Legislature(2013 - 2014)SENATE FINANCE 532
04/12/2013 09:00 AM Senate FINANCE
| Audio | Topic |
|---|---|
| Start | |
| HB129 | |
| HB50 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 129 | TELECONFERENCED | |
| + | HB 50 | TELECONFERENCED | |
| + | HB 23 | TELECONFERENCED | |
| + | HB 76 | TELECONFERENCED | |
| + | TELECONFERENCED |
CS FOR HOUSE BILL NO. 129(FIN)
"An Act relating to approval for oil and gas or gas
only exploration and development in a geographical
area; and providing for an effective date."
Co-Chair Meyer noted that the memos from Legislative Legal
and the Department of Law (DOL) responding to questions
previously raised by Senator Hoffman could be found in
member files(copy on file).
9:21:31 AM
Co-Chair Meyer noted that public testimony was CLOSED.
JOE BALASH, DEPUTY COMMISSIONER, DEPARTMENT OF NATURAL
RESOURCES, stated that he had reviewed the legal memo,
written by Don Bullock from Legislative Legal; April 12,
2013. He disagreed that the findings in Section 1 were
unnecessary in regard to the legislation. He stated that
the findings in Section 1, and the substantive portion in
Section 2, would be a useful tool for Department of Natural
Resources (DNR) as it implemented the department's
obligations to review and approve additional steps of
exploration and development after the leasing stage. He
shared that when the REDOIL decision was handed down,
issues were raised that the department believed should be
addressed by the legislature, and that the bill was the
proper vehicle to do so. He offered that Section 1 provided
a way for the legislature to guide the department in how to
implement the findings of the REDOIL decision. He
understood that the DOL had filed a request for
reconsideration with the court, but there was no guarantee
that further clarification on some of the questions raised
by the conclusions. He shared that in the days after the
decision, DNR had received an appeal on a plan of
operations that cited the court case. He noted for the
committee that the Supreme Court decision had opened up
uncertainties that DNR hoped the legislature could speak
to.
9:25:54 AM
Senator Hoffman inquired if language could be written that
would make Section 2 clearer.
Mr. Balash responded that DNR was satisfied with the
language in the section. He wondered which part needed
clarification.
9:26:23 AM
Senator Hoffman asked whether Section 2 was written as
clear as it could be written.
Mr. Balash reiterated that the department was satisfied
with Section 2.
Senator Hoffman directed the committee to Page 2 of the
legal memo:
In conclusion, the findings in sec. 1 may be
unnecessary. If the language in the substantive law is
clear, the findings are unnecessary. The language in
the proposed amendment seems to be consistent with the
court's finding of a constitutional requirement to
consider cumulative impacts in all phases of a
project.
Senator Hoffman contended that the memo clearly stated that
the findings were unnecessary.
Mr. Balash explained that Section 2 was stand alone and had
not been driven by the REDOIL decision; however Section 1
was in response to the decision. He added that the findings
and the substantive sections were not linked, as was
generally the case. He stressed that the department wanted
to use the bill to define the parameters in which the
REDOIL decision would be implemented by the department.
9:28:20 AM
Senator Hoffman understood that the department would follow
the legal counsel of DOL and that the legislature would
follow the counsel of Legislative Legal. He pointed to the
last sentence of the second paragraph of the memo:
However, I suggest omitting the findings from the bill
under the guidance of the Manual of Legislative
Drafting.
The Manual of Legislative Drafting addresses
legislative findings at pages 14 - 15:
Although legislative findings relevant to the
need for a bill are presumably contained in the
record of committee hearings and debate on the
bill, there are some instances in which the
findings are deemed necessary and should be set
out in the bill and enacted as a part of the
bill. This may be particularly true if the bill
proposes to enact law that is likely to be
challenged on constitutional grounds. The
findings enacted as a part of that law may
provide justification for upholding the validity
of the law. The drafter should work closely with
the requester to ensure that the legislative
history of the bill, particularly the record of
the committee hearings, provides a basis for the
findings. In cases where the findings are not
necessary for placement in the bill text, the
drafter should work closely with the requestor to
prepare intent text that can be specifically
entered into the legislative history of the bill,
particularly the record of the committee
hearings.
Senator Hoffman offered that his first choice would be to
eliminate the findings and his second would be to consider
the amendment offered during public testimony from attorney
Lisa Weissler (copy on file).
9:29:57 AM
AT EASE
9:33:35 AM
RECONVENED
9:34:15 AM
BECKY CRUSE, DEPARTMENT OF LAW, ANCHORAGE (via
teleconference), solicited questions from the committee.
9:34:46 AM
Vice-Chair Fairclough explained that the committee was
considering two competing legal opinions on the topic of
including legislative intent in HB 129. She asked whether
the administration recommended that the findings remain in
the bill.
9:36:34 AM
Senator Hoffman restated his question whether the
substantive law in Section 2 was written clearly enough for
the findings to be removed from Section 1.
Ms. Cruse expressed confusion with the committee's
questioning.
9:37:56 AM
Mr. Balash interjected that, typically, the findings were
directly connected to the substantive law in the later
sections of the legislation. He reiterated that in the case
of HB 129, they were not. He furthered that the substantive
section of the bill stood independently and had been
requested prior to the REDOIL decision. He stated that the
bill provided a convenient mechanism for the legislature to
address how DNR should implement the courts findings. He
restated that the uncodified law in Section 1 was distinct
from the substantive action being taken in Section 2. He
furthered that ordinarily findings would accompany
substantive law, but not in the case of HB 129.
9:39:39 AM
Vice-Chair Fairclough believed that the administration was
trying to lay out, for future court action that the
legislature agreed with the legislative findings that
supported the implementation of Section 2 when talking
about Alaska's maximum use, consistent with the public
interest. She offered that the legislative findings sent a
message from the legislature to the courts.
Mr. Balash replied that the voice of the legislature was
embodied in Section 1. He acknowledged that the department
would be undergoing a regulation process associated with
Section 2, and that the decisions would be consistent with
the legislative findings in Section 1.
9:41:59 AM
Senator Hoffman reiterated that the department could
clarify the language in Section 2. He stressed that the
argument could be made that the language in Section 2 was
not clear.
9:43:18 AM
Vice-Chair Fairclough agreed that if Section 2 could stand
alone, then it should. She countered that the court
continued to argue with the legislature's authority to
determine what the maximum benefit for the people of Alaska
was. She thought that the question remained whether to go
with the court or follow the findings of Legislative Legal.
9:45:41 AM
Senator Hoffman understood that Legislative Legal and DOL
were at odds concerning the question. He said that if the
committee wanted to ignore the recommendation of
Legislative Legal then the responsibility for any
consequences rested with the legislature.
9:46:49 AM
AT EASE
9:48:53 AM
RECONVENED
HB 129 was HEARD and HELD in committee for further
consideration.
9:49:27 AM
Vice-Chair Fairclough queried whether the April 12, 2013
legal memo from Donald Bullock, Legislative Counsel,
Division of Legal and Research Services, Legislative
Affairs Agency was in member files and available to the
public.
DONIECE GOTT, STAFF, SENATE FINANCE COMMITTEE, replied in
the affirmative.