[00:00:00] Speaker ?:
Case number 18 at 5179 at L, National Parks and Conservation Association.

[00:00:09] Speaker ?:
This is Todd St.

[00:00:10] Speaker ?:
Seminary, Lieutenant General at L. Mr. Eubanks for the Appellate NBCA.

[00:00:17] Speaker 04:
Mr. Adams for Appellates National Parks and Conservation at L. Mr. Maddenhart.

[00:00:31] Speaker 03:
Good morning, Your Honor.

[00:00:34] Speaker 03:
I am Mr. Adams, actually.

[00:00:36] Speaker 03:
Oh, sorry.

[00:00:36] Speaker 03:
I apologize.

[00:00:38] Speaker 03:
Okay.

[00:00:38] Speaker 03:
And I represent the National Trust for Historic Preservation and Preservation of Virginia.

[00:00:43] Speaker 03:
All right.

[00:00:43] Speaker 03:
And you're splitting with Mr. Urbanks?

[00:00:45] Speaker 03:
I am, Your Honor.

[00:00:46] Speaker 03:
We're splitting 10 minutes each, and I'd like to reserve one minute of my time for the panel, if I could.

[00:00:53] Speaker 03:
And unless the court has other direction, I'd like to start with our National Historic Preservation Act claim and then move to the National Environmental Policy Act.

[00:01:01] Speaker 03:
So this case is about construction of overhead transmission lines up to 295 feet tall through the heart of an historic district near Jamestown, Virginia.

[00:01:11] Speaker 03:
Undisputed that the project will adversely affect eight sites listed in the National Register of Historic Places, including the Jamestown, Hog Island, Captain John Smith Historic District, and Carters Grove National Historic Landmark.

[00:01:24] Speaker 03:
The effect on the landmark implicates Section 110F, which requires that prior to approving any project that may directly and adversely affect a national historic landmark, the lead federal agency, QUIC, shall, to the maximum extent possible, undertake such planning and actions as may be necessary to minimize harm to the landmark.

[00:01:44] Speaker 08:
And here... That's not the statutory language.

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That's the regulation?

[00:01:47] Speaker 03:
No, Your Honor, that's it, 54 USC 306107, which is the 110F statute that was recently recorded.

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Here, our position is Section 110F applied because the project will directly affect Carter's Grove.

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There's no intervening cause, so the resulting impact of the project is a direct one.

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The Court's position, of course, is that Section 110F never applied because directly really means physically.

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and the project won't physically touch the landmark.

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I think it's fair to say that the parties also differ on the right way to resolve this issue.

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We say the rules of statutory construction without deference to the Corps.

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The Corps is looking for deferential, arbitrary, and capricious review.

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But as we've explained in our brief, both paths lead to the same place.

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Section 110F applies.

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If it's a question of statutory interpretation, we submit that plain language

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ordinary meaning and congressional intent, all point to directly being about causation, not physicality.

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And if it's a question of arbitrary and capricious review, the court arbitrarily and capriciously based its interpretation of Section 110F on a guidance document that was issued by the Advisory Council for Historic Preservation, even though the guidance on its face doesn't apply to this situation.

[00:03:11] Speaker 03:
The author of the guidance, the advisory council, told the Corps on two different occasions that the Corps' approach was wrong.

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And the Park Service, to which Congress gave some responsibility for interpreting Section 110F, said the same thing.

[00:03:26] Speaker 06:
And the Corps... The Corps says in its brief that even if you write about the interpretation, that it is causation, that they in fact did that.

[00:03:36] Speaker 06:
That they looked at the visual impact and examined it.

[00:03:40] Speaker 03:
But, Your Honor, the case law on what is required for Section 110F compliance is not well developed.

[00:03:46] Speaker 06:
Well, what more, looking at that part of their analysis, what more should they have done?

[00:03:52] Speaker 03:
Well, one place that we can look to find what more they should have done is the Presidio case.

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So there, for example, the court shows us what that something more that Section 110F requires might be.

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And what is that?

[00:04:07] Speaker 03:
So we see that that's the Presidio Trust case at 811.

