Legislature(2005 - 2006)BUTROVICH 205

02/14/2006 01:30 PM TRANSPORTATION


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01:40:16 PM Start
01:44:30 PM SB271
02:16:45 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 271 AUTHORIZE HWY PROGRAM PARTICIPATION TELECONFERENCED
Heard & Held
Bills Previously Heard/Scheduled
           SB 271-AUTHORIZE HWY PROGRAM PARTICIPATION                                                                       
                                                                                                                                
CHAIR HUGGINS announced SB 271 to be up for consideration.                                                                      
                                                                                                                                
JOHN  MacKINNON,  Deputy  Commissioner  of  Highways  and  Public                                                               
Facilities,  Department of  Transportation and  Public Facilities                                                               
(DOTPF), began  by indicating  that members  had been  provided a                                                               
fact sheet  relating to SAFETEA-LU [Safe,  Accountable, Flexible,                                                               
Efficient Transportation  Equity Act:   A  Legacy for  Users] and                                                               
NEPA [National Environmental Policy Act of 1969].                                                                               
                                                                                                                                
He explained that  passage of SAFETEA-LU in  August 2005 included                                                               
a NEPA-delegation  pilot program for  five states only:   Alaska,                                                               
California,  Oklahoma,  Ohio and  Texas.    The five  states  are                                                               
eligible  to apply  for delegation  of the  NEPA responsibilities                                                               
from  the Secretary  of Transportation.   Secondarily,  they also                                                               
may  apply for  delegation  of  some or  all  of the  Secretary's                                                               
review and  consultation under other federal  environmental laws.                                                               
The   scope  of   delegation  will   be  determined   through  an                                                               
application to  the Secretary  and execution  of a  memorandum of                                                               
understanding (MOU).                                                                                                            
                                                                                                                                
He  said this  is  a  six-year pilot  program  from  the date  of                                                               
signing  of  SAFETEA-LU, August  10  [2005],  and will  terminate                                                               
August 10, 2011.  The  Secretary of Transportation is required to                                                               
promulgate   regulations    that   establish    this   delegation                                                               
application.   What those regulations  will say isn't  known, and                                                               
it isn't known  whether NEPA delegation will be a  good thing for                                                               
Alaska.  However, the  desire is to be in position  in case it is                                                               
advantageous  so that  the state  can move  ahead and  assume the                                                               
responsibility.                                                                                                                 
                                                                                                                                
He explained  that after the rule  making is done, the  state may                                                               
submit  its   application,  and  then  public   comment  must  be                                                               
solicited;  after the  application is  approved, an  MOU will  be                                                               
executed,  and then  delegation may  proceed.   By  the time  the                                                               
rules come  out and  the state  is ready to  apply, a  year might                                                               
have  passed.   He highlighted  the  opportunity to  do this  and                                                               
accelerate the NEPA process, if advantageous.                                                                                   
                                                                                                                                
SENATOR THERRIAULT arrived at 1:44:30 PM.                                                                                     
                                                                                                                                
MR. MacKINNON, in response to  questions from Chair Huggins, said                                                               
[DOTPF] is in  regular communication with the  other five states.                                                               
He  mentioned working  with  the  Federal Highway  Administration                                                               
(FHWA) about rule making.  He  said if it's a successful program,                                                               
there  is a  good  probability of  expansion  [to other  states].                                                               
Emphasizing this isn't a  reduction in environmental protections,                                                               
he said  the state will still  have the federal rules  to follow.                                                               
The  advantage is  more control  over  the timeframe.   It's  not                                                               
unusual  for  some  environmental  documents to  sit  on  a  desk                                                               
somewhere for  weeks or months.   When the state  is responsible,                                                               
it's easy  to pick up  a phone and move  the process along.   The                                                               
goal is  greater accountability  in the state,  including elected                                                               
officials  and the  department,  and a  more streamlined  process                                                               
that saves time.                                                                                                                
                                                                                                                                
CHAIR HUGGINS asked about legal ramifications.                                                                                  
                                                                                                                                
1:47:15 PM                                                                                                                    
                                                                                                                                
PETER PUTZIER, Senior  Assistant Attorney General, Transportation                                                               
Section,  Civil  Division  (Juneau),  Department  of  Law  (DOL),                                                               
agreed  there'd  be  no  change  or  lessening  of  environmental                                                               
protections.   The  State of  Alaska  would be  "standing in  the                                                               
shoes" of FHWA.  There'd be no  change in how the law is applied,                                                               
but the state would have more immediate control over it.                                                                        
                                                                                                                                
