[00:00:00] Speaker 00: Case number 16-1092, Delaware River Super Network and L Petitioners versus Federal Energy Regulatory Commission. [00:00:08] Speaker 00: Mrs. Stipowicz for the petitioners, Ms. [00:00:10] Speaker 00: Kafer for the respondents, Mrs. Stovak for those intervening. [00:00:57] Speaker 06: All right, no sitting down. [00:01:01] Speaker 02: I have time to rest. [00:01:08] Speaker 02: Aaron Stubowitz on behalf of petitioners, Delaware Riverkeeper Network and the Delaware Riverkeeper. [00:01:12] Speaker 02: This case involves claims under two separate statutes, the Clean Water Act and NEPA. [00:01:17] Speaker 02: However, the violations alleged of these statutes are necessarily, to a certain extent, interwoven and interconnect with each other. [00:01:25] Speaker 02: Here we have a situation where the Federal Energy Regulatory Commission authorized a project without knowing the full extent and scope of the necessary information to make a reasonable determination regarding the significance of the harms that will result from the project. [00:01:42] Speaker 04: You mean conditionally authorized, right? [00:01:44] Speaker 04: Conditionally authorized, correct. [00:01:46] Speaker 04: That's the big difference. [00:01:48] Speaker 02: Yes. [00:01:50] Speaker 02: I don't know if that necessarily makes a big difference in this case. [00:01:55] Speaker 02: And the facts here are clear and uncontested. [00:01:59] Speaker 02: The Federal Energy Regulatory Commission identified only seven of the roughly 50 wetlands as being exceptional value wetlands, meeting the highest and most strict criteria in the state of Pennsylvania for providing enhanced wetland values and functions. [00:02:17] Speaker 02: And despite the fact that they identified only seven of these wetlands meeting that criteria, we know for a fact that every single wetland in the project actually is exceptional value. [00:02:31] Speaker 02: And we know that because of the information that came out after FERC issued its certificate. [00:02:37] Speaker 02: The environmental assessment is also riddled with numerous and what I would classify as egregious errors when it comes to examining the cover type of these wetlands. [00:02:46] Speaker 02: And for reference, I would refer you to page 21 of our reply brief, where we show an image of wetlands, I think it's 002, 007, and you see that wetland is entirely within the tree line. [00:03:01] Speaker 02: So it's an entirely forested wetland. [00:03:03] Speaker 02: You go and look at the table for that wetland, and it's classified as an emergent wetland. [00:03:07] Speaker 02: An emergent wetland, by definition, has no trees. [00:03:10] Speaker 02: And when you're calculating, and that's important because when you're calculating the mitigation and the way that Burke calculated the mitigation for this project here, [00:03:18] Speaker 02: is they calculate it based on a ratio of changing cover type. [00:03:24] Speaker 02: So if you don't get the classification right in the first instance, and you misidentify the cover type for a forested wetland, you can't calculate the appropriate mitigation that takes place later to compensate for that deforestation of that wetland. [00:03:40] Speaker 02: And these problems all could have been partially avoided, if not altogether avoided, had first simply waited for the 401 certificate to be issued prior to it issuing its certificate authorizing the project. [00:03:56] Speaker 06: Wait, I'm not sure I understand. [00:03:58] Speaker 06: Waited for the state certificate, you mean? [00:04:01] Speaker 02: Yes, so if, correct. [00:04:03] Speaker 06: Okay, so my understanding is that they did not approve the project going forward. [00:04:09] Speaker 06: They conditioned it upon obtaining the state certificates. [00:04:15] Speaker 06: So I'm not sure how your argument works here. [00:04:19] Speaker 02: Yes, so I mean, I would say first that this case is different from Gunpowder Riverkeeper for a number. [00:04:25] Speaker 06: I don't care whether it's different. [00:04:27] Speaker 06: I just want to know why it is the case. [00:04:30] Speaker 06: What in the conditional certificate allowed the pipeline company to go forward with the pipeline before [00:04:41] Speaker 06: the state certificates came in. [00:04:44] Speaker 02: FERC authorized pursuant to the certificate, tree-filling activities. [00:04:50] Speaker 06: And that was in those letters, is that right? [00:04:52] Speaker 06: The letter orders, correct. [00:04:53] Speaker 06: And you didn't challenge, those are final agency actions, which you didn't challenge in court, right? [00:05:00] Speaker 02: Correct. [00:05:01] Speaker 06: So isn't the nature of your objection, those letters, which [00:05:08] Speaker 06: I don't know whether they were bad or good, but they were the things that authorized the tree felling. [00:05:15] Speaker 06: So why didn't you challenge them? [00:05:18] Speaker 06: You did challenge them. [00:05:19] Speaker 06: Actually, you sought stays, but after that failed, you didn't then file a petition for review. [00:05:25] Speaker 02: Yeah, so if we were challenging the, if we were bringing a case that the tree-felling orders actually resulted in a discharge pursuant to the Clean Water Act, that's a separate claim. [00:05:41] Speaker 02: That's a challenge to the court. [00:05:42] Speaker 06: Well, you could have made a claim that it was arbitrary and capricious to have done those letters until the state had issued their certificate. [00:05:53] Speaker 06: You didn't do that. [00:05:54] Speaker 02: Yes, but I don't think we need to. [00:05:56] Speaker 02: All we need to show is that a discharge may occur and the activities on the ground taking place on the ground may occur from the tree felling, which you didn't contest. [00:06:07] Speaker 02: Yeah, that's correct. [00:06:08] Speaker 02: We did not contest that that the tree felling that's true. [00:06:11] Speaker 04: So the main discharge issue, there's nothing in the conditional approval. [00:06:17] Speaker 02: The ultimate power for the project applicant to move forward. [00:06:22] Speaker 02: There's nothing in the conditional order that says, well, for tree felling activities, you need to get our authorization to move forward. [00:06:30] Speaker 02: There's nothing in the conditional certificate that says that. [00:06:33] Speaker 06: It says you have to get the necessary environmental conditions. [00:06:37] Speaker 06: You have to be satisfied. [00:06:39] Speaker 02: Yes. [00:06:39] Speaker 06: So if it turns out that [00:06:41] Speaker 06: that the letters were unlawful either because they were arbitrary and capricious or because they allowed discharge or because they were inconsistent with the conditional order, then you could have challenged it on any of those grounds. [00:06:57] Speaker 02: We may have, but I don't even think we need to show that activities took place on the ground that may have resulted in a discharge to be successful on our sequencing claim regarding the timing of the 401 certificate. [00:07:08] Speaker 02: Okay, so why is that? [00:07:10] Speaker 02: And that's because the clear language of 401 states that no license or permit shall be granted until the certification required by this section has been obtained. [00:07:20] Speaker 02: It does not say [00:07:21] Speaker 02: no activities that may result in a discharge shall be granted until the certification required by this section has been obtained. [00:07:28] Speaker 02: That's a meaningful difference. [00:07:30] Speaker 02: And I would further submit that... So I'm sorry, so what does that mean? [00:07:33] Speaker 06: That means, in your view, that the letters were... [00:07:36] Speaker 06: I'm awful, but I don't understand why. [00:07:39] Speaker 02: Perhaps they are, but that's not the case that we're bringing. [00:07:42] Speaker 06: I know. [00:07:42] Speaker 02: I'm wondering maybe whether you were brought to wrong case. [00:07:45] Speaker 02: That's why I'm wondering. [00:07:46] Speaker 02: I am but one man. [00:07:47] Speaker 02: I love to bring many cases. [00:07:50] Speaker 02: But this is sort of the path that we chose here. [00:07:54] Speaker 02: And I think it's also important to understand that [00:07:57] Speaker 02: If you accept the premise that no activities that may result in a discharge shall be granted until the certification required by this section has been obtained, that reads out the purpose of the next sentence in Section 401A1, which states no license or permit shall be granted certification if the certification has been denied by the state. [00:08:19] Speaker 02: Here, FERC can never have complied with that provision because had PA denied the 401 certificate, FERC had already issued its certificate. [00:08:28] Speaker 02: No, it issued a certificate conditioned on the grant, on the non-denial. [00:08:33] Speaker 04: It clearly would have been stopped. [00:08:35] Speaker 04: I mean, if the state, they couldn't do anything until the state approved it. [00:08:41] Speaker 02: I mean, I respectfully disagree that they couldn't do anything. [00:08:44] Speaker 04: Well, they could do something but they would be subject to challenge. [00:08:48] Speaker 04: If the state said no and then they went ahead and gave final approval, you have an easy case. [00:08:54] Speaker 02: Yeah, and I think there's a second element here also, and this is really what I would go back to, is that the data in the Section 401 Water Quality Certificate materially conflicted with the information that was relied on to provide the certificate in the first place. [00:09:13] Speaker 02: We know that when the 401 came out and that there was a proper evaluation of the wetlands and the impacts and the quality of the wetlands, we know that was materially different than what FERC relied on to make a determination regarding the significance of the impact. [00:09:29] Speaker 02: And that's especially important here. [00:09:31] Speaker 02: When the wetlands at issue, there is no examination. [00:09:35] Speaker 05: That's your stronger argument. [00:09:36] Speaker 05: What happens if we agree with you on that argument? [00:09:40] Speaker 02: What happens? [00:09:41] Speaker 02: That sort of goes to what remedy is available. [00:09:44] Speaker 02: And I think the remedy is that we remand back to FERC to examine all the information it should have examined in the first place. [00:09:52] Speaker 05: You remand back to FERC so that they can provide answers to your points about wetlands, right? [00:09:57] Speaker 02: Yes, that's correct. [00:09:58] Speaker 02: And determine whether or not, so... That the state properly considered. [00:10:02] Speaker 02: That the state did, that the state considered. [00:10:05] Speaker 02: But we have to understand that there's a difference in the purpose and objectives between the Clean Water Act and NEPA. [00:10:12] Speaker 02: And what NEPA is really interested in, is in the context of this case, you have an environmental assessment. [00:10:18] Speaker 02: Further environmental review is necessary under two circumstances. [00:10:23] Speaker 02: The first circumstance is whether if the agency determines that there's a significant impact, then you go to an environmental impact statement. [00:10:31] Speaker 02: Or if the agency determines that we're not sure, we're actually not sure if there's a significant impact, then again, it goes on the further review. [00:10:39] Speaker 02: And so I would submit to you here that there is value added in going and remanding this back to FERC so that they can make a determination whether or not [00:10:48] Speaker 02: the quality of the wetlands impacted and whether their failure to take to account that is the state approval worth nothing. [00:10:58] Speaker 04: That doesn't affect anything. [00:11:00] Speaker 04: When the state uses its approval, does that have some impact? [00:11:04] Speaker 02: Perhaps it does, but in the context of NEPA, we're talking about a cumulative review of a lot of different elements. [00:11:12] Speaker 02: So we don't know if this case was right on the edge of being significant or not significant. [00:11:16] Speaker 05: Council, maybe I misunderstood your argument. [00:11:17] Speaker 05: I thought it