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No, no, no.

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I know.

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What more does it say is required?

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So there, for example, the project was, quote unquote, changed dramatically in response to Section 110F concerns.

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When Section 110F was raised, the lead agency developed three preservation alternatives that were given full consideration in an EIS that was circulated to the public.

[00:04:34] Speaker 03:
Park Service.

[00:04:36] Speaker 08:
I guess what Judge Tatel is asking, I want to be presumptuous about this.

[00:04:41] Speaker 06:
You could be presumptuous, that's okay.

[00:04:44] Speaker 08:
Please, be presumptuous.

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What things in this case do you think they should have done that they didn't do, if you're right about directly

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Well, Your Honor, none of those things that I've mentioned that were present in Presidio's present year.

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Well, the second one, they did a lot of alternatives analyzed.

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They considered some alternatives.

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Not just some.

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It seems like they considered a lot of alternatives.

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Most of those alternatives were developed during the State Corporations Commission process.

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And that was not a process where there was a federal agency applying Section 110F.

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Is there an alternative that you think they should have developed that they didn't?

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We think, Your Honor, that had they applied the alternatives test that's set forth in the 110F guidelines, and we recognize that those are guidelines, not statute.

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And those are the ones that are not binding?

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They are not binding, Your Honor.

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But we would submit that in this case where they're directly applicable and the agency has reached so far to find guidelines from another agency to avoid the whole thing altogether.

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And there's no rationale for not.

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applying this sunset force.

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Again, what alternatives should they have considered if they didn't?

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So had they applied the proper test, Your Honor, we submit that several of the alternatives would have been deemed feasible, or at least would not have been eliminated from full consideration on the basis of an asserted infeasibility.

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So underwater, the alternatives that were suggested by the Tabor's engineering firm

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All of those were eliminated based on NEPA's suggestion that anything that seems infeasible in light of project purposes can be eliminated from full consideration.

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Do you think that something that is infeasible from the point of view of the project still has to be considered?

[00:06:38] Speaker 03:
Is that what you're saying?

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I think what Section 110F requires is that in determining whether something is infeasible, we don't just consider the purposes of the project, but we also consider the preservation purposes of the statute, and we also weigh the public interest, and we also weigh the amount of harm, and we also weigh the availability of other mitigation measures.

[00:07:01] Speaker 03:
That's what's set forth in the guidelines test.

[00:07:04] Speaker 03:
And you don't think they did any weighing at all?

[00:07:07] Speaker 03:
I don't think they applied that test, Your Honor, and there are two reasons why I say that.

[00:07:12] Speaker 03:
One reason is I don't see anything in the record that shows that application.

[00:07:17] Speaker 03:
What I see in the record, on the contrary, is an email that says, we don't think we need to apply, notwithstanding the direction that was given by the Advisory Council for Historic Preservation.

[00:07:29] Speaker 05:
Just to be clear, so under, your view is that under the Preservation Act,

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You have to front load in deciding whether something is feasible or not the impact on the historic landmark, as opposed to just looking at the project's purposes.

[00:07:48] Speaker 05:
And some of the feasibility determinations actually change.

[00:07:52] Speaker 05:
It's a very different one that includes landmark impact as part of what is feasible or infeasible.

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That's right, Your Honor.

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That's it.

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And I would submit to the Court that this is not

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a one-of-a-kind situation.

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I mean, there are environmental laws across the federal code that require alternatives analysis, and they all impose slightly different standards.

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So the idea that there is a slightly different standard associated with this law... That doesn't sound slightly different.

[00:08:17] Speaker 08:
You're saying that even if

[00:08:20] Speaker 08:
this project is necessary to prevent blackouts in the other area or to prevent environmental degradation by burning toxic smoke.

[00:08:32] Speaker 08:
Even if it's necessary for that, it still can't be done or you have to weigh it against the value of putting the lines across the river while the other

[00:08:48] Speaker 08:
alternatives, the NEPA does not require that.

[00:08:53] Speaker 03:
I think it's the second approach that you suggested.

