[00:00:03] Speaker 00:
Case number 16-1081 at L. City of Boston delegation petitioner versus Federal Energy Regulatory Commission.

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Mr. Fitzpatrick for petitioners City of Boston delegation.

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Ms.

[00:00:15] Speaker 00:
Elephant for petitioners Riverkeeper Inc.

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at L. Mr. Fulton for the respondent and Mr. Marwell for the intervener.

[00:00:53] Speaker 05:
Mr. Fitzpatrick, good morning.

[00:00:54] Speaker 03:
Good morning.

[00:00:56] Speaker 03:
May it please the court.

[00:00:58] Speaker 03:
Thomas Fitzpatrick on behalf of the city of Boston delegation.

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Before addressing the merits, which I'm very keen to do, let me speak to the issue of standing.

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It is technically a fact that in the now petitioners motion intervene,

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that the city of Boston was not identified specifically as an intervener.

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That motion was allowed by the commission.

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But in the motion to intervene, the mayor of the city was identified specifically as the representative of the 617,000 residents of the city.

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Now, we've provided the mayor has authority

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to direct the, I guess, the Corporation Council to file suits.

[00:01:44] Speaker 06:
That is correct.

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And the Mayor didn't do so.

[00:01:47] Speaker 03:
Well... Right?

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Is that not correct?

[00:01:49] Speaker 03:
No, I don't think that is correct, Your Honor.

[00:01:52] Speaker 06:
The... The Mayor did direct the Corporation Council to bring suit?

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The Mayor directed Corporation Council to file the request for rehearing.

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and to file this petition.

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And with respect to the motion to intervene during the commission proceeding, the Corporation Council participated in the preparation of the motion to intervene at the direction of the Mayor.

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So the Corporation Council doesn't appear anywhere on the papers as far as I know?

[00:02:21] Speaker 03:
That is correct, Your Honor.

[00:02:23] Speaker 04:
And the city is not named as the party?

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The city is not named as the party.

[00:02:25] Speaker 04:
So isn't that typically what would happen is that

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the Corporation Council would prepare the papers and then introduce the action, let's say, in the name of the city.

[00:02:36] Speaker 03:
That would be most typical.

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I quite agree, Your Honor.

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But what happened here was this was a motion to intervene in the proceeding

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in which the city through the mayor had already participated.

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The mayor had written several letters on behalf of the city expressing concerns about the safety.

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Under the law, the authorizing legislation for the city and under its ordinances, all of the executive power and authority resides with the mayor, including the authority, the power to direct the initiation of litigation.

[00:03:09] Speaker 04:
But the same ordinances also tell us that the course in which that litigation ordinarily takes place is that the mayor, through the corporation council, the corporation council is the one who makes the determination that the city is going to initiate an action and then does so in the name of the city.

[00:03:28] Speaker 03:
I respectfully disagree.

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The ordinance and also the practice, I represent the city frequently, is that litigations are initiated only when the mayor directs it.

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He certainly receives advice from the Appropriation Council.

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And in this case, he directed that all of these steps be taken.

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And again, the commission and Algonquin and the city all cite to the same ordinance.

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And it's very clear.

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that it's the mayor who has the authority to direct litigation.

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And the case law from Massachusetts and the authorizing legislation, which we've cited in our supplemental briefs and our prior briefs, makes it clear that he is the apex of all governmental authority within the city, the decision-making as well as the authority to exercise that decision-making.

[00:04:20] Speaker 04:
Why didn't that happen here?

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I think that what happened, Your Honor, was that several elected officials representing the West Roxbury neighborhood have been corresponding with the commission in writing letters.

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And they wanted to intervene formally in the proceeding.

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And they decided to join together, and with the assistance of the Corporation Council, prepared that motion to intervene, consolidating them all in one.

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And we can see that it doesn't technically say that the city is an intervener.

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But I submit to you, it doesn't matter because the mayor is the one who decides.

[00:05:00] Speaker 06:
The mayor has the authority to decide.

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But what do you do in the language of 5-8.1 Corporation Councils who instituted a suit of proceeding on behalf of the city, which he shall deem the interest of the city requires?

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and shall by himself or his assistants, the Peers' Council, in all suits which may involve the interests and rights of the city."

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Which seems quite exclusive to me.

[00:05:28] Speaker 03:
Well, Your Honor, we in the city read that to mean that the mayor is in the city.

[00:05:33] Speaker 06:
You in the city?

[00:05:34] Speaker 03:
Yeah.

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What do you mean in the city?

[00:05:37] Speaker 03:
The city of Boston.

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The city of Boston and its law department.

[00:05:41] Speaker 06:
Okay, I'm sorry, go ahead.

[00:05:43] Speaker 06:
You read it to mean?

[00:05:44] Speaker 03:
To mean that the mayor decides what litigations to initiate, and that the city law department and its corporation council is subordinate to them, to him, and that they implement his decisions.

[00:05:58] Speaker 04:
Can I just ask then what it says, which he shall deem the interest of the city requires, that he, you're reading that to be the mayor rather than... Yes, that is correct, Your Honor.