was a far more modest one. [00:11:19] Speaker 05: I thought you were saying there are a couple of elements of the wetlands determination in particular. [00:11:24] Speaker 05: The FERC just hasn't answered. [00:11:27] Speaker 05: And so wouldn't the answer to that, if we agree to do, [00:11:30] Speaker 05: They may have perfectly fine answers, but we don't know what they are. [00:11:36] Speaker 02: Exactly. [00:11:36] Speaker 02: That's exactly true. [00:11:37] Speaker 02: We just don't know. [00:11:38] Speaker 02: And I can't speculate as to what their biologists are going to determine or whoever they have looking at this application. [00:11:45] Speaker 04: See, the thing I don't understand with that argument is, as I read, and it's best I could figure it out, you can tell me if I'm wrong, the mitigation considerations seem to be exactly the same. [00:11:54] Speaker 04: You did quibble over while the acreage was a little different [00:11:59] Speaker 04: But as I read it overall, anyone who looks at this NEPA statement, and that's all you're doing is giving guidance with it, it's just, did you take account of everything? [00:12:08] Speaker 04: They took account of all classifications. [00:12:10] Speaker 04: The acreage may have been slightly off here or there, but so what, was my question. [00:12:14] Speaker 04: Because the mitigation considerations that someone was looking for are all obvious. [00:12:20] Speaker 02: Yeah, well, I would say that mitigation is an important part of finding there's no significant impact. [00:12:26] Speaker 02: And when you have a mitigation plan like here, where the mitigation plan is expressly and specifically focused on replacing cover type on a three to one ratio. [00:12:40] Speaker 02: So in other words, if you mess up on one acre of forest type, that's magnified by three in the mitigation plan. [00:12:48] Speaker 04: So I don't see where the adverse effect comes in. [00:12:53] Speaker 04: NIFA doesn't command any particular action. [00:12:58] Speaker 02: But it does? [00:12:58] Speaker 04: And you went from whatever Ferg said in the EA to what the state did, and you agree the state got it completely right. [00:13:08] Speaker 04: So there was no confusion in how to think about what we're working with here. [00:13:12] Speaker 04: And that seems to cut right against your argument that someone might be confused with [00:13:17] Speaker 04: of Burke's EA, and I'm not sure why they would be confused, because I think all the mitigation considerations are quite obvious. [00:13:24] Speaker 04: The state certainly got what they were supposed to get, and anyone else looking at it would understand. [00:13:30] Speaker 02: So part of the reason why FERC found that there was no significant impact was specifically premised on there being an adequate mitigation plan. [00:13:40] Speaker 02: And unless you get that information right in the first instance to provide a correct baseline from which to develop your mitigation plan, you may actually have significant impacts. [00:13:51] Speaker 02: We just don't know, because the analysis wasn't done based on the correct information which was provided later. [00:13:56] Speaker 04: What do you think was the worst failing in the mitigation plan? [00:14:00] Speaker 02: Well, I think the most obvious one was the one we provided in our brief on page 21, where we showed that a wetland was a completely forested wetland. [00:14:09] Speaker 02: You don't need to be a wetland specialist to look at that wetland, see trees completely within a tree line. [00:14:15] Speaker 05: Page 21 of your reply brief. [00:14:17] Speaker 02: I'm sorry, yes. [00:14:18] Speaker 02: Page 21 of the reply brief. [00:14:19] Speaker 02: You'll need to be an expert to see that that wetland is clearly forested. [00:14:23] Speaker 02: And there are numerous other examples where the majority of the wetlands are forested. [00:14:30] Speaker 02: And those forested wetlands were completely unaccounted for in the mitigation plan. [00:14:36] Speaker 02: And what makes this worse is that each one of these wetlands are... The state didn't miss anything, right? [00:14:41] Speaker 02: I don't know. [00:14:42] Speaker 02: I don't know. [00:14:42] Speaker 02: But you said that what they did was fine. [00:14:46] Speaker 02: So what happened with the, when the 401 water quality certificate was issued, there was no, at that time, there was no examination as to whether or not the certificate actually, there was no examination of whether the product complied with water quality standards. [00:15:01] Speaker 02: I know that may sound crazy, and that was what we were arguing in that case, is that is crazy. [00:15:05] Speaker 02: But you lost that case. [00:15:06] Speaker 02: We did lose that case because, and the reason why we lost that case is actually supports our argument here. [00:15:12] Speaker 02: And there the court said, you petitioners were not harmed because the 401 Water Quality Certificate did not authorize construction activity. [00:15:21] Speaker 02: And then I believe the court directly states that the Natural Gas Act grants the exclusive authority to authorize construction by issuing a certificate of public convenience and necessity. [00:15:33] Speaker 02: So the power is derived directly from that certificate. [00:15:38] Speaker 02: And that's directly from that brief, and I believe that supports our position here, that construction activity, that the power to move forward with construction activity, and I would submit that tree felling is construction activity, is derived from the certificates. [00:15:54] Speaker 06: Is there something that came out in the state certificates that wasn't known before? [00:16:01] Speaker 02: Could you rephrase the question? [00:16:03] Speaker 06: Is there information about wetlands that came out as a consequence of the state certificates that wasn't known before they were issued? [00:16:14] Speaker 02: That wasn't known before FERC issued their certificate? [00:16:17] Speaker 02: No, no. [00:16:18] Speaker 06: Before the state issued their certifications, did the states come up with some information