Measure likely to spawn more red tape, litigation, and uncertainty
There is a lot at stake for all Alaskans in the outcome of Ballot Measure 2 (BM2), which will appear on the August 28 primary election ballot. Just ask Kurt Fredriksson, who spent 20 years of his adult life implementing Alaska’s coastal management program. Few have more experience in coastal management laws, and he is urging Alaskans to vote no on BM2.
If approved by Alaskan voters, the initiative would establish a coastal zone management program that would develop local standards for reviewing projects in and beyond coastal areas of Alaska. Fredriksson warned, “the requirements in Ballot Measure 2 are a major step backwards in how Alaska manages its coastal resources, will hurt economic activity, and will do little to increase Alaska’s influence over federal resource decisions.” He said the measure is deceptive and reopens many questions and issues that the previous coastal management laws had resolved.
Fredriksson worked in the Governor’s Office of Coastal Management to coordinate the state’s permit decisions on a number of projects. He also served as the Alaska Department of Environmental Conservation’s (ADEC) representative on the Coastal Policy Council.
“I have read Ballot Measure 2 many times and compared it with Alaska’s previous coastal management law – the differences are striking and far-reaching,” Fredriksson said. “I am convinced that Ballot Measure 2 does not even come close to restoring Alaska’s previous coastal management program.” He said BM2 would not simplify government permit procedures, nor facilitate resource development, economic growth, or job creation, as proponents claim.
“The plain and simple truth is that by removing many of the prior coastal management legal requirements, Ballot Measure 2 returns Alaska to a time when there was no agreement on who best represents the interests of state and local communities in resource development decisions, no agreement on the role of local communities in resource development decisions, no agreement on how state permits should be coordinated, no agreement on how long it should take to make a coastal permit decision, no agreement on how the state should consult and coordinate with the federal government on resource development decisions, and no agreement on the importance of subsistence as a recognized coastal use and resource,” Fredriksson said.
Proponents claim the ballot measure is pro-Alaska and pro-development. They say the program the initiative creates would cut red tape and reduce lawsuits. Opponents warn the ballot measure is deceptive and defective. They say it would lead to more government bureaucracy and red tape, result in endless litigation, delay projects, and hurt the economy.
“With no clear rules or legal requirements similar to Alaska’s previous coastal management law, Ballot Measure 2 will create uncertainty and disagreement that is sure to invite legal battles that will frustrate the needs of coastal communities and delay or tie up resource development projects in the courts for years,” Fredriksson said.
Fredriksson is serving as co-chair of Vote No on 2, a broad-based organization formed to oppose BM2. Other co-chairs include Judy Brady, a former commissioner of the Alaska Department of Natural Resources, and Lorna Shaw, President of the Fairbanks Chamber of Commerce and someone who has spent her career in Alaska’s mining industry.
“This measure will threaten ongoing and future development projects that drive our economy and it could affect small businesses and even individual property owners with burdensome new regulations,” said Rick Rogers, RDC executive director and a co-treasurer of Vote No on 2. “It will be a huge new barrier to investment, and impact all sectors of our economy, including oil and gas, mining, fishing, timber, retail, tourism and the service sector.”
Rogers warned BM2 would create an environment for endless lawsuits and permitting delays. “It is vague and poorly drafted and will lead to litigation over current and future development. It creates a wholly new program with few rules, unclear standards and no deadlines for decisions. It is a costly ‘big government’ solution to coastal management that creates three new government agencies, costing Alaskans $5.4 million annually. It gives broad, new authority to an un-elected body of decision makers with no technical or scientific background required. Frankly, it is a complicated big mess.”
At its most basic level, coastal zone management is a tool for local coastal communities to provide input and guidance to federal and state authorities about how their coastline is developed.
The program is authorized under federal law, and Alaska first implemented its coastal zone program in 1977. There have been numerous reforms since that time, including some revisions in 2003, when it was modified to resolve concerns that it had become a barrier to timely permitting and project development.
