[00:01:10] Speaker 02:
May it please the Court, Elizabeth Benson on behalf of Allegheny Petitioners.

[00:01:15] Speaker 02:
I'd like to take a few minutes, four minutes, to address the issues we raised focusing on the NEPA claim.

[00:01:21] Speaker 02:
And then Ms.

[00:01:22] Speaker 02:
Cole will take five minutes to address the landowners' claims, including public use in due process.

[00:01:28] Speaker 02:
The Atlantic Sunrise Pipeline Project accesses new sources of gas in Pennsylvania.

[00:01:32] Speaker 02:
End users will burn it.

[00:01:34] Speaker 02:
As a result, every year for the next several decades, this one pipeline could have the same climate impact as eight coal-fired power plants.

[00:01:40] Speaker 02:
FERC's cursory treatment of these downstream impacts is a text with need of a violation.

[00:01:45] Speaker 02:
And I'd like to focus on two problems in particular.

[00:01:47] Speaker 02:
First, FERC dismissed this impact as insignificant.

[00:01:51] Speaker 02:
That was based only on speculation that some unspecified amount of downstream emissions may be partially offset.

[00:01:57] Speaker 02:
Second, FERC ignored the cumulative climate impact of a physically connected pipeline that was before the same agency at the same time proposed by the same applicant that had the shared goal of bringing gas from Pennsylvania to Florida.

[00:02:09] Speaker 02:
So first I'd like to briefly address one of the ways that FERC's unanalyzed and conclusory assertion regarding insignificance fatally undermined its decision-making.

[00:02:18] Speaker 02:
And this applies equally if you accept FERC's new position that it never discussed significance at all.

[00:02:23] Speaker 02:
So in explaining its public interest determination, where FERC weighed the project's benefits against its adverse impacts, FERC repeatedly emphasizes that it ensured the project's impacts would be less than significant.

[00:02:34] Speaker 02:
You can see this in FERC's brief at page 20, 22, 27,

[00:02:38] Speaker 02:
45.

[00:02:40] Speaker 02:
So the absence of significant impacts was a key factor in FERC's decision to approve this project.

[00:02:46] Speaker 02:
But for one of the project's biggest environmental consequences, we have no idea if that's accurate, because FERC hasn't analyzed or discussed it.

[00:02:53] Speaker 02:
It's not even clear if FERC gave any consideration to these emissions and its public interest balancing, because even after this court's decision last year in Sierra Club v. FERC, FERC continues to insist these emissions are not an indirect effect.

[00:03:06] Speaker 02:
But as that decision made clear,

[00:03:08] Speaker 02:
And FERC, therefore, they are indirect effects.

[00:03:12] Speaker 02:
And FERC, therefore, has to meaningfully analyze and consider them.

[00:03:15] Speaker 02:
FERC can't just stick a few numbers and percentages into an EIS and stop there.

[00:03:19] Speaker 02:
NEPA is not a number-crunching exercise.

[00:03:21] Speaker 04:
What more should it have done?

[00:03:25] Speaker 02:
Well, we wanted them to comply with this court's decision in Sierra Club FERC.

[00:03:29] Speaker 02:
So first of all, to try to figure out the actual net change in emissions.

[00:03:34] Speaker 02:
This court said in Sierra Club FERC,

[00:03:36] Speaker 04:
They state that greenhouse gas emissions from the pipeline, right?

[00:03:42] Speaker 04:
They have that in tons in percentage, right?

[00:03:45] Speaker 02:
They say that the full burn scenario is 32.9 million metric tons per year.

[00:03:52] Speaker 02:
They say that the actual amount, the net increase, or perhaps even reduction, is some lower amount, unspecified, indeterminate, but that they say is insignificant, although now they're claiming that they never said that.

[00:04:06] Speaker 02:
So we don't think that's enough because this court's opinion in Sierra Club Fork said specifically that the EIS there failed to fulfill its primary purpose because the decision maker would not know the net increase or reduction.

[00:04:20] Speaker 03:
Where is that?

[00:04:21] Speaker 03:
What happened in that case was there was no quantitative estimate at all.

[00:04:25] Speaker 03:
That's correct.

[00:04:26] Speaker 03:
Well, that's not so.

[00:04:27] Speaker 03:
They've made a quantitative estimate here.

[00:04:29] Speaker 03:
They've said this is the upper bound.

[00:04:32] Speaker 03:
They think it's going to be somewhat lower.

[00:04:34] Speaker 03:
They don't know how much lower.

[00:04:36] Speaker 02:
Right.

[00:04:36] Speaker 03:
And they think that given the upper bound, it's not significant.

[00:04:40] Speaker 03:
What more do you want them to say?

[00:04:42] Speaker 02:
Well, I think they never said that 32.9 million metric tons is not significant.

[00:04:47] Speaker 02:
They said that it would be reduced by some unspecified offset, which would render it insignificant.

[00:04:54] Speaker 02:
And moreover, so this court in Sierra Club v. Ferg didn't just say you have to quantify.

[00:05:00] Speaker 02:
It didn't say, once you could put that number in, you're done.

[00:05:04] Speaker 02:
It said several other things.

[00:05:05] Speaker 02:
First, it said that FERC has to discuss significance and cumulative impact.

[00:05:09] Speaker 02:
This one sentence in the EIS does not accomplish that.

[00:05:11] Speaker 03:
Where does it say that?

[00:05:13] Speaker 03:
In the... It says... In the case?

[00:05:17] Speaker 03:
Yeah.

[00:05:18] Speaker 02:
I think it's at around 1367.

[00:05:25] Speaker 02:
But I've convicted the exact case citation.

[00:05:29] Speaker 03:
Well, yeah, it says the EIS needed to include a discussion of the significance of this indirect effect.

[00:05:35] Speaker 03:
They discussed it, and they said it wouldn't be significant.

[00:05:38] Speaker 02:
We don't think that one conclusory unanalyzed assertion is sufficient.

[00:05:43] Speaker 03:
Well, it's a paragraph discussion.

[00:05:45] Speaker 03:
I'm not sure in the order issuing the certificate.

[00:05:49] Speaker 03:
We didn't say how many paragraphs you have to use.

[00:05:52] Speaker 02:
That's true, but this court squarely rejected the idea of just dismissing the impact based on an unspecified offset.

[00:05:59] Speaker 02:
And moreover, now they're saying that they didn't make that calculation at all or that assessment at all.

[00:06:04] Speaker 02:
They're saying, we never made the significance determination.

[00:06:07] Speaker 02:
So it's unclear how they would have balanced the benefits versus the adverse effects if they never made that determination.

[00:06:15] Speaker 03:
So all you want is to send it back and ask them, is it significant?

[00:06:19] Speaker 03:
If they say it's not significant, that'll be the end of the matter?

[00:06:22] Speaker 02:
No, we'd like them to try to calculate the actual net increase.

[00:06:26] Speaker 03:
Well, assume that all they can do is 32.9 because the other things are offsets that are uncertain, right?

[00:06:32] Speaker 03:
Assume it's 32.9.

[00:06:33] Speaker 03:
What do you, and assume they come back and say that's significant, not significant, then what?

[00:06:38] Speaker 02:
We'd like an actual discussion of why that is or is not significant.

[00:06:42] Speaker 03:
Well, what do you think the test for significance is?

