Legislature(2005 - 2006)CAPITOL 120
04/12/2006 01:00 PM JUDICIARY
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* first hearing in first committee of referral
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HB 434 - AUTHORIZE HWY PROGRAM PARTICIPATION 1:46:47 PM CHAIR McGUIRE announced that the next order of business would be HOUSE BILL NO. 434, "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." 1:47:07 PM JOHN MACKINNON, Deputy Commissioner of Highways & Public Facilities, Office of the Commissioner, Department of Transportation & Public Facilities (DOT&PF), explained that the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), included a pilot program - the [National Environmental Policy Act of 1969 (NEPA)] delegation pilot program - for five states: Alaska, California, Oklahoma, Ohio, and Texas. This pilot program gives these five states the ability to apply for delegation of the secretary of the U.S. Department of Transportation's NEPA responsibilities; under this pilot program, the state will assume the NEPA decision-making responsibility that is currently - for highway programs - under the purview of the Federal Highway Administration (FHWA). MR. MACKINNON said that this [pilot program] puts the responsibility on the DOT&PF to determine what level of environmental documentation is required, whether it's an environmental impact statement (EIS), an environmental assessment, or a categorical exclusion. He explained that 95 percent of what the DOT&PF does are categorical exclusions - for example, repaving a road requires a "CATEX" - but very few EISs are done - perhaps only two or three a year - and only about a half dozen environmental assessments are done. Currently, though, the state doesn't determine what type of documentation is required; instead, this determination is made by the FHWA. Participating in the pilot program will not result in less environmental protection, but it will put the decision-making process in the hands of the state. CHAIR McGUIRE surmised that HB 434 was referred to the House Judiciary Standing Committee because Section 1 of the bill would affect the attorney general's power in that it would allow him/her to waive the state's immunity from federal court. MR. MACKINNON concurred. REPRESENTATIVE GARA asked how much it will cost the state to take over a job that the federal government is currently doing for the state for free. For example, how much would it typically cost the state to defend itself against a legal challenge regarding the way it performs its [EISs, environmental assessments, or CATEXs]? Also, what percentage of highway projects get litigated under the NEPA? 1:52:59 PM PETER PUTZIER, Senior Assistant Attorney General, Transportation Section, Civil Division (Juneau), Department of Law (DOL), offered his belief that it's unlikely that a lot of litigation will occur, since most of the projects that the DOT&PF works on have six- to eight-year lead times, whereas the pilot program is slated to last only six years. Furthermore, very few projects will go through the entire environmental process that results in an EIS. He mentioned that he doesn't know what the statistics are with regard to what percentage of highway projects get litigated under the NEPA. MR. MACKINNON added that since passage of the NEPA, [the state] has been challenged on only two projects: the "Whittier Tunnel" - in which the FHWA prevailed; and the "Iliamna-Nondalton bridge project" - in which [the DOT&PF] has so far prevailed. REPRESENTATIVE GARA predicted that the "Knik Arm Bridge" will also get litigated, and that such litigation will occur before the aforementioned six- to eight-year period is concluded. If this proves true, would the state have to defend itself in that litigation? MR. MACKINNON explained that because that project was started under the purview of the FHWA, the federal government would continue to defend that project. Under HB 434, the state would only be responsible for defending itself against litigation engendered by projects that the state begins after it's been accepted into the pilot project. MR. MACKINNON in response to a question, said that the federal law authorizing the pilot project went into effect August 10, 2005, and is slated to sunset on August 10, 2011. "We're halfway through [the] first year," he added. REPRESENTATIVE KOTT and REPRESENTATIVE GRUENBERG pondered whether a sunset clause ought to be added to the bill. MR. MACKINNON offered his belief that such won't be necessary because the federal legislation authorizing the pilot program already has a sunset clause, a sunset clause that will effectively terminate the states' participation on August 10, 2011. MR. PUTZIER concurred. 1:58:16 PM REPRESENTATIVE KOTT offered his understanding that inserting a sunset clause will ensure that the revisor automatically removes the proposed language from statute after the sunset date, whereas without a sunset clause, the proposed language will end up being left on the books. REPRESENTATIVE GRUENBERG concurred, pointing out that the state could potentially be saddled with lawsuits as a result of participating in the pilot program. MR. PUTZIER said he would research the issue. CHAIR McGUIRE observed that HB 434 has also been referred to the House Finance Committee. REPRESENTATIVE COGHILL predicted that the five new positions created by HB 434 won't simply go away after the pilot project terminates unless a sunset clause is added to the bill. MR. MACKINNON pointed out that the state would be receiving federal funds to pay for those positions, which are capital improvement project (CIP) positions. With regard to HB 434, he said: We look at this as an opportunity to speed up many of these environmental documents by getting the big decisions closer to home, and when a document is sitting on a desk in the [FHWA] ... or some other federal agency, we have a difficult time when we pick up the phone and try ... [to] speed it up and get it off that desk and either approved or disapproved - or getting some action on it - because they're a different agency. But when those decisions are sitting in the [DOT&PF], ... it's much easier to affect their movement through the [DOT&PF], and we see the opportunity here of moving them through faster as a way of actually more than paying for the $650,000 cost of the program; [a] one year delay of a project can cost millions of dollars to that project just in inflation alone. 