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Durand, J. Donald, general counsel, Association of Oil Pipe Lines--

Analysis of S. 1081 and accompanying summary-
Finkelstein, David, Scottsdale, Ariz.
Hall, John F., vice president, forestry affairs, National Forest Products

Association
Hammond, Harold F., Transportation Association of America.-
Harris, Mary Hazell, executive director and editor, Defenders of Wildlife_
Hart, Faye L., Bristol, Conn.--
Hopkins, John P., Seattle, Wash..
Jimison, John W., analyst in environmental policy, Environmental Policy

Division, Congressional Research Service, Library of Congress---
Kenna, E. Douglas, president, National Association of Manufacturers--

A National Energy Policy-
McCargo, David Jr., acting chairman, COSC Wilderness Workshop---
McDonald, G. Corry, New Mexico Wilderness Study Committee.-
Mager, Russell, chairman, Citizens Environmental Council...
Mondale, Hon. Walter F., a U.S. Senator from the State of Minnesota---
Pickart, Stanley J., president, Patuxent Valley Environmental Associa-

tion
Pickelner, Joel M., on behalf of the National Wildlife Federation -
Rogers, Walter E., president, Independent Natural Gas Association of

America
Roosevelt, Ann, legislative director, Friends of the Earth.-
Rosan, Richard A., Columbia Gas System Service Corp----
Seder, Arthur R., Jr., president, American Natural Gas Service Co------
Stevens, Hon. Ted, a U.S. Senator from the State of Alaska, letter to the
Interior Committee -

S. 970, from the Congressional Record, February 21, 1973..
University of Wisconsin, Madison, Wis...

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RIGHTS-OF-WAY ACROSS FEDERAL LANDS

TUESDAY, MARCH 27, 1973

U.S. SENATE,
SENATE INTERIOR AND INSULAR AFFAIRS COMMITTEE,

Washington, D.C. The committee met, pursuant to notice, at 10 a.m., room 3110, Dirksen Building, Senator Henry M. Jackson, presiding.

Present: Senators Jackson (presiding), Bartlett, and Haskell.

Also present: Jerry T. Verkler, staff director; William J. Van Ness, chief counsel; and Steven Quarles, special counsel.

Chairman JACKSON. The committee will come to order.

OPENING STATEMENT OF THE CHAIRMAN This is the second day of hearings on legislation relating to rightsof-way across public lands. We are concerned today with four bills, S. 1081, S. 1056, title IV of S. 1041, and section 122 of S. 1040, each of which would, among other things, relax the existing width limits on rights-of-way for oil and gas pipelines.

[The bills referred to are on p. 4 of the March 9 hearing.) The CHAIRMAN. The immediate spur to this legislation is the decision of the Court of Appeals for the District of Columbia Circuit that the proposed trans-Alaska pipeline may not be built because the Mineral Leasing Act restricts such rights-of-way to 25 feet on either side of the pipeline. We are now considering legislation relating to all kinds of rights-of-way because the court's reasoning in the Alaska pipeline case may well apply to powerlines, roads, irrigation canals, and other transport and utility facilities.

I wish to emphasize again that the main topic of this hearing is not the merits or proposed route of the trans-Alaska pipeline. These are important issues of public policy, and this committee does intend to examine them after we know whether the Supreme Court will hear an appeal from the decision of the circuit court.

The committee's first hearing on right-of-way legislation was held Friday, March 9, 1973. It became clear at that time that we are dealing with more than a simple technicality concerning right-of-way widths. The procedures and standards for granting rights-of-way for pipelines alone interacts in significant ways with other issues now under consideration by this committee, including national land-use policy, the siting of energy facilities, and a host of other questions affecting energy and the environment.

For example, Section 28 of the Mineral Leasing Act, which we have proposed to amend with respect to the width limitation, also requires oil pipelines crossing the public lands to operate as common carriers. In recent weeks, members and staff of this committee have heard from independent oil producers and refiners, and antitrust lawyers that oil pipelines usually are not indeed common carriers, and that monopolistic pipeline control is an important contributor to the current inability of independent refiners and marketers to serve their customers.