[00:08:55] Speaker 03:
It's that it has to be weighed against the preservation purposes of the statute, the public interest that it attaches to the landmark.

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It's a weighing exercise.

[00:09:05] Speaker 08:
So you're saying something that survives NEPA doesn't survive this.

[00:09:09] Speaker 08:
May not survive this.

[00:09:10] Speaker 08:
What does may mean?

[00:09:11] Speaker 08:
I mean, it either does or it doesn't for purposes.

[00:09:14] Speaker 08:
We have to decide.

[00:09:15] Speaker 08:
Understood.

[00:09:16] Speaker 08:
We don't get to say may.

[00:09:17] Speaker 03:
Right, so our position is, in this case there was no application of the standard, and so that's a violation of the law.

[00:09:24] Speaker 08:
Well, there's no application of the guidance, is that what you're saying?

[00:09:28] Speaker 03:
The standard and the guidance, that's exactly right.

[00:09:30] Speaker 08:
What part of the standard are we talking about?

[00:09:34] Speaker 03:
The guidance sets forth the three-part balancing test that I mentioned.

[00:09:40] Speaker 08:
Yes, I understand.

[00:09:41] Speaker 08:
That's why I said that's the guidance.

[00:09:44] Speaker 08:
But the guidance, we all agree, isn't the law.

[00:09:47] Speaker 08:
So what is the law that we're applying?

[00:09:50] Speaker 03:
So our position is

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In this factual situation, we have this agency reaching for inapplicable guidance to try and get out of this responsibility, while at the same time, there is this clearly applicable guidance that's staring it in the face.

[00:10:05] Speaker 03:
There's no reason decision making whatsoever about why this thing is not being applied.

[00:10:10] Speaker 08:
What is the law?

[00:10:11] Speaker 08:
Is the law the regulation?

[00:10:13] Speaker 08:
Is the law the statute?

[00:10:15] Speaker 08:
The law is the statute, Your Honor.

[00:10:17] Speaker 03:
And the guidance tells us what the agency should do

[00:10:22] Speaker 03:
to comply with the statute.

[00:10:24] Speaker 05:
The agency hasn't disputed that these guidelines control if 110 applies.

[00:10:30] Speaker 05:
They just said 110 didn't apply.

[00:10:33] Speaker 03:
That's right.

[00:10:33] Speaker 03:
So in this situation, we have a case where the agency did not apply.

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It's not a question of whether the alternatives analysis met the guidelines standard.

[00:10:42] Speaker 03:
There's nothing to look at or for the court to defer to in the record.

[00:10:48] Speaker 03:
Your Honours, I see my time is running a little bit low.

[00:10:50] Speaker 03:
I do want to make three quick points on the National Environmental Policy Act, if I might.

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So, first point, and this concerns the finding of no significant impact.

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A large part of the court's thinking here was that the historic resources would be, the impacts on historic resources would be insignificant because the project will be built at a distance from historic sites.

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But the technical report that they primarily rely on, this is what's referred to by the parties as the CREA, the cultural resources effects.

[00:11:20] Speaker 03:
It says the opposite.

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It says the project will be built through and within the historic district.

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And in fact, this will result in some significant impacts.

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And it uses that term of art, significant.

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And we submit that this admitted impact of significance requires the appropriation of an EIS.

[00:11:38] Speaker 03:
Second point concerns the modern intrusions argument.

[00:11:43] Speaker 03:
So this comes up in the context of the 40 CFR 1508.27B3, which says that

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The impacts to unique characteristics of an area indicate significance.

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Here there's no doubt that unique characteristics will be impacted.

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The Corps' rationale is that there are other modern intrusions up and down the James River, and so those impacts will be relatively minor.

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We noted in our briefing that most of these intrusions are elsewhere on the James.

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They're not right within the view shed of the project.

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And indeed, the project site is part of a 50-mile stretch of river without any overhead crossings.

[00:12:21] Speaker 03:
But we would also point the court to JA 2204 to 05, which represents the Corps' conclusions on this modern intrusions issue after site visits.

