[00:00:02] Speaker 00:
Case number 16-1415, Millennium Pipeline Company LLC Petitioner vs. Bagel Seagulls at L. Ms.

[00:00:10] Speaker 00:
Setson for the petitioner, Mr. Lutz-Signan for the respondents.

[00:00:46] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:00:48] Speaker 04:
My name is Kate Stetson, representing the Petitioner Millennium.

[00:00:52] Speaker 04:
Millennium submitted a 1,200-page application to New York's Department of Environmental Conservation for a Section 401 Water Quality Certificate on November 23, 2015.

[00:01:05] Speaker 04:
It is now March 3rd, 2017, and the Department has not yet acted, so we have come to this Court as the Natural Gas Act provides for recourse.

[00:01:15] Speaker 04:
The Natural Gas Act not only supplies jurisdiction and commands expedited review in these circumstances, it also dictates both the path to the remedy and the remedy itself.

[00:01:26] Speaker 04:
So first, the path, and I'm reading now from 15 U.S.C.

[00:01:30] Speaker 04:
717 R.D.2.

[00:01:33] Speaker 04:
That is the section that says, the failure of an agency, here a state agency, to take action on a permit required under federal law in accordance with the commission schedule shall be considered inconsistent with federal law for purposes of paragraph three pertaining to the remedy.

[00:01:50] Speaker 04:
The failure to take action on a permit consistent with a commission schedule here is the department's failure to take action by August 7th, 2016.

[00:02:00] Speaker 04:
That was the date established by the commission schedule.

[00:02:03] Speaker 04:
Now, even if you take the most charitable reading of the deadlines under which the Department was required to act and you extend that all the way to November 22, 2016, which is one year after the Commission received the application, that too is inconsistent with federal law because the Department failed to act by that date as well.

[00:02:28] Speaker 01:
So if the upshot of your argument is that

[00:02:31] Speaker 01:
by failing to act the department waived under the statute, which appears to be the upshot of your argument, then why under our decision in Weaver do you have standing?

[00:02:42] Speaker 04:
We have standing for a couple different reasons, Judge Srinivasan.

[00:02:45] Speaker 04:
The first is Weaver's Cove, in many ways, is a sui generis case.

[00:02:52] Speaker 04:
First of all, by the time that case was argued, and I think importantly for jurisdictional purposes, I think frankly the case could have gone off on a jurisdictional holding.

[00:03:01] Speaker 04:
This court only has jurisdiction over failures of an agency to act.

[00:03:07] Speaker 04:
If the agency has acted, has denied or conditioned an application, an expedited appeal from that action actually goes to the circuit in which the facility is located.

[00:03:18] Speaker 04:
So there, it would have been the first circuit.

[00:03:21] Speaker 04:
In those circumstances, by the time Weaver's Cove got to argument, the agencies had acted there.

[00:03:26] Speaker 04:
So one of the things that the Weaver's Cove panel said is,

[00:03:31] Speaker 04:
The petitioner here has not asked the court for a remand directing the state agencies to act because the state agencies had already acted.

[00:03:39] Speaker 04:
So the thing that this petitioner is entitled to here, the remand for failure to act, was not present there.

[00:03:45] Speaker 01:
So that's one.

[00:03:46] Speaker 01:
So I don't want to stop and get into your second point, but let's just focus on the first one for a second.

[00:03:49] Speaker 01:
So as I read Weaver's Cove, though, it's true that there had been at least a preliminary action.

[00:03:53] Speaker 01:
I think the panel made clear that it wasn't a final action.

[00:03:56] Speaker 01:
At the time that the case came up, it was a preliminary action.

[00:03:59] Speaker 01:
But the panel also made clear that it didn't matter, because it has this paragraph.

[00:04:03] Speaker 01:
It's on page 1333, where it says that, yeah, there was an action.

[00:04:10] Speaker 01:
But that doesn't matter for purposes of standing, because your argument is that they waived.

[00:04:14] Speaker 01:
And so once the one year lapsed, the period had ended.

