AGIA's arbitration out-clause too unlikely to consider
Andrew Halcro |
Dec 26, 2011
We're all political armchair quarterbacks. We like to think we know the routes and the timing, but more times than not we're unable to read the coverage. On Nov. 30, I posted a blog on the recent shift of Governor Sean Parnell's preferred route for Alaska's natural gas pipeline. The piece also discussed the challenges the state would have trying to extricate themselves from AGIA. As part of a content sharing agreement, the blog was also posted at Alaska Dispatch. As with many of my pieces posted at the site, I attracted the usual team of armchair quarterbacks who've been under-throwing the receiver for years. However, one comment was right between the numbers. A reader pointed out I missed a key provision in the 'out clause' contained in AGIA:
I'm well aware of the arbitration provision in AGIA's out clause but didn't address it because it's so highly unlikely that it would actually be used. This is where the law and politics will huddle up together on defense. TransCanada isn't going to invoke the arbitration clause. In April, Tony Palmer of TransCanada testified they strongly opposed a finding of economic viability before the agreed-upon timelines in AGIA have been exhausted. In addition, Palmer pointed out that the state agreed to the timelines, and any attempt to truncate those timelines by prematurely calling the project uneconomic would be viewed as a serious violation of their contractual agreement. In short, TransCanada would have a legitimate legal argument that the state signed up for four quarters, but is now trying to quit at halftime. The state is also not going to invoke the arbitration clause. If you have any doubts, remember what the Parnell administration said just a few months ago regarding HB142. The legislation proposed by House Speaker Mike Chenault, would force a finding of economic viability years before AGIA's agreed upon go/no go decision date. The Parnell administration issued an opinion saying cutting the process short would violate the contract and would expose the state to damages. But more importantly, from a political standpoint does anyone honestly think the same policy makers who supported AGIA will be willing to stand up and take responsibility for its failure? Does anyone actually think that policy makers, who promised Alaskans that AGIA would get them to the promised land, are going to want to tell Alaskans they were wrong and this four-year, $500-million goose chase was all for naught? If the Parnell administration did invoke the arbitration clause, both the governor and lawmakers who blindly supported AGIA would be subject to harsh criticism from the public and possible political opponents about committing taxpayers to such an expensive folly. In addition, declaring the project is uneconomical before reaching AGIA's legally prescribed go/no-go day of decision would damage the state's credibility. Remember, the state spent tens of millions on experts who told us that AGIA would be profitable regardless of the economics. All of these factors make it clear; running a down-and-out pattern on AGIA will be a difficult play to complete. Andrew Halcro is the publisher of AndrewHalcro.com, a blog devoted to Alaska issues and politics, where this commentary first appeared. He is president of Halcro Strategies and Avis/Alaska Rent-A-Car, his family business. Halcro served in the Alaska House of Representatives from 1999 to 2003, and he ran for governor in 2006 as an Independent. The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch. Alaska Dispatch welcomes a broad range of viewpoints. To submit a piece for consideration, e-mail commentary(at)alaskadispatch.com.
by bgkeithley | December 28, 2011 - 10:47am
Now that Andrew has his facts straight ("one comment was right between the numbers"), we can focus on his real argument -- that TransCanada has a "legitimate legal argument" that the state can't -- and the state lacks the political will to -- pull the statutory trigger to terminate AGIA. Both are wrong. The AGIA license (through its reference to the statute) explicitly provides for the trigger, regardless of what "quarter" (to use Halcro's analogy) the game is in; TransCanada may wish to deny that, but the fact is its there. As for the state's political will -- since the statements Andrew cites, even the Governor has said that a line to the L48 is uneconomic. From an economics perspective, we are done here; its time for the Legislature and Governor to pull the trigger they put in the statute. The failure to do so is an even greater public policy error (and waste of funds) than passing AGIA in the first place.
by ahalcro | December 28, 2011 - 5:37pm
With all due respect, your response is overly simplistic and doesn't accurately represent the political reality. First, while the governor said he believed the line to the L48 was no longer economically viable, he also stated he wanted the LNG option executed under AGIA. In fact AGIA supporters have long pointed out to the fact that the AGIA contract provides for an LNG option. Second, even if the state could make the legal argument successfully that it should be able to exercise the out clause in AGIA, politically it won't happen anytime in the near future. Third, this is an election year. Not only is it an election year but a redistricted election year. This makes incumbents very gun shy about pulling any trigger that would put them in jeopardy with voters. It's a political situation of Coulda, woulda, shoulda. Sounds a lot like my golf game.
by SPECKLEFOOT | December 27, 2011 - 1:41pm
The Governor is going to face a lot harsher criticism for WASTING $500 million of our money than he will ever face for opting out. As for contract terms, the contract allows the Governor to refocus the contract work on the All Alaska route----but TC just whacked him for doing so, in public. What goes? The State of Alaska (that's you and me) are PAYING TransCanada to do work for us under contract. That contract provides for two possible routes. The Governor told them to shift gears toward the All Alaska route. TC said, "No, we're still going for the route to Canada." Who is paying the bills here? Does Sean Parnell have any pride, any spine at all? A contractor spending our money told the Gov to take a hike. Well, I wouldn't be too worried about a second term, if I were Parnell. He's between the Devil and the Deep Blue Sea now. AGIA is a bust. The best thing he could do is admit that and get us refocused on LNG as soon as possible. Otherwise, not only will AGIA still be a bust, but he will have wasted all that money on top of it. He could just show some courage, take it to arbitration, and the worst thing that could happen is that he'd pay the arbitration costs and have someone else to blame for making the decisions that are called for one way or the other. As usual, Halcro is trying to bully the Governor for the oil companies. For shame, for shame. Alaska desperately needs Sean Parnell to find his missing spine. |













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