[00:06:45] Speaker 02:
I think that's largely up to the agency, although we would have had ample comment on that.

[00:06:51] Speaker 03:
Well, you could have commented on that.

[00:06:54] Speaker 03:
You could have commented on this question.

[00:06:56] Speaker 02:
Well, we commented on FERC's conclusory assertion.

[00:07:02] Speaker 03:
I don't understand.

[00:07:02] Speaker 03:
We asked them to quantify

[00:07:09] Speaker 03:
we conclude that the EIS should have either given a quantitative estimate of the downstream greenhouse emissions that will result or explain more specifically, gave a quantified estimate and said it doesn't know exactly how much lower because there are a lot of different things that can happen, substitution, et cetera.

[00:07:27] Speaker 03:
In fact, we wouldn't believe them if they gave a specific net reduction because no one knows how energy users are going to react to this.

[00:07:38] Speaker 02:
Well, first of all, they did have information that they could have used to try to make a better prediction.

[00:07:43] Speaker 02:
At JA338, they talked about some of the shippers' end uses, but the shippers volunteered, apparently, which they did not use and did not try to get similar information from other shippers.

[00:07:54] Speaker 02:
But I think more to the point is what they do with that information once they have it.

[00:07:58] Speaker 02:
And here they did nothing with the information.

[00:08:00] Speaker 02:
They just made a conclusory assertion that's insignificant and apparently did not weigh it in their public interest determination.

[00:08:07] Speaker 02:
The Sierra Club v. FERC Court also said that FERC has the legal authority to mitigate these downstream effects, and that in the alternatives analysis, one of the reasons that quantifying is important is when you look at alternatives, and that's the heart of the EIS, you can compare the quantification from the project to other alternatives.

[00:08:26] Speaker 03:
What is the alternative that would be less greenhouse gases?

[00:08:29] Speaker 02:
Well, presumably the no action alternative, but they didn't analyze it, so.

[00:08:34] Speaker 03:
Well, they said there was a public need for the gas.

[00:08:36] Speaker 03:
So a no-action alternative doesn't meet the purpose of the agency.

[00:08:43] Speaker 02:
Well, FERC also said in the rehearing order that there actually would have been enough renewable energy and energy conservation to provide all the energy that this pipeline is providing.

[00:08:53] Speaker 02:
But that wouldn't involve transporting gas, which was the purpose of the project.

[00:08:58] Speaker 02:
So I think the no-action alternative wouldn't.

[00:09:00] Speaker 02:
Wait, say that again?

[00:09:02] Speaker 02:
Berks said in the rehearing order, I can try to find the site.

[00:09:06] Speaker 02:
So this is at J.A.

[00:09:14] Speaker 02:
840 to 841.

[00:09:18] Speaker 02:
Although the EIS noted that renewable energy and energy conservation could potentially provide equivalent amounts of energy, neither were transportation alternatives and thus would not meet the project's objectives.

[00:09:32] Speaker 03:
Could you say again what the paragraph is?

[00:09:35] Speaker 02:
It's at joint appendix 840 to 841.

[00:09:37] Speaker 02:
I'm sorry, I don't have the paragraph number.

[00:09:40] Speaker 03:
That's okay.

[00:09:41] Speaker 05:
I have 50.

[00:09:47] Speaker 02:
So FERC never used its quantified upper bound number to attempt to compare

[00:09:54] Speaker 03:
Well, then it goes on, the next sentence.

[00:09:56] Speaker 03:
Moreover, renewable energy and energy conservation measures would not provide additional natural gas supplies for residential commercial uses, including heating and cooking, without extensive conversion of existing systems to electric-based systems.

[00:10:15] Speaker 02:
Well, without delving too deeply into the details, because I'm running out of time, or mine have already run out of time.

[00:10:21] Speaker 02:
Yeah, four minutes.

[00:10:23] Speaker 02:
The alternatives analysis is the heart of the EIS.

[00:10:26] Speaker 02:
One of the reasons Sierra Club VFIRC said you have to do this quantification is to look at mitigation and look at alternatives.

[00:10:35] Speaker 02:
And for the alternatives, you compare the quantified number for the proposed project to that of alternatives, which for

[00:10:44] Speaker 02:
Pipelines like this is primarily the no-action alternative.

[00:10:47] Speaker 03:
Did you say that in your briefs, that the no-action alternative is really the better alternative here?

[00:10:53] Speaker 03:
I don't remember that.

[00:10:54] Speaker 02:
I don't think we were saying that, I mean... That's the only one, though.

[00:10:57] Speaker 03:
That's the only one you have, right?

[00:10:59] Speaker 03:
I asked you, and you said the only one is no action.

[00:11:03] Speaker 03:
The only one that has lower greenhouse gas success.

[00:11:06] Speaker 02:
I believe out of all of their alternatives, they would all be the same size pipeline transporting the same amount of gas, so that wouldn't change.

[00:11:14] Speaker 02:
There would be other alternatives, such as a smaller pipeline, something of that sort that would change the downstream effect.

[00:11:21] Speaker 02:
But what FERC said here, instead of trying to compare the amount that would be emitted under the project to the no-action alternative, it said the end use is going to occur with or without this project.

[00:11:32] Speaker 02:
I believe that's at Joint Appendix 381.

[00:11:36] Speaker 02:
That is basically saying that building this huge pipeline that's going to emit

[00:11:41] Speaker 02:
Hundreds of millions of carbon dioxide into the air for the next 30 or so years is the same as not building that pipeline.

[00:11:47] Speaker 03:
Can you say where that was?

[00:11:49] Speaker 02:
Joint context 381, I believe.

[00:11:50] Speaker 03:
You're very good with numbers, I appreciate it.

[00:12:18] Speaker 03:
But you're going to have to help me there, because I'm not seeing where on that page.

[00:12:23] Speaker 02:
Again, I don't have the paragraph number, but I think it's kind of in the middle of the long paragraph, if I recall, on J381, that the end use would occur with or without the project.

[00:12:33] Speaker 02:
And they're saying there that there's no causal connection between the pipeline and the downstream emissions, which this court squarely rejected in Sierra Club v. FERC.

[00:12:42] Speaker 02:
And it's a little unclear.

[00:12:44] Speaker 03:
What's the idea that the end use would?

[00:12:45] Speaker 03:
138 is the paragraph.

[00:12:47] Speaker 05:
I'm sorry?

[00:12:50] Speaker 03:
Yeah, but would that not substitute bent coal production?

[00:12:54] Speaker 03:
That's what I was thinking.

[00:12:56] Speaker 03:
I thought that, yes, there would be the same amount, but it would be coal instead of natural gas that was burning.

[00:13:00] Speaker 02:
I believe they're saying there that the gas use would occur either way because the gas would just come from some other source, which makes no sense when you're talking about going into a new area and flooding the market with all this new gas.

[00:13:15] Speaker 02:
That's the kind of analysis that the 10th Circuit found completely inadequate in wild earth guardians.

[00:13:22] Speaker 03:
Okay, I'll have to look at it more closely.

[00:13:24] Speaker 03:
Maybe when you're sitting down you can find me.

[00:13:27] Speaker 03:
Okay.

[00:13:27] Speaker 03:
Are there further questions on the bench?

[00:13:30] Speaker 04:
Thank you.