[00:04:18] Speaker 01:
Whatever they do after that doesn't matter.

[00:04:20] Speaker 01:
You have a remedy that you can make use of, which is you go to the agency and you say, look, the year has gone.

[00:04:26] Speaker 01:
They waived.

[00:04:27] Speaker 01:
the condition on your permit in this case is absent waiver, that condition's exercised, we get to go forward.

[00:04:33] Speaker 04:
Right, but that gets me to my second point.

[00:04:35] Speaker 04:
The difference here that was not the case in Weavers Cove, in Weavers Cove, you had a situation where if you look further down on 1333 to 1334, there was a passage pertaining to the Army Corps of Engineers, because what the panel in Weavers Cove says is,

[00:04:50] Speaker 04:
What you petitioners are asking me to do is essentially declare, asking us to do, declare waiver.

[00:04:57] Speaker 04:
You're going to take that waiver declaration and you're going to shop it over to the Army Corps of Engineers with respect to your 404 permit.

[00:05:04] Speaker 04:
But the Army Corps of Engineers, there's a paragraph, I don't have it right in front of me, but the paragraph begins, the record in this case indicates essentially that the Army Corps of Engineers has already made a determination

[00:05:15] Speaker 04:
about when or whether it's going to accept that application, because the Army Corps had agreed to an extension that one of the states had requested there.

[00:05:23] Speaker 04:
So the point that the Court was making in Weavers Cove is even if we were somehow to look past what I think are the jurisdictional defects and issue this declaration of waiver, what good would it be?

[00:05:37] Speaker 04:
Because you're going to take that to the Army Corps, and the Army Corps has already told us that

[00:05:41] Speaker 04:
it's not going to care about the waiver because it's already granted the extension.

[00:05:44] Speaker 04:
So whether you look at Weaver's Cove, which by the way was a suespante standing determination.

[00:05:49] Speaker 01:
Yeah, but I thought the upshot of Weaver's Cove is that you can be made whole by going to FERC.

[00:05:57] Speaker 01:
Because if your argument is that a year has lapsed, therefore waiver, therefore the state doesn't have any authority to do anything more to stop us,

[00:06:05] Speaker 01:
That's something that you can litigate before FERC.

[00:06:07] Speaker 01:
If FERC rules will get you from some reason, then there's judicial review of that.

[00:06:11] Speaker 01:
And you would agree with that.

[00:06:12] Speaker 01:
And so if that's the way I understand Weed versus Cove, what's the distinction between that and this case?

[00:06:17] Speaker 04:
Well, I think the distinction, though, goes back to where I started, which is we may well have recourse also at FERC.

[00:06:25] Speaker 05:
Yeah.

[00:06:25] Speaker 04:
We could go to FERC pursuant to its certificate.

[00:06:28] Speaker 05:
Well, would you, if you did that, if you went to FERC, as Judge Srinivasan suggests,

[00:06:33] Speaker 05:
And following up on the certificate that you have from FERC, submitted evidence of waiver, and FERC agreed that there was waiver.

[00:06:43] Speaker 05:
Would that give you all the relief you want?

[00:06:46] Speaker 04:
No, for a couple different reasons.

[00:06:47] Speaker 04:
The first is FERC is under no obligation to act quickly.

[00:06:50] Speaker 04:
And here we have a statutory command, both that this Court has jurisdiction, maybe concurrent with FERC, we could have gone to FERC, but maybe FERC would not act nearly as quickly.

[00:07:01] Speaker 01:
But second, to Judge Tatel's other question... I don't understand that point, because whatever timeframe FERC takes to act, they're going to take to act anyway.

[00:07:08] Speaker 01:
What does relief here have to do with that?

[00:07:11] Speaker 04:
Our point is that we are entitled to relief here under the statute.

[00:07:17] Speaker 05:
My question was whether or not if you went to FERC and FERC ruled for you that there was a waiver, wouldn't that clear the way for construction of this?

[00:07:32] Speaker 04:
It may clear the way for construction.