[00:06:06] Speaker 04:
Really?

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So it's not the Corporation Council is not the heat.

[00:06:12] Speaker 03:
You are right, that is how we read it, but I would say it doesn't matter because the issue is the authority, and the authority is that everything happens at the direction of the mayor, the prior language.

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But the Corporation Council, even if it's true that it's subject to the direction of the mayor, if the

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If the way to read this is that, let's just say he means the corporation council.

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Just humor me.

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You're obviously an expert on what this means more so than someone who's outside your jurisdiction.

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But then at least the corporation council would have to make the determination that it's in the interest of the city.

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And of course, the mayor could say, if you didn't make the determination that I like, then that's going to be a problem for you.

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I understand that.

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But at least the ordinance presupposes that the corporation council is going to make that assessment.

[00:07:04] Speaker 03:
I think that's correct.

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The corporation council is essentially the mayor's lawyer.

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He provides advice and he implements the directions of the mayor.

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And I can tell you in this case

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We were retained to file the request for rehearing.

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The instruction was from Corporation Counsel Fitzpatrick, the mayor wants you to file a request for rehearing.

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And the same thing happened with the petition.

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I was not involved in the motion to intervene, but I'm told that the city law department was involved in it and prepared it at the direction or assisted in the preparation at the direction of the mayor.

[00:07:39] Speaker 04:
Are there cases then in Massachusetts courts that I didn't see any cited in the supplemental briefing in which

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the mayor is the named party instead of the city.

[00:07:52] Speaker 03:
I believe it's the case involving the city of Revere.

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The mayor was a party in that proceeding and the court said that it was appropriate for them to bring the proceeding in the public interest on behalf of the municipality.

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Which one was that?

[00:08:10] Speaker 03:
It's the case involving Revere.

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When I, Your Honor, when I rise for my rebuttal, I'll have this site for you.

[00:08:19] Speaker 04:
But I thought in Richemer, what happened was that there was actually a process under which the corporation, when I looked at the opinion, that the Corporation Council actually made the determination and then the city

[00:08:30] Speaker 04:
It was made party to the case.

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The mayor also was.

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But the city was because the Corporation Council made the determination.

[00:08:38] Speaker 03:
That is correct, Your Honor.

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Right.

[00:08:40] Speaker 04:
So that didn't seem like one because the city actually was a party.

[00:08:45] Speaker 03:
Yeah.

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But that is the one case I can cite to you, Your Honor.

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Again, our position is that the mayor is the city for all purposes here and had the authority to initiate all of these proceedings, if I can, with the time left to address the merits very quickly.

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The city, this has not been a not in my backyard issue for the city.

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The city understands that there's going to be a gas pipeline through West Roxbury.

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Its only concern was about safety.

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And our contention is that the findings and the determinations and the decisions made by the commission about the alternative route were arbitrary, capricious, and not supported by substantial evidence.

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In the FEIS, and this is at page 868 of the record, there is a very helpful map that shows the route that was approved and the alternative route.

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And on the prior page,

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868 is a table prepared by the Commission, which looks at the metrics it chose to compare.

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And it is very clear to us, Your Honor, we've demonstrated this in our papers, that the finding that the proposed route was preferable and that the alternative route is not supported by the empirical evidence established in the Commission's own

[00:10:11] Speaker 03:
analysis of it.

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It is wrong for the Commission to have said, it is demonstrably wrong to have said, for example, that the lateral would go through more residential neighborhoods, which is how it defended its decision.

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It is wrong when the Commission says that the proposed route goes through more parking lots and commercially industrial areas.

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That is demonstrably incorrect if one looks at the Commission's own chart and its own maps.

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It again says with respect to the siting of the meter station that, well, there'll be traffic.

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But the commission says about the proposed route that there'll be very significant traffic delays all throughout the proposed route.

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We accept that.

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There's going to be traffic consequences and snarls.

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But what the commission does is sort of say, well, if we went where you want to go, there'd be more traffic.

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And I would, again, commend the court back to the commission, to the chart at 867.

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It is very clear from that chart that there will be less traffic impact if the alternative route was accepted.

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As to the other issues, the other issues about why we think this should be found to be arbitrary and capricious and unsupported, I'll rely on what's left in the brief, what we say in the brief, and I'll reserve the rest of my time.

[00:11:37] Speaker 05:
Thank you.

[00:11:47] Speaker 08:
Good morning, Your Honors.

[00:11:48] Speaker 08:
Carolyn Elephant for the Environmental and Community Coalition Petitioners.

[00:11:52] Speaker 08:
I'm also here with Rebecca Zakus, who is the Council for the Town of Dedham.

[00:11:57] Speaker 08:
Your Honors, this is a case about passing the buck.

[00:12:00] Speaker 08:
As part of its environmental review, FERC effectively passed the buck by segmenting the projects and passing off review of the Atlantic Bridge impacts to a subsequent proceeding.

