§ 1500.202 - Statutory background.

(a) The Alaska Natural Gas Transportation Act of 1976 (ANGTA).

(1) In 1976 ANGTS was given priority status, and thus removed from the standard regulatory process, by ANGTA. The Congressional purpose of ANGTA was twofold: to provide for a sound system-selection decision, involving the President, Congress, and many Federal agencies; and to expedite construction—once a system was selected—through a number of administrative and judicial innovations. One such innovation was the Federal Inspector.

(2) The President was authorized and directed by section 7(a)(5) of ANGTA, 15 U.S.C. 719(e), to appoint either a single officer or a board as Federal Inspector, following issuance of his decision selecting a transportation system. The authorities first envisioned by Congress for the Federal Inspector entail monitoring, as contrasted to actual enforcement. In addition to the authority to establish a joint monitoring agreement with Alaska, to monitor compliance with all Federal laws, to compel submission of information, and to report to the President and Congress, the Federal Inspector was authorized to monitor closely the technical aspects of project planning and execution.

(b) President's Decision. (1) In 1977 the President selected the Alcan (since changed to Alaskan Northwest Natural Gas Transportation Company) proj-ect, as he issued his Decision and Report to Congress on the Alaska Natural Gas Transportation System (Decision), Executive Office of the President, Energy Policy and Planning, issued September 22, 1977. In section 5 thereof, the President determined that, in order to ensure coordinated government oversight, the Federal Inspector must, in addition to the ANGTA authorities (described in paragraph (a) of this section) have “field-level supervisory authority over enforcement of terms and conditions from those Federal agencies having statutory responsibilities over various aspects of (ANGTS)” (Id., at a 41-42). He concluded, however, that the necessary transfer of authorities would have to await a reorganization plan, which in turn necessitated compliance with the substantive and parliamentary requirements of the Reorganization Act of 1977, 5 U.S.C. 901, et seq.

(2) In deferring appointment of the Federal Inspector until after transmitting a reorganization plan to Congress, the President substantially expanded the Federal Inspector concept, from Congress’ watchdog to the focus of all enforcement of Federal laws related to ANGTS. Also as part of section 5 of the Decision, the President further expanded the Federal Inspector's authority to include pre-approval of the many important planning decisions to be made by the ANGTS sponsors. This took the form of numerous terms and conditions governing construction costs and schedule, safety and design, and environmental protection.

(3) These myriad terms and conditions have the force of law. The President was authorized, by section 7(a)(6) of ANGTA, to include them in his Decision. And because the Decision in its entirety was given full legal effect, under section 8 of ANGTA by joint resolution, H.J. Res. 621, Pub. L. 95-158, 95th Cong. 1st Sess., these terms and conditions have in essence become statutory in nature.

(c) Reorganization Plan and Executive Order. (1) In 1979 the OFI was actually established, and the necessary transfer of authorities accomplished through, Reorganization Plan No. 1 of 1979. First, the OFI was transferred “exclusive responsibility for enforcement of all Federal statutes relevant in any manner to preconstruction, construction, and initial operation” of ANGTS. section 102 of the Reorganization Plan. The OFI is to enforce the legal requirements of many Federal agencies. The Environmental Protection Agency (EPA), the Army Corps of Engineers (COE), Department of Transportation (DOT), Department of Energy (DOE), Federal Energy Regulatory Commission (FERC), Department of the Interior (DOI), Department of Agriculture (USDA), and Department of the Treasury (Treasury), and their respective legal authorities, are specifically enumerated as the most likely to be enforced by the OFI relative to ANGTS. The OFI was also charged with enforcing the terms and conditions found in section 5 of the Decision, as well as fulfilling the monitoring duties set for the Federal Inspector in section 7(a)(5) of ANGTA and the supplemental enforcement duties found in section 11 of ANGTA.

(2) Enforcement and monitoring constitute only part of the OFI's authority under the Reorganization Plan. Under section 202(b), for example, the OFI is to coordinate and expedite the permitting activities of the Federal agencies. This is a permit-scheduling function.

(3) Under section 202(a) final enforcement actions of the OFI are subject to judicial review only under section 10 of ANGTA. Thus, complaints must be filed with the U.S. Court of Appeals for the District of Columbia Circuit within 60 days of the challenged final OFI action. Review is then expedited (90 days) and of limited scope.

(4) The Reorganization Plan became effective as of July 1, 1979, as per Executive Order 12142. And with the Executive Order, the OFI officially came into existence.