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JPO’s Jerry Brossia talks about pipeline right-of-way renewal
Kristen Nelson
Jerry Brossia, federal authorized officer at the Joint Pipeline Office, talked to PNA in late May about what he envisions happening as the clock ticks toward a 2004 deadline for renewal of the rights-of-way for the trans-Alaska pipeline system.
The federal right-of-way — with which Brossia is most directly involved — expires in January, the state right-of-way expires in May.
In late 1998, early 1999, Brossia said, the owners of the trans-Alaska pipeline system talked with the state’s Congressional delegation about renewal of the federal grant and lease for the pipeline right-of-way.
The pipeline owners, said Brossia, were told by Congressional staff that renewal should be a fairly routine event. The staff called the Department of the Interior to ask what the department was doing on renewal.
Interior called Brossia and asked him to start thinking about a preliminary plan. The owners later talked with the Congressional delegation, who confirmed what their staff had said — renewal should be routine.
The owners then talked with Sylvia Baca, assistant secretary of Interior for land and minerals, who is, Brossia said, for all practical purposes the secretary of Interior on this issue because the secretary has removed himself from the process because of prior business associations with some of the owner companies.
Baca told the owners a number of things, Brossia said.
“She said, No. 1, you’re going to have to follow some kind of a NEPA process and No. 2 you’re going to have to involve the public, make sure that the public has adequate opportunity to comment on it.
“And No. 3, we would like you to get started on this sooner, rather than later. ...and try to get that application in for renewal within say the next year.”
In mid-April, Brossia went to Washington, D.C., and talked to Baca about how the process would work.
What’s involved? When it authorized the trans-Alaska pipeline, Brossia said, Congress said the federal right-of-way could be renewed for up to 30 years. Federal regulations governing the renewal of a right-of-way, “say that a pipeline right-of-way shall be renewed. And the only way that you can essentially change the terms and conditions of that is if you have good cause. And it also says that they have to be in compliance with the right-of-way document,” he said.
The right-of-way, Brossia said, is a land law contract, a landlord-tenant relationship. If the tenant is in noncompliance the landlord is supposed to notify the tenant. “The tenant has every opportunity to correct the breach or appeal the breach. And fix it.”
The grant of right-of-way also specifies that no third-party rights are created. “In other words,” Brossia said, “this agreement is between the owners and Interior. There are no third-party rights.”
The NEPA process The National Environmental Protection Act process, Brossia said, “usually starts with an environmental assessment and then depending on the outcome in that environmental assessment one of two things can happen. There can be a finding of significant impact. In other words, big things that happened and nobody predicted...
“And that,” he said, “would be a finding of significant impact and a full-blown EIS would be required. On the other hand, there could be a finding of non-significant impact and then you would start down the right-of-way reauthorization process.”
Brossia said that there is a problem with doing a full-blown environmental impact statement for the trans-Alaska pipeline.
“And that’s because the heart and soul of the EIS process is what’s called an analysis of alternatives. And in an analysis of alternatives you have to consider the no-action alternative,” he said.
And the no-action alternative would mean shutting down the pipeline.
In my opinion, Brossia said, emphasizing “this is not the department’s position, it’s my position — I do not believe shutting down the pipeline is a realistic alternative.”
First, he said, Congress authorized the pipeline for national security purposes. More recently, Interior has “made commitments in the NPR-A lease sale that we were going to be putting oil through the trans-Alaska pipeline if oil were discovered. We are working on the Northstar project to bring federal oil through the pipeline... So, in my personal opinion,” Brossia said, “the no-action alternative of shutting down the pipeline is not a realistic alternative.”
The second alternative, to change ownership of the pipeline, “is not a realistic alternative either, because who runs the pipeline is the owners’ decision. It is not the government’s decision to make...
“The third alternative plays the other way,” he said. “And the third alternative is just issue it like it is.” The problem with that option, Brossia said, is that the EIS for the trans-Alaska pipeline was “the very first EIS ever written in the world...” There are new laws that perhaps need to be considered, he said. “We know that there are some incidents that have happened that perhaps need to be evaluated.” There may be gaps, he said, in the original EIS, “so the third alternative of just rubber stamping it and reissuing it is not a realistic alternative because of what’s happened and what we’ve learned.”
What he thinks is realistic, Brossia said, is a fourth alternative:
“And that’s reissue the right-of-way with changes based on cause. And that’s consistent with the BLM administrative manual and it seems to be consistent with what the public has identified in the way of various problems...”
“So, because in my mind there is only one alternative, I don’t see why a full-blown EIS is the way to go.” Rather, Brossia said, he thinks the way to go is an expanded environmental assessment that looks at a variety of things.
NEPA may be moot And, Brossia said, discussions of what type of NEPA process is required may be moot, because Congress can decide to exempt the renewal process from NEPA. In which case, he said, you skip step one and go straight to the federal right-of-way renewal.
But one reason for starting with a NEPA process, Brossia said, “even though there could be a Congressional exemption, is because we all realize from a practical standpoint that the public’s going to want to get involved.”
“We rarely hear from the public at large,” he said. “We always hear from special interest groups.” In particular, Brossia said, the JPO expects that Alaska Natives and the environmental community will have something to say.
But it’s not a wide-open process, “because if we’re going to change something we need to change it for a cause. And we have certain regulatory guidelines and framework around this process,” he said.
“We’ve had rigorous oversight on this project for the last 9 years,” Brossia said. There have been facility hardware and process procedure quality upgrades. “And it’s in reasonably good shape.
“And for somebody to come in now who hasn’t been involved and say everything is wrong or it’s messed up or you need to take a new course — they need to have a lot of factual evidence to support a significant departure from where we are.”
(Editor’s note: To be continued in the July issue of PNA.)
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