Alaska.
REPRESENTATIVE CHENAULT indicated that that would be the case.
Regardless of how any interstate natural gas pipeline project is
progressing, in terms of resource development in Alaska, HB 215
would allow the state to control [its intrastate natural gas
pipelines].
1:29:14 PM
JOHN HUTCHINS, Assistant Attorney General, Oil, Gas & Mining
Section, Civil Division (Juneau), Department of Law (DOL), in
response to a question, offered his understanding that under
existing [AS 38.35], any pipeline right-of-way lease must
include certain covenants, one of them being that the pipeline
shall be a common carrier. Under HB 215, that covenant would
not be required in the AGDC's right-of-way lease pertaining to
its proposed natural gas pipeline.
1:32:00 PM
TINA M. GROVIER, Attorney at Law, Birch Horton Bittner & Cherot,
in response to further questions, explained that natural gas
pipelines, in contrast to oil pipelines, tend to be contract
carriers, which allows contracting shippers to send a specified
amount of their natural gas through the pipeline without having
their "interests" diminished.
1:34:03 PM
DANIEL R. FAUSKE, President, Alaska Gasline Development
Corporation (AGDC), Alaska Housing Finance Corporation (AHFC),
Department of Revenue (DOR); CEO/Executive Director, Alaska
Housing Finance Corporation (AHFC), Department of Revenue (DOR),
indicated that HB 215 is one of two pieces of legislation that
would help the AGDC to continue working on its proposed natural
gas pipeline project. The main issue [the AGDC and the AHFC]
wanted addressed pertained to common carriers versus contract
pertaining to state-leased lands, [has been addressed via
Version I]. In conclusion, he indicated that [the AGDC and AHFC
are] in support of HB 215.
REPRESENTATIVE HOLMES sought clarification regarding Section 6's
proposed repeal and reenactment of AS 38.35.200(b).
MS. GROVIER reiterated that the language of Section 6's proposed
subsection (b) was derived largely from the TAPPA - specifically
43 U.S.C. 1652(d) - and indicated that that language, although
altered to address state issues instead of federal issues, would
essentially limit the types of lawsuits that could be brought
against [an intrastate natural gas pipeline] and the types of
relief that could be received via such litigation. In response
to a question, she explained that the language on page 6, lines
25-29, sets out both the aforementioned 60-day timeframe and the
stipulations that a judicial review may only be granted for
claims challenging the validity of the statute, or claims
asserting that a particular action [would result or had
resulted] in a denial of rights provided by the Alaska State
Constitution.
REPRESENTATIVE HOLMES surmised, then, that under Section 6's
proposed AS 38.35.200(b), failure to follow the procedures
outlined in AS 38.35 would no longer be grounds for judicial
review.
MS. GROVIER concurred. In response to another question, she
offered her understanding that due to energy shortages and the
desire to make the resources of the North Slope available in
order to meet the country's urgent energy needs, the language of
the TAPPA precluded judicial review based on such a challenge.
She said she presumes that similar motivations regarding natural
gas engendered Section 6's proposed removal of such grounds from
existing AS 38.35.200(b). In response to other questions, she
indicated that Section 5 would apply to both oil pipelines and
natural gas pipelines - though predominately oil pipelines - and
that Section 6 would apply only to natural gas pipelines; and
surmised that those sections primarily address pipeline right-
of-ways because that's what AS 38.35 pertains to.
CHAIR GATTO questioned whether Section 6's proposed 60-day
deadline for bringing a claim alleging the invalidity of AS
38.35 was constitutional.
MS. GROVIER surmised that if the court finds that restriction to
be unconstitutional, then it would allow such claims to be
brought forth. In response to a further question, she offered
her belief that HB 215 would not change any existing statutory
or constitutional notification requirements pertaining to the
disposal/lease of state lands or interests therein.
REPRESENTATIVE HOLMES questioned whether the adoption of HB 215
would raise primacy issues.
1:51:15 PM
HAROLD HEINZE, Chief Executive Officer, Alaska Natural Gas
Development Authority (ANGDA), Office of the Commissioner,
Department of Revenue (DOR), mentioned that he'd not yet had a
chance to review Version I of HB 215; offered his understanding
of what the original version of the bill would do; and,
describing what the ANGDA went through several years ago with
regard to a proposed spur line, characterized the state's
existing process for obtaining a lease for an intrastate
pipeline right-of-way as a very good, comfortable,
[appropriate,] and effective process. He also noted that
existing AS 38.35.200(b) already provides a very limited basis
for challenges, and indicated that the ANGDA hasn't any problem
with that provision because the ANGDA's intention is to follow
the process, thereby precluding any such legal challenges from
being brought forth to begin with. In response to a question,
Mr. Heinze agreed to provide additional comments on HB 215 once
he's had a chance to read Version I.
REPRESENTATIVE HOLMES removed her objection to the motion to
adopt Version I as the working document. There being no further
objections, Version I was before the committee.
CHAIR GATTO relayed that HB 215, Version I, would be held over.