He explained that  [SB 271] contains a requirement  that was part                                                               
of SAFETEA-LU, a waiver of  Eleventh Amendment immunity.  He said                                                               
it shouldn't be  of particular concern because  NEPA is primarily                                                               
a  procedural statute  that relates  to deciding  about different                                                               
levels   of  environmental   action,   including  a   categorical                                                               
exclusion, an  environmental assessment (EA) or  an environmental                                                               
impact statement (EIS).  Usually,  challenges are along the lines                                                               
of [requests for]  injunctive relief, trying to  halt the process                                                               
or have  a court rule  that something must  be done again.   Thus                                                               
there is potential exposure to attorney fees.                                                                                   
                                                                                                                                
He  continued, saying  it's stated  upfront in  the bill  because                                                               
it's required.   The bill says the attorney  general "may" decide                                                               
to waive Eleventh Amendment immunity,  language chosen because of                                                               
a  potential   separation-of-powers  issue.     Instead   of  the                                                               
legislature saying  "shall," this simply authorizes  the attorney                                                               
general to make that waiver.   Indicating DOL had reviewed it, he                                                               
said the  department sees no  particular concerns that  the state                                                               
should have.                                                                                                                    
                                                                                                                                
CHAIR  HUGGINS asked  whether  the state  would  be assuming  the                                                               
liability.                                                                                                                      
                                                                                                                                
MR. PUTZIER affirmed that.                                                                                                      
                                                                                                                                
CHAIR HUGGINS asked whether that causes Mr. Putzier concern.                                                                    
                                                                                                                                
MR. PUTZIER reiterated that it's  primarily a procedural statute.                                                               
More often than not, someone says  that rather than an EA, an EIS                                                               
should have been done, for  example; then the court decides which                                                               
process should  have been followed,  or the court might  kick the                                                               
matter back  and require additional  studies or  consideration of                                                               
other alternatives  or impacts.   He opined  that those  kinds of                                                               
rulings aren't of particular concern to the state.                                                                              
                                                                                                                                
1:50:55 PM                                                                                                                    
                                                                                                                                
MR. PUTZIER, in  response to Senator French,  noted three primary                                                               
references to  federal statutes on page  2 of SB 271:   23 U.S.C.                                                               
325,  23 U.S.C.  326  and  23 U.S.C.  327.    The first  involves                                                               
recreational  trails  and transportation-enhancement  activities.                                                               
He said at  this point there is  no intent by the  state to adopt                                                               
that  authority, to  his  knowledge,  but another  administration                                                               
might have  a different philosophy.   It was included  because if                                                               
it isn't  authorized through legislation,  the ability to  opt in                                                               
at some point  would be lost.   The second, 23 U.S.C. 326,   is a                                                               
delegation  of categorical  exclusions.    Certain categories  of                                                               
projects  are defined  as  not requiring  an EIS.    Thus it's  a                                                               
statutory  list of  certain projects  that don't  require further                                                               
analysis.                                                                                                                       
                                                                                                                                
SENATOR  FRENCH asked  what sorts  of projects  wouldn't need  an                                                               
EIS.                                                                                                                            
                                                                                                                                
MR. MacKINNON  replied that it  would be a repavement  project or                                                               
small  reconstruction of  a roadway.   Each  year the  department                                                               
does  about  150  categorical  exclusions,  does  fewer  than  10                                                               
environmental assessments and, on  average, starts or completes 2                                                               
environmental  impact  statements.     In  further  response,  he                                                               
offered  a  correction, saying  that  in  the overall  scheme  of                                                               
things, [DOTPF] performs all the work for  an EIS or an EA; it is                                                               
done   either   by   the  department   or,   primarily,   through                                                               
consultants,  but with  [FHWA] oversight.    The NEPA  delegation                                                               
would remove  that federal  oversight and  put it  within [DOTPF]                                                               
headquarters, "through a firewall."                                                                                             
                                                                                                                                
MR.  PUTZIER, in  further response  to Senator  French, explained                                                               
that 23 U.S.C. 327 is the NEPA pilot program.                                                                                   
                                                                                                                                
1:54:28 PM                                                                                                                    
                                                                                                                                
SENATOR FRENCH  referred to the  fiscal notes from DOTPF  and the                                                               
Department  of  Environmental  Conservation   (DEC).    He  asked                                                               
whether DOL is  concerned about expenses that may  be incurred as                                                               
it defends against these injunctions and so forth.                                                                              
                                                                                                                                