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With the safety issues, FERC passed the buck by relying on the Nuclear Regulatory Commission's analysis, which incidentally is not even a part of the record.

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And with regard to the conflicts issue, it doesn't actually fit into that rubric, but for the conflicts issue, FERC essentially attempted to

[00:12:28] Speaker 08:
evade review by failing to identify the conflicts issue, and then when it responded in its brief, it relied on a changed regulation and forcing us to file a 28-J motion.

[00:12:42] Speaker 06:
On the segmentation, you had a diagram in your brief.

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And I generally like diagrams, but I have to say I found your diagram totally misdefined, partly because your lettering on gray backgrounds was very hard to read, and then sort of bunching up of sort of the

[00:13:04] Speaker 06:
the squares containing information.

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So there's a different approach, an approach by words and numbers of page 40 of the intervener's brief.

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And do you object to the assertions there as to timing?

[00:13:25] Speaker 06:
I'm talking about the top seven lines of page 40.

[00:13:31] Speaker 08:
I'm sorry, which page would this be on?

[00:13:34] Speaker 06:
Page 40.

[00:13:34] Speaker 08:
Oh, OK.

[00:13:35] Speaker 08:
I've got it here.

[00:13:36] Speaker 08:
Sorry about that.

[00:13:39] Speaker 06:
Are there any corrections that should be?

[00:13:43] Speaker 08:
So in terms of the timing, really, that was the diagram that was just intended to show the timeline.

[00:13:48] Speaker 08:
There doesn't seem to be any dispute as to the timing.

[00:13:53] Speaker 06:
So then it appears that we have the final EIS, January 2015.

[00:14:05] Speaker 06:
We have a seeking of pre-final Atlantic Bridge a week later.

[00:14:15] Speaker 06:
and then filing the application 10 months later.

[00:14:20] Speaker 06:
So all right.

[00:14:21] Speaker 06:
I mean, that seems under Minisync to not post the use of discretion and segmentation at all.

[00:14:34] Speaker 08:
But, Your Honor, we would argue that as a result of Minisync,

[00:14:39] Speaker 08:
it set a blueprint for how a company can avoid segmentation.

[00:14:43] Speaker 06:
One of the things that, in this situation, the... I'm sorry, you're saying the court in Minisink was schooled by the manipulation of somebody?

[00:14:54] Speaker 08:
So in Minisync, the facts were, your honor is correct, very similar.

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There was a request for pre-filing that was filed either right after the EA or right after the certificate had issued.

[00:15:05] Speaker 08:
And that's exactly what happened here.

[00:15:07] Speaker 08:
Right after the FEIS issued, all of a sudden this pre-filing application showed up.

[00:15:12] Speaker 08:
So it seemed to me as if the applicant had taken a page out of Minisync and said, this is what the court will find acceptable for segmentation.

[00:15:20] Speaker 08:
But what distinguishes this case from Minisync

[00:15:23] Speaker 06:
Has Mini-Sync been decided at that point?

[00:15:27] Speaker 08:
Mini-Sync was from 2014.

[00:15:30] Speaker 08:
It was decided.

[00:15:32] Speaker 08:
Hard decision.

[00:15:34] Speaker 08:
Excuse me?

[00:15:34] Speaker 07:
Hard decision, is that it?

[00:15:36] Speaker 08:
Yes, Your Honor.

[00:15:36] Speaker 08:
It was argued in May of 2014 and issued in August.

[00:15:40] Speaker 08:
The decision came out in August 2014, which I remember only for bizarre personal reasons as to the timing.

[00:15:48] Speaker 08:
In addition to the timing issues, one of the factors that distinguishes this case on segmentation, and there are many, first of all, on the joint appendix at page 1491.

[00:16:06] Speaker 06:
A predecessor panel has established a device for parties to manipulate the system.

[00:16:20] Speaker 06:
It seems like an underhanded way of getting us to try to reverse a prior panel decision.

[00:16:29] Speaker 08:
Oh, no.

[00:16:30] Speaker 08:
I apologize, Your Honor.

[00:16:31] Speaker 08:
Absolutely, that was not my intent.

[00:16:33] Speaker 08:
What MiniSync says is precedent, and it's binding precedent.

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And if this case were identical facts, we wouldn't be here arguing the segmentation issue.

[00:16:42] Speaker 08:
What we're arguing is that was the starting point.

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The starting point was for the applicant to match the facts of the case to MiniSync.

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identified many other factors that suggest that this really was a case of segmentation.

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One being that the applicant itself announced its intent to segment the project.

[00:17:03] Speaker 06:
That seemed to have the same sort of problems of attribution that were present in Mini-Sync itself.

[00:17:12] Speaker 06:
I did not mention attribution, but also the ambiguity of the words reported to be quoted.

[00:17:21] Speaker 08:
Yes, the other, one other distinguishing factor was in the mini-sink case, the second compressor station, the Hancock station, was 60 miles from the mini-sink compressor.

[00:17:31] Speaker 08:
Here, the construction actually overlapped.

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The Atlantic Bridge project took up where the AIM project left off.

