The House Committee on Energy and Commerce Democrats

Text only of letters sent from the Committee on Energy and Commerce Democrats

March 10, 2003

The Honorable Spencer Abraham
Secretary
Department of Energy
Forrestal Building
1000 Independence Avenue, S.W.
Washington, D.C. 20585

Dear Secretary Abraham:

As you know, the Committee on Energy and Commerce held a hearing on March 5, 2003, on energy policy and draft legislation that was circulated on February 28, 2003, by Chairman Barton of the Subcommittee on Energy and Air Quality. Deputy Secretary Kyle McSlarrow testified that the Administration supports comprehensive energy legislation, including an electricity title. Perhaps due to the short interval between the time the draft was circulated and the hearing, a number of questions arose which were not fully answered in Mr. McSlarrow’s testimony.

Since the Subcommittee may soon mark up energy legislation, and in light of the Administration’s support for prompt action, I would appreciate your response to the attached questions by Friday March 14, 2003.

Sincerely,

JOHN D. DINGELL
RANKING MEMBER

Attachment

QUESTIONS ON ENERGY LEGISLATION

1. Section 3001 of Chairman Barton’s draft, entitled "Alternative Fishways and Conditions," would amend the Federal Power Act to permit applicants for hydroelectric licenses to propose "alternative conditions" to those required by the resource agencies for the protection of river systems. It appears that the provision would require the Secretary of the Interior to accept the applicant’s proposal unless he or she could demonstrate, subject to judicial review, that the proposal is does not provide for adequate protection of the reservation.

(a) Does the Administration support this provision and exact language, and why or why not? To what extent are any Administration concerns about the hydropower licensing process addressed by the proposed rule issued by the Federal Energy Regulatory Commission (FERC) on February 20, 2003, entitled "Hydroelectric Licensing under the Federal Power Act"?

b) What effect, both procedurally and substantively, would Section 3001 of the Barton draft have on current law, the responsibilities of the resource agencies and those of the Secretary of the Interior? Are you aware of any other statute designed to protect health or the environment or wildlife under which (a) the head of an agency must carry the burden of proof in order to prove a license application does not meet the statutory standard for approval and (b) a license applicant is the sole party that can propose an alternative to a Federal agency’s determinations regarding an application?

2. Section 7012 of Rep. Barton’s draft would establish a new subsection 216(j) of the Federal Power Act entitled "Rights of way on Federal lands," which would permit states, in certain circumstances, to "exercise the authorities vested in the Secretary" under the Federal Land Policy and Management Act of 1976 (FLPMA).

Does the Administration support this provision, and why or why not? Which public lands would be affected? How are applications for rights of way for electric transmission lines handled under FLPMA currently? How would this provision alter the current process? Under this provision, how would disputes between various states regarding management of Federal lands that include land in more one state be resolved?

3. Section 7022 of the draft, titled "Regional Transmission Organizations," includes a subsection (d)(3) concerning "Federal Utility Participation in RTO’s" denoted "Existing Authorities and Obligations." This section provides that "Where a contract, agreement, or other arrangement...conflicts with any statutory authority, duty, or obligation, under any authority of law, of a Federal utility, such authority shall be suspended for the duration of the contract, agreement, or other arrangement...".

Does the Administration support this provision, and why or why not? What other Federal laws would be affected, and how? In particular, how would obligations of the Bonneville Power Administration and the Tennessee Valley Authority be affected? What would be the legal impact of this provision on existing contract rights between Federal authorities and private parties, and could this provision give rise to claims against the Federal Government for breach of contract?

Prepared by the Committee on Energy and Commerce
2125 Rayburn House Office Building, Washington, DC 20515