It was due to sunset in June 2011, and during that spring legislative session an extension of the program – HB 106 – passed the House of Representatives 40-0, gaining unanimous approval by both Republicans and Democrats. RDC also supported extending the program.
When HB106 went to the Senate, it was swallowed up in the political process and modified. It became a political football, and part of a special legislative session in 2011 called by Governor Sean Parnell. There was no agreement and the program essentially expired.
Last winter, the proponents of this ballot initiative gathered the necessary signatures required to put the issue before voters in August.
Proponents claim BM2 would “restore” coastal zone management. But their measure does not “restore” the same law with the same provisions that expired in 2011, said Vote No on 2 Co-chair Lorna Shaw. Nor does it resemble the measure that passed the House of Representatives in a 40-0 vote over a year ago, she noted.
“Their version of coastal zone management is a wholly new, complex, never before tried approach to coastal zone law in Alaska,” Shaw said. “This measure will not streamline government, cut red tape, or make permitting projects easier. Don’t you think that if this measure cut red tape that the resource development community would be embracing it?”
In a November 2011 letter to Lt. Governor Mead Treadwell, Alaska’s Attorney General warned that BM2 is 15 pages long and the devil is in the details. He noted the measure creates an entirely new chapter of Alaska statutes consisting of 18 new statutory provisions governing a complex new program.
Typically the AG summarizes ballot measures for voters in 50 words or less, but he asked permission to write a 703 word description, 14 times the space to try and explain to voters the massive new law. The measure is the longest ballot question to go before Alaskans since statehood.
In his letter, the attorney general warned that because of inconsistencies, ambiguities, and legal issues in the measure, there are a number of legal, even constitutional issues regarding implementation, definitions, and unclear standards.
Co-Chair Judy Brady warned the measure would politicize coastal zone management and “create the most complicated program Alaska has ever had, with major new bureaucracy and regulations that could kill resource development in our state.”
BM2 gives coastal districts broad new authority on what they can regulate. For the first time ever, this could even include visual appearance, for both recreational cabins and docks on private property and commercial projects. This is made possible because “scenic and aesthetic enjoyment” are regulatory standards in the measure.
With no deadlines for implementation and no clear rules, Brady said BM2 could create an environment of legal battles that frustrate Alaskans making use of their private property, stop exploration for oil and gas, and tie up projects in the courts for years.
Brady warned that BM2 could allow coastal districts to be manipulated by environmental activists to stop development projects that are hundreds of miles from their communities. At a recent public hearing in Anchorage, the Wilderness Society testified in support of the measure.
Brady said one of the most troubling aspects of BM2 is that it would subject federal air and water quality permits issued to developers to the coastal zone consistency standards set by the local coastal councils.
In the previous program which sunset last year, these permits were basically exempt from local review by a provision known as the “DEC carve-out” that deemed any water or air permit approved by ADEC as also being consistent with coastal policy standards.
State officials have said previously that retaining the DEC carve-out was essential in any extension or revision of the coastal management program because these federal permits are extremely technical and need to be reviewed by trained staff at ADEC. Exposing these permits to reviews and revisions by non-professionals at the local level would result in significant delays and potentially derail projects, state officials have warned.
“Ultimately, we think that local districts will have sufficient power to derail projects, to preemptively veto certain types of projects,” said Mike Satre, executive director of the Council of Alaska Producers. Speaking at a public hearing in Ketchikan, Satre added, “This puts oil and gas, mining, timber projects at risk – on and offshore – throughout the state.”
“As throughput in the pipeline continues to decline, Alaska can’t afford more red tape and another barrier to the responsible resource development and investment that drive our economy,” warned Brady.
She said Alaska can have responsible, well-designed coastal zone management. However, she insisted BM2 is far from that. “It is a bad law and we will be working hard to ensure voters know how important it is to Vote No on 2 on August 28.”
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