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FERC itself acknowledged that there was going to be construction on the Stony Point Compressor Station and another compressor station under the AIM project.

[00:17:51] Speaker 08:
And then it was going to happen again under Atlantic Bridge.

[00:17:54] Speaker 08:
That was discussed in the FERC rehearing order, I think, at paragraph

[00:18:05] Speaker 08:
The overlap in construction is joint appendix 1247 to 1248.

[00:18:10] Speaker 06:
The papers before FERC showed the probability of overlap if the later projects went forward.

[00:18:22] Speaker 06:
FERC tried to address that, right?

[00:18:25] Speaker 06:
maybe imperfectly, surely imperfectly, because it didn't know exactly what the ultimate application and so forth would say, but it took note of the possibility of cumulative effects and assessed it.

[00:18:42] Speaker 08:
Well, again, we felt that the assessment of cumulative effects was very cursory.

[00:18:48] Speaker 08:
The Atlantic Bridge Project was mentioned in one table only, and FERC essentially concluded that, well, there may be some overlap, but we conclude that there really aren't any cumulative impacts.

[00:19:00] Speaker 08:
Because the pre-filing application came in right after the FEIS, FERC really did have additional information about what was in the Atlantic Bridge Project, and these projects could have been better coordinated.

[00:19:12] Speaker 08:
There was more that was known about the Atlantic Bridge Project as a result of the pre-filing application that came in.

[00:19:22] Speaker 08:
FERC's analysis of the cumulative impacts, again, in this case, were somewhat

[00:19:28] Speaker 08:
were very cursory.

[00:19:31] Speaker 04:
Can I ask this question?

[00:19:34] Speaker 04:
What's wrong, just as an abstract matter, with erring on the side of waiting and allowing the rigorous analysis to take place in connection with the second-in-time application?

[00:19:44] Speaker 04:
Because it seems like the second-in-time application comes along, and then you can always look back and see what's already in effect with the first-in-time application that's been approved and do the analysis at that time with the benefit of better information.

[00:19:58] Speaker 08:
Well, there are a couple of issues with that.

[00:20:01] Speaker 08:
First of all, under NEPA, NEPA counsels review of cumulative impacts, and if you were to take that approach to an extreme, it would be a violation of NEPA.

[00:20:12] Speaker 04:
Yeah, so I wouldn't take it to an extreme.

[00:20:14] Speaker 04:
I think you need to take into account cumulative impacts.

[00:20:16] Speaker 04:
But I'm just saying, erring on the side,

[00:20:17] Speaker 08:
Well, so one of the problems that you have is when you don't review the projects as a whole up front, you lose an opportunity to consider additional alternatives.

[00:20:28] Speaker 08:
For example, could you downsize the second project as a result of the cumulative impacts or as a result of your uniform analysis in the first case?

[00:20:35] Speaker 06:
The downsizing of the second project would be on the plate.

[00:20:39] Speaker 06:
The second time around.

[00:20:41] Speaker 08:
Yes, yes, downsizing the first project, right, because once it's in the ground, there's not much else you can do.

[00:20:46] Speaker 08:
And so that's really one of the biggest problems with the segmented review.

[00:20:50] Speaker 08:
And with FERC, FERC is really the one that has to say, you know, we're going to undertake this broader approach.

[00:20:57] Speaker 08:
If I could quickly get to the issues on the nuclear

[00:21:01] Speaker 08:
the NRC.

[00:21:03] Speaker 08:
In that situation, FERC really relied on what the NRC said, and surprisingly, the NRC decision is not – the NRC's analysis of the – of Entergy's submission is not a part of the record.

[00:21:17] Speaker 08:
The other – the cases that FERC cites – they've cited many cases to say that this court has to defer to

[00:21:24] Speaker 08:
to the expertise of an agency.

[00:21:26] Speaker 08:
That is true.

[00:21:28] Speaker 08:
It's absolutely true when the agency is the one that did the analysis.

[00:21:30] Speaker 08:
The problem here is FERC didn't do the analysis.

[00:21:33] Speaker 08:
FERC adopted wholesale the analysis that the NRC had done, and there really isn't much discussion.

[00:21:40] Speaker 06:
When you say not on the record, do you mean that it wasn't printed out and the papers put in FERC's file?

[00:21:50] Speaker 08:
Um, no, your honor.

[00:21:52] Speaker 08:
I mean that the citation to, uh,

[00:21:57] Speaker 08:
The citation in FERC's brief at page 39, where it cites to the November 7, 2014 NRC findings regarding the Algonquin Project.

[00:22:10] Speaker 08:
That is sort of the basis of FERC's reliance.

[00:22:12] Speaker 08:
And the citation there is the joint appendix 1911, and then there's a cite to the NRC website.

[00:22:19] Speaker 08:
So since there's no record designation, and FERC put the record together,

[00:22:24] Speaker 06:
not part of the certified record that for submitted that the commission submitted to the court.

[00:22:41] Speaker 08:
No, your honor.