[00:12:35] Speaker 03:
The Corps says,

[00:12:37] Speaker 03:
quote, observations made from the river and multiple points on land find many sections of the James River near Jamestown and Hog Island to where the project will be built, quote, to retain significant or sufficient integrity to convey the appearance of the area during the 17th century.

[00:12:55] Speaker 03:
So we would submit that having reached that

[00:12:58] Speaker 03:
conclusion about what the site conditions are, it was arbitrary and capricious for them to rest their fonzy on this notion of modern nutrients.

[00:13:04] Speaker 03:
Let me ask whether anybody else on the panel has any further questions.

[00:13:07] Speaker 03:
No.

[00:13:07] Speaker 08:
All right, thank you.

[00:13:08] Speaker 08:
Thank you.

[00:13:12] Speaker 08:
Now, Mr. Newbeck.

[00:13:20] Speaker 00:
Good morning.

[00:13:21] Speaker 00:
This case is about the birthplace of our nation and whether placing a project of unprecedented size and unparalleled impact within and across this nationally important historic district warrants an EIS.

[00:13:36] Speaker 00:
We think there are many reasons that an EIS is required here, but at bare minimum, this project is highly controversial as that term is defined under NEPA's regulations.

[00:13:45] Speaker 00:
As this court stated in Town of Cave Creek, the controversy test is as follows.

[00:13:50] Speaker 00:
The term controversial refers to cases where a substantial dispute exists as to the size, nature, or effect of the major federal action.

[00:13:59] Speaker 00:
The decision under review is the paradigmatic example of a substantial dispute under NEPA, and it is not a close call.

[00:14:06] Speaker 00:
To begin with, every single entity with subject matter expertise in the affected resources, both inside and outside the federal government, strenuously disputed the Corps of Engineers' conclusions that this project's impact will be, quote, moderate at most.

[00:14:22] Speaker 00:
In particular, the National Park Service, which is the federal agency charged by Congress with protecting and safeguarding these affected resources, weighted in more than 20 detailed, extensive letters vehemently disputing almost every aspect of this decision-making process.

[00:14:39] Speaker 06:
But didn't the new Secretary of the Interior say he was satisfied?

[00:14:45] Speaker 06:
Your Honor, as we explained in our briefing – That the court had satisfied his concerns?

[00:14:50] Speaker 00:
So new Secretary Zinke, after the change in administrations, did send a very short cursory letter.

[00:14:54] Speaker 00:
A couple of responses to that.

[00:14:57] Speaker 00:
So the first is that letter doesn't speak at all to the question before the court today, which is whether an EIS is required.

[00:15:04] Speaker 00:
Secretary Zinke never said an EIS is or is not required.

[00:15:07] Speaker 00:
He never said there were or were not significant impacts.

[00:15:11] Speaker 00:
So as to that question, there is certainly nothing in the letter that speaks to it.

[00:15:14] Speaker 00:
Secondly, that letter never says it's speaking on behalf of the Park Service or its experts that for many years had raised longstanding, detailed technical disputes.

[00:15:25] Speaker 06:
The Park Service is part of the Interior Department, right?

[00:15:28] Speaker 00:
It is part of the Interior Department, yes, Your Honor.

[00:15:30] Speaker 00:
At the same time, as we know from State Farm and this Court's many rulings, if an agency, you know, an appointed official wants to override its many experts within the agency, it has to articulate a reasoned explanation and supply a basis for how it reached that outcome if it's reversing course.

[00:15:48] Speaker 06:
And we don't think this, you know, fair- We're not reviewing the decision of the Secretary.

[00:15:52] Speaker 06:
We're reviewing the decision of the Court.

[00:15:55] Speaker 06:
I was only asking you about the Secretary's view because he says he's now satisfied that the Corps has satisfied him about the Park Service's concerns.

[00:16:11] Speaker 06:
And I don't know that that's – I mean, how do we look at that?

[00:16:17] Speaker 06:
Right, we're looking at the Corps' decision.

[00:16:20] Speaker 06:
The question is whether it's arbitrary and capricious, right?

