Active: Federal lawsuit filed to rein in illegal agency rulemaking

Diesel is an expensive way to produce electricity for entire communities. Yet it’s the only option for 2400 native Alaskans who live on remote islands within the Tongass National Forest. Life is already hard for these communities. Worse, they’re surrounded by energy solutions—including hydroelectric and geothermal—they can’t touch because of a federal ban on new roads. This so-called “Roadless Rule” went on the books illegally, but as long as it stands, some of Alaska’s poorest people will keep paying some of the state’s highest prices for electricity.

Inside Passage Electric Cooperative (IPEC) is the sole electric utility for several communities in Southeast Alaska. Its 11 staffers operate four separate micro-grids in Hoonah, Kake, Chilkat Valley, and Angoon. As a consumer-owned nonprofit, IPEC charges just enough to cover costs, yet its customers pay some of the highest energy rates in Alaska because of its heavy dependence on diesel fuel to generate power.

At the same time, IPEC has been tirelessly trying to transition away from diesel in order to lower and stabilize electricity rates, and to promote economic growth in the mostly low-income communities. The utility has spent years working to develop hydroelectric and geothermal projects. So far, IPEC has developed two small hydro projects (the 2022 dedication of the Gunnuk Creek Hydro project is pictured above). But at this point, the cooperative has very few options to develop future energy projects. IPEC wants to explore opportunities for hydroelectric and geothermal projects, and to pursue other projects that would stabilize energy costs; however, it is impossible to even begin to develop those projects with the USDA’s Roadless Rule in place.

The Tongass is under the regulatory purview of the U.S. Department of Agriculture (USDA), which created the Roadless Rule in 2001. The rule prohibits road construction or maintenance of existing roads in 85.5 million acres of federal forestlands, including the portion of the Tongass National Forest that is not covered by congressionally authorized restrictions. The expansion of the Roadless Rule in the Tongass means that the roads are prohibited in the forest’s entire 16.8 million acres. The Roadless Rule was temporarily lifted by the Trump administration, only to be re-imposed by the Biden administration in January 2023.

The logistics of developing energy infrastructure in these rugged and remote areas is already difficult enough for a nonprofit utility. IPEC contends with a short construction season and substantial logistical challenges just to get materials to the islands it serves. But if it cannot obtain road access through the Tongass, then there simply is no option to pursue vital energy projects in the area. Without roads, their only option is to use helicopters, which adds tremendous expense. For example, the cost of one project ballooned from $17.5 million to $65 million in 2010 when the USDA told IPEC it would have to use helicopters.

The USDA may be charged with managing our national forests, but it does not have the power to create the Roadless Rule. Congress specifically requires a balanced approach to federal land management that protects natural ecology while also enabling reasonable economic uses—those certainly include hydroelectric and geothermal energy projects that serve remote communities.

But even if Congress did try to give the USDA this power, it cannot constitutionally give away its power to make law. And any violation of that principle would mean that unelected agencies get to make the laws governing our lives and livelihoods rather than the accountable lawmakers in Congress.

If unelected bureaucrats in Washington, DC, can elastically stretch their delegated powers to make laws that cripple an energy project in a remote corner of America’s last frontier, they can do the same thing to anyone, on any issue, anywhere in the country.

IPEC is fighting back to rein in the USDA’s overreach so they can build sustainable, eco-friendly power projects and improve their customers’ quality of life. Represented free of charge by PLF, the cooperative and the Alaska Power Association are challenging the USDA’s authority to prohibit construction and maintenance of roads within national forestlands as a violation of the Constitution’s separation of powers.

What’s At Stake?

  • Only Congress makes law, and Congress may not delegate that power to the Secretary of Agriculture or to anyone else. Federal agencies cannot ignore the Constitution’s separation of powers to carry out their preferred regulatory objectives
  • The Department of Agriculture has no authority to impose a blanket rule prohibiting road construction and maintenance. It’s charged with managing national forest lands by balancing preservation with reasonable economic uses.

Case Timeline

April 02, 2024
Motion for Summary Judgment
United States District Court for the District of Alaska
September 08, 2023
United States District Court for the District of Alaska