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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. are quite concerned that through relving 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")
we are concerned about possible preemption and pending litigation regarding Alaska's comprehensive state regulatory
system over intrastate pipelines
a far more rigorous
system than that utilized by the ICC or contemplated under
(Ch. 139 Session Laws of Alaska 1972).
a comprehensive national regulatory system is to be estab
lished, 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
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
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 compre
hensive 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.
Both bills call for the promulgation of regulations on a wide variety of subjects (s. 1081, SS 4, 5 (c) and (d);
s. 1041, Title IV, SS 404 (c) and (g)). In some cases,
such regulations would merely be repetitive of legal
requirements imposed by the act itself or by other existing
witnesses have generally agreed, most projects present
Providing for specific environmental
controls and other terms by regulation deprives the Sec
retary of the freedom to tailor all of the permissible
terms and conditions, both economic and environmental, to
the problems presented by individual projects. that both the guidelines promulgated by the Council on Environmental Quality to implement the National Environmental Policy Act and the Interior Department Manual recognize
that the promulgation of regulations may in certain cases
be considered a "major federal action significantly
affecting the human environment" thus requiring an Environ-
of an early start on TAPS.
§ 5(g) of s. 1081 and S 404 (g) of Title IV of
s. 1041 set forth the terms upon which holders of rights-of-way
will be liable for damages arising out of activities con
ducted on the premises. In the event that the Congress determines that it will not leave these matters to the discretion of the Secretary (and we believe the record is clear that the Secretary is adequately performing the task through the imposition of environmental stipulations), the State favors the Jackson bill's provision over its counter
S 5(g) offers third parties the same protection
which the federal government enjoys.
Similarly, S 6(h)
requires that where necessary a right-of-way must include
a condition protecting the interests of subsistence resources users in its vicinity. (This desirable provision
is also absent from the administration's bill.)
icantly, inclusion of the protective guarantees of s 5 (g)
in any right-of-way is mandatory under the Jackson bill,
whereas s. 1041 contemplates the promulgation of regulations
describing "the extent to which" such requirements will
apply. (Again, the utility of regulations is not readily apparent with respect to a subject like this one. Congress itself is certainly the appropriate authority to make the essential economic judgment about whether liability of this
kind should be imposed.)
Both bills encourage non-exclusivity and multiple
use of rights-of-way over federal land. The State of Alaska
favors these concepts.
s. 1081's requirement of regulations