2:00:59 PM MR. PUTZIER, in response to a question regarding the requirement that the state waive its immunity from suit in federal court, said that [under SAFETEA-LU,] it is simply one of the requirements of the pilot program. He surmised that this is because under the pilot program, the state would essentially be fulfilling a role of the FHWA. In response to another question, he said that if the state didn't prevail in such lawsuit and the position the state took in the action was found to not be substantially justified, then the state might get saddled with paying some attorney fees, for example, to the prevailing party. REPRESENTATIVE GRUENBERG asked how much money the state will receive as a result of participating in the pilot program. MR. MACKINNON said no additional funds will be forthcoming, though reauthorization over the five-year life of the program - "including the earmarks above the line" - comes to approximately $2.5 billion, a portion of which will be used to pay for the NEPA pilot program; for example, when one of the environmental NEPA experts in the department is working on a project, he/she will bill out to that particular project. REPRESENTATIVE GRUENBERG surmised, then, that the DOT&PF will have access to those funds. MR. MACKINNON concurred. REPRESENTATIVE GRUENBERG surmised that the waiver referenced in the bill is above and beyond that provided in existing state statutes. 2:04:26 PM MR. PUTZIER concurred. REPRESENTATIVE GRUENBERG asked whether Section 1 of HB 434 waives any additional sovereign immunity. Specifically, does it additionally affect AS 09.50.250 in any way? MR. PUTZIER replied: I believe it would subject us to the procedural rules in federal court. For example, we might be subject to ... the Equal Access [to] Justice Act, which might apply ... different [attorney fees] provisions. ... We would be standing, basically, in the shoes of the FHWA. MR. PUTZIER, in response to a question, offered his understanding that the Equal Access to Justice Act is codified in 28 U.S.C. 2412, and reiterated the earlier comment that as a practical matter in environmental litigation, if the state doesn't prevail and the position the state took in the action is found to not be substantially justified, the state might have to pay some attorney fees to the prevailing party. REPRESENTATIVE GRUENBERG asked whether the use of the term, "may" [in Section 1] is specifically mandated by the federal legislation. In other words, why is discretion in this matter being given to the attorney general? MR. PUTZIER surmised that there was a concern about a potential separation of powers issue if the legislature were to mandate that the attorney general waive sovereign immunity. He noted, though, that the federal language says "shall", and that before the DOT&PF is allowed to adopt the aforementioned NEPA authorities, the attorney general would have to enter into a memorandum of understanding (MOU) with the FHWA; also, there would have to be "separate certification," either project-by- project or for all projects. The bill itself only lets Alaska get its "foot in the door" to be able to assume the NEPA responsibilities; it is not in and of itself an assumption of any responsibility nor is it a waiver of any of the State's normal sovereign immunity protections. REPRESENTATIVE GRUENBERG offered his belief that under AS 09.50.250, it is the purview of the legislature - not the attorney general - to waive sovereign immunity. MR. PUTZIER, in response to a question, said he can't recall any statutes written similarly to HB 434. REPRESENTATIVE GRUENBERG asked whether the language of Section 1 meets the federal law's requirement, particularly given that this proposed state law only says "may". MR. PUTZIER indicated that this [issue] was vetted extensively with the FHWA, and the language was approved on the condition that there be "sufficient follow-up." Again, HB 434 doesn't implement anything; it merely allows for the implementation of the pilot program by giving the DOT&PF the authority to proceed. REPRESENTATIVE GRUENBERG said that once the DOT&PF exercises that authority, he doesn't want to see the attorney general refuse to waive the state's immunity from suit in federal court. "I think if somebody is injured by the actions of the State, they should have access to federal court," he remarked, adding that he may offer an amendment to that effect. MR. PUTZIER indicated that he would like see the wording of such an amendment. 