[00:13:50] Speaker 06:
Good morning.

[00:13:51] Speaker 06:
I'm Siobhan Cole for the Landowner Plaintiffs.

[00:13:54] Speaker 06:
I'm sorry, not plaintiffs, petitioners.

[00:13:58] Speaker 06:
At the heart of my clients, all of my clients' arguments is their desire and their right to know that this taking of their private property is truly for a public use as required by the Fifth Amendment.

[00:14:12] Speaker 06:
They've raised those concerns both at FERC and in the Eastern District of Pennsylvania and now here

[00:14:19] Speaker 06:
since they were told that their property would be taken for this pipeline.

[00:14:23] Speaker 06:
And in response, they've consistently been told two things, that the transportation and sale of natural gas in Interstate Commerce for ultimate distribution to the public is in the public interest, that Congress declared that in the Natural Gas Act, which is obviously correct.

[00:14:40] Speaker 06:
But what FERC says to my clients is that because of that declaration by Congress,

[00:14:46] Speaker 06:
All that FERC is required to do in order to satisfy the public use element of the Fifth Amendment is to review the precedent agreements that the pipeline proponent has executed with shippers.

[00:15:02] Speaker 06:
And what my clients have said in response is that that is not enough and that FERC should be required to look further.

[00:15:09] Speaker 06:
FERC has responded that they do not need to look further and that there is precedent in this court and elsewhere

[00:15:15] Speaker 06:
that allows them to stop solely at the precedent agreements.

[00:15:21] Speaker 05:
They had more than precedent agreements here, did they not?

[00:15:24] Speaker 06:
A few things more.

[00:15:25] Speaker 06:
They had some comments, but from shippers, which we would submit to the court our self-serving statements from.

[00:15:32] Speaker 05:
There was a study.

[00:15:34] Speaker 06:
And a study from the Clean Air Council, and also one other statement from Washington Gas.

[00:15:42] Speaker 05:
So this case doesn't really implicate the question of whether reliance just on precedent contracts would suffice?

[00:15:52] Speaker 06:
We would submit to the court that it's a distinction really without a difference because those comments aren't addressing precisely who this gas is being, who these shippers are, and where they intend to send the gas to be transported through this pipeline.

[00:16:11] Speaker 06:
And what we submit to the court is that there is a reason to reject the idea that looking at the precedent agreements or comments like these alone is enough.

[00:16:23] Speaker 06:
That's because there are several reasons.

[00:16:26] Speaker 06:
2017 marked the first time since 1957 that the United States became a net natural gas exporter.

[00:16:38] Speaker 06:
In 2017,

[00:16:41] Speaker 06:
The United States exported 0.34 billion cubic feet per day of natural gas.

[00:16:50] Speaker 06:
And in the first six months of 2018, net natural gas exports from the United States averaged 0.87 billion cubic feet per day.

[00:17:00] Speaker 06:
Now, if we put that against the fact that the Atlantic Sunrise Pipeline is a 1.7 billion cubic feet per day pipeline,

[00:17:11] Speaker 06:
you could begin to understand my client's question as to whether this pipeline is really necessary or whether all of the gas that will be transported through this pipeline either will be exported or could be replaced by some of the natural gas that is already exported.

[00:17:29] Speaker 05:
On the alternatives, like the Conestoga alternative, would that have gone through, I think not their property, but someone else's property?

[00:17:41] Speaker 06:
It would, yes, have gone through other landowners' properties.

[00:17:48] Speaker 05:
And can you tell me when the construction on your client's property actually started?

[00:17:56] Speaker 06:
I can't tell you as I stand here the precise date, but I can tell you that it began that my clients have yet to have a hearing on the just compensation of the taking of their property.

[00:18:09] Speaker 06:
And so the second element of our argument is that if FERC is not going to consider more than precedent agreements and look further than whether the full capacity for the pipeline has been contracted for, shouldn't the landowners have some ability to challenge that in some form other than simply the pre-certification process before FERC?

[00:18:39] Speaker 06:
And taken to their logical conclusion, the arguments set forth by Transco and the commission are that people like my clients are only entitled, all the process they are due is satisfied by their ability to comment in the pre-certification process.

[00:18:57] Speaker 06:
Because once that process is done and a certificate order issues, district courts claim that they are powerless to consider whether the order is appropriate in any way.

[00:19:09] Speaker 06:
and they consider it a collateral attack.

[00:19:11] Speaker 06:
My clients were told that in the eminent domain proceeding in the Eastern District of Pennsylvania, they cannot mount a collateral attack on the FERC order itself.

[00:19:22] Speaker 06:
Yet here, and in our appeals here, and to the commission itself, the commission has said that what we are raising is our constitutional arguments, and that the commission, and by extension this court on

[00:19:39] Speaker 06:
our petition for review of their decision is powerless to hear constitutional claims.

[00:19:44] Speaker 06:
So my clients are effectively without a forum to ever question whether this taking is truly for the public use, especially since it is happening before they are ever afforded their full deprivation hearing and the right, for example, to put on evidence as to what the just compensation of their, should be for their

[00:20:05] Speaker 05:
Can you tell me whether the construction started before the Commission issued its actual rehearing decision on a certificate order?

[00:20:23] Speaker 03:
It did.

[00:20:32] Speaker 01:
I think I'm going to start off with the landowners.

[00:20:38] Speaker 01:
due process argument.

[00:20:40] Speaker 01:
And I know that the court didn't address whether there was jurisdiction before it, and we made that argument in our brief.

[00:20:45] Speaker 01:
I'd be happy to talk about it, or I'll just get right to the merits on that issue.

[00:20:49] Speaker 04:
Why don't you say something about jurisdiction first?

[00:20:51] Speaker 01:
Sure.

[00:20:53] Speaker 01:
The due process claim by the landowners is that they were denied due process because the right to be heard on whether a transfer was taken of their property actually satisfies the use requirement of the Fifth Amendment before the property was taken.

[00:21:07] Speaker 01:
And that's a clear challenge to the tolling order here, and they didn't seek rehearing of the tolling order.

[00:21:14] Speaker 03:
And so they're- I'm sorry, that's not, that's their procedural due process argument, but the substantive due process argument that this wasn't for a public use.

[00:21:25] Speaker 03:
That's the challenge to the whole thing.

[00:21:27] Speaker 03:
That's not just about the tolling order.

[00:21:29] Speaker 03:
Did they raise a petition for rehearing this issue?

[00:21:35] Speaker 03:
after the tolling order?

[00:21:36] Speaker 01:
Their argument is that they, the argument is based on the fact that they were denied due process because eminent domain occurred before, before, before judicial, before commission rehearing and judicial review.

[00:21:50] Speaker 01:
And the reason that eminent domain occurred before commission rehearing and judicial review is because of the tolling order and the way that the statute works.

[00:22:01] Speaker 01:
So Congress designed the Natural Gas Act to produce that default outcome.

[00:22:04] Speaker 01:
There's no jurisdiction because they didn't challenge the tolling order that caused this delay that they claim.

[00:22:11] Speaker 03:
The argument that she just made, which is that this is really not a public use, you could make that after eminent demand occurs.

[00:22:19] Speaker 01:
Sure.

[00:22:19] Speaker 03:
That could always be unwound if that were the case.