[00:22:42] Speaker 08:
So in the decision for what happened was in November 7 2014 for kind of meeting with NRC staff and the citation to that meeting is in the joint appendix at 699.

[00:22:54] Speaker 08:
It was a summary of the meeting where basically the NRC said

[00:22:58] Speaker 08:
we agree with this analysis that Entergy, Entergy is the owner of the nuclear facility, the NRC said we agree with what Entergy did.

[00:23:06] Speaker 08:
And we find that, in addition, the Nuclear Regulatory Commission didn't consider these extras that the pipeline is going to add, like a concrete buffer and more reinforced pipeline walls.

[00:23:19] Speaker 08:
And so that's what FERC keeps coming back to.

[00:23:21] Speaker 08:
If you look at the FERC

[00:23:23] Speaker 08:
at the FERC opinions, it keeps echoing that.

[00:23:27] Speaker 08:
In the environmental impact statement, FERC relies on that.

[00:23:33] Speaker 08:
It's the FEIS at page, it's 4-278 of the FEIS where the

[00:23:41] Speaker 08:
EIS drafters say we find that there's no problem with the nuclear, we don't see any safety issues because the NRC adopted that.

[00:23:52] Speaker 08:
Then if you look at the FERC certificate at paragraph 108, it parrots the FDIS.

[00:23:57] Speaker 08:
Then when you look at the rehearing request in paragraph 201, FERC then says that goes back to its previous order.

[00:24:05] Speaker 08:
So basically there's this house of cards that relies on essentially a summary of a one paragraph meeting.

[00:24:13] Speaker 08:
that is in the record.

[00:24:14] Speaker 08:
Now, to be fair, Your Honors, there was a little bit more discussion in the rehearing request, a little bit of effort to respond to the arguments that the petitioners' experts made, and the response there was that, well,

[00:24:30] Speaker 08:
Mr. Cooper Woods and Mr. Blanch made their arguments at the NRC, and the NRC resolved their arguments so we don't have to address them.

[00:24:38] Speaker 08:
Our concern there, in case there's, I know the commission has made an argument about duplication, I apologize, Your Honor, if I can just finish this thought, I've gone over my time.

[00:24:48] Speaker 08:
But FERC is the expert on pipeline safety.

[00:24:51] Speaker 06:
Mr. Kukowitz.

[00:24:52] Speaker 06:
I mean, the NRC has to take into account, in protecting nuclear projects, the threats to the nuclear projects.

[00:25:04] Speaker 08:
Yes.

[00:25:06] Speaker 06:
So it's necessarily, I would think, an expert in that.

[00:25:12] Speaker 08:
Well, actually, Your Honor, if you look at the record, there was an NRC board review, and there was testimony from Mr. Kupowitz on page 1511 where he was talking about the issues with the pipeline.

[00:25:24] Speaker 08:
This is a 42-inch pipeline.

[00:25:26] Speaker 08:
It's a huge pipeline, and the types of pipelines that the NRC had dealt with were smaller pipelines, and there's concern that

[00:25:34] Speaker 08:
FERC didn't even look to really see what type of analysis the NRC had done about pipelines.

[00:25:40] Speaker 08:
Mr. Kruperowitz talked about the dangers of the larger pipeline.

[00:25:44] Speaker 08:
And in fact, he said in this board review, he said to the NRC, he said, I'm not criticizing you.

[00:25:49] Speaker 08:
It's just there's some pipeline operators who don't understand these potential threats.

[00:25:54] Speaker 08:
So there's a very real concern that these issues weren't adequately

[00:25:59] Speaker 08:
analyzed by the NRC and the Commission as the guardian of pipeline safety and the obligations under Section 7 should have reviewed that.

[00:26:07] Speaker 08:
I apologize for going over my time, Your Honors.

[00:26:09] Speaker 08:
Thank you.

[00:26:10] Speaker 05:
All right, Mr. Fulton.

[00:26:24] Speaker 01:
Thank you, Your Honors.

[00:26:25] Speaker 01:
Ross Fulton for the commission.

[00:26:27] Speaker 01:
Your Honors, if I may, I'll start quickly with the standing issue regarding the Boston delegation.

[00:26:33] Speaker 01:
As pointed out in the opening discussion with Petitioner, the Boston ordinance, on its plain language, says that the Corporation City Council shall, by himself or by his assistants, bring an action on behalf of the city of Boston.

[00:26:50] Speaker 01:
The city is its own legal entity.

[00:26:53] Speaker 01:
And it's not a mere technicality that the city itself has to bring in action.

[00:26:57] Speaker 01:
That's like saying that, oh, it's just a technicality if I bring in action on behalf of my friend.

[00:27:02] Speaker 01:
It's its own legal actor.

[00:27:04] Speaker 01:
And Rick Murr, the case cited by Petitioner, underscores that point.

[00:27:09] Speaker 01:
Because in that case, it's the city as its own party

[00:27:12] Speaker 01:
In the case, the court notes that it was brought by a vote of the mayor and the city council informing the corporation council to go ahead and bring suit on behalf of the city of Austin.