[00:07:35] Speaker 04:
The issue, Judge Tatel, would be that in addition to FERC's notice to proceed, you arguably would also need the determination from the Army Corps about the Section 404 permit.

[00:07:48] Speaker 04:
Why?

[00:07:48] Speaker 04:
I mean, getting back to the... Where does that argument come from?

[00:07:51] Speaker 01:
Because I thought the whole point of the waiver provision and your argument would be

[00:07:55] Speaker 01:
The state has an opportunity to stop things within a year.

[00:07:59] Speaker 01:
Once they don't after a year, it's over.

[00:08:01] Speaker 01:
FERC gets to go forward.

[00:08:02] Speaker 01:
They green light the construction.

[00:08:03] Speaker 01:
You get to go.

[00:08:04] Speaker 01:
That's the argument you'd make to FERC.

[00:08:06] Speaker 01:
FERC might well agree with that, in which case you're made whole.

[00:08:09] Speaker 01:
If they don't, then there's judicial review of that.

[00:08:11] Speaker 04:
That is our argument with respect to FERC, but first of all, that judicial review is completely independent from the judicial review to which we're entitled here.

[00:08:19] Speaker 04:
Secondly, if you look in condition nine of the FERC conditions, what it says is you need to supply evidence of all necessary federal permits or evidence of waiver thereof.

[00:08:28] Speaker 04:
There is no such thing as waiver of a Section 404 permit.

[00:08:32] Speaker 04:
There is only waiver of a 401 under the Clean Water Act.

[00:08:35] Speaker 04:
So the problem that I'm having, Judge Taito, with your question is, it's not entirely clear to me.

[00:08:40] Speaker 04:
If we were to go to FERC and we were to ask FERC to declare waiver, first, we'd be under no specific time frame.

[00:08:46] Speaker 04:
Second, that waiver might be good only as to the 401 permit.

[00:08:50] Speaker 05:
If you could look for- Don't you have the same problem here, then?

[00:08:53] Speaker 05:
Don't you have a problem of, I mean, if you still need a core waiver, which you don't have, then you have a redressability problem.

[00:09:02] Speaker 04:
I don't think you do, Judge Taito, for this reason.

[00:09:04] Speaker 04:
The first is we have asked for a menu of potential remedies.

[00:09:14] Speaker 04:
One of them is simply to remand to the agency, to instruct the agency to act.

[00:09:19] Speaker 02:
Our point, though, with respect to remedy... That's not what your petition says.

[00:09:25] Speaker 02:
I've got your petition right here that you filed on December the 5th.

[00:09:27] Speaker 02:
and the only thing that you ask is in the last sentence that says the court should remand this proceeding to the department to promptly grant Millennium's application.

[00:09:39] Speaker 04:
Yes, and that gets me to what the remand is to act.

[00:09:42] Speaker 04:
The statute directing the remedy instructs this court to remand to the agency for the agency to take appropriate action consistent with the court's order.

[00:09:52] Speaker 04:
Our point is, because

[00:09:54] Speaker 05:
If under your theory it's now, because it hasn't acted, it's waived, how can it grant the permit?

[00:10:00] Speaker 05:
It's waived, it's right-tack.

[00:10:01] Speaker 04:
It may either grant or it may declare it waived.

[00:10:04] Speaker 04:
But what it can't do at this point is to deny a condition.

[00:10:08] Speaker 05:
It can't grant it, right?

[00:10:09] Speaker 05:
It's statutorily barred from acting, isn't it?

[00:10:12] Speaker 04:
We would argue that it is, yes.

[00:10:14] Speaker 04:
Right.

[00:10:15] Speaker 05:
So the relief that Judge Wilkins just read, you can't get, right?

[00:10:20] Speaker 05:
Because it's waived.

[00:10:22] Speaker 05:
Can't act.

[00:10:23] Speaker 05:
And by the way, oh, go ahead, answer that now.

[00:10:26] Speaker 04:
If this court, so just to back up two steps in the past, what this court has to conclude in order to direct a remedy is that there has been a violation of the federal law.