[00:16:22] Speaker 00:
Correct.

[00:16:23] Speaker 00:
That is what we're asking.

[00:16:24] Speaker 00:
But the question is, was the Corps' decision that on this record where we have hundreds of pages of detailed information and recommendations and disputes with the expert agency charged by Congress, the Park Service, was it arbitrary and capricious for the Corps to rely upon this short cursory letter that did not speak to this issue

[00:16:44] Speaker 00:
and determine that that extinguished what is absolutely a palpable controversy that existed with the Park Service.

[00:16:52] Speaker 05:
We can take as given, for purposes of this case at least, that Secretary Zinke's change in position could survive APA review, but for purposes of determining whether there's something that's highly controversial, doesn't the sort of 180

[00:17:14] Speaker 05:
confirm that there's, for the same reason we say agencies can change their position, there can be good arguments on both sides.

[00:17:22] Speaker 05:
Did his letter deny the validity of the arguments before or just recognize that there can be good arguments on both sides, which sounds like a controversy?

[00:17:30] Speaker 00:
It certainly does.

[00:17:31] Speaker 00:
We think it supports and underscores that there is a controversy here.

[00:17:35] Speaker 06:
And I would also note that... Well, no, you missed the point of the question.

[00:17:38] Speaker 06:
The point of the question is, given the Secretary's letter, where's the controversy?

[00:17:44] Speaker 00:
Well, the controversy, again, is years and years of detailed submissions from the experts within the agency, expertise that certainly Secretary Zinke does not have and is appointed official.

[00:17:58] Speaker 06:
I understand all that, but how would you write, what would the sentence in an opinion look like, which says the Interior Secretary's judgment about

[00:18:12] Speaker 06:
whether the court satisfied him about the National Park Service concerns does not resolve the controversy.

[00:18:19] Speaker 06:
How would we explain that?

[00:18:22] Speaker 00:
I think there are several ways the court could do that.

[00:18:25] Speaker 00:
Thank you for the opportunity to weigh in.

[00:18:26] Speaker 00:
I think that most importantly this letter once again doesn't speak to the Park Service and its long-standing concerns.

[00:18:33] Speaker 00:
If the

[00:18:34] Speaker 00:
Interior Department wanted to articulate why it will leave the Park Service's views to be erroneous.

[00:18:39] Speaker 00:
It could have done that under basic administrative law principles.

[00:18:42] Speaker 00:
That was not explicated in the letter.

[00:18:45] Speaker 00:
So there are many ways.

[00:18:46] Speaker 00:
So we think this letter really is not relevant here, but if anything it underscores the fact that there was a dispute within that department.

[00:18:52] Speaker 00:
I would also submit that this is not- Let me just push you a little bit.

[00:18:55] Speaker 06:
Look, this is, I don't know what the answer is, but

[00:18:59] Speaker 06:
Administrations can change their positions, right?

[00:19:03] Speaker 06:
This is a question about aesthetics.

[00:19:07] Speaker 06:
The Secretary didn't ignore the Park Service's views.

[00:19:13] Speaker 06:
He said, I'm now satisfied by the Corps.

[00:19:17] Speaker 06:
What more is he supposed to do?

[00:19:21] Speaker 06:
Tell me exactly what more he's supposed to do and why.

[00:19:24] Speaker 00:
Well, if he wants to actually... He says, I have a different view about this.

[00:19:31] Speaker 06:
I'm satisfied about the impact of these power lines on this area.

[00:19:37] Speaker 06:
And I'm the head of the Park Service.

[00:19:40] Speaker 00:
If he wants to eliminate the controversy that clearly existed up to that date, then he would have to take those issues head on and address them and say, something new that has been produced has changed our view on that and the experts within our agency.

[00:19:51] Speaker 00:
And that didn't happen here.

[00:19:52] Speaker 00:
The only thing that occurred between the January 2017 letter from NPS... You mean the Park Service itself would have to change its view?

[00:20:00] Speaker 06:
It's not enough for the Secretary to say, I've looked at all of this and I'm now satisfied?