[00:27:24] Speaker 01:
The burden's on the petitioner to establish standing, and they haven't shown why that plain process and plain language in the city ordinance shouldn't be followed.

[00:27:36] Speaker 01:
With regards to segmentation, as the court, as was discussed initially, this case is false squarely within menacing.

[00:27:49] Speaker 01:
We have a situation here where there was one applied for project, another project that had just reached the pre-filing stage, and so it was not a proposal.

[00:28:00] Speaker 01:
The commission made a factual finding here that this was driven by market demand, similar to in menacing.

[00:28:06] Speaker 01:
And as the medicine court further noted, that the commission can assess the cumulative impacts to the extent the information is available about the initial project.

[00:28:22] Speaker 01:
It can then go back and further assess.

[00:28:25] Speaker 01:
And with the assessment project, it will have far more information about what actual impacts the first project had.

[00:28:32] Speaker 01:
The commission here,

[00:28:34] Speaker 01:
despite the fact that it had limited information, made every effort to consider the potential future projects and its cumulative impacts analysis.

[00:28:42] Speaker 04:
In fact... What are the statuses of the future projects?

[00:28:46] Speaker 01:
The Atlantic Bridge project has... the certificate has been issued for that project.

[00:28:52] Speaker 01:
It is currently subject to rehearing.

[00:28:54] Speaker 01:
As the commission notes in the rehearing order, that project was actually shrunk by about 40 percent, so...

[00:29:01] Speaker 01:
what the environmental panics have been actually represents probably worst case scenario access northeast was withdrawn so it is not pending before the commission and that I think shows the problem of forcing the commission to wait contrary to its responsibility under the natural gas act to

[00:29:20] Speaker 01:
consider each application before it is, should the commission have waited for years here only for the last in time project to be withdrawn, forcing fully subscribed pipeline with customers to wait?

[00:29:37] Speaker 06:
Incidentally, I had noticed in the briefing that the argument that the NRC

[00:29:43] Speaker 06:
rested its calculations on smaller pipelines.

[00:29:49] Speaker 06:
Is that the case?

[00:29:51] Speaker 01:
No, Your Honor.

[00:29:52] Speaker 01:
In fact, if you look at the, and this goes to the point about what's in the record, between the certificate order, the NRC issued its initial findings in November of 2014 after both an independent analysis and extensive discussions with commission staff.

[00:30:08] Speaker 01:
For the next year or so between the certificate order and the rehearing orders issue, there was correspondence back and forth between experts for the petitioners and with the NRC.

[00:30:20] Speaker 01:
So if you look particularly at JA 1735, the NRC responds to the allegation that the

[00:30:30] Speaker 01:
that the Nuclear Regulatory Commission has an unrealistic valve closure time for the pipeline, for instance, and the NRC responds, we studied the issue, we considered valve closure times up to an hour and found that it did not have a meaningful impact.

[00:30:48] Speaker 01:
Similarly, on J1745, the NRC states that with concerns about the blast radius from a bigger pipeline, the NRC says that that is a misunderstanding because natural gas is a gas, and so most of it will dissipate.

[00:31:04] Speaker 01:
The commission then reviewed those findings and noted first in paragraph 201 of the Rehearing Order, J1851, that they noted that the experts for petitioners filed these petitions with the Nuclear Regulatory Commission.

[00:31:20] Speaker 01:
the Nuclear Regulatory Commission responded and continued to conclude that a potential rupture in a worst-case scenario does not pose a threat.

[00:31:30] Speaker 01:
The commission then added in paragraph 203, J1852, that the commission will rely on other expert agencies, provided that the commission's staff and the commission has its own experts on staff, are satisfied as to the competence and the validity of the basic data and analysis.

[00:31:48] Speaker 01:
So the commission did in fact review the competing expert opinions, and under Murray, another president of this court, the court defers the commission's considerations of experts.

[00:32:00] Speaker 01:
I would also further note one other thing, Your Honor, that not in the joint appendix, but attached to

[00:32:08] Speaker 01:
the state petitioner from petitioners in this matter last year, they attached further correspondence back and forth between the Nuclear Regulatory Commission and FERC, and NRC asked FERC whether they wanted to use their own, whether the commission should use its own blast modeling data, and the commission said no, ours is used to measure liquefied natural gas explosions, given that that involves a liquid and not a gas, and that we find that

[00:32:35] Speaker 01:
the Nuclear Regulatory Commission's analysis remains a reasonable analysis.

[00:32:42] Speaker 01:
So, in short, the Commission did rely on the other expert agency who's entrusted to review nuclear safety threats and found that their analysis was reasonable and adequately addressed the concerns raised by the petitioner's experts.

[00:33:05] Speaker 01:
With regards to the alternatives in West Roxbury to the quarry, Your Honor, I would only note that the Commission did not say that it would go through more or less residential neighborhoods.