There are also authorities who hold that the Alaska pipeline application is legally vulnerable on common carrier and antitrust grounds, and that this project's problems in conforming to the Mineral Leasing Act and the National Environmental Policy Act might be resolved only to see a prolonged legal tangle over its common carrier status or its conformity to the anti-merger provisions of the Clayton Act.

For decades there have been complaints that oil pipelines are in violation of the common carrier section of the Mineral Leasing Act, or of the Hepburn Act, the Elkins Act or the Clayton Act. There has never been a clear resolution of these complaints in the courts or before the Interstate Commerce Commission, and it is not likely or even desirable that they be completely resolved now in a right-of-way bill. Furthermore, the oil companies and the Interior Department seem to be confident that the ICT's regulatory authority over pipelines, together with a 1941 antitrust consent decree make these questions moot. We were, however, assured by the same authorities that the right-ofway width limit in the Mineral Leasing Act was not a serious obstacle to authorization of the trans-Alaska pipeline, and I believe that the committee should at least pay some attention to the common carrier problem.

Oil pipelines are unique among interstate utilities in that no agency or regulatory commission explicitly has the authority to grant a certificate of public necessity or convenience. Unlike the case of railroads, motor carriers, airlines or even gas pipelines, there is no Federal entity charged with examining an oil pipeline's organization, financing, scale, location, or economic impacts to determine whether the application is in the public interest. In the absence of any legitimate public forum for considering all the questions of public interest in an oil pipeline application, requirements of the National Environmental Policy Act are being used in part as a clumsy substitute for the certification proceedings required for other public utility projects. An important question that the committee must now face is just who is to determine what pipelines are built, where and how.

Most of today's witnesses are not prepared to address the public utility aspects of pipeline right-of-way legislation, which have only recently been brought to the committee's attention. I do plan, however, to address detailed questions on these issues to the Interior Department, the Interstate Commerce Commission, the Federal Trade Commision, and the Justice Department. These inquiries and answers to them will be incorporated into the record of this hearing. Also, with unanimous consent, I would like to include in the record for background the “Comparison of Federal Regulation of Liquid and Gas Pipelines" prepared for the committee by the Congressional Research Service, and some relevant excerpts from a report of the House Subcommittee on Special Small Business Problems, "Anticompetitive Impact of Oil Company Ownership of Petroleum Products Pipelines.” This latter report pro

vides a valuable summary of the legislative and legal history of pipeline regulation.

There are a number of other latent issues of public policy raised by the procedures and policies for granting rights-of-way across public lands. Almost any issue of energy policy, environmental policy, or business policy can be argued to be related in some way to right-ofway policy. This committee cannot, however, resolve all of these problems in the context of the present legislation. We do need to act promptly because of the court's decision on the Alaska pipeline has cast a legal cloud over many existing rights-of-way, and seems to erect a barrier to construction of new piplines and other essential public facilities across public lands. We will have to find a balance here that permits rapid action to solve a real and pressing problem, without the undue haste that will create or perpetuate more serious problems for the future.

STATEMENT OF BROCK EVANS, WASHINGTON REPRESENTATIVE,

SIERRA CLUB

The first witness is Mr. Brock Evans, Washington representative of the Sierra Club.

Mr. Evans, we are delighted to welcome you to the committee, especially in view of the fact that you come from Seattle, Wash.

Mr. Evans. It is a very nice place to be from, Mr. Chairman, thank you.

The CHAIRMAN. A very nice place to be. Mr. Evans. Yes, sir, I miss it. I wonder if I might at the beginning of my statement introduce for the record the statement of Mr. Bruce Driver of the Environmental Policy Center.

He was on the witness list and was unable to be here and I would like to offer his statement for the record. In essence, he feels that there are serious problems with the discretionary aspects of the legislation.

The CHAIRMAN. Without objection it will be included in the record. Mr. Evans. Thank you. [The statement referred to follows:]

STATEMENT OF BRUCE DRIVER, WASHINGTON REPRESENTATIVE, ENVIRONMENTAL

POLICY CENTER

I am Bruce Driver, a Washington representative of the Environmental Policy Center, a research and information group with offices in Washington, D.C. I speak today also for the Northern Plains Resources Council, an environmental group with over 1000 active members in Northern Plains states. I wish to restrict my remarks to S. 1081 and Title IV of the Administration's BLM Organic Act.