MR. PUTZIER  pointed out that  the analysis in the  DOTPF [fiscal                                                               
note]  indicates  DOL  anticipates   adding  one  position.    He                                                               
surmised  it  would  be  an  attorney  skilled  in  the  area  of                                                               
environmental litigation, and  NEPA in particular.   He said this                                                               
is a specialty  field for which the  department doesn't currently                                                               
do defense  work; rather, the  [FHWA] attorneys in  San Francisco                                                               
usually undertake that defense.                                                                                                 
                                                                                                                                
SENATOR FRENCH asked  whether lawsuits would be  filed in federal                                                               
court.   Suggesting  such lawsuits  would be  brought by  public-                                                               
interest litigants, he  cited the Knik Arm Bridge  as an example.                                                               
He asked  whether this might  stir up  a hornet's nest  in taking                                                               
over the responsibility for defending such suits.                                                                               
                                                                                                                                
MR. PUTZIER  answered that he  believes the threat  of litigation                                                               
would exist  either way.   It  just would be  a different  set of                                                               
attorneys defending  it.  He  said he doesn't  foresee additional                                                               
time constraints  or negative  repercussions to  the state.   The                                                               
defense would be  done in-house, so to speak, within  Alaska.  He                                                               
emphasized that the best estimate,  after talking to FHWA counsel                                                               
in San Francisco, is that one attorney likely would suffice.                                                                    
                                                                                                                                
MR.  MacKINNON added  that he  doesn't  believe Knik  Arm or  any                                                               
other  ongoing environmental  document would  be shifted  over to                                                               
the department.   This  is for  new environmental  documents, for                                                               
new projects, once  the pilot program is in place  and the MOU is                                                               
executed.                                                                                                                       
                                                                                                                                
He offered  his belief that  in the last  20 years, the  state or                                                               
federal government has been sued  on two environmental documents:                                                               
the Iliamna-Nondalton bridge,  an EA for which  the department is                                                               
now refreshing the EA to make  it comply, as well as the Whittier                                                               
Tunnel.  "We prevailed on both of those," he added.                                                                             
                                                                                                                                
MR. PUTZIER  added that  the program has  flexibility.   It isn't                                                               
all  or nothing.   Although  the  final rule  making hasn't  been                                                               
completed  by FHWA,  his understanding  is based  on reading  the                                                               
statutes and  informal discussions  with FHWA.   If a  project is                                                               
foreseen to be  problematic beyond the state's ability  to do it,                                                               
possibly the  state could  give particular  projects to  FHWA for                                                               
its oversight.                                                                                                                  
                                                                                                                                
MR. MacKINNON remarked  that the language says,  in essence, that                                                               
the department  may assume responsibility  for any or  all, which                                                               
[DOTPF] is interpreting as the ability to pick and choose.                                                                      
                                                                                                                                
SENATOR FRENCH  said it  seems, if the  duties are  assumed, that                                                               
immunity must  be surrendered.  Thus  it really isn't a  "may" in                                                               
that regard.                                                                                                                    
                                                                                                                                
MR.  PUTZIER  agreed  that  FHWA   wouldn't  proceed  unless  the                                                               
attorney  general   provided  some  kind  of   formal  waiver  of                                                               
immunity.   He pointed out that  it could be "NEPA-wide"  or on a                                                               
project-by-project  basis.     He  said   it's  still   open  for                                                               
discussion with FHWA.                                                                                                           
                                                                                                                                
SENATOR FRENCH cautioned about surrender  of immunity.  He noted,                                                               
however, that it seems the  testifiers envision passing sometimes                                                               
on  assuming those  responsibilities  and surrendering  immunity,                                                               
and only would accept projects when there is a comfort level.                                                                   
                                                                                                                                
MR.  PUTZIER replied,  "That's correct.   We  have thought  about                                                               
that, and that's on the table right now."                                                                                       
                                                                                                                                
CHAIR HUGGINS asked  whether there would be a series  of MOUs, by                                                               
project.                                                                                                                        
                                                                                                                                
MR.  PUTZIER  answered  that  the  structure  likely  could  take                                                               
several forms.   There could be a master agreement  that sets out                                                               
general  duties,  and  then agreements  on  a  project-by-project                                                               
basis.    Because  FHWA's  final  rule  making  isn't  completed,                                                               
however, it isn't  clear exactly how the program will  run.  Thus                                                               
[SB 271] simply provides authority  to continue those discussions                                                               
with FHWA.  It doesn't adopt anything.                                                                                          
                                                                                                                                