[00:10:37] Speaker 04:
So the question about waiver turns on whether this court concludes that the deadline established by the Clean Water Act, that outside one-year deadline of November 22, 2016, was foregone, was surpassed.

[00:10:52] Speaker 05:
That is the deadline that applies in this case, right?

[00:10:56] Speaker 05:
Not the FERC deadline, correct?

[00:10:59] Speaker 05:
They're both laid under either, but it's the one-year clean water.

[00:11:01] Speaker 04:
They're both laid under either, which is why we didn't put too much emphasis on the FERC deadline.

[00:11:05] Speaker 04:
The fact is the FERC deadline actually is supposed to control unless there is another schedule established by federal law.

[00:11:11] Speaker 01:
That is the Clean Water Act.

[00:11:14] Speaker 04:
I would argue that the Clean Water Act says a reasonable period of time, which shall not exceed one year.

[00:11:19] Speaker 04:
In my – in our estimation, the reasonable period of time – and we make this point in our briefs as well – is the FERC schedule.

[00:11:29] Speaker 04:
But under – you know, Judge Tatel, you're right.

[00:11:31] Speaker 04:
Under either formulation, the department has missed the boat.

[00:11:34] Speaker 04:
So then the next question is, if

[00:11:36] Speaker 04:
this court concludes, as it must in order to dictate the remedy, that that one-year deadline has passed, then the question is what is that appropriate action?

[00:11:47] Speaker 04:
Judge Tatel, you may be right that the department is not in a position to grant an application at this point because it's waived.

[00:11:54] Speaker 04:
That's why we've said either grant or declare waiver, both we and CPD have made that.

[00:11:58] Speaker 02:
You said that in your brief, but that's not what you said in your petition.

[00:12:02] Speaker 02:
Why should we care about what you said in your brief if that's not what you said about in your petition?

[00:12:08] Speaker 04:
Because I think both in our prayer for relief in our brief and our reply brief, we make both of those alternative arguments.

[00:12:14] Speaker 04:
It's essentially a menu, a stack of options.

[00:12:17] Speaker 04:
You can either remand and say nothing, direct the agency to take appropriate action, or we submit you should put some teeth in the remand.

[00:12:27] Speaker 04:
And you should say, we have concluded

[00:12:29] Speaker 04:
that the deadlines were missed, that November 22, 2016 came and went.

[00:12:34] Speaker 04:
That deadline is significant because the application was received on November 23, 2015.

[00:12:40] Speaker 04:
You have missed the Clean Water Act deadline.

[00:12:43] Speaker 04:
Certain consequences follow from that.

[00:12:46] Speaker 04:
If you want to stop there and send this back to the department for the agency to reach its conclusion at that point, whether it should grant or waive,

[00:12:53] Speaker 04:
that would be fine with us.

[00:12:55] Speaker 04:
Our point though is that there is this provision in the remedy provision.

[00:12:59] Speaker 02:
How can the department, it seems to me that FERC is a necessary and indispensable party to this action under your theory.

[00:13:10] Speaker 02:
How can the department decide that it's waived?

[00:13:17] Speaker 02:
That's a decision for FERC to make.

[00:13:19] Speaker 04:
Not necessarily, Judge Wilkins.

[00:13:21] Speaker 04:
There have been circumstances where the agency itself has declared that it missed the deadline and it's been waived.

[00:13:27] Speaker 01:
But, you know, under any of these... I think the FERC permit is conditioned on evidence of waiver, so I take it...

[00:13:35] Speaker 01:
What you're saying is if the department says it's waived, then that's evidence of waiver.

[00:13:38] Speaker 01:
Absolutely.

[00:13:38] Speaker 01:
But it wouldn't be dispositive.

[00:13:40] Speaker 01:
I mean, in other words, FERC would still have to make the determination, I think, is what Judge Wilkins is saying.

[00:13:43] Speaker 04:
Well, FERC would still have to issue a notice to proceed.

[00:13:45] Speaker 04:
But I took Judge Wilkins's question to be, is FERC the only entity capable of making a waiver determination?

