Legislature(2005 - 2006)CAPITOL 120

04/12/2006 01:00 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved CSHB 482(JUD) Out of Committee
<Bill Hearing Rescheduled from 04/10/06>
Moved HCS CSSB 261(JUD) Out of Committee
Moved CSHB 434(JUD) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
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                                                               
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,                                                               
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                                                               
     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                                                               
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                                                                    
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                                                               
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                                                               
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                                                               
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                                                               
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                                                                       
        "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                                                               
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                                                               
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.                                                                           

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