Legislature(2005 - 2006)

05/06/2005 08:12 AM BUD

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08:12:08 AM Start
08:12:53 AM Ferc Order No. 2005 || Scr15
08:26:16 AM Other Committee Business
08:37:50 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
SCR 15-LB&A TO LITIGATE GAS PIPELINE CASE                                                                                     
8:12:53 AM                                                                                                                    
CHAIR THERRIAULT announced that the  only order of business would                                                               
be Senate  Concurrent Resolution  (SCR) 15, which  authorizes the                                                               
Joint Committee  on Legislative  Budget and  Audit to  enter into                                                               
litigation  regarding the  Federal  Energy Regulatory  Commission                                                               
(FERC) Order  No. 2005.   The fore mentioned order  contained the                                                               
regulations  for conduct  regarding the  open season  methodology                                                               
for the gas pipeline.                                                                                                           
8:13:19 AM                                                                                                                    
JOE   BALASH,  Staff   to   Senator   Therriault,  Alaska   State                                                               
Legislature, turned to the memorandum  from Legislative Legal and                                                               
Research  Services,  which  lays  out the  rationale  behind  the                                                               
aforementioned  resolution.    He relayed  that  the  Legislative                                                               
Budget and  Audit Committee, similar to  Legislative Council, has                                                               
the statutory  authority to  sue in the  name of  the legislature                                                               
between sessions.   Chevron filed  its complaint in  the district                                                               
court  of appeals  in Washington  D.C., on  April 8,  2005, hence                                                               
there is 30  days to intervene, which places the  date on [May 8,                                                               
2005].   He offered that the  delegation of the authority  to the                                                               
committee was necessary.                                                                                                        
8:14:41 AM                                                                                                                    
CHAIR THERRIAULT opined  that the committee could  have taken the                                                               
action without  the resolution  if the court  period to  file had                                                               
gone into  the interim,  but while  the legislature  is available                                                               
the statutes require the legislature to prompt the action.                                                                      
8:15:06 AM                                                                                                                    
DONALD  C.   SHEPLER,  Counsel,  Legislative  Budget   and  Audit                                                               
Committee, characterized  this as a technical,  legal, procedural                                                               
matter that  has to  be filed no  later than [May  9, 2005].   He                                                               
explained that  the committee participated  in the FERC  rule and                                                               
those proceedings  have moved  on to the  court of  appeals; this                                                               
motion makes  the committee a  party to  that appeal so  that the                                                               
committee can continue to take  whatever action is appropriate to                                                               
maintain the  standing of the FERC  order.  With the  approval of                                                               
the  committee, Mr.  Shepler said  that he  was prepared  to file                                                               
this in the D.C. circuit on May 9, 2005.                                                                                        
CHAIR THERRIAULT  inquired as  to when the  next decision  in the                                                               
legal proceeding may come.                                                                                                      
MR. SHEPLER reminded the committee  that FERC issued its order on                                                               
February  9, 2005,  to  become  effective 90  days  after it  was                                                               
published in  the federal register,  which he estimated to  be in                                                               
mid-May.   He related that a  number of parties have  filed for a                                                               
rehearing  of  the FERC  order  and  FERC  has taken  that  under                                                               
advisement.  He related his belief  that once FERC meets [May 18,                                                               
2005,] the commission might address  the rehearing request.  Once                                                               
FERC acts on  rehearing, it's expected that others  would seek to                                                               
appeal or possibly  ask for further rehearing to  the extent that                                                               
FERC might  make changes.   He suspected that  the aforementioned                                                               
situation might  "start the clock"  for more appeals  being filed                                                               
in the court of appeals.   He highlighted that under D.C. circuit                                                               
rules, once the Legislative Budget  and Audit Committee is made a                                                               
party to the Chevron appeal the  committee becomes a party to all                                                               
of  the appeals  that are  subsequently filed,  appealing in  the                                                               
same order.   Therefore, once  the motion to intervene  is filed,                                                               
the committee will  then be party to all the  proceedings that go                                                               
into the court  of appeals.  The federal statute  under Order No.                                                               
2005 provides  that all appeals  from any FERC action  under that                                                               
statute have to be lodged  in the Washington, D.C., circuit court                                                               
of appeals and the court  has to treat the appeals expeditiously.                                                               
After  the intervention  a  provision of  time  within which  the                                                               
respondent, FERC,  has to file  in order  to dismiss the  case on                                                               
whatever grounds it  may seek to do.  Thereafter,  the court will                                                               