[00:13:52] Speaker 04:
And the answer to that is no.

[00:13:54] Speaker 04:
This court may feel that it can stop short of making the waiver determination, but it must make a finding about the timing.

[00:14:02] Speaker 04:
And the timing has to do with that November 22nd deadline.

[00:14:06] Speaker 04:
If that November 22nd deadline came and went without action, which it did, then there has been a violation of federal law.

[00:14:13] Speaker 04:
That is the thing that is particularly within this court's jurisdiction to declare.

[00:14:17] Speaker 04:
Then, as I said, there are consequences that follow from that.

[00:14:21] Speaker 04:
One of the consequences is a triggering of waiver.

[00:14:24] Speaker 04:
Now, my time has run out.

[00:14:25] Speaker 04:
If there are any further questions.

[00:14:27] Speaker 05:
Thank you.

[00:14:27] Speaker 05:
We'll hear from the state.

[00:14:34] Speaker 03:
Good morning, Your Honors.

[00:14:35] Speaker 03:
May it please the Court, Brian Lusignan, with the New York State Office of the Attorney General, representing respondents.

[00:14:41] Speaker 03:
I'd like to start with the Weaver's Cove issue, and note that petitioner here is standing in the same position as the petitioner in Weaver's Cove.

[00:14:50] Speaker 03:
They're asking this court for what amounts to a declaration that DEC has waived its review under section 401 and therefore must grant an unconditional permit so they can take that declaration to FERC and attain permission to begin construction.

[00:15:06] Speaker 03:
However, they've always had an avenue to raise this argument with FERC.

[00:15:12] Speaker 03:
Environmental Condition 9 of the Conditional Certificate of Public Necessity allows them to submit federal authorizations or evidence of waiver.

[00:15:21] Speaker 05:
So is that standing, or is your argument that they fail to exhaust their remedies?

[00:15:28] Speaker 03:
There are a few doctrines that are at play here.

[00:15:30] Speaker 03:
Why is it standing?

[00:15:31] Speaker 03:
Weaver's Cove treated it as a standing issue in that the agency delay that allegedly injures them actually endures to their benefit because they get their permit.

[00:15:42] Speaker 03:
You can also look at it as a failure to exhaust administrative remedies.

[00:15:46] Speaker 05:
But you don't argue it that way in your brief.

[00:15:49] Speaker 05:
as an exhaustion.

[00:15:50] Speaker 05:
At least I didn't see it, did you?

[00:15:52] Speaker 03:
We did not use those words in our brief failure to exhaust.

[00:15:54] Speaker 03:
We argued that the issue was not properly before this court for a few different reasons.

[00:15:58] Speaker 03:
But one of those reasons is that an avenue is provided in that conditional certificate under condition 9.

[00:16:05] Speaker 01:
So can I ask you a question?

[00:16:06] Speaker 01:
So on the letter that you wrote, there's a November 18th letter in the JA, which is the JA 440 to 441.

[00:16:15] Speaker 01:
You say that no, you say, I want to remind the applicant, no construction activities may commence with respect to the project unless the application is approved and NYS DEC issues a WQC.

[00:16:28] Speaker 01:
So what about a situation in which there's waiver?

[00:16:32] Speaker 01:
So are you saying in that letter that there's some kind of independent state law obstacle to going forward, or are you just saying that

[00:16:41] Speaker 01:
You're reiterating your argument that the condition hasn't been exhausted because, under your view of the statute, the time clock doesn't start until there's a completed application.

[00:16:51] Speaker 03:
That's right, Your Honor.

[00:16:52] Speaker 03:
The latter.

[00:16:52] Speaker 03:
The latter, OK.

[00:16:53] Speaker 03:
DC was offering its interpretation of Section 401, arguing that it had not waived and therefore was still reviewing the application.

[00:17:01] Speaker 01:
So you still buy into the notion that if FERC deems you to have waived,

[00:17:06] Speaker 01:
then the state's role in this is over and construction can ensue.

