A Citizen’s Guide

JUNEAU–A piece of legislation proposed Friday by Sen. President Ben Stevens and relating to the natural gas pipeline contract could have a significantly different effect than Stevens’ stated intent, according to a lawyer with the Legislative Affairs Agency.

On Friday, Stevens, R-Anchorage, described his proposal as a way to allow the public to vote on the proposed pipeline contract in place of the Legislature, which he sees as moving too slow.

According to the legislative lawyer, Dennis Bailey, Stevens’ proposal seems to grant immediate legislative approval of the contract.

The proposal would amend the Alaska Stranded Gas Development Act, the law used to negotiate the contract with BP, ConocoPhillips, and Exxon Mobil. According to Bailey, Stevens’ amendment would exempt the contract from the requirements of that law, could allow the administration to circumvent the public comment process, and could block legal challenges relating to the contract. The public vote sought in the proposal could also be unconstitutional, he wrote.

Stevens acknowledged Tuesday that his proposal as written did something different from what he told lawmakers it would do. He said the discrepancies resulted from trying to fit the proposal into an amendment that had recently been changed.

Stevens said he had spoken to the Legislative Affairs Agency and to people with concerns about the amendment and was working to fix it.

“It does what they’re accusing me of doing,” he said, “and I didn’t mean to do it.”

The Senate Special Committee on Natural Gas Development, which is reviewing amendments to the stranded gas act, is scheduled to consider the proposal today.

The legal opinion was requested Monday by Democratic Sens. Donny Olson of Nome and Hollis French of Anchorage. The two senators expressed concerns Wednesday about the legality of the amendment and the effect it would have on the role of the Legislature.

Both also said they objected to the concept of having the public vote on the contract.

French and Olson asked the lawyer whether the amendment would approve the contract without a public vote.

A section of the amendment that could take effect immediately and is not contingent on a public vote says the provisions of the proposed contract “are approved and ratified.” Bailey wrote that in his judgment, passing that section would in fact “confer ‘legislative approval’ of the contract.”

Stevens on Friday said the provisions of the contract were not the same as the contract itself. He repeated the argument Tuesday. “It’s the provisions. It’s not the contract,” he said.

In a separate legal opinion on the issue, Bailey disputed Stevens’ claim.

“Although debatable,” he wrote, “in my view, this is a distinction without a difference.”

Another section of the bill that could also go into effect immediately would allow the administration to bypass the requirements of the law used to negotiate the contract, Bailey wrote in his opinion for French and Olson.

“Any requirement to comply with the Stranded Gas Development Act would be overcome,” he wrote.

French and Olson both said they considered their involvement in amending the stranded gas act the most important if not the only method they had for influencing the proposed contract. The chance that the contract would not be required to comply with the act would eliminate that opportunity and is of “huge” concern, French said.

Sen. Gene Therriault, R-North Pole, who voiced concern about the amendment when it was introduced, expressed a similar concern Wednesday about the two sections. Therriault is a central figure in the legislative discussions about oil and gas issues.

“It strikes me that it just allows the administration to make sweeping changes,” he said.

Because the contract would not need to meet the law, the administration would not be required to complete the processes outlined by the law, according to Bailey. The administration would no longer be required to summarize comments on the contract, list proposed changes, and make final findings. “The Legislature would effectively be agreeing to a contract that is not in final form,” he wrote.

Jim Clark, the governor’s chief of staff and chief gas line negotiator, said Tuesday that he had not closely studied the amendment but agreed that the proposal relaxed requirements for the administration.

“I suppose you could say that we wouldn’t have to do anything,” he said, “but that’s not our plan.”

Clark said the administration would prefer to follow the process outlined by the stranded gas act and seek approval from the Legislature rather than the public. But he said the administration was “not opposed to (the proposal) in any way” and that he understood the frustration that led Stevens to introduce it.

“I feel a lot of the same frustration … and I can understand the desire to go around the Legislature and over their heads to the public,” he said.

Clark said he saw the amendment for the first time when Stevens introduced it.

“Maybe they talked to somebody here, I don’t know,” he said. “I didn’t have any role. The governor didn’t have any role.” Stevens said the administration was not involved. He said he had written part of the amendment himself and had received help from outside counsel.

“I just didn’t want anybody to know about it,” he said. “The confusion in the amendment is a result of that.”

Therriault said it was unusual for a piece of legislation as significant as Stevens’ amendment to not go through the Legislative Affairs Agency, which helps lawmakers draft bills. Complicated legislation will often appear with a memorandum on how the bill works and on any potential pitfalls, he said.

Stevens said the confusion stems from a mix-up of effective dates. The two sections that seem to approve the current contract were only supposed to go into effect after the public voted in favor of the contract, he said. The section that would place the vote on the November ballot was the only one that he intended to make effective immediately.

“This is a simple but complex amendment,” Stevens said when he introduced it Friday.

Bailey, the attorney, cited other problems. He said the Legislature’s passing the vote to the public could be ruled unconstitutional, especially if that vote were binding. Stevens, however, said he has researched the matter and that be believes the public vote is allowable.

The language in the amendment could also block legal challenges relating to the contract, according to Bailey.

Stevens’ proposal comes toward the end of the summer’s second special session and highlights the debate over the Legislature’s progress or lack thereof.

Stefan Milkowski can be reached at smilkowski@newsminer.com or 459-7577.