September 29, 2023
This might come as a surprise, but native Alaskans living on remote islands in the Tongass National Forest pay more than five times what most Americans pay for electricity. The average retail price for electricity in the U.S. was 12.5 cents per kilowatt-hour in 2022. But this small, low-income community pays 65 cents per kilowatt-hour even though their supplier – the Inside Passage Electric Cooperative (IPEC) – is a consumer-owned nonprofit.
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IPEC’s production costs are high because it is forced to generate most of its electricity using diesel. To lower energy prices, the cooperative has been trying to shift to small hydroelectric and geothermal plants. It has already developed two hydel units. But its efforts are stymied by a federal ban known as the Roadless Rule, preventing access to the abundance of hydroelectric and geothermal sources in the region that can be sustainably utilized.
The rule is yet another case of administrative overreach in which unelected bureaucrats impose far-reaching decisions without legislative scrutiny or accountability. It bans all logging, mining, and road construction on 58 million acres of national forest land, including 17 million acres in the Tongass in southeast Alaska, the country’s largest national forest, three times the area of New Jersey.
For more than two decades, political leaders taking a balanced outlook on conservation, economic activity, and development have been battling with federal agencies and hardline environmentalists over the ban. Now, three recent lawsuits hope to have it overturned.
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One is by IPEC, represented pro bono by the Pacific Legal Foundation. A second is by the state of Alaska, where Republican and Democrat administrations have long opposed the ban. Among the plaintiffs in the third lawsuit, led by former Governor and former U.S. Senator Frank Murkowski, are the Alaska Chamber of Commerce and the Resource Development Council of Alaska. As the Pacific Legal Foundation sees it, the ban “went on the books illegally,” since it has not been passed by Congress or a state legislature, and since Congress cannot delegate its law-making function to any federal agency.
The ban has a contentious history. It came into being in 2001, when President Bill Clinton issued the Roadless Area Conservation Policy, adopted by the Forest Service of the United States Department of Agriculture (USDA). The State of Alaska filed a complaint, resulting in a 2003 settlement to temporarily exempt the Tongass. The exemption was later challenged, and in 2015, the ban was reinstated in full. During the Trump administration, the Roadless Rule was briefly rescinded for limited forest development. Then in 2023, President Joe Biden announced the reinstatement of the measure.
Notably, on his first day in office, Biden signed Executive Order 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” It highlighted the high cost of systemic racism and intractable poverty and mandated that federal agencies work toward equitable programs benefiting underserved rural and tribal communities, besides those of color and those suffering persistent poverty.
The same day, Biden rejoined the Paris Agreement as part of a policy to reduce greenhouse gas emissions to net zero by 2050. He pledged to provide incentives to produce clean energy, and to make loans to rural communities in support of green energy projects. With Executive Order 14057 on “Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability,” he vowed to create a market for “environmentally sustainable alternatives in fuels” and require federal agencies to procure “100% carbon pollution-free electricity by 2030.”
On all those counts, the people living in Tongass ought to have been helped to get cheap energy using clean, green sources. But restrictions inherent in the Roadless Rule make it impossible. They are a roadblock to IPEC’s plans to deliver significant energy cost savings and environmental benefits by building geothermal and hydroelectric plants. The rule disadvantages communities in designated roadless areas, reducing options for economic activity and development and scuppering even renewable energy projects, which cannot be built without access roads or connections to local grids.
Several government officials have expressed concern. U.S. Rep. Mary Peltola, an Alaska House Democrat who views the regulations as federal overreach, says,
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“I remain concerned about the reimposition of the Roadless Rule for the Tongass National Forest area because I firmly believe that impacted Alaskan communities should determine how to use their land.”
Republican Senator Lisa Murkowski says,
“The Roadless Rule should never have applied to the Tongass, and the Biden administration’s decision to reinstate it is federal paternalism at its worst. With this decision, the Biden administration is turning the Tongass into a political football, where access changes with each new President and creates whiplash for those who might want to invest or build in Southeast Alaska.”
She points out that 80% of the Tongass is well protected by existing laws and regulations, so there is no threat of large-scale development in this rich ecosystem. Many experts, too, believe that the economic benefits of limited road construction are critically important and can be achieved without harming the environment.
Governor Mike Dunleavy calls the reinstatement of the ban “a huge loss for Alaskans,” who he says “deserve access to the resources that the Tongass provides – jobs, renewable energy resources and tourism – not a government plan that treats human beings within a working forest like an invasive species.”
Similarly, Alaska Department of Natural Resources Commissioner John Boyle says, “Alaskans need a return to a common-sense management approach to the Tongass National Forest to support subsistence, energy security, recreation, transportation, resource development, and public safety. It’s a multiple-use forest, not a national park.”
The Roadless Rule also runs afoul of many existing laws. It appears to violate the Alaska National Interest Lands Conservation Act, a statute that challenges federal land managers to balance the national interests of Alaska’s natural resources with economic and infrastructure needs. It is at odds with the Tongass Timber Reform Act, aimed at maintaining proper balance between the sanctity of the forest and economic growth in southeast Alaska. It is also in conflict with the Alaska National Interest Conservation Act (ANILCA) Program, requiring federal land managers to cooperate with the state and recognize the economic needs of local communities.
More generally, it presents a challenge to the Administrative Procedures Act (APA) of 1946, enacted to prevent separation-of-powers violations after federal agencies acquired extensive powers under the New Deal. Like ANILCA, it requires federal agencies to recognize that every state is responsible for bringing development to its people.
The recent lawsuits take a direct tack in challenging the Roadless Rule. According to the Constitution, federal agencies cannot write regulations without specific authorization from the Congress. The lawsuits draw strength from the 2022 Supreme Court ruling in West Virginia vs. EPA, saying there was no clear authorization from the Congress for some of the EPA’s decisions. The court questioned the ability of agencies to create and enforce laws without congressional mandate and touched on the non-delegation doctrine (Article I, Section 1 of the Constitution) prohibiting Congress from delegating its powers to administrative agencies.
In 2024, the Supreme Court is expected to decide on the extent of the Chevron deference doctrine, an administrative law principle compelling federal courts to defer to a federal agency’s interpretation of a statute that Congress delegated the agency to administer. If the doctrine is reversed, it could mean, like West Virginia vs. EPA, another step toward ending unbridled agency power.
In the Alaska case, the bottom line is that the USDA doesn’t have the power to impose any blanket ban. This the preserve of elected legislators, accountable to the people. Those making the laws that govern our lives must answer to voters. Unchecked, the administrative state poses a serious threat to liberty. Unaccountable, bloated bureaucracies cannot be allowed to run and ruin our lives and our republic.
Photo credit: Mark Brennan CC BY-SA 2.0 license
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