[00:20:07] Speaker 00:
I think the Secretary would have to provide a reasoned basis for how to reach that conclusion, and nothing occurred between January 2017, when the Park Service submitted its final letter, and March 30, 2017, when the Secretary issued his.

[00:20:18] Speaker 00:
There was a single letter in a single meeting, and that was it.

[00:20:21] Speaker 00:
There was nothing that could provide a reasoned basis for that change in position.

[00:20:25] Speaker 05:
I would also submit just as important...

[00:20:27] Speaker 05:
Do you need to have the Park Service disagreeing to have a controversy?

[00:20:31] Speaker 05:
You absolutely do not.

[00:20:33] Speaker 05:
Have it be highly controversial.

[00:20:35] Speaker 05:
Controversy alone is not enough.

[00:20:36] Speaker 00:
Yes, thank you, Your Honor.

[00:20:37] Speaker 00:
That was where I was trying to pivot to, which is we do have many other agencies with expertise here and many non-agencies and entities with expertise such as my client, the National Trust for Historic Preservation.

[00:20:48] Speaker 00:
But we do have the Advisory Council on Historic Preservation.

[00:20:51] Speaker 00:
We have the Argonne National Laboratories, which houses the nation's leading visual impact experts.

[00:20:55] Speaker 00:
None of those are within the Interior Department.

[00:20:57] Speaker 00:
Nothing said in Secretary Zinke's letter affects their disputes that are absolutely still live today.

[00:21:02] Speaker 00:
And so we think that this is an extraordinary case where you have many letters from every different expert within and outside the federal government disputing what the court did here.

[00:21:11] Speaker 00:
And if this case is not a substantial dispute under NEPA, we don't know what facts would ever warrant that determination.

[00:21:17] Speaker 00:
And so we would submit this court's test from town of Cave Creek has to apply here.

[00:21:23] Speaker 00:
Unless you have any other questions, I'd like to mention a few words about our Clean Water Act argument.

[00:21:28] Speaker 00:
So in this case, on the Clean Water Act point, we've made a very, what we believe is a straightforward and elementary APA point, which is in applying a standard in determining what is practicable or impracticable under that act, which is what is required.

[00:21:45] Speaker 06:
Can I just interrupt and just ask?

[00:21:46] Speaker 06:
Yes, your honor.

[00:21:47] Speaker 06:
If we think, and I'm not saying we do, if we think the court satisfied its obligations under NEPA,

[00:21:52] Speaker 06:
Does that resolve the Clean Water Act issue also, or are they different?

[00:21:55] Speaker 00:
It does not.

[00:21:56] Speaker 00:
The Clean Water Act imposes a substantive test.

[00:21:58] Speaker 00:
In fact, it's a presumption that the government must rebut in order to have their determination be found not arbitrary and capricious.

[00:22:06] Speaker 00:
And here, we would argue that there is no standard that has been applied as to cost.

[00:22:12] Speaker 00:
Nine alternatives were found to be impracticable primarily on cost grounds, and there was never any

[00:22:19] Speaker 00:
dividing line that was provided to the public as to how the agency assessed what is too costly and what is not.

[00:22:27] Speaker 00:
Stepping back for a moment, this is a project that would always be very costly.

[00:22:30] Speaker 00:
It was going to cost millions and millions of dollars for a major energy infrastructure project of this kind.

[00:22:35] Speaker 00:
So all we're saying is that under the APA, under basic administrative law principles, there had to be some explication of when this project would become too costly rather than just saying, well, anything more than what the project cost is something Dominion's not willing to do.

[00:22:50] Speaker 00:
That is not the test.

[00:22:51] Speaker 00:
So we would submit that the court has failed to rebut the presumption they're required to rebut under the Clean Water Act, especially where they, for whatever reason, not explaining the record, aggregated the cost of this project, although the standard industry norm in this particular field is to pass these costs on to rate payers.

[00:23:10] Speaker 00:
And when you look at it from a per rate payer basis, as we have explained, the differences from the project to the alternatives that were deemed impracticable is minuscule.