[00:17:13] Speaker 03:
If FERC deems waivers to have occurred, FERC still has discretion to consider any action that DDC might take.

[00:17:21] Speaker 03:
So DDC could issue a conditional 401 certification or could deny the certification.

[00:17:27] Speaker 03:
FERC would not be bound by that as it would if DDC had not waived, but FERC could, in its discretion, consider those conditions or consider that.

[00:17:35] Speaker 01:
That's your view.

[00:17:36] Speaker 01:
And then if FERC disagreed with you on that or on any of this, then there's judicial review from FERC's ultimate determination anyway.

[00:17:44] Speaker 03:
That's right.

[00:17:44] Speaker 03:
A DEC could seek judicial review of FERC's determination.

[00:17:48] Speaker 03:
I'd also like to note that the FERC schedule here does not apply.

[00:17:51] Speaker 03:
FERC's regulations very specifically say that FERC schedules only apply where no other schedule is set by federal law.

[00:17:59] Speaker 03:
In promulgating those regulations, FERC said that Section 401 is an example of just such a federal schedule.

[00:18:05] Speaker 05:
None of that makes any difference.

[00:18:08] Speaker 05:
I mean, if you're wrong about your definition of what an application is, none of that makes any difference, right?

[00:18:13] Speaker 05:
In other words, if the court thought that the application was filed when it was filed, you're late under either standard, right?

[00:18:24] Speaker 03:
That's correct, Your Honor, but Section 401 actually doesn't use the word application.

[00:18:28] Speaker 03:
What Section 401 says is a request for a certification.

[00:18:32] Speaker 05:
Yeah, that's what I meant.

[00:18:33] Speaker 03:
Millennium engages in a bit of sleight of hand by equating requests with application, but that's not the word the statute uses.

[00:18:39] Speaker 03:
Even Millennium doesn't contend that an oral request for a 401 certification would trigger the waiver period.

[00:18:46] Speaker 03:
DEC's interpretation of requiring a complete application before the waiver period begins is consistent with both the structure of the statute and the intent of Congress in enacting 401.

[00:18:58] Speaker 05:
I'm a little confused about your definition of what a

[00:19:02] Speaker 05:
complete application is, in your brief, you say that it's one that contains sufficient information for the department to review the request, right?

[00:19:10] Speaker 05:
That's what you say in your brief here.

[00:19:12] Speaker 05:
But the letter, the November 26 letter to Millennium didn't say that.

[00:19:18] Speaker 05:
It said that although Millennium had fully responded, the department would nonetheless continue its review.

[00:19:28] Speaker 05:
So it's that that we have to review, correct?

[00:19:31] Speaker 05:
This standard.

[00:19:33] Speaker 03:
That's right, Your Honor.

[00:19:34] Speaker 03:
Do you see?

[00:19:34] Speaker 05:
Not the one in your brief.

[00:19:37] Speaker 05:
In other words, if we were to get to this, for us to agree to you, we would have to agree to you that even though an applicant fully responds,

[00:19:49] Speaker 05:
fully responds, right?

[00:19:51] Speaker 05:
That the application's not complete because the department has to continue its determination, quote, to determine if a valid request for a certificate has been submitted.

[00:20:03] Speaker 05:
That's what we're reviewing.

[00:20:05] Speaker 03:
Yes, Your Honor.

[00:20:05] Speaker 03:
In fact, actually, I would like to clarify something.

[00:20:07] Speaker 05:
Did you not defend in that position in your brief at all?

[00:20:12] Speaker 03:
Under DEC's regulations.

[00:20:14] Speaker 05:
Wait, but don't?

[00:20:15] Speaker 05:
Am I right about that?

[00:20:16] Speaker 05:
Before you go on to another subject, I didn't see anywhere where, in your brief, you defended the definition of a complete application set forth in the November letter.

[00:20:27] Speaker 03:
The definition of a complete application is set forth in DEC regulations.

[00:20:31] Speaker 03:
And I would like to clarify one factual point.

[00:20:33] Speaker 05:
Those don't help you either, but go ahead.