that wasn't previously known? [00:16:28] Speaker 02: They were responding in large part to comments and expert reports that we submitted to them saying that state, you've got to look at all these wetlands as being exceptional value because they're providing high functions of value. [00:16:41] Speaker 06: And you made the same argument to FERC. [00:16:43] Speaker 02: And we made the same argument to FERC. [00:16:44] Speaker 06: So I'm still stuck on this question of, okay, maybe it's a mootness question. [00:16:50] Speaker 06: The state has now, state certificates have now issued [00:16:54] Speaker 06: Why isn't the claim of the conditional certification, conditioned on state certifications, moot? [00:17:02] Speaker 06: And I want you to leave out the foresting part, because I'm going to assume for the purpose of this argument, the felling part, because I'm going to assume for purpose of the argument the only way you could challenge that was through challenging the letters. [00:17:14] Speaker 02: I think in two ways it's not moot. [00:17:16] Speaker 02: One, by issuing the certificate later, and that information that FERC did not consider [00:17:23] Speaker 02: That happened after the certificate. [00:17:25] Speaker 06: What's that information? [00:17:27] Speaker 06: What information? [00:17:27] Speaker 02: The quality of the wetlands being impacted. [00:17:30] Speaker 06: I thought you said you put that in as part of your comments on their EA. [00:17:36] Speaker 02: We did. [00:17:37] Speaker 02: We submitted that roughly 16 wetlands were EA. [00:17:40] Speaker 06: So it's not that they didn't do it. [00:17:42] Speaker 06: They did it. [00:17:43] Speaker 06: They had the information. [00:17:44] Speaker 06: They just came out differently than you did. [00:17:47] Speaker 02: So the Federal Energy Regulatory Commission had the information that we submitted regarding 16 wetlands. [00:17:56] Speaker 02: The project applicant and KDAB later determined that it wasn't just 16 wetlands. [00:18:01] Speaker 02: We actually underestimated the number and the quality of the wetlands being impacted here by a magnitude of 35 wetlands or so. [00:18:12] Speaker 02: paid up eventually found that the quality of every single wetland in the project area, not just seven, not just 16. [00:18:19] Speaker 06: So are you saying that more information came to light after the EA was issued? [00:18:24] Speaker 06: Is that your claim? [00:18:25] Speaker 02: Yes, correct. [00:18:25] Speaker 02: That's correct. [00:18:26] Speaker 06: And I have to say, I think I missed that point. [00:18:30] Speaker 06: Is there sort of an additional claim here that they should have readdressed the EA later? [00:18:36] Speaker 06: I don't remember reading that. [00:18:37] Speaker 02: that FERC should have addressed. [00:18:41] Speaker 02: We didn't have an opportunity to comment. [00:18:42] Speaker 02: We couldn't have known and anticipated what PADEP would find that was in addition to what we found when we were commenting over eight months prior in the comment period for the EA. [00:18:55] Speaker 02: Otherwise, we would have brought that up. [00:18:58] Speaker 02: But I think it also goes to one more issue is that it robbed the public of their ability to meaningfully participate when they don't know and our members don't know the true scope of the harms here. [00:19:11] Speaker 06: That's not a problem of a conditional certificate. [00:19:14] Speaker 06: That may be a problem with the timing of the EA, which I didn't understand you to be making. [00:19:21] Speaker 02: the timing of the, so right, because your comment period is limited to 30 days after the EA is issued. [00:19:29] Speaker 04: Okay. [00:19:29] Speaker 04: But didn't FERC ultimately require that Transco had to [00:19:35] Speaker 04: With respect to their wetland delineations, they had to comply with the Army Corps of Engineers and with the state and with what FERC was saying. [00:19:43] Speaker 04: And I'm still not understanding where is the harm to you on your side of it. [00:19:48] Speaker 02: Yeah, so I believe that it was the Federal Energy Regulatory's position that they only had to comply with the Army Corps and that they didn't even consider [00:19:59] Speaker 02: the Pennsylvania State Water Quality Designation methodology. [00:20:04] Speaker 02: That's my understanding from their briefing is that it was pretty clear that they took that position when, in fact, the EA is sprinkled all over the EA with references to this Pennsylvania methodology for identifying sensitive water bodies, surface waters, including... No, that's not the way I'm reading it. [00:20:20] Speaker 04: It said that they had to comply with each of the agencies, what each had to say, what side in the Army. [00:20:29] Speaker 02: So from what I understand from the environmental assessment, that that is true, that they do have to comply with all the provisions that the states provide in their state certificates. [00:20:42] Speaker 04: But to get to the heart here, I think the... The wetlands impacts will be minimized and compensated for by implementing the construction, restoration, and mitigation measures proposed by Transco and as may be required by the Army Corps and by state agencies. [00:21:04] Speaker 04: I don't see how you can say there was a final action taken, but in any event, I'm still not sure what harm you're complaining about. [00:21:13] Speaker 04: This was the ultimate action. [00:21:14] Speaker 02: So I think the harm again is twofold. [00:21:16] Speaker 02: One is a procedural harm in that the public wasn't able to comment on the full scope of the impacts resulting from the project. [00:21:23] Speaker 02: But I think the second harm is that [00:21:26] Speaker 02: FERC was simply unaware, at the time it issued its EA and its finding of city of an impact, what the quality of the wetlands that were being impacted were. [00:21:35] Speaker 02: They had no idea. [00:21:36] Speaker 02: They could have been absent. [00:21:38] Speaker 04: But they knew that at the time that they issued the final approval. [00:21:45] Speaker 02: The final approval came