Although we have not had time to analyze this legislation's potential effects on the public lands, we can make the following observations:

1. We are concerned that the Secretary of the Interior would have too much discretion in setting width and other limitations to rights-of-way. For example, Title IV and S. 1081 attach no width limitations to any of the rights-of-way for which the Secretary may issue a permit, lease or license. Current right-of-way law does attach width limitations, for example, to railway rights-of-way which may be only 200 feet wide (43 U.S.C. 934), canals and other irrigation-related waterways which may be 100 feet in width (43 U.S.C. 946) and electric transmission lines which may be 400 feet wide (43 U.S.C. 961). The legislative history of these statutes does not yield definitive explanations for these limitations in all cases. For some of the statutes enacted before 1900 records of committee proceedings are not available. Perhaps an overriding concern behind width restrictions has been to limit the amount of land a private entity could carve out of the public domain, regardless of whether or not "fair market value” has been obtained by the Government for the right-of-way. Another good reason for limitations now may be to restrict environmental damage.

The existing limitations may in some sense appear arbitrary. But it does not follow that the concept of statutory width limitations is arbitrary and must be jettisoned along with the existing limitations, if indeed the existing limitations should be altered. We think that a better solution may be to study existing limitations in view of modern needs and to impose new limitations if necessary. Do we know whether or not railways now need more than 200 feet in right-of-way? What are the needs of modern electrical transmission systems for right-of-way space? These and other questions should be answered before dismantling the system of statutory width restrictions. It has been remarked that the Alska Pipeline decision has "cast a cloud" on all rights-of-way. We assert that Title IV and S. 1081 may cast a greater cloud of uncertainty on future rights-of-way because of the discretion allowed the Secretary. But the burden of uncertainty will likely shift from those asking for the right-of-way to those interested in preserving the non-renewable resources of the public lands. In light of the increasing demand for fossil fuel and water resources of the public lands, we question whether this is sound environmental policy. In short, we believe that the idea of allowing the Secretary wide-ranging discretion bears further examination by more interests over a longer period of time than has been available.

2. Title IV and S. 1081 contain no explicit vehicle for public participation in right-of-way decisions. There is no language regarding the way in which these decisions should be made in the context of the land use planning strictures of a BLM Organic Act. Furthermore, it appears that these bills would allow decisions to be made regarding common carriers in a framework lacking the informational inputs characterizing decisions made with respect to common carriers after state regulatory proceedings.

3. We approve of the requirement to utilize common corridors when possible. However, unless the system of corridors is in some way tied to resource development at the initial planning stage, we are not very hopeful that common corridors will be the rule rather than the exception. Decisions regarding resource development have been made in a helter skelter fashion to date; for example, federal coal leases have been issued in the Northern Plains without much thought given to marketing the energy from the coal resource. The result of this will be to make the design of common corridors very difficult at the time of development of these leased reserves.

4. There are some issues which are not clearly resolved in either Title IV or S. 1081's wording. Does the proposed right-of-way legislation extend to lands the surface estate of which is in private ownership, but in which the federal government has reserved a mineral interest? What is the effect of the legislation on federal regulatory commission jurisdiction, particularly the Interstate Commerce Commission? For example, could a width limitation included in an I.C.C. permit to a railroad to build an interstate rail-line be superseded by a right-of-way permit issued by the Secretary?

Mr. Evans. We appreciate the opportunity to be here before you today because we feel this legislation goes far beyond its immediate and stated purpose, which is to either make some technical changes in the Mineral Leasing Act of 1920, or to completely reform present procedures for the granting of rights of way across Federal lands for all types of uses.

We would like to outline our concerns in somewhat more detail for you here. Because the subject is so complex and because the notice of this hearing has been so short, we feel it is imperative that further and more extensive hearings be scheduled and we reserve the right to submit further testimony at a later date.

a Mr. Chairman, in the Congressional Record of March 6, 1973, you stated that the hearings today will only deal with the substantive

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