[00:20:36] Speaker 03:
In November, when DEC said that it had received everything it needed to respond to the second notice of incomplete application,

[00:20:44] Speaker 03:
It said if the application was determined to be complete, the waiver period would run from the receipt of that final submission, which was August 31, 2016.

[00:20:51] Speaker 03:
Now that DEC has not requested any additional information for several months, we're willing to agree that the record supports a conclusion that the application was complete on August 31, 2016.

[00:21:03] Speaker 02:
So in your world, an application can be submitted on January 1,

[00:21:12] Speaker 02:
You can say on January 2nd, well, it appears to be responsive to everything that we require, but we will let you know when we determine that it's complete.

[00:21:29] Speaker 02:
And they could wait for another year and then say, well, we've now determined that it's complete.

[00:21:36] Speaker 02:
and then the clock would start ticking from that date a year later when it's determined that the application was completed.

[00:21:46] Speaker 03:
There are timing restrictions in DEC's regulations.

[00:21:49] Speaker 03:
DEC has to act within 15 days of the initial submittal.

[00:21:53] Speaker 02:
Is that a yes or a no?

[00:21:54] Speaker 03:
It would raise issues of whether D.C.

[00:21:57] Speaker 03:
complied with its own regulation if D.C.

[00:21:59] Speaker 03:
waited that long to send a notice of incomplete application.

[00:22:04] Speaker 03:
And here D.C.

[00:22:05] Speaker 03:
did send the first notice of incomplete application within 15 days of receiving the application.

[00:22:10] Speaker 02:
So would it be complying with its regulations if it did what I just said in my hypothetical?

[00:22:17] Speaker 03:
That would not comply with DEC's regulations.

[00:22:19] Speaker 03:
That's correct, Your Honor.

[00:22:21] Speaker 03:
And DEC's compliance with its own regulations is an issue that hasn't been squarely raised or presented in this proceeding.

[00:22:29] Speaker 03:
However, DEC did act within 15 days of receiving that initial application and noted that it required additional information in the form of this environmental assessment that FERC was conducting.

[00:22:41] Speaker 05:
You know, your definition doesn't... I looked at these statutes that are cited in the brief, these New York statutes.

[00:22:49] Speaker 05:
Section 70-01.

[00:22:53] Speaker 05:
05 says it defines a complete application.

[00:22:58] Speaker 05:
And it says a complete application is one that's in an approved form and is determined by the department to be complete for the purpose of commencing review, but which may need to be supplemented during the course of the review.

[00:23:12] Speaker 05:
I mean, that's completely inconsistent with the position you take in your brief here and in your November letter to Millennium.

[00:23:20] Speaker 05:
I believe the position has been consistent, which is that DC may continue to request information to... No, no, I'm asking you about... I'm reading you from the New York statute about the definition of a complete application.

[00:23:29] Speaker 05:
It says a complete application is one that comes in an approved form and is determined by the department to be complete for the purpose of commencing review, even though you may need additional information.

[00:23:44] Speaker 05:
That's a perfect definition of what Millennium originally filed with your department.

[00:23:51] Speaker 03:
Respectfully, Your Honor.

[00:23:52] Speaker 05:
You may be right that this is, that there's a mootness problem here, but on the merits, you seem to be, your position both in your brief and in your, and in the department's letter to Millennium about its first application seems to need to be inconsistent with state law.

[00:24:09] Speaker 03:
No?

[00:24:10] Speaker 03:
That statute and DEC's regulations and our position in our brief is that DEC must make a determination that the application is complete and it may require additional information before it makes that determination.

[00:24:21] Speaker 05:
But this says that even if it's complete, even if it needs additional information,

[00:24:26] Speaker 05:
Did you hear the language I read to you?

[00:24:29] Speaker 05:
That's right, Your Honor.

[00:24:30] Speaker 05:
Let me read it to you again.

[00:24:31] Speaker 05:
It comes in an approved form, that came in an approved form, and is determined by the Department to be complete for the purpose of commencing review, but which may need to be supplemented.