[00:22:22] Speaker 03:
So did she make, I don't mean she, I mean her clients, did they make the argument in a petition for rehearing that this is not a public use because it's for export?

[00:22:31] Speaker 01:
They're arguing to this court that it's a due process argument.

[00:22:34] Speaker 01:
That's the way that they're making that argument.

[00:22:36] Speaker 01:
The Commission did address the argument.

[00:22:38] Speaker 04:
I'm happy to talk about what the Commission said there.

[00:22:50] Speaker 01:
They argued to the commission that the public convenience and necessity finding is not sufficient for a public use finding.

[00:22:55] Speaker 01:
That's correct, and the commission did answer that question.

[00:22:57] Speaker 03:
That's not a due process argument.

[00:22:58] Speaker 03:
That's a Fifth Amendment taking.

[00:23:00] Speaker 03:
Taking for without trust compensation for public use.

[00:23:05] Speaker 04:
Right, but their argument to the court is... There's no jurisdictional bar to us hearing that, right?

[00:23:09] Speaker 01:
Well, there is only, Your Honor, because the way they've argued it to the court is that they were denied due process because of that.

[00:23:16] Speaker 04:
Well, that's what I was asking you.

[00:23:19] Speaker 01:
Right.

[00:23:19] Speaker 04:
Is there due process or does your due process go beyond the effect of the tolling order?

[00:23:25] Speaker 01:
That's right, Your Honor.

[00:23:25] Speaker 04:
It does?

[00:23:26] Speaker 01:
Yes, it does.

[00:23:27] Speaker 01:
Because their claim is, because the reason that they were denied the right to be heard, they weren't, first of all, denied the right to be heard.

[00:23:34] Speaker 01:
But their claim is that they were denied the right to be heard because the commission told the order

[00:23:40] Speaker 01:
the toll of rehearing and gave them commission legitimately more time to address all of the matters raised on the maritime rehearing.

[00:23:48] Speaker 03:
Did they challenge that after getting their petition for rehearing?

[00:23:56] Speaker 03:
Not of the tolling order, but did they make this argument in the petition for rehearing?

[00:24:00] Speaker 01:
They did make the public use argument.

[00:24:02] Speaker 03:
So I guess I'm a little unclear on your view of procedure.

[00:24:06] Speaker 03:
The tolling order you think is an interlocutory non-final decision, right?

[00:24:10] Speaker 03:
In all courts and all other agencies, all interlocutory decisions roll up into the final decision.

[00:24:17] Speaker 03:
So as long as they put it in their petition for rehearing, I don't see why they have to put it in a petition for rehearing of a tolling order.

[00:24:23] Speaker 01:
Because section 19A of the Natural Gas Act provides that rehearing on a judicial review

[00:24:32] Speaker 01:
any order of admission has to have person sought re-hearing.

[00:24:36] Speaker 03:
They're challenging the entire procedure by which the certificate was issued, one small part of which is that.

[00:24:43] Speaker 03:
I don't see, do you have any case that says you have to file a petition for a re-hearing for a stay or for a tolling order as long as you file one at the end?

[00:24:54] Speaker 01:
Yes.

[00:24:56] Speaker 01:
I mean, yes.

[00:24:58] Speaker 01:
Again, it's section 19A, but... That's not a case.

[00:25:00] Speaker 03:
That's your interpretation of the statute.

[00:25:02] Speaker 03:
All right.

[00:25:02] Speaker 01:
Yes, I do.

[00:25:03] Speaker 01:
That is.

[00:25:06] Speaker 01:
Moreau is an example of a case, and I'm sure we cited in our brief, 982F.

[00:25:15] Speaker 03:
What was the order now?

[00:25:17] Speaker 03:
Excuse me?

[00:25:18] Speaker 03:
What was the order?

[00:25:18] Speaker 03:
What kind of order was it?

[00:25:19] Speaker 01:
It was a tolling order.

[00:25:20] Speaker 01:
This court dismissed an appeal of pipeline construction orders as premature.

[00:25:26] Speaker 01:
Oh, I'm sorry.

[00:25:27] Speaker 01:
That was a construction order.

[00:25:28] Speaker 01:
It wasn't a tolling order.

[00:25:29] Speaker 01:
No, no.

[00:25:30] Speaker 01:
They dismissed an appeal of a pipeline construction order as premature because the commission had issued a tolling order.

[00:25:35] Speaker 03:
Yes, that upheld the value of the tolling order.

[00:25:38] Speaker 03:
But did they say because you didn't seek a rehearing petition of the tolling order in that case?

[00:25:46] Speaker 01:
I don't have, I guess, Moreau was the closest case that I had, and that involves the construction order, but my point is that section 19A does, in my view, and certainly here, they are challenging the commission's use of tolling orders, and they can't do that because they didn't challenge, on rehearing to the commission, the tolling order.

[00:26:06] Speaker 01:
Okay.

[00:26:06] Speaker 01:
They challenge the construction order.

[00:26:08] Speaker 01:
They challenged the construction.

[00:26:10] Speaker 01:
The environmental petitioners did challenge the construction or overhearing that did not wait for the commission to issue the overhearing orders.

[00:26:16] Speaker 01:
So that's incurably premature.

[00:26:18] Speaker 01:
That's the environmental petitioners due process claim, which they're not arguing about today.

[00:26:22] Speaker 01:
No, the Hilltop petitioners.

[00:26:25] Speaker 05:
Did they challenge your construction?

[00:26:26] Speaker 05:
I think I'm having trouble keeping all this straight.

[00:26:28] Speaker 01:
The environmental petitioners on their due process claim.

[00:26:32] Speaker 05:
I'm not sure who you're calling the environmental petitioners.

[00:26:34] Speaker 05:
The Hilltop petitioners.

[00:26:36] Speaker 05:
on whose land construction was occurring.

[00:26:39] Speaker 01:
Yeah, that's not the land.

[00:26:40] Speaker 01:
The landowners have not challenged the construction as far as I... I might be wrong about that.

[00:26:49] Speaker 05:
I'm going to look at my... I'll sort it out later.

[00:26:51] Speaker 05:
I don't want to waste your time on that.

[00:26:53] Speaker 01:
Oh, I'm sorry.

[00:26:53] Speaker 01:
Okay.

[00:26:55] Speaker 01:
Yeah, they both had a challenge of construction.

[00:26:57] Speaker 01:
No one waited for rehearing of that order, so it's incurably premature.

[00:27:02] Speaker 01:
The construction rehearing order is post-record in this case, because it wasn't issued until after all the petitions were filed.

[00:27:08] Speaker 01:
But I'm happy to talk about the merits of the public use.

[00:27:10] Speaker 03:
Can you explain why they got their process anyway?

[00:27:13] Speaker 01:
Of course.

[00:27:17] Speaker 01:
The commission, first of all, carefully considered and addressed the public use claim.

[00:27:21] Speaker 01:
So they got all the due process that was due.

[00:27:25] Speaker 01:
There are a number of things which I set out in my brief about that.

[00:27:27] Speaker 01:
And the final one is that the commission determined, consistent with this court's precedent, that its public convenience and necessity finding meets the taking clause's public purpose showing.

[00:27:38] Speaker 01:
And that's in Midcoast.

[00:27:41] Speaker 01:
And we cited that in our brief.

[00:27:43] Speaker 01:
And petitioners did not even mention Midcoast.