establish a  briefing schedule  for the  appeal, which  will most                                                               
likely be established  after the other appeals to be  filed in 60                                                               
days  after the  order on  rehearing comes  out.   At some  point                                                               
within the next 90 days, there  ought to be established some sort                                                               
of briefing  schedule for all of  the appeals of Order  No. 2005,                                                               
he  added.   The  requirement that  the  judicial proceedings  be                                                               
expedited will [require] formal arguments  on the appeal and then                                                               
a  decision.   The  exact  timeline  is undetermined  because  it                                                               
depends upon the  court's briefing schedule.   However, some time                                                               
within this  month the FERC  will dispose of the  pending request                                                               
for hearing,  after which parties  can then proceed to  the court                                                               
of appeals if they so choose, he added.                                                                                         
8:21:34 AM                                                                                                                    
REPRESENTATIVE  SAMUELS asked  what the  range of  finality dates                                                               
might be.                                                                                                                       
MR. SHEPLER estimated that the final  finality will be at the end                                                               
of year.                                                                                                                        
8:21:58 AM                                                                                                                    
CHAIR THERRIAULT  related his opinion  that other than  filing in                                                               
order to  get placement in  the court proceedings,  the committee                                                               
may choose  to take no further  action in the filing  but it will                                                               
receive all of the action brought to the court.                                                                                 
MR. SHEPLER  replied that  the committee is  not obligated  to do                                                               
anything.   Since there  was no appeal  filed, because  the order                                                               
was perceived  as favorable, the  committee has no right  to file                                                               
any  briefs.   However,  by  being  an intervener  the  committee                                                               
becomes  a  party  to  the   case  and  will  receive  copies  of                                                               
everything that is filed in  the court proceedings on this appeal                                                               
and all  subsequent appeals for  Order No.  2005.  He  added that                                                               
the committee can only take actions if it's an intervener.                                                                      
8:23:16 AM                                                                                                                    
CHAIR THERRIAULT  related his  understanding that  intervening on                                                               
this  case  automatically makes  the  committee  a party  to  any                                                               
subsequent  legal challenges  brought  forth by  any  party.   He                                                               
asked  if the  aforementioned is  because the  court consolidates                                                               
all of the appeals cases.                                                                                                       
MR.  SHEPLER  answered  that  Court Rule  15(b)  states  that  an                                                               
intervener in  a proceeding is  [automatically] an  intervener in                                                               
all subsequently  filed appeals for  the Court of Appeals  in the                                                               
same  case.   He related  his belief  that any  subsequent appeal                                                               
would  be  consolidated into  one  oral  argument and  one  court                                                               
appeal decision.                                                                                                                
8:24:26 AM                                                                                                                    
REPRESENTATIVE  SAMUELS moved  that  the  Legislative Budget  and                                                               
Audit Committee authorize  Mr. Shepler to file the  motion in the                                                               
U.S. Court  of Appeals for  the District of Columbia  Circuit and                                                               
to authorize  the Chair to order  further motions to be  filed by                                                               
the Legislative  Budget and Audit  Committee attorney  during the                                                               
interim on the same subject.                                                                                                    
CHAIR THERRIAULT, in response to  Mr. Shepler, clarified that the                                                               
Legislative Budget and Audit Committee  would intervene on behalf                                                               
of the legislature.                                                                                                             
MR.  SHEPLER noted  then,  in  that case,  the  draft [motion  to                                                               
intervene] may need  to be reworded.  He said  he assumed that he                                                               
would have the purview to do so.                                                                                                
CHAIR THERRIAULT confirmed that.                                                                                                
8:25:27 AM                                                                                                                    
A roll  call vote was  taken.  Senators Hoffman,  Stedman, Green,                                                               
Wilken,  and Therriault,  and Representatives  Samuels, Chenault,                                                               
Hawker,  Kerttula, and  Meyer voted  in  favor of  the motion  to                                                               
authorize Mr.  Shepler to file  the motion  in the U.S.  Court of                                                               
Appeals for  the District of  Columbia Circuit and  authorize the                                                               
Chair to  order further  motions to be  filed by  the Legislative                                                               
Budget  and  Audit  Committee  during the  interim  on  the  same                                                               
subject.  Therefore, the motion passed by a vote of 10-0.                                                                       

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