March 27, 1973

U. S. SENATE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS

STATEMENT OF JOHN E. HAVELOCK

ATTORNEY GENERAL FOR THE STATE OF ALASKA

ON S. 1041, TITLE IV, AND ON S. 1081.

As Alaska's Governor William A. Egan advised the Committee in his testimony of March 9, the State of Alaska has significantly more at stake in the deliberations on these bills than does any other state. Continuing delays on the Trans-Alaska Pipeline System ("TAPS") are having a crippling impact upon the State's revenue position and upon its ability to plan coherently for the future.

We feel that the Committee's several objectives in preparing amendatory legislation need examination and separate articulation. The first legislative priority at this time is to correct what we view as a misinterpretation of the Secretary's authority under existing law by the United States Court of Appeals for the District of Columbia Circuit which has blocked the construction of critical pipeline facilities and threatens other utility projects which must traverse federal lands. Such an act should also be designed to protect existing pipelines occupying federal rights-of-way whose legal basis may be jeopardized by the recent Circuit Court decision.

There are a number of other laudable objectives

which are evidently under consideration.

It is undoubtedly

true that the accumulated laws of the past century with respect to the authority of the Secretary of Interior and of other departments to grant right-of-way interests

in public land are in need of revision, a painstaking task requiring a careful review of those laws and a myriad of underlying factual situations past and future. We share

the observation that the regulatory regimes regarding the nation's energy transmission systems is in need of reexamination and policy definition. We are also of the view that the nation would be well served by the establishment of a system of energy and right-of-way corridors throughout the nation in the interest of conservation. Each of these greater policy issues engages a variety of interests and concerns that is unique. Each stretches well beyond the need of getting the Trans-Alaskan Pipeline project underway.

We are concerned that the fate of the Trans-Alaskan Pipeline may be caught up in the engagement of differing views and national interests to which it is only tangentially related. On the other hand, we are concerned that if their fortunes are tied together, hastily considered national policies of great long term import will, from the urgency of TAPS, be carried into law. Nor is it appropriate to view

the policies as is usually the case, through the focus

provided by the Trans-Alaskan Pipeline.

As to each of these greater policies, the

State of Alaska has substantial interests which bring

it to view this legislation with concern.

With regard to regulation, we believe it is inappropriate to use the proprietary power of the Secretary of Interior to impose a regulatory regime he has no historic competence to administer. Should Congress wish to provide economic regulation of pipelines, it should do so through exercise of its authority over interstate commerce and consider well the placement of the power. We are quite concerned that through relying on proprietary power alone, the legislation discriminates unwisely and perhaps unjustly between those states which already enjoy a workable array of rights-of-way and those which remain essentially undeveloped, between those states, notably Alaska, which have extensive federal inholdings and those that do not. We are concerned about conflict with Interstate Commerce Commission ("ICC") jurisdiction;

we are concerned about possible preemption and pending litigation regarding Alaska's comprehensive state regulatory system over intrastate pipelines a far more rigorous

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system than that utilized by the ICC or contemplated under

this Act. (Ch. 139 Session Laws of Alaska 1972).

Unless

a comprehensive national regulatory system is to be established, we believe that these are matters which should be left to the states.

If a national corridor system is to be established,

it also should be founded upon the commerce clause power and on a broader foundation than the distribution of

federal land ownership.

With regard to the revision of the many laws affecting rights-of-way and the centralization of authority in the Secretary of Interior, we believe that the law should be disturbed only in relation to the acquisition of rights-of-way by private parties. There is no evidence

that the transfer of interests in land among sovereigns

for public purposes need be subject to the same constraints as should surround the private acquisition of such interests.

We are concerned that the definition section

may preclude and abolish forever the right of federal authority to grant rights-of-way, notably in refuges but also in other categories of land, and puts Alaska at a severe disadvantage in the development of a rudimentary access system. The acreage of classified holdings in this state and its proportion to the size of the state as a whole

is such that a straitjacket on future development in Alaska may be unintentionally imposed through this legislation.

These broader objectives, however laudable,

do not lend themselves to treatment in the technical legislation we believe is needed at this time.

Section 4

of S. 1081 contemplates a study leading to identification and designation of a national system of transportation and utility corridors across federal lands. No one can ignore the fact that coordinated transportation corridor planning on a national or continental scale is needed, but there is a certain anomaly in attempting to accomplish so comprehensive a goal within the extremely narrow compass of an act governing the disposition of certain interests in certain categories of public land. Indeed, transportation problems have shown little regard for patterns of land ownership; the most urgent planning problems exist in areas having the greatest concentration of private ownership. Creation of a study commission with particular orientations toward energy policy and the dynamics of international transportation, coupled with specific incentive devices such as those found in the "National Land Use Policy Act of 1972" (S. 632), would produce far more effective reforms than could come from corridor planning in the restrictive context of public lands legislation.

REGULATIONS

Both bills call for the promulgation of regulations

on a wide variety of subjects (S. 1081, SS 4, 5(c) and (d);