[00:27:46] Speaker 01:
So they're not challenging the fact that this court has already determined that the public convenience and necessity finding satisfies the Fifth Amendment takings public use finding.

[00:27:55] Speaker 05:
So I think that it can, if it's a proper public convenience and necessity determination.

[00:28:02] Speaker 05:
So that just begs the question of, but they couldn't challenge that, they couldn't raise that challenge before their property was demolished because of the tolling order.

[00:28:15] Speaker 05:
I mean, it seems to me just to stand back for a second and just take a look at what happens in these cases.

[00:28:22] Speaker 05:
Sure, Your Honor.

[00:28:24] Speaker 05:
Some homeowner has some property.

[00:28:27] Speaker 05:
Some pipeline company would like to mow it down and put a pipe there.

[00:28:32] Speaker 05:
And FERC says public convenience and necessity.

[00:28:37] Speaker 05:
And let's assume from my hypothetical, not saying it's this case, that they do a flawed public convenience and necessity.

[00:28:43] Speaker 05:
It's flawed.

[00:28:44] Speaker 05:
It's wrong from top to bottom.

[00:28:45] Speaker 05:
But they say public convenience and necessity, issue the certificate.

[00:28:49] Speaker 05:
All right?

[00:28:51] Speaker 05:
they file petition for rehearing because they would like to challenge that very flawed FERC decision but can't until the reconsideration decision is over.

[00:28:59] Speaker 05:
Right.

[00:29:00] Speaker 05:
And FERC says we're going to keep told, we're going to told this.

[00:29:03] Speaker 05:
We haven't had time to sort it out.

[00:29:05] Speaker 05:
But what we have had time to sort out is that we should authorize this construction to go forward and demolish the house before there's been a final, a final determination even by the commission, let alone judicial review of whether there is in fact

[00:29:20] Speaker 05:
a constitutionally sufficient public use determination.

[00:29:24] Speaker 05:
And the answer is nothing anybody can do about it.

[00:29:26] Speaker 05:
We demolish the House and... That's not true, Your Honor.

[00:29:31] Speaker 01:
There's nothing anyone can do about that.

[00:29:33] Speaker 05:
The Alder Ritz Act provides... Okay, but is mandamus really the answer under the Fifth Amendment?

[00:29:40] Speaker 05:
Well... That's an extraordinarily high standard.

[00:29:42] Speaker 01:
It is an extraordinarily high standard, Your Honor, but as this court said in Sierra Club, that's exactly...

[00:29:48] Speaker 05:
That's exactly what the answer is.

[00:29:56] Speaker 05:
constitutionally sufficient.

[00:29:59] Speaker 01:
The eminent domain, the statutory constitutional eminent domain issue was raised, and that was the basis of that case.

[00:30:07] Speaker 01:
And the court held there that any claim of unreasonable or unconstitutional delay or any other claim designed to preserve the integrity of future judicial review and individual certificate proceedings would lie in a mandamus action filed directly with this court.

[00:30:19] Speaker 01:
That's at page 113 of Delaware River Keeper.

[00:30:22] Speaker 01:
So yes, that I think also has already been resolved by the court.

[00:30:25] Speaker 05:
And did that case involve

[00:30:26] Speaker 05:
people's homes being destroyed?

[00:30:27] Speaker 01:
That case was all about the fact that the Commission improperly issues... I know, but I'm asking what the injury to property owners was in that case.

[00:30:38] Speaker 01:
I don't know that which I did.

[00:30:40] Speaker 05:
But let me say this... It just seems to be that... I'm sorry, but as a matter of good government, does that make sense?

[00:30:45] Speaker 05:
Well... That seems really, really harsh to people in the outside world.

[00:30:49] Speaker 05:
I mean, this just seems a very unfair result in the use of these tolling orders

[00:30:53] Speaker 05:
You got time to do the construction order, but you don't have time to act on their re-hearing decision, and they can't go anywhere.

[00:31:00] Speaker 05:
It just seems – it's got to feel incredibly unfair to people.

[00:31:02] Speaker 05:
I don't know why FERC can't do better.

[00:31:04] Speaker 01:
Let me say this.

[00:31:04] Speaker 01:
That is how the Natural Gas Act is designed.

[00:31:08] Speaker 01:
So it's a complaint for Congress if it's a complaint at all.

[00:31:11] Speaker 05:
The Natural Gas Act is not designed.

[00:31:13] Speaker 05:
You don't have to do it that way at all in these types of cases.

[00:31:16] Speaker 01:
You choose to do it.

[00:31:17] Speaker 01:
You don't mandate to do it.

[00:31:18] Speaker 01:
You choose to do it.

[00:31:18] Speaker 01:
Well, the Commission has to hold orders, particularly in circumstances like here.

[00:31:22] Speaker 01:
Because there are just so many hearing requests and so many issues.

[00:31:25] Speaker 05:
Maybe there are, but then maybe the commission's position would be, but we're not going to allow irreversibly damaging construction to happen.

[00:31:32] Speaker 05:
I mean, that is the double whammy of the we're not acting on this.

[00:31:35] Speaker 05:
We're not even making a final decision yet on public interest or public use and necessity.

[00:31:41] Speaker 05:
We've got no final decision, but the House goes down.

[00:31:44] Speaker 05:
They don't have to do that.

[00:31:45] Speaker 01:
But in this circumstance, before the eminent domain proceedings began,

[00:31:51] Speaker 01:
The claim here, this due process claim, this public use claim, had already been answered by this court's precedent in Mid Coast, and it had been answered by the certificate order.

[00:32:01] Speaker 01:
And before construction began, before the construction order issued, and before the construction tolling order issued, the commission also had determined that a state of construction pending commission for hearing of the certificate order was not warranted.

[00:32:19] Speaker 05:
I don't know how that answers my concerns about whether this is good government.

[00:32:23] Speaker 01:
The concern is that the Commission had already determined that there was not a reparable harm, that there wasn't a reparable harm, and that the normal procedure under the Natural Gas Act, which is that there's no stay of the orders and that's right that's... There's not a reparable harm because they can get money afterwards.

[00:32:39] Speaker 05:
Is that the theory?

[00:32:40] Speaker 05:
But if it's someone's home that's getting demolished.

[00:32:42] Speaker 01:
I understand that, Your Honor, but Congress enacted the Natural Gas Act with no automatic stay, explicitly saying there's no automatic stay for hearing requests, there's no automatic stay for judicial review.

[00:32:54] Speaker 05:
Does FERC have to do it this way?

[00:32:56] Speaker 05:
Is that what you're telling me?

[00:32:57] Speaker 05:
The statute says FERC has to do it this way or it chooses to do it this way?

[00:33:01] Speaker 01:
I think that FERC has to

[00:33:04] Speaker 01:
in a circumstance like this has to issue a tolling order because it cannot resolve reasonably the hearing request on the merits without having the time.

[00:33:13] Speaker 05:
Does it have to issue construction orders before it resolves the re-hearing decision?

[00:33:18] Speaker 01:
No, of course it doesn't have to do that, but in a specific factual circumstance,

[00:33:24] Speaker 01:
like here, the Commission would have found it would have had to do here, because if that question were raised to it, because there was public need for this capacity.