[00:33:20] Speaker 01:
What the Commission said is it acknowledged that the proposed alternative

[00:33:24] Speaker 01:
would go by more homes, but it would have fewer impacts on the residential neighborhoods at issue because the alternative would require long-term easements and through people's backyards and street closures, whereas the chosen route would

[00:33:40] Speaker 01:
primarily use existing right-of-ways through roads and commercial and industrial parking lots.

[00:33:46] Speaker 01:
And so not only would that have fewer impacts on residents, but it would also have fewer environmental impacts since those are already existing right-of-ways and would not involve digging up folks' homes to put in pipeline.

[00:34:02] Speaker 01:
The commission is the party that is entrusted to make these sort of weighing of alternative analysis and has – can reach – as long as the commission considers these reasonable alternatives, it can reach a conclusion.

[00:34:17] Speaker 01:
If there's no further questions, I'm happy to cede my time.

[00:34:20] Speaker 05:
All right.

[00:34:21] Speaker 05:
Thank you.

[00:34:21] Speaker 01:
Thank you.

[00:34:23] Speaker 05:
Mr. Marwell?

[00:34:35] Speaker 02:
Please support Jeremy Marwell, correspondent intervener Algonquin.

[00:34:39] Speaker 02:
If I could start with segmentation and the status of the projects, as the Commission has indicated... Can I just ask you a question about standing first, since you were the party who asserted this most vigorously?

[00:34:50] Speaker 04:
So, on the City of Boston, if we

[00:34:54] Speaker 04:
take, if we accept the argument put forward by city council to the effect that it's just a technicality to have the mayor rather than the city and that the mayor actually is the city, let's just assume for purposes of argument that that's true, then would you dispute the notion that if the city in fact is before us, then under the Maryland People's Council decision that there's standing based on the logic of that decision since municipality under the statute is defined to include both a state agency and a city?

[00:35:24] Speaker 02:
Yes, accepting that assumption, which obviously we dispute, I think, and assuming that you were prepared to technically extend Maryland People's Council, which was a state agency, this is a municipality, so I think there is a distinction, but as you say, the statute speaks to both.

[00:35:38] Speaker 04:
Right, so does that distinction matter?

[00:35:40] Speaker 04:
Because if the statute defines municipality to include both city and state agency, then are we over the hump on that?

[00:35:48] Speaker 02:
I think perhaps the other distinction is

[00:35:50] Speaker 02:
What's what is that if you were writing on a fresh slate after next mark and the other decisions suggesting that some branches of Prudential Standing or what was previously called Prudential Standing and I took that to be the linchpin of the Maryland People's Council analysis.

[00:36:04] Speaker 02:
If it's not if it if it is Prudential then Congress can overrule it in the Natural Gas Act.

[00:36:08] Speaker 02:
So I think if you were prepared

[00:36:10] Speaker 02:
to continue to believe that third-party standing or parents-patriot standing was prudential, then that would be – you could extend Maryland People's Council in that way.

[00:36:20] Speaker 04:
But, Lex Mark, do you think potentially calls into question the underpinnings of Maryland People's Council to begin with?

[00:36:26] Speaker 02:
The footnote reserves the question of third-party standing, but I think the rationale of the decision, it recognizes that in the past, concepts like a generalized grievance have been understood as prudential standing, that the court moves them in the direction.

[00:36:39] Speaker 02:
And there's the Second Circuit decision cited in our supplemental brief, where the Second Circuit suggests that third-party standing is really article 3.

[00:36:48] Speaker 02:
So I think it's an open question.

[00:36:49] Speaker 02:
This court has

[00:36:50] Speaker 02:
There are decisions from this court that have referred to third-party standing as prudential post-lex mark.

[00:36:56] Speaker 02:
I don't think they really engage with the issue.

[00:36:59] Speaker 02:
So I think it's a knotty question, but for the reasons in our brief, I don't think you have to reach it.

[00:37:06] Speaker 04:
Because of the assumption?

[00:37:07] Speaker 02:
Correct.

[00:37:07] Speaker 02:
Yeah.

[00:37:08] Speaker 04:
OK.

[00:37:08] Speaker 02:
Exactly.

[00:37:09] Speaker 02:
On segmentation, the Atlantic Bridge Project was approved by the Commission on January 25th, 2017.

[00:37:17] Speaker 02:
In other words, the Commission issued the certificate order.

[00:37:20] Speaker 02:
The Algonquin Environmental Market Project entered full service several weeks before that, so January 7th, 2017.

[00:37:27] Speaker 02:
And I think the proof is essentially in the pudding here when you look at independent utility.

[00:37:32] Speaker 02:
The company proposed sought approval for, constructed, and placed in service this first project before the second project in this supposed series had been approved by the commission.

[00:37:44] Speaker 06:
Council, you used the concept of the absence of a rate subsidy for rowland.

[00:37:49] Speaker 06:
Could you explain that?

[00:37:51] Speaker 06:
That goes to the issue of independence.

[00:37:55] Speaker 02:
Yeah, so in doubt.

[00:37:57] Speaker 02:
I'm sorry.

[00:37:57] Speaker ?:
Go ahead.

