(3) The 35-cent provision is "plucked (4) The Settlement Agreement's resolu- D. The Settlement Agreement Is Unlawful. Besides the numerous genuine issues of material fact that exist with respect to the Settlement Offer, the Offer, if approved, would be unlawful in a number of respects. Generally, the Settlement Offer taken as a whole results in unjust and unreasonable TAPS tariffs, but the Offer is also unlawful in a number of particular respects: (1) The offerors have failed to provide a "reasoned explanation" justifying the numerous noncost-based provisions of the TSM. Farmers Union II, 734 F.2d at 1502; (2) The Settlement Offer's improper treatment of tax allowances and property accounting violates regulatory precedent; (3) The Settlement Offer would have an adverse economic impact on competition, production and development on the North Slope; (4) The Settlement Offer unjustifiably transfers economic rents from landowners and shippers on the North Slope to the TAPS Carriers; E. (5) The Settlement Offer fails to deduct imprudent costs from the rate base; (6) The Settlement Offer discriminates (7) The Settlement Offer takes statutory Commission Review of the Settlement Offer Prior to October 31 Is Not Required Because It Is Unreasonable and Unnecessary. Section III-2 of the Settlement Agreement gives its offerors the right to cancel if the Commission "fails to approve or reject this Agreement by October 31, 1985." The settlement offerors have invoked this self-imposed deadline to suggest that the offer must be approved by that date because settlement thereafter will lose its value to the offerors. See Opposition of the State of Alaska and the United States Department of Justice to Arctic Slope Regional Corporation's Motion for Extension of Time and Other Relief at 2, 6 (filed May 17, 1985). This contention that time constraints preclude careful review of the Settlement Offer is ill-advised, and suggests that the offer cannot withstand such It is the Commission's statutory mandate to set just scrutiny. and reasonable TAPS tariffs, and self-imposed deadlines by some of the parties should not affect that mandate. The The suggestion that a "rush to judgment" is required is illadvised because it would jeopardize nearly eight years' careful preparation in this proceeding. Part II (B) of these Comments details the elaborate record that the parties and presiding officers have prepared for the Commission's review and decision. number and complexity of outstanding issues in this case is still such that a reasoned rapid resolution of them is simply not possible. A hasty review process by the parties and the Commission would create a substantial risk of error. Unless the six A hasty review would also be unnecessary. other TAPS Carriers consent to the Settlement Agreement, the Offer will resolve issues only as to shipments on ARCO and BP portions of TAPS. This proceeding will have to continue to determine just and reasonable tariffs for 62 percent of the pipeline. To the extent that uncertainty about future TAPS tariff rates is a concern requiring haste, see Alaska/DOJ Explanatory Statement at 78, it will not be eliminated by the Settlement Offer. Moreover, Section III-2 of the Settlement Agreement gives the offerors a right to cancel if the Commission makes approval of the Settlement Offer contingent on any modification of the Agreement. Thus, the offerors have attempted to restrict the Commission's review of the Settlement Offer both substantively and temporally. If the Commission determines that a single term of the Settlement Offer--no matter how small or insignificant-must be changed to yield just and reasonable and non discriminatory tariffs, each offeror will then have a right to cancel the Settlement Agreement for any reason. In view of the range of problems with the Settlement Offer that have been identified in these comments, Commission approval of the Offer without modification of some kind is quite unlikely. The offerors may not restrict the nature of the Commission's review by attempting to impose an "all or nothing" ultimatum. Because the Settlement Offer will not resolve the entire case and will become optional among its proponents in any event when necessary modifications are required, the time for review of it should be that required to produce a reasoned decision on the merits without regard to the artificial and illusory October 31, 1985, deadline.34 For these reasons, ASRC respectfully requests that this contested Offer of Settlement not be certified to or approved by the Commission and that the Commission's process for its deter mination of just and reasonable and nondiscriminatory tariffs be completed as rapidly as possible. 34 In pointing out that review of the Settlement Offer is not constrained by the offerors' self-imposed October 31 deadline, ASRC is not suggesting that prompt resolution of this proceeding is not desirable. Throughout this proceeding ASRC has consistently sought and petitioned for early resolution of issues. ASRC is concerned, however, that a hasty and superficial review of the Settlement Offer could have the final result of delaying resolution of this proceeding by several years rather than expediting it. |