[00:24:46] Speaker 05:
That's exactly what Millennium submitted to the Department.

[00:24:50] Speaker 03:
DEC, before determining an application to be complete, which is in that statute, DEC determines when it's complete for the purposes of commencing review.

[00:24:57] Speaker 03:
It needs enough information that it can be satisfied that the environmental effects of the project have been fully evaluated.

[00:25:03] Speaker 03:
And it also needs to be complete for the purposes of public notice and comment.

[00:25:07] Speaker 03:
I see that moment.

[00:25:08] Speaker 03:
I'm happy to answer any additional questions.

[00:25:11] Speaker 03:
Thank you, Your Honors.

[00:25:12] Speaker 05:
Thank you.

[00:25:14] Speaker 05:
Ms.

[00:25:14] Speaker 05:
Stetson, you were out of time, but we'll give you two more minutes.

[00:25:19] Speaker 04:
Thank you, Your Honor.

[00:25:20] Speaker 04:
Three quick points, if I could.

[00:25:22] Speaker 04:
The first on completeness.

[00:25:23] Speaker 04:
Judge Wilkins, you asked a hypothetical of my opposing counsel.

[00:25:28] Speaker 04:
I don't see any daylight between this case and that hypothetical, and I'm not understanding his answer.

[00:25:35] Speaker 04:
If I heard him correctly, he would say that where you submit an application, you hear the day after.

[00:25:42] Speaker 04:
that an application is received and will get back to you and that you hear nothing for a year, that would be a violation of the regulations.

[00:25:48] Speaker 04:
Here, you had a series of, your application has been received and will get back to you.

[00:25:53] Speaker 04:
So there's no difference between his statement that there was a violation of regulations there and this case.

[00:25:58] Speaker 04:
Second, completeness or consistency.

[00:26:01] Speaker 04:
The department has been quintessentially inconsistent here.

[00:26:06] Speaker 04:
If you look at both its brief and its treatment of this issue in other circumstances, look for example to our Rule 28-J letter, the Department understands what this statute says.

[00:26:20] Speaker 04:
And what the statute says is that you have one year at the outside from receipt of an application.

[00:26:26] Speaker 04:
Not a completed application, which is a phrase that actually appears in the Clean Air Act.

[00:26:31] Speaker 04:
Receipt of an application.

[00:26:33] Speaker 04:
I would also point out that in the department's response to our Rule 28J letter, the department actually says, we have not yet determined that Millennium's application is complete.

[00:26:45] Speaker 04:
It says it full stop as of January 31st of this year.

[00:26:49] Speaker 04:
Finally, on standing,

[00:26:51] Speaker 04:
If this panel is struggling with the consequences to standing of our, what I would say, most rigorous request for remedy, a declaration of waiver or an instruction that the Department has waived, the solution then, I think, is to scale back the remedy, not to dismiss this petition for lack of standing.

[00:27:13] Speaker 05:
And as I was explaining in my- What would that scale back remedy be?

[00:27:16] Speaker 04:
I think the scale back remedy, Your Honor, would be along the lines that I was trying to sketch out in my first appearance here, the idea would be that the court has to make a determination about timing in order to find that violation of federal law.

[00:27:32] Speaker 04:
If the court agrees with our argument that federal law has been violated because the Clean Water Act's one-year deadline came and went, then the solution is for this court to declare that that deadline was violated and for the department to essentially grapple with the consequences of that.

[00:27:49] Speaker 04:
We think there is only one appropriate thing that follows from that, but the court can stop short of declaring waiver if that's the thing that really is the sticking point between this and Waivers Cove.

[00:28:00] Speaker 04:
and do exactly what the Natural Gas Act suggests this court and only this court can do, which is to remand to the agency for it to take appropriate action.

[00:28:11] Speaker 04:
If there are no further questions.

[00:28:13] Speaker 05:
Thank you.

[00:28:13] Speaker 04:
Thank you, Your Honor.

[00:28:14] Speaker 04:
The case is submitted.