[00:37:57] Speaker 02:
In Delaware Riverkeeper Network, this court was analyzing four upgrade projects on a different pipeline, a different company's pipeline.

[00:38:06] Speaker 02:
And it looked at the fact that when the commission was setting rates for one project versus the second project, there was an interrelationship.

[00:38:14] Speaker 02:
so that essentially one project was benefiting from the other, and so it made sense to give credit to adjust the rates in that way.

[00:38:22] Speaker 02:
Nothing like that is present here.

[00:38:23] Speaker 02:
The rates were set independently with the application of the Commission's standard certificate policy, which requires a new project to stand on its own and not impose any costs on existing customers.

[00:38:35] Speaker 02:
The Commission made a finding that this was a market-driven project.

[00:38:40] Speaker 02:
It has distinct customers, distinct receipt points, distinct delivery points.

[00:38:44] Speaker 02:
There is some overlap, but where there was overlap, the Commission acknowledged it.

[00:38:50] Speaker 02:
This Court has said that timing is a particularly important characteristic for segmentation claims, and we would agree with Judge Williams' question.

[00:39:00] Speaker 02:
that there was no application pending for the second project here, and that's a critical point in the commission's process.

[00:39:06] Speaker 02:
If you look at why that is so, the Atlantic Bridge project changed quite dramatically from its pre-filing to its application.

[00:39:13] Speaker 02:
You have the numbers in the record, but 36 miles of pipe at the time of pre-filing, 6.3 miles of pipe at the application.

[00:39:22] Speaker 02:
And I think that shows, if what you're trying to do is understand what are the actual environmental effects, that's a very significant distinction, and it shows why.

[00:39:30] Speaker 02:
The concept of proposal should be tied to an application.

[00:39:34] Speaker 02:
Is there no further questions?

[00:39:35] Speaker 05:
All right.

[00:39:36] Speaker 05:
Thank you.

[00:39:36] Speaker 05:
Finished right on time.

[00:39:37] Speaker 05:
OK.

[00:39:38] Speaker 05:
Does Mr. Fitzpatrick have any time left?

[00:39:43] Speaker 03:
All right, why don't you take one minute.

[00:39:44] Speaker 03:
Oh, well, thank you very much.

[00:39:46] Speaker 03:
Very quickly, it is the case that we cited to Richmere versus Revere.

[00:39:50] Speaker 03:
We cited to it in answer to the court's question about, under Massachusetts law, can municipalities sue Booth-Perrin's Patry, which they can.

[00:40:00] Speaker 03:
And that's why we cite to it.

[00:40:02] Speaker 03:
Mr. Fulton's comment about it, I just want to say this.

[00:40:06] Speaker 03:
That case doesn't concern Boston.

[00:40:07] Speaker 03:
It concerns Revere.

[00:40:09] Speaker 03:
Every city has a different sort of governmental set of ordinances.

[00:40:12] Speaker 03:
Initiation of a lawsuit does not require a vote of the City Council.

[00:40:15] Speaker 03:
It requires the direction of the Mayor.

[00:40:18] Speaker 03:
So I'll just make that comment about Richmere.

[00:40:20] Speaker 03:
The other issue, the Commission takes issue with our assertion that the Commission found

[00:40:29] Speaker 03:
that the alternative route passed through more residential neighborhoods than the proposed route.

[00:40:35] Speaker 03:
And he backed off of that just now.

[00:40:37] Speaker 03:
It is very clearly stated at page 867 of the record that the commission justifies

[00:40:44] Speaker 03:
its choice by saying that the proposal passes through fewer residential neighborhoods, the chart at that page and the map on the following page show that that is false.

[00:40:54] Speaker 03:
We recognize the great deference that the commission is entitled to.

[00:40:59] Speaker 03:
What we're arguing is that if you drill down into the findings that support the choice it made, they are clearly not supported by the record.

[00:41:07] Speaker 03:
And again, those two pages of the record will establish that.

[00:41:11] Speaker 03:
Thank you very much.

[00:41:12] Speaker 05:
Thank you.

[00:41:13] Speaker 05:
How about Miss Elephant?

[00:41:15] Speaker 05:
Does she have any time?

[00:41:17] Speaker 05:
Alright, why don't you take a minute?

[00:41:23] Speaker 08:
Your honors, just to quickly respond to the commission's point about the NRC, reviewing paragraph 201 of the rehearing decision, Burke did not cite to, it references different studies by the NRC, but it didn't actually cite to that document.

[00:41:41] Speaker 08:
The one document that Burke does cite to is the environmental impact statement.

[00:41:46] Speaker 08:
So we would argue that any reference to these documents that are outside of the rehearing request are post hoc rationalizations of the commission's

[00:41:53] Speaker 08:
decision on the nuclear safety issue.

[00:41:56] Speaker 08:
And on the segmentation and cumulative impacts issue, as we've argued before, there was significant enough overlap between these projects, as much overlap in terms of environmental impacts as there was in Delaware River Keeper.

[00:42:12] Speaker 08:
I don't have any further remarks.