CHAIR HUGGINS observed that the  language talks about 270 days to                                                               
have the regulations.                                                                                                           
                                                                                                                                
MR.  MacKINNON noted  that the  clock started  August 10  [2005],                                                               
when the [federal] bill was signed into law.                                                                                    
                                                                                                                                
CHAIR HUGGINS mentioned  positions for $650,000.   He offered his                                                               
experience  that, whatever  number  of positions  is called  for,                                                               
there usually  is "creep  over" because the  task is  larger than                                                               
envisioned.  He asked whether that's a genuine concern.                                                                         
                                                                                                                                
MR.  MacKINNON agreed  it's a  genuine concern.   He  pointed out                                                               
that these  are CIP [capital improvement  project] receipts; this                                                               
provides  a bit  of comfort,  since  the project  pays for  these                                                               
positions -  it's not general fund  money.  He opined  that if it                                                               
improves the  performance and  speeds up  the process  of getting                                                               
these projects out, it's a worthwhile investment.                                                                               
                                                                                                                                
CHAIR  HUGGINS  asked  about  recruitment   of  people  who  have                                                               
critical skills, and competition in that area.                                                                                  
                                                                                                                                
MR. MacKINNON agreed a valid concern  is that people will be lost                                                               
to other  agencies -  not just  environmental analysts,  but also                                                               
engineers and  right-of-way agents.   What the department  can do                                                               
is  offer good  wages, benefits  and a  great place  to work,  he                                                               
suggested.                                                                                                                      
                                                                                                                                
CHAIR HUGGINS asked whether this  is well-intended legislation by                                                               
[Congressman]  Young that  will  help Alaska,  or  was pushed  by                                                               
FHWA, perhaps at the state's expense.                                                                                           
                                                                                                                                
MR.  MacKINNON  suggested  FHWA personnel,  if  pressured  for  a                                                               
reply, would say they don't like  this.  He added that it's well-                                                               
intentioned legislation  by Congressman  Young and  other members                                                               
of the [U.S. House] Transportation Committee.                                                                                   
                                                                                                                                
2:04:45 PM                                                                                                                    
                                                                                                                                
BILL  BALLARD, Statewide  Environmental Coordinator,  Division of                                                               
Design  and Engineering  Services,  Department of  Transportation                                                               
and  Public   Facilities,  informed   members  that  he   is  the                                                               
department's  lead representative  for  this pilot  program.   In                                                               
response to Chair Huggins, he  said the biggest advantage is that                                                               
it  gives  control for  project  oversight  and approval  to  the                                                               
department so  it can  set the priorities  and have  a consistent                                                               
set  of  rules,  thereby  being able  to  expedite  the  project-                                                               
approval process.                                                                                                               
                                                                                                                                
He further responded that the  litigation side doesn't give him a                                                               
lot  of concern.   He's  the senior  person in  the environmental                                                               
staff and has been doing this for  25 years.  In that time, there                                                               
have been only  two or three court cases.   He explained, "We are                                                               
threatened an awful lot but, by  and large, our staff does a very                                                               
good job.   And we haven't  ... been challenged except  for those                                                               
few times, and we've prevailed."                                                                                                
                                                                                                                                
CHAIR  HUGGINS   mentioned  litigation  involving   the  Whittier                                                               
Tunnel.  He asked about  the timeframe and approximate dollars at                                                               
stake.                                                                                                                          
                                                                                                                                
MR.  BALLARD  said he  didn't  know;  he'd  been working  in  the                                                               
private sector for  a short time then.  He  added that he thought                                                               
it cost  about three years  for the project.   That case  went to                                                               
the 9th  Circuit [Court of  Appeals], where the  state prevailed.                                                               
He  recalled that  the  issue  was whether  Section  4(f) of  the                                                               
federal Department of Transportation  Act applied to the project.                                                               
That is  one of  the most  extreme environmental  regulations, he                                                               
asserted.   Section  4(f) applies  to parks,  recreational areas,                                                               
wildlife refuges  and historic  sites; it  says the  Secretary of                                                               
Transportation  will not  approve  a project  that affects  those                                                               
resources unless there is no prudent or feasible alternative.                                                                   
                                                                                                                                
SENATOR FRENCH  referred to Mr.  Ballard's statement  that "we've                                                               
prevailed"  and  asked  whether  it  was  the  state  or  federal                                                               
government that was sued.                                                                                                       
                                                                                                                                