[00:33:32] Speaker 05:
So the Commission... But that all dances around my hypothetical at least, where you have a flawed FERC decision.

[00:33:41] Speaker 05:
And so FERC is sort of blockading through its practices here, blockading the ability to have that tested before the House gets demolished.

[00:33:50] Speaker 01:
But it was tested before FERC, Your Honor.

[00:33:52] Speaker 01:
And again, the All Writs Act exists.

[00:33:56] Speaker 01:
And the petitioners here saw to stay from this court twice, which was denied.

[00:34:01] Speaker 01:
So this court itself found that there was not irreparable harm in this case.

[00:34:08] Speaker 04:
Or maybe not a likely success on merit.

[00:34:11] Speaker 01:
That's right, Your Honor.

[00:34:12] Speaker 01:
Good point.

[00:34:13] Speaker 01:
That's right.

[00:34:13] Speaker 01:
There are four factors.

[00:34:14] Speaker 04:
I mean, it's hard to say there isn't irreparable harm.

[00:34:18] Speaker 01:
I understand, Your Honor.

[00:34:20] Speaker 05:
I thought FERC relied just on irreparable harm.

[00:34:22] Speaker 05:
It did not say... Am I right about that?

[00:34:26] Speaker 01:
FERC does not have a likelihood of success on the merits factor.

[00:34:28] Speaker 01:
It uses the other factors.

[00:34:30] Speaker 01:
And in this day... I was talking about here.

[00:34:32] Speaker 01:
Yeah.

[00:34:33] Speaker 01:
No, of course.

[00:34:35] Speaker 01:
If there's nothing else on that issue, if you want me to talk about greenhouse gas, I can, otherwise I'm surely over my time.

[00:34:42] Speaker 05:
Could you just explain to me how just dropping a number lets me know whether or not it's significant or not?

[00:34:50] Speaker 01:
I think the Commission explained why it can't

[00:34:53] Speaker 01:
In a later proceeding, it's explained why it can't make a specific significance finding, although the Commission did hear, and it fully... Needed to make a significance finding or didn't it?

[00:35:03] Speaker 01:
The Commission didn't make a significance finding regarding that.

[00:35:06] Speaker 01:
It did not.

[00:35:06] Speaker 01:
And doesn't it regulation require it to make a... It requires a discussion of significance.

[00:35:11] Speaker 01:
So significance was addressed here.

[00:35:13] Speaker 01:
Is that what it says?

[00:35:15] Speaker 01:
So... Explain that.

[00:35:17] Speaker 04:
And if we have discussion... Commission regulation requires

[00:35:22] Speaker 04:
that the EIS discuss indirect effects and their significance.

[00:35:29] Speaker 01:
That's right.

[00:35:30] Speaker 01:
That's not making a significance finding, per se, but the significance would certainly... They just have to discuss their significance, not make a finding.

[00:35:38] Speaker 03:
Well, the significance finding is part of the decision to not do an EIS, right?

[00:35:42] Speaker 01:
That's absolutely right.

[00:35:43] Speaker 03:
Once you've decided to do an EIS, that means you already say there's a significance.

[00:35:48] Speaker 01:
That's right, Your Honor.

[00:35:53] Speaker 01:
Yes.

[00:35:54] Speaker 01:
So the Commission has explained why it doesn't make a specific significance finding, which also isn't actually required in this circumstance, but it does discuss the significance.

[00:36:06] Speaker 01:
What the Commission did here, completely consistent with the Sierra Club remand opinion,

[00:36:14] Speaker 01:
is it not only did it quantify the 32.9 million metric tons per year carbon dioxide equivalent, which it had done even before Sierra Club came out, but post Sierra Club it further quantified the maximum downstream emissions that could occur here.

[00:36:27] Speaker 01:
It compared it to the most recent, which was 2015, total gas GHG fossil fuel combustion inventory for the 16 states to which the gas could possibly go, and to the same national

[00:36:45] Speaker 01:
And it came up with numbers that are 1.4% for the states.

[00:36:48] Speaker 05:
It dropped numbers and didn't do anything.

[00:36:50] Speaker 05:
I mean, how do we know 1.6% isn't significant?

[00:36:53] Speaker 05:
What if you had all these states were sort of had been non-attainment or borderline attainment areas, and suddenly this increase is happening?

[00:37:02] Speaker 05:
And why can't FERC figure that out?

[00:37:05] Speaker 01:
The commission explained why.

[00:37:06] Speaker 01:
Well, first of all, and I think what you're talking about is something like the social cost of carbon, which the petitioners did not raise.

[00:37:12] Speaker 05:
I'm not talking about this.

[00:37:13] Speaker 05:
I'm just saying what you've got.

[00:37:15] Speaker 01:
Just based on that?

[00:37:16] Speaker 05:
Say half the states that this large number is going into are non-attainment states who are working really hard to clean up the clean house gases.

[00:37:24] Speaker 05:
I get that's an EPA program.

[00:37:25] Speaker 05:
But marginal differences can make an enormous impact.

[00:37:31] Speaker 05:
air quality and compliance with other legal obligations.

[00:37:35] Speaker 05:
So it would be a little hard to just say that's not significant just because it sounds like a small number.

[00:37:40] Speaker 01:
I think the Commission's point is that it can't, that that's as far as it needed to go to provide enough information to determine that this project, that the greenhouse gas is here, as part of the environmental analysis, that it was environmentally acceptable, which is what the Commission's determination was, that the environmental impacts were environmentally acceptable here.

[00:38:09] Speaker 03:
If I could just say one more thing.

[00:38:13] Speaker 01:
I mean, this is exactly the analysis that was done in Sierra Club, remand, and no one has challenged that on appeal.

[00:38:19] Speaker 01:
The time for appeal has gone by, and so it seems that parties understand as well that this is consistent with what the court required in the Sierra Club opinion.

[00:38:36] Speaker 00:
Just two quick points.

[00:38:43] Speaker 00:
One, the project is in service.

[00:38:46] Speaker 00:
It's been in service since October 6th, 2018.

[00:38:49] Speaker 00:
It's 100% subscribed and is moving approximately 2 billion cubic feet of gas per day.

[00:38:59] Speaker 00:
And it's going to various places in the southeast as well as in the Middle Atlantic states.

[00:39:05] Speaker 00:
Secondly, on the due process questions, this was touched on, but I just want to emphasize, the landowner petitioners commented to FERC.

[00:39:18] Speaker 00:
Hilltop Hollow had seven comment letters.

[00:39:22] Speaker 00:
Hoffman had two comment letters to FERC.

[00:39:26] Speaker 00:
They moved for a stay before FERC, which was denied.

[00:39:32] Speaker 00:
They then moved

[00:39:33] Speaker 00:
for stay in this court, which was denied twice, and they have the All Writs Act there.

[00:39:40] Speaker 00:
And the last point I'd make is, I understand Judge Muller, your scenario, you lose your house.

[00:39:47] Speaker 05:
What's the scenario as I understand it?

[00:39:49] Speaker 00:
Well, the scenario is the protectable interest here under the Fifth Amendment is you're entitled to just compensation if there is a public need.

[00:39:58] Speaker 05:
If there's a public need.

[00:39:59] Speaker 05:
That's right.

[00:40:00] Speaker 00:
That's right.