2:10:00 PM REPRESENTATIVE KOTT asked how the five states were chosen, and whether the other four states have "fully fulfilled their commitment for entry." MR. MACKINNON offered his understanding that every one of the five states is represented by a "ranking member" of the U.S. House of Representatives Committee on Transportation & Infrastructure, and that the other four states also have enabling legislation in the works. REPRESENTATIVE WILSON asked whether changing the language in HB 434 would preclude Alaska from being part of the pilot program. MR. MACKINNON explained that by entering into an MOU with the FHWA, the State shall be waiving its immunity from suit in federal court, and that the bill drafter in the attorney general's office simply chose to use "may" instead of "shall" in HB 434; the MOU itself will still contain a "shall". REPRESENTATIVE GARA offered his recollection that the State is reluctant to waive sovereign immunity in one type of case because it might then have to waive sovereign immunity in all other types of cases. He asked whether the attorney general has taken a position on this issue in the past and whether it is a concern. MR. PUTZIER said he is not sure whether the attorney general has taken a position on this issue, but acknowledged that it is probably a valid concern. However, [the language regarding the waiver] is very narrowly tailored to a NEPA program, and so [the administration] would only accept being in federal court for the purpose of just that particular program. "I don't perceive that there would be any long-term negative consequences of what I will call a limited waiver of sovereign immunity," he remarked. REPRESENTATIVE GARA said he would like something to that effect in writing from the attorney general's office. 2:15:00 PM MR. PUTZIER agreed to get that for the committee. REPRESENTATIVE COGHILL opined that the language of Section 1 already limits the waiver. REPRESENTATIVE GRUENBERG referred to Conceptual Amendment 1, which read [original punctuation provided]: p 1 l 7 delete "The attorney general may," Page 1 line 9 delete "waive" Page 1 line 11 insert after States "is waived." REPRESENTATIVE GRUENBERG asked whether the sovereign immunity clause of the Alaska State Constitution should also be referenced. [Note to the reader: no clause specifically using the words, "sovereign immunity" exists in the Alaska State Constitution.] In response to a comment, he said that he would want that clause to apply solely to "claims under this paragraph." REPRESENTATIVE GARA asked whether the funding that is meant to pay for this pilot program could be used for something else if the state did not enter into the pilot program. MR. MACKINNON said yes, adding, though, that 9 percent of the funds are state funds - a state match. REPRESENTATIVE GARA surmised, then, that the other 91 percent of the funds could be used for some other highway projects if the state did not enter into the pilot program. MR. MACKINNON concurred. REPRESENTATIVE GARA said that since there seem to be more highway projects than can be funded, delaying the groundbreaking on some of them isn't such a big deal; therefore, he is questioning why they would spend the money to enter into this pilot project. 2:19:12 PM REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual Amendment 1 [text provided previously]. REPRESENTATIVE KOTT and REPRESENTATIVE ANDERSON objected. REPRESENTATIVE GRUENBERG made a motion to amend Conceptual Amendment 1 such that a reference to "the relevant provision in the [Alaska] State Constitution" is added after the reference in the bill to the U.S. Constitution. CHAIR McGUIRE suggested that Representative Gruenberg instead simply make a motion to adopt Conceptual Amendment 1, as amended. REPRESENTATIVE GRUENBERG agreed. REPRESENTATIVE COGHILL objected, indicated that he would prefer to see the language of the provision that Representative Gruenberg wants referenced, and relayed that he is nervous about waiving sovereign immunity to begin with. The committee took an at-ease from 2:21 p.m. to 2:24 p.m. REPRESENTATIVE GRUENBERG made a motion to amend Conceptual Amendment 1 such that it would read: p 1 l 7 delete "The attorney general may," Page 1 line 9 delete "waive" Page 1 line 11 insert after "States" the following language "and under Article II, Section 21, of the Alaska Constitution is waived." CHAIR McGUIRE - noting that there was already a motion before the committee regarding a different Conceptual Amendment 1, as amended - suggested that the objections be removed so that the first motion could be withdrawn. REPRESENTATIVES COGHILL, KOTT, and ANDERSON removed their objection. REPRESENTATIVE GRUENBERG withdrew the first motion. REPRESENTATIVE GRUENBERG then made a motion to adopt Amendment 2: p 1 l 7 delete "The attorney general may," Page 1 line 9 delete "waive" Page 1 line 11 insert after "States" "and under Article II, Section 21, of the Alaska Constitution is waived." REPRESENTATIVE COGHILL objected, and stated that he does not want to waive the Alaska State Constitution. REPRESENTATIVE GRUENBERG said that that is not his intent; specifically, the waiver would only be for those provisions on page 1, lines 7-10, and nothing else. REPRESENTATIVE COGHILL removed his objection. 2:27:27 PM CHAIR McGUIRE asked whether there were any further objections to Amendment 2. There being none, Amendment 2 was adopted. REPRESENTATIVE KOTT noted that with the adoption of Amendment 2, there will also need to be a conforming title amendment. CHAIR McGUIRE concurred. CHAIR McGUIRE stated that Representative Kott has made the motion to adopt Conceptual Amendment 3, a conforming title amendment. There being no objection, Conceptual Amendment 3 was adopted. REPRESENTATIVE KOTT said he is not yet prepared to offer an amendment adding a sunset provision, but would be researching the issue further. 2:28:58 PM REPRESENTATIVE WILSON moved to report HB 434, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 434(JUD) was reported from the House Judiciary Standing Committee.