MR. BALLARD clarified that it  was the federal government, and it                                                               
was the  project that prevailed.   Under FHWA  regulations, state                                                               
transportation agencies  are authorized to  prepare environmental                                                               
documents on  behalf of FHWA,  with FHWA oversight  and approval.                                                               
Thus the  state prepared that  document, and [FHWA]  approved it.                                                               
He added,  "They're the  action agency,  so ...  they represented                                                               
that project in federal court."                                                                                                 
                                                                                                                                
2:09:51 PM                                                                                                                    
                                                                                                                                
SENATOR FRENCH  remarked that  it sounds  like a  good situation:                                                               
Alaska's state  workers get  to make  decisions, but  the federal                                                               
government  defends  those  in  court and  spends  its  money  on                                                               
federal attorneys backing up the state.   He asked how much money                                                               
the federal government  spent defending that suit -  the kinds of                                                               
legal expenses that the state will  be putting itself on the hook                                                               
for if SB 271 is implemented.                                                                                                   
                                                                                                                                
MR. MacKINNON agreed to get that information for Senator French.                                                                
                                                                                                                                
CHAIR HUGGINS  commented that  Senator French  brought up  a good                                                               
point.   He  said  he  trusts that  [Congressman]  Don Young  was                                                               
trying to  do the right  thing for Alaska, but  expressed concern                                                               
about  getting  caught  in  an unintended  trap.    He  requested                                                               
further information about the benefits.                                                                                         
                                                                                                                                
MR. MacKINNON replied that having  it overseen by Alaskans allows                                                               
the state  to tailor the documents  to Alaska.  He  said he, too,                                                               
is concerned about  additional cost to the state,  and added that                                                               
he  suspects  the defense  of  a  lawsuit over  an  environmental                                                               
document  would be  paid for  out  of federal  project funds,  as                                                               
happens currently.                                                                                                              
                                                                                                                                
CHAIR HUGGINS  asked whether basically  the same types  of people                                                               
would be doing the project, but the state would have control.                                                                   
                                                                                                                                
MR. MacKINNON  affirmed that.  He  reported that one of  the many                                                               
steps in  an environmental document,  especially an EIS,  is that                                                               
it  goes  through  regular  reviews  for  what  is  called  legal                                                               
sufficiency  -  whether the  document  and  procedure being  used                                                               
comply with NEPA  and are legally sufficient.   "We regularly get                                                               
those reviews from [FHWA], and then  the project - the document -                                                               
goes out for public review towards the end," he added.                                                                          
                                                                                                                                
2:13:38 PM                                                                                                                    
                                                                                                                                
CHAIR HUGGINS suggested the need  to develop a comfort level with                                                               
this new concept and then revisit the issue.                                                                                    
                                                                                                                                
MR.  PUTZIER offered  a  final  point:   Assuming  the state  was                                                               
defending a lawsuit brought in  federal court, the state would be                                                               
subject  to  the  Equal  Access  to  Justice  Act  (EAJA).    The                                                               
plaintiffs  would have  to prevail,  first of  all, and  then the                                                               
court would have to make a  finding that the state's position was                                                               
not  "substantially  justified."   Thus  no  automatic  liability                                                               
would accrue to the state.   The plaintiffs suing the state would                                                               
have to jump some hurdles before  the state would have to pay for                                                               
their attorney fees.                                                                                                            
                                                                                                                                
CHAIR HUGGINS  asked Mr.  Putzier to rate  his degree  of concern                                                               
about liability, on a scale of 1 to 10.                                                                                         
                                                                                                                                
2:15:09 PM                                                                                                                    
                                                                                                                                
MR. PUTZIER  replied that it's  only about  3 because it  isn't a                                                               
big unknown.   "Primarily, it's  talking about  'procedurally, go                                                               
back  and do  something over  again,'" he  added.   Agreeing that                                                               
potential  liability must  be weighed  against  the benefits,  he                                                               
opined  that the  benefits discussed  by  Mr. MacKinnon  probably                                                               
outweigh the relative risk of an attorney-fee award.                                                                            
                                                                                                                                
MR.  MacKINNON  added  that the  lawsuits  cannot  be  prevented.                                                               
However,  the  state  can  do  its  best  job  in  preparing  the                                                               
environmental  documents so  they're as  defensible as  possible,                                                               
and then go through the process.                                                                                                
                                                                                                                                
CHAIR HUGGINS  asked whether  anyone else  wished to  discuss the                                                               
liability  issue and  then concluded  the hearing.   [SB  271 was                                                               
held over.]                                                                                                                     

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