[00:40:01] Speaker 00:
And if in fact you think you are going to lose your house and there is no public need, you can raise that in your emergency stage, you can raise that in your comments, and you can raise that in the All Writs Act, which allows not just mandamus but injunctions.

[00:40:14] Speaker 00:
So they've had plenty of opportunity to raise that issue.

[00:40:18] Speaker 00:
It's been denied.

[00:40:20] Speaker 05:
Very, very high standards that have to be met for that are sufficient even when there is not yet a final decision on public need.

[00:40:29] Speaker 05:
Where is that?

[00:40:30] Speaker 05:
What case is that?

[00:40:31] Speaker 05:
Well, those are high standards, but there's been... High standards, and there is not yet a final decision on public need.

[00:40:38] Speaker 00:
That is correct, but that's what Congress said you should do once you have the... And that was their determination in the Natural Gas Act.

[00:40:47] Speaker 00:
Once you have the certificate order, you should proceed.

[00:40:52] Speaker 00:
Further questions from the bench?

[00:40:54] Speaker 00:
Thank you.

[00:40:58] Speaker 03:
Ms.

[00:40:58] Speaker 03:
Brewer.

[00:41:01] Speaker 03:
I'm sorry, Ms.

[00:41:02] Speaker 03:
Benson, sorry.

[00:41:04] Speaker 03:
Wrong case.

[00:41:09] Speaker 02:
First of all, with your question,

[00:41:11] Speaker 02:
about the sentence on JA381.

[00:41:14] Speaker 02:
I'm not sure if I completely understand the sentence.

[00:41:17] Speaker 03:
I figured it out.

[00:41:19] Speaker 03:
My confusion, you're right, that is about gas.

[00:41:22] Speaker 03:
My confusion comes from the final environmental impact statement, which says that the advantage of the gas is

[00:41:32] Speaker 03:
downstream end use would result.

[00:41:34] Speaker 03:
Natural gas is a lower CO2 emitting fuel when compared to other fuel sources, fuel, oil, or coal.

[00:41:40] Speaker 03:
And because fuel, oil, and coal have been and remain widely used as an alternative in the region, increased production and distribution of natural gas would likely displace some higher carbon emitting fuels.

[00:41:53] Speaker 03:
And likewise, if there's less, there's more likely that coal and oil will be used.

[00:42:00] Speaker 02:
Well, that's exactly the conclusor's statement in the Sable Trail Sierra Club v. FERC decision that this court rejected.

[00:42:07] Speaker 02:
And of course, there was no downstream.

[00:42:09] Speaker 03:
It is.

[00:42:10] Speaker 03:
But in that one, there was no estimation at all of how much greenhouse gas.

[00:42:14] Speaker 02:
Right.

[00:42:15] Speaker 02:
But what this court said was that the EIS failed to fulfill its primary purpose because the reader would have no idea of the degree of reduction or increase on net.

[00:42:25] Speaker 02:
Yeah.

[00:42:26] Speaker 02:
So that's the same thing here.

[00:42:27] Speaker 02:
We don't know on net.

[00:42:29] Speaker 02:
because FERC's just made this conclusory statement that it thinks it would be reduced.

[00:42:34] Speaker 02:
I mean, it also said it would access new gas supplies for increased gas demand.

[00:42:39] Speaker 02:
It's unclear where that gas demand is coming from because FERC has not investigated it.

[00:42:46] Speaker 02:
And like I said, they have a few downstream shippers and one downstream user who have given some indication at JA 338 and in FERC's brief of what they plan to do with the gas.

[00:42:58] Speaker 02:
made no attempt to try to get more information to figure out, is it displacing coal?

[00:43:03] Speaker 02:
Is it displacing renewables?

[00:43:05] Speaker 02:
They don't do any work to try to find out.

[00:43:07] Speaker 02:
And media requires that they use best efforts to do that.

[00:43:12] Speaker 02:
So I don't know if there are any more questions.

[00:43:16] Speaker 05:
What would be the consequences if there were a determination, the same if hypothetically, that they had not properly analyzed greenhouse gas emissions in this case?

[00:43:26] Speaker 05:
What happens then?

[00:43:27] Speaker 02:
We would ask that this court vacate the certificate order.

[00:43:31] Speaker 05:
What happens to this existing pipeline operation then?

[00:43:34] Speaker 02:
We think at a minimum the new Greenfield pipeline in Pennsylvania should halt operation during that time.

[00:43:41] Speaker 04:
The project also involves a... Why that one?

[00:43:45] Speaker 02:
What's that?

[00:43:46] Speaker 04:
Why that one?

[00:43:47] Speaker 02:
Well, the project also involves making the entire main line, or at least from Pennsylvania to Station 85 in Alabama, bi-directional.

[00:43:56] Speaker 02:
And we think it's likely that shutting that down would not be feasible, at least according to what interveners have told us so far.

[00:44:03] Speaker 02:
Whereas the new pipeline in Pennsylvania was just put into service a month or two ago, so we think it would be a much more feasible remedy to shut that down during remand than to try to vacate the entire thing.

[00:44:15] Speaker 02:
But would you just submit additional briefing on a more tailored remedy?

[00:44:20] Speaker 02:
if the court would like.

[00:44:21] Speaker 03:
Can I ask a question?

[00:44:22] Speaker 03:
The opposing counsel mentioned the remand in the original Sierra Club.

[00:44:26] Speaker 03:
It's not the original, obviously, but earlier.

[00:44:29] Speaker 03:
Do you want to talk about that?

[00:44:30] Speaker 02:
Yeah.

[00:44:31] Speaker 02:
I was going to say that the lack of challenge to that remand order does not reflect agreement with that remand order.

[00:44:39] Speaker 03:
I guess my question would be, this time, instead of a discussion, they give about 10 pages of explanation for why they can't do any better than they're doing.

[00:44:48] Speaker 03:
Do you have a challenge to that?

[00:44:51] Speaker 03:
Now they actually explain why they can't do more.

[00:44:53] Speaker 02:
How they explain it in the stable remand order?

[00:44:57] Speaker 02:
Yes.

[00:44:57] Speaker 02:
My first response is that they can't rely on something in another case.

[00:45:00] Speaker 02:
I got it.

[00:45:00] Speaker 02:
I got it.

[00:45:01] Speaker 03:
I got it.

[00:45:01] Speaker 03:
My question is, were we to remand?

[00:45:04] Speaker 03:
And they said, OK, here's our reason.

[00:45:07] Speaker 03:
And they just say, we've already said our long reason.

[00:45:11] Speaker 03:
I'd like to know what you would say in response.

[00:45:14] Speaker 02:
Well, we would probably take a long time to formulate comments on that when they did their draft supplemental statement.

[00:45:20] Speaker 02:
And we did have comments on the stable remand order when it was still a draft supplemental EIS.

[00:45:29] Speaker 02:
I can't remember all the specifics of those right now.

[00:45:32] Speaker 03:
I don't think it's an unfair question.

[00:45:34] Speaker 02:
But I would say that two of the commissioners, Commissioner LaFleur and Commissioner Glick, have said that that is incorrect, that they can come up with a significance determination.

[00:45:46] Speaker 03:
So fair enough.

[00:45:47] Speaker 03:
But FERC commissioners have a different standard of deciding what FERC should do than we have on review.

[00:45:55] Speaker 03:
We have a deferential standard.