prior to the 401 coming out. [00:21:52] Speaker 04: That's the conditional order. [00:21:54] Speaker 02: Yes, correct. [00:21:56] Speaker 02: The conditional order had to be made final. [00:22:00] Speaker 02: I don't know. [00:22:01] Speaker 02: Also, I would say that the 401 came out after even the order for tree felling and many other orders to proceed with other construction activity. [00:22:18] Speaker 05: I'm a little bit confused. [00:22:20] Speaker 05: What's the relationship between the environmental assessment that you're challenging and the final clearance, the final certificate? [00:22:27] Speaker 05: Are you saying had they known, had the environmental assessment then been done properly with FERC giving its full responses that maybe the outcome would have been different? [00:22:39] Speaker 02: Perhaps the EA would come to a different conclusion. [00:22:43] Speaker 02: So the EA has to either determine whether, again, as I said earlier, whether they don't know whether there's a significant impact or whether there's a significant impact, or the third, which is what they found, a finding of no significant impact. [00:22:53] Speaker 02: There's three possible outcomes. [00:22:55] Speaker 02: And the finding of no significant impact is recommended in the EA and then adopted in the FERC order, the certificate itself. [00:23:03] Speaker 02: And we're saying that. [00:23:04] Speaker 05: Because that's what you're looking for. [00:23:06] Speaker 05: Are you looking for, let's reopen the EA, at least in this part, to require FERC to respond with your hope that it will change the outcome? [00:23:13] Speaker 02: Yeah. [00:23:13] Speaker 02: Yeah. [00:23:13] Speaker 02: That's essentially what our thesis is. [00:23:15] Speaker 04: Do you have an opportunity to challenge the EA, once a re-hearing? [00:23:22] Speaker 02: You cannot challenge an environmental assessment absent final agency action. [00:23:26] Speaker 02: And final agency action happens here through one, the FERC order. [00:23:30] Speaker 02: Then we have to submit a re-hearing request, which we did. [00:23:33] Speaker 02: which FERC then is required to respond to within 30 days, which they did by issuing a tolling order, which then we waited a year and two months to finally have them issue a final order, and then we finally get into court. [00:23:45] Speaker 02: So that's why this project is in service, and all we're left talking about now is going back and looking at the EA and potential mitigation instead of what I would hope a more timely review would have been. [00:23:59] Speaker 06: All right. [00:23:59] Speaker 06: We'll hear from the government. [00:24:00] Speaker 06: Thank you. [00:24:01] Speaker 02: Thank you. [00:24:10] Speaker 06: I think it would help our consideration if you would focus on latter half of these arguments. [00:24:15] Speaker 06: That is, what's the consequence of having a conditional certificate and putting off what happens during the time between that and the time that the state certificates are issued and how this impacts the EA on the arguments that he was just making at the end. [00:24:39] Speaker 01: Okay, I'd be happy to do so, your honor. [00:24:41] Speaker 01: Um, the I think as we've recognized the conditional certificate does not authorize anything. [00:24:47] Speaker 01: Pipeline has to come back to work in order to get authorization to proceed with any type of construction activities. [00:24:54] Speaker 04: Did they come back at a later date after the states were done and get something? [00:24:59] Speaker 04: I can't find it in the record. [00:25:01] Speaker 01: So they have received the way that most pipelines are constructed is in pieces. [00:25:07] Speaker 01: And so [00:25:08] Speaker 01: Some of the references that you've seen in the papers before you would be to, for instance, I think the first authorization was to construct a pipe yard. [00:25:17] Speaker 01: And then there was an authorization for some tree felling in one area. [00:25:20] Speaker 01: Then there was an authorization for some tree felling in another area. [00:25:22] Speaker 01: So it's sort of doled out piecemeal based on the environmental constraints, based on the completion of review and authorizations from all of the other federal and state agencies that are involved. [00:25:38] Speaker 01: Getting back to, I think, your concern, Judge Garland, about how this affects Riverkeeper's ability to participate in the proceedings and to challenge the EA, there is no question that they had ample opportunity to comment and respond to the EA, which was issued, I think, a full year or six months maybe before the certificate order in this case. [00:26:05] Speaker 01: They're able to, on review of the certificate order, which of course adopts the environmental assessment, or it did in this case, they're able to challenge the findings in the EA. [00:26:16] Speaker 01: They've done that here and now brought those arguments to this court. [00:26:21] Speaker 01: So there's no procedural issue, at least, that I can identify. [00:26:26] Speaker 05: Is there – what is the explanation for the discrepancy between what petitioners and the intervener claimed was the extent of exceptional wetlands coverage? [00:26:41] Speaker 05: I think both of them said 61 percent of the wetlands were exceptional. [00:26:47] Speaker 05: relied on a much different number, 13%. [00:26:49] Speaker 05: What's the explanation for the discrepancy? [00:26:53] Speaker 05: Because I don't believe FERC has offered one other than saying we use good methodology. [00:26:58] Speaker 05: Never really took on an explanation for that specific discrepancy. [00:27:02] Speaker 01: So the key point is this. [00:27:05] Speaker 01: The commission did not rely on Pennsylvania's methodology for classifying wetlands, which is the exceptional or other methodology which Council for Riverkeeper has referenced. [00:27:18] Speaker 01: The table appendix I in the environmental assessment includes a column that indicates what the ranking was that the commission was presented with from the pipeline company, whether it's exceptional or other. [00:27:31] Speaker 