[00:45:56] Speaker 03:
They have a de novo decision about what

[00:45:59] Speaker 03:
if they were in the majority they would do.

[00:46:01] Speaker 03:
Isn't that right?

[00:46:02] Speaker 03:
The fact that they think they could do more is not the question.

[00:46:04] Speaker 03:
The question is whether what they've said here is enough from an arbitrary and capricious point of view.

[00:46:12] Speaker 02:
Right.

[00:46:12] Speaker 02:
I think the question here is whether this one paragraph in the EIS

[00:46:17] Speaker 02:
that includes no data or analysis is sufficient, or alternatively, if their new statement in the briefing, which we think is unsupported but regardless supports our argument that they didn't do an adequate job here, that they can't do a significance finding, that either way the court should vacate and remand.

[00:46:37] Speaker 02:
And just to take a moment to say why this matters, because what FERC is doing now is sticking a full bar number in each EIS environmental impact statement, although now they've

[00:46:47] Speaker 02:
backed off on that too, asserting with no support or analysis that it will be offset to insignificance or that they can't determine the insignificance.

[00:46:57] Speaker 02:
Then they approved the project saying that all impacts have been reduced to insignificance and that it's an environmentally acceptable action based on that totally cursory analysis.

[00:47:06] Speaker 02:
So then we have one agency in a pretty short period of time approving all these pipelines.

[00:47:11] Speaker 02:
We list some of them in our opening brief, page 29, footnote 17.

[00:47:15] Speaker 02:
And they're saying, well, this one's 0.6% of the nation's emissions.

[00:47:18] Speaker 02:
This one's 1%.

[00:47:19] Speaker 02:
This one's 0.5%.

[00:47:20] Speaker 02:
So all of a sudden, you have this one agency approving pipelines that account for 4%, 5%, 6% or more of the nation's greenhouse gases.

[00:47:30] Speaker 02:
And they've never taken a hard look at the impact.

[00:47:33] Speaker 02:
So we request that the court vacate.

[00:47:35] Speaker 02:
And if there's no further questions.

[00:47:37] Speaker 03:
And are there?

[00:47:38] Speaker 02:
No.

[00:47:38] Speaker 03:
There aren't.

[00:47:39] Speaker 03:
Thank you.

[00:47:40] Speaker 03:
All right.

[00:47:40] Speaker 03:
We'll take the matter under submission today.

[00:47:42] Speaker 03:
Is everybody supposed to talk?

[00:47:44] Speaker 05:
Just a few brief points.

[00:48:00] Speaker 06:
First, my client's petition is not based on the tolling order itself.

[00:48:10] Speaker 06:
Our due process challenge is based on the entirety

[00:48:14] Speaker 06:
of the procedure that they have been put through here and what has been available to them.

[00:48:25] Speaker 06:
The United States Supreme Court said in Matthews v. Eldridge that due process requires a notice and an opportunity to be heard before a final taking.

[00:48:34] Speaker 06:
And although the judicial model of an evidentiary hearing may not be warranted in every case, the right to be heard nevertheless requires that the available procedures be tailored to the capacities and circumstances of those who are to be heard.

[00:48:49] Speaker 06:
I would submit to you that the All Writs Act is not a procedure tailored to the abilities of people like my clients, who, I would point out, are an anomaly among many people affected by pipelines and this procedure, because my clients actually had the means to fight these fights, to hire a lawyer.

[00:49:15] Speaker 06:
On that note,

[00:49:17] Speaker 06:
Eminent domain proceedings are not something that's available to everyone and accessible to everyone.

[00:49:24] Speaker 06:
It ignores the fact that my clients were sued in the Eastern District of Pennsylvania for the taking of their property and they had to hire a lawyer to defend them.

[00:49:34] Speaker 06:
They were able to do that.

[00:49:36] Speaker 06:
Many people are not.

[00:49:38] Speaker 06:
They were able to hire an attorney to file

[00:49:41] Speaker 06:
a request for rehearing and see it through and file a second request for rehearing after the final decision and after the tolling order was lifted and to file a petition for review in this court and to seek review of the denial of their rights in the Eastern District of Pennsylvania in the Third Circuit.

[00:49:59] Speaker 06:
Many, many people cannot do that, and just as Your Honor pointed out, they are left without anywhere to go in response to this.

[00:50:08] Speaker 06:
I would also point out that the Natural Gas Act does not require FERC to follow the procedure that is followed here and that it consistently follows.

[00:50:17] Speaker 05:
In fact... Do you have a sense of how often FERC issues construction orders while, along with or after issuing a tolling order, before rehearing is decided?

[00:50:29] Speaker 06:
I can't say how often the construction order issues, but I can say that tolling orders are the norm.

[00:50:37] Speaker 06:
that FERC almost always issues a tolling order in response to a request for rehearing without a concomitant stay of construction or moving forward, but there is pre-construction activity that goes on as well.

[00:50:51] Speaker 06:
There's clearing.

[00:50:54] Speaker 06:
There are environmental surveys.

[00:50:56] Speaker 06:
things of that nature because the procedure does not require the eminent domain proceeding to wait while the tolling order is sitting.

[00:51:06] Speaker 06:
And that is precisely what happened to my clients.

[00:51:08] Speaker 06:
So the taking of their property happened before the construction order and before the petition for rehearing was decided.

[00:51:18] Speaker 06:
It was entered by the district court.

[00:51:21] Speaker 06:
And what I would say is that what's missing here is also

[00:51:25] Speaker 06:
that in enacting the Natural Gas Act, Congress did not say that this is the default outcome that should happen.

[00:51:33] Speaker 06:
What Congress said is that landowners like my clients need to petition for rehearing to FERC, and if FERC does not act on that within 30 days.

[00:51:44] Speaker 03:
Right, so the problem here may be that we were wrong before in saying that ACT includes just issuing another tolling order.

[00:51:53] Speaker 03:
that, in fact, the Natural Gas Act points in your direction that they need to act in 30 days and then give you a chance to go to the Court of Appeals.

[00:52:03] Speaker 06:
That would be one permissible option.

[00:52:06] Speaker 03:
The problem for us, of course, is we have a number of cases on this subject, but personally I'm mystified by how filing a tolling order is the kind of act that Congress actually meant.

[00:52:17] Speaker 06:
I would agree with you, Your Honor, but

[00:52:21] Speaker 06:
I also accept the argument that in certain circumstances FERC may need more than 30 days to adequately address a request for re-hearing, or perhaps many, and it makes sense that perhaps they should not be denied the time that they need to adequately deal with that.

[00:52:40] Speaker 06:
The simple response to that is that if FERC needs more time, then FERC should also enter a stay of construction or a stay of the certificate orders.

[00:52:50] Speaker 03:
Or FERC should go back to Congress and ask them to extend the 30-day.

[00:52:54] Speaker 03:
Congress obviously put in 30 days for a reason.

[00:52:56] Speaker 03:
They wanted a chance for people to appeal.

[00:53:00] Speaker 03:
And this is maybe a statutory problem or from FERC's point of view, and it may be a legal problem from our point of view.

[00:53:07] Speaker 03:
Are there further questions?

[00:53:09] Speaker 03:
I think now we'll take them out.

[00:53:12] Speaker 03:
Thank you.

[00:53:13] Speaker 02:
Stand please.