01: But if you look at the commission's staff discussion of wetlands a few pages earlier in table 2.2.4-1 in the environmental assessment, you'll see that the commission used the [00:27:44] Speaker 01: the Army Corps of Engineers methodology for assessing. [00:27:49] Speaker 05: One methodology ends up with a finding that 13 percent of the wetlands is exceptional, and another ends up with 61 percent. [00:28:00] Speaker 05: That's a big discrepancy. [00:28:03] Speaker 01: The commission's not actually characterizing anything as exceptional. [00:28:08] Speaker 01: It's listed as a data point in the environmental assessment, but the commission did not rely on that. [00:28:14] Speaker 01: What the commission relied on was the finding, and it did, let me be clear, recognize that there would be a change in wetland quality, in particular going to River Keepers' arguments. [00:28:24] Speaker 01: I think there are eight acres of forested wetlands that would be [00:28:31] Speaker 01: impacted and 4.3 of those would be permanently converted to another type of wetland. [00:28:37] Speaker 01: And I should also emphasize, Riverkeeper has not alleged that there's any total wetland loss here at all. [00:28:44] Speaker 01: So, you know, if we take a step back for a second, what we're dealing with here under NEPA is an environmental assessment [00:28:51] Speaker 01: not an environmental impact statement. [00:28:53] Speaker 01: An environmental assessment requires a brief discussion of the impacts. [00:28:58] Speaker 01: And the Commission's analysis here at Wetlands using the very reasonable Corps of Engineers methodology surely satisfied that. [00:29:07] Speaker 01: Perhaps we should talk a little bit about what happened after, going back to your initial question. [00:29:12] Speaker 04: I think I heard you. [00:29:13] Speaker 04: I just want to make sure. [00:29:15] Speaker 04: This is my understanding. [00:29:16] Speaker 04: They were not using the same analyses [00:29:21] Speaker 04: in looking at the wetlands. [00:29:23] Speaker 04: So it's not like the commission was failing to refute the other side. [00:29:28] Speaker 04: They were not looking at it in the same way. [00:29:31] Speaker 04: And they were not characterizing it in the same way. [00:29:34] Speaker 04: But they were characterizing it in a way that there was no doubt that medication would be taken care of. [00:29:39] Speaker 04: That's why I kept asking, what is it we're missing? [00:29:43] Speaker 04: Am I hearing you correctly? [00:29:44] Speaker 01: You are correct, yes. [00:29:46] Speaker 01: did not, I can't be clear enough, we did not rely upon the Pennsylvania methodology, the exceptional classification. [00:29:53] Speaker 01: We relied upon the Corps of Engineers methodology, which classifies wetlands as forested or scrub shrub or emergent, and those are all laid out in Table 2.2.4-1. [00:30:06] Speaker 01: where the commission lists the impacted acreage, the acreage that's impacted by construction, which is greater than the acreage impacted by operation. [00:30:14] Speaker 01: On the point of one of the purposes here to develop mitigation, one, [00:30:22] Speaker 01: We are going back a bit to some arguments that they raised before the commission that didn't really appear in their opening brief before this court. [00:30:29] Speaker 01: That said, the important point from the NEPA perspective is that there's nothing in NEPA that requires mitigation plans to be finalized at the point of the EA or at the point of the certificate order. [00:30:40] Speaker 01: I don't think we addressed that issue directly in our brief, since it hadn't been raised in an opening, but you can find those points in Robertson v. Methow Valley Citizens' Council, and also the Theodore Rosalell Conservation Partnership Case 616F3, 497 at 517. [00:30:56] Speaker 04: So... Tell me exactly what points you think they're raising belatedly in the reply brief, because I... [00:31:07] Speaker 04: I had some concerns about that. [00:31:09] Speaker 04: What do you think is untimely? [00:31:12] Speaker 01: So before the commission, their arguments were pointed toward the development of mitigation, even on rehearing. [00:31:20] Speaker 01: And then in their opening brief, they certainly backed far off of that, if raised it at all, by focusing really only on the classification and not whether that resulted in some change to the impact. [00:31:35] Speaker 01: I think their argument focus in their opening brief was really to whether [00:31:41] Speaker 01: the commission's asserted misclassification of wetlands should result in a change to the findings, no significant impact. [00:31:48] Speaker 01: So they weren't focused on mitigation. [00:31:50] Speaker 01: So it's the mitigation issue in particular, and that's why I wanted to provide you with those citations, which I think should provide some assurance that the mitigation just does not need to be complete at this stage, regardless. [00:32:00] Speaker 06: What is his argument that the pipeline company came in later [00:32:08] Speaker 06: with indication that more wetlands would be covered than Burke had thought originally. [00:32:15] Speaker 06: And what's your answer to that? [00:32:16] Speaker 01: So the commission actually answered that, because that point was raised. [00:32:20] Speaker 01: And what the commission said is that if there are changes that need to be made to the classification, whether it's under the core standard or under the Pennsylvania standard, the core and Pennsylvania both will have and did have the opportunity to address that. [00:32:40] Speaker 01: We know that Riverkeeper challenged the water quality certification in the Third Circuit and did not prevail. [00:32:47] Speaker 01: The Third Circuit, I think, helpfully explains that the wetland classification under Pennsylvania standards becomes relevant actually not at the stage of the water quality certification, but at the Pennsylvania section 105 permit stage where [00:33:06] Speaker 01: Again, that becomes relevant. [00:33:08] Speaker 01: And that's where the mitigation is finally sorted out. [00:33:11] Speaker 01: And again, that's OK under Robertson and the other DC Circuit cases that I cited to you. [00:33:22] Speaker 01: I wondered if we should maybe talk about the issue of mootness that I believe you raised, Judge Garland. [00:33:28] Speaker 01: I want to be clear that our mootness argument only goes to the Clean Water Act issue, not to the NEPA issues, and that's because there's simply nothing that the court or the commission could do to get Pennsylvania to change its water quality certification. [00:33:50] Speaker 01: In other words, in their reply at 11, Riverkeeper says that Pennsylvania was hamstrung in its efforts to assess the project in the development of its water quality certification and subsequent permits. [00:34:04] Speaker 01: there's simply no record basis to lead to that conclusion. [00:34:09] Speaker 01: And we think that under Daimler Trucks, the case that Riverkeeper cites, it's important for the court to go through and see really just how speculative that would be. [00:34:18] Speaker 01: Here, what we have is a statement in particular from Council for Pennsylvania Department of Environmental Protection before the Third Circuit. [00:34:27] Speaker 01: It's in the transcript appended to [00:34:31] Speaker 01: intervener pipelines brief at pages 24 and 25, transcript pages 24 and 25, where Pennsylvania says that they were aware that tree felling occurred before the issuance of the water quality certification, and they had no objection to it. [00:34:46] Speaker 01: Those were their words. [00:34:47] Speaker 01: And so the idea that there could be some change in Pennsylvania's outcome is really [00:34:56] Speaker 01: more than speculative. [00:34:58] Speaker 01: Pennsylvania is, of course, not even before this court. [00:35:00] Speaker 01: The commission itself has no authority to require them to do something different, and so it's very difficult to see how there could be a change in that result there. [00:35:13] Speaker 06: Did the conditional certificate authorize a tree felling, or is that a consequence of the letter orders? [00:35:20] Speaker 01: That is absolutely a consequence of the letter orders, Your Honor. [00:35:23] Speaker 01: The conditional certificate really doesn't authorize anything. [00:35:27] Speaker 01: It's more of a vehicle for the later authorizations. [00:35:30] Speaker 01: Condition 9, as you pointed out in particular, requires the pipeline to come back and request subsequent authorizations. [00:35:38] Speaker 01: If the pipeline went and felled trees or engaged in other construction activities without coming back and [00:35:45] Speaker 01: that would be a violation of the certificate, which really goes to the point that the letter orders needed to be challenged in order to reach any concern about tree felling, because what Riverkeeper is really alleging is that the letter orders [00:36:01] Speaker 01: they're alleging a violation of the certificate. [00:36:04] Speaker 01: Um, and, you know, the commission simply hasn't been presented with that claim. [00:36:08] Speaker 05: Further questions? [00:36:08] Speaker 05: Yeah, just one further question. [00:36:09] Speaker 05: What about the they keep coming back to the photos of the tree covered? [00:36:15] Speaker 05: Uh, would you have a response to that? [00:36:17] Speaker 01: I do. [00:36:18] Speaker 01: And thank you for raising it, Your Honor. [00:36:19] Speaker 01: I would have forgotten. [00:36:20] Speaker 01: I want to point you to in particular, um, [00:36:25] Speaker 01: JA-205 and JA-328 where we have the tables that we previously discussed. [00:36:31] Speaker 01: All that the commission is characterizing in Appendix I and in that table is the impacted acreage of the wetland. [00:36:39] Speaker 01: So when the commission says that a wetland is forested or is not forested, that characterization only goes to the impacted acreage. [00:36:50] Speaker 01: So for instance, for wetland 007 and 002 that they cite in their reply brief at 21, the photo clearly shows that that's [00:37:03] Speaker 01: What the photo shows is that the pipeline runs right along what I'm calling the top, since I'm not sure of the directionality of that wetland. [00:37:10] Speaker 01: And what the commission's table shows is that it characterized 2 tenths of an acre that's impacted of that wetland as not forested. [00:37:21] Speaker 01: I think it was emergent or scrub shop, scrub shop, I don't remember quite exactly now. [00:37:25] Speaker 01: But the point is we're only characterizing the impacted acreage, not the wetland in its entirety. [00:37:30] Speaker 01: You can see that simply from the headings on the tables at JA-205 and JA-328. [00:37:34] Speaker 06: Thank you. [00:37:37] Speaker 06: The intervener has three minutes. [00:37:44] Speaker 03: Yes, Your Honor. [00:37:44] Speaker 03: My name is John Stobiak. [00:37:45] Speaker 03: I'm here for the intervener. [00:37:46] Speaker 03: Transcope, I want to go back to Judge Garland's question. [00:37:51] Speaker 03: What is the consequence of having a conditional certificate? [00:37:53] Speaker 03: Because I think that goes to one of the fundamental issues here. [00:37:58] Speaker 03: Conditional certificate order of public convenience and necessity determines whether there's a need for the project, determines the route for the project. [00:38:07] Speaker 03: What that then allows to happen with the condition that the applicant has to go get any federal permits, such as a 404 permit, which then triggers the need to get a 401 water quality certificate if there's going to be an activity that may result in a discharge to navigable waters, [00:38:27] Speaker 03: is that the state of Pennsylvania, the Pennsylvania Department of Environmental Protection, knows the root of the pipeline. [00:38:34] Speaker 03: It knows what to assess in terms of, is there an impact that's untoward with respect to EPA-approved water quality standards, that is, the test under the 401 Water Quality Certificate? [00:38:49] Speaker 03: If you don't know the root, what are you going to evaluate? [00:38:52] Speaker 03: You don't know what streams are going to be crossed. [00:38:53] Speaker 03: You don't know what wildlands are going to be crossed. [00:38:55] Speaker 03: So you need, as a first step in this process, the conditional certificate to occur. [00:39:01] Speaker 03: The second piece of why that's important is it authorizes an applicant to go exercise powers of eminent domain. [00:39:09] Speaker 03: We can talk to landowners and get access to their property by agreement, but some landowners refuse to give us access. [00:39:16] Speaker 03: Once we have the certificate of public convenience and necessity, we can go to court and get access and possession to do the site-specific information that was needed [00:39:28] Speaker 03: here and that's the way the process works and that's part of how with the condition with the i'm sorry with the conditional certificate yes yes that's what it specifically allows allows for and you can get the land but you can't do anything on the land [00:39:43] Speaker 03: Well, we can do what we're authorized to do. [00:39:45] Speaker 03: If we get a subsequent letter to fill trees. [00:39:47] Speaker 06: Without a subsequent letter, you can't do anything. [00:39:49] Speaker 03: Without a subsequent letter, we cannot do anything. [00:39:52] Speaker 03: And in fact, this conditional certificate is consistent as Judge Rogers outlined the process and the concurring opinion in Gunpowder River Keeper. [00:40:00] Speaker 03: This did not authorize construction. [00:40:02] Speaker 03: It required us to go get permits [00:40:05] Speaker 03: from the Army Corps, a 404 permit and a water quality certificate if we were going to do activities that would affect, that may result in a discharge to navigate the waters. [00:40:14] Speaker 03: So that's point number one. [00:40:15] Speaker 03: Second point I want to make is this [00:40:20] Speaker 03: party here, the petitioner, had a full opportunity to challenge the issuance of the state water quality certificate, which they did in the Third Circuit. [00:40:28] Speaker 03: They had a full appeal, fully litigated. [00:40:31] Speaker 03: The Third Circuit said there is no reason to disturb the issuance of that state water quality certificate here. [00:40:37] Speaker 03: So that issue has already been vetted and decided by the Third Circuit Court of Appeals, which was issued its final mandate or certified judgment in lieu of mandate on Friday and changed some of the wording to tree felling from tree clearing. [00:40:52] Speaker 06: You're out of time. [00:40:52] Speaker 06: Let me just ask whether any of the members of the panel have further questions. [00:40:56] Speaker 04: You don't doubt that at each successive step after a conditional approval, [00:41:05] Speaker 04: you. [00:41:06] Speaker 06: Yes, thank you. [00:41:08] Speaker 06: Thank you, Your Honor. [00:41:10] Speaker 06: All right. [00:41:10] Speaker 06: I know there's no time. [00:41:11] Speaker 02: We'll give you another minute. [00:41:15] Speaker 02: I think one important issue that's been brought up here is, you know, the policy ramifications of having a 401 come after the FERC certificate. [00:41:24] Speaker 02: I think there's four things really to consider real quickly is [00:41:28] Speaker 02: If you have a 401 being issued after a FERC certificate, you're necessarily preventing, as I said earlier, the public from meaningfully participating and having full information before them. [00:41:37] Speaker 02: But I think it also begs the question, what happens where FERC issues a certificate, allows tree felling to take place, and then a state later blocks the project from moving forward, like we did in the Constitution pipeline case? [00:41:48] Speaker 02: where you have hundreds, maybe thousands of acres of trees being cut down for a project that will never move forward. [00:41:55] Speaker 02: And that is an inevitability if we allow this permitting structure to continue with regard to the sequencing of the 401 and the FERC certificate. [00:42:02] Speaker 02: And neither Intervenor nor Transco has any answer to how to prevent that from happening in the future, as it happened in Constitution. [00:42:10] Speaker 04: Yeah, you could have challenged the tree fell on Morris. [00:42:15] Speaker 02: So here's the problem with that, is I was explaining to you earlier what the process is for challenging an order. [00:42:20] Speaker 02: You need to request for a hearing, then there's 30 days, and then FERC can sit on that for as long as they want. [00:42:26] Speaker 02: And in this case, it was a year and a half, another case that we've recently brought up. [00:42:31] Speaker 02: Correct, but it's futile. [00:42:32] Speaker 02: What I'm saying is that sort of challenge to prevent tree felling is futile. [00:42:36] Speaker 02: And there's no way, there really is no way to prevent that. [00:42:38] Speaker 02: And additionally you have situations where, as Mr. Sobyak alluded to, where people are brought into court [00:42:46] Speaker 02: for eminent domain proceedings. [00:42:48] Speaker 02: It's highly stressful. [00:42:49] Speaker 02: Lots of resources, judicial resources, are used in making that eminent domain determination for a project that may be blocked later by a state by not issuing its 401. [00:42:58] Speaker 02: And again, that's what happened in the Constitution. [00:43:00] Speaker 02: And again, they have no answer to describe how to prevent that from happening in the future. [00:43:08] Speaker 02: I would also like to say that the 401 itself is also a conditional approval. [00:43:15] Speaker 02: So Mr. Sowiak's statement that, well, we need to know the route before we do the examination of the 401, I don't think has any merit. [00:43:25] Speaker 02: Because what you can do there is the 401, you can go back with, if there's a route change as per the FERC certificate, [00:43:31] Speaker 02: you can go back and redo and have the state redo the analysis based on the new sighting of the of the pipeline, which is highly unusual. [00:43:40] Speaker 06: Any other further questions from the panel? [00:43:43] Speaker 06: Thank you. [00:43:43] Speaker 06: We'll take the matter under submission.