[00:23:17] Speaker 08:
Do you have an alternative in mind that you think is practicable?

[00:23:21] Speaker 00:
We do.

[00:23:21] Speaker 00:
So there are several that are very briefly dismissed in the EA, JDA 206, two underwater alternatives.

[00:23:29] Speaker 00:
These are just examples.

[00:23:30] Speaker 00:
There are others.

[00:23:31] Speaker 08:
One of the problems with the underwater one was it met reliability for ten years less and took five years longer to build.

[00:23:38] Speaker 08:
Is that right?

[00:23:39] Speaker 00:
Well, so both the cost and the construction estimates were disputed by the CoreZone in-house experts.

[00:23:46] Speaker 08:
Was there a dispute about how long it would take to build?

[00:23:49] Speaker 00:
Yes, there was, and that is cited in both our opening and our reply briefs.

[00:23:53] Speaker 00:
There was a dispute both as to the timing of how long the alternatives would take as well as the cost, but as to the underwater alternatives, even taking... What about how long it would last with respect to reliability?

[00:24:06] Speaker 00:
These would both be NERC reliable for at least 15 years, if not longer.

[00:24:18] Speaker 08:
But that's not as long as the other one.

[00:24:21] Speaker 08:
So they'd have to do something again for 15 years.

[00:24:24] Speaker 00:
Again, there would have to be.

[00:24:25] Speaker 00:
Well, and at the same time, Dominion has said it's going to come back every 10 years to revisit whether there are appropriate other means.

[00:24:31] Speaker 00:
So we think buying a 15-year window certainly would be practicable.

[00:24:35] Speaker 00:
And again, this gets to that question on all these issues, cost, construction, time, logistics.

[00:24:40] Speaker 00:
There is no standard articulated.

[00:24:41] Speaker 00:
Here's Dominion's project and what they desire, but there's never anything explaining how and when these other alternatives become practicable.

[00:24:50] Speaker 08:
PJM and the others with respect to the reliability question say they have to get it done within a year or two in order to be reliable.

[00:24:59] Speaker 08:
That's not a question where they haven't answered that.

[00:25:04] Speaker 00:
Again, you know, we're focusing on alternatives that primarily were being dismissed on costing construction time and grounds.

[00:25:12] Speaker 00:
And for those, there is no standard in the record.

[00:25:14] Speaker 08:
Regardless of what might exist for other alternatives,

[00:25:17] Speaker 08:
The construction timing is a reliability question.

[00:25:20] Speaker 08:
Because until it's constructed, there's a reliability problem if they have to close down the projects.

[00:25:26] Speaker 00:
Our understanding and reading of the record in the way it's been presented by the other side in both the district court and in this court is that their construction constraints were informed less by current NERC reliability and informed more by other map stuff which is happening under EPA's jurisdiction.

[00:25:43] Speaker 08:
I'm just reading from JA 214, which is the EIS.

[00:25:46] Speaker 08:
Longer construction windows mean contingency risks are borne by the system.

[00:25:50] Speaker 08:
for a longer period of time which may increase the potential for load shedding, which means blackouts.

[00:25:57] Speaker 08:
So I don't understand why you say the construction timing is only a question of cost.

[00:26:05] Speaker 00:
Timing is not a question of cost.

[00:26:06] Speaker 00:
What we're seeing is the practicability takes into account all of these separate factors.

[00:26:11] Speaker 00:
And it is indisputable that some of these alternatives were eliminated either entirely or primarily on cost grounds.

[00:26:18] Speaker 00:
And so we focused on that.

[00:26:19] Speaker 08:
Well, I'm asking you which one.

[00:26:20] Speaker 08:
So you mentioned the underwater one, but that one is eliminated not just for cost, but also

[00:26:25] Speaker 08:
and the problem of reliability over the five years.

[00:26:28] Speaker 08:
So what's another one that you have in mind?

[00:26:30] Speaker 00:
Well, again, those construction estimates were called in.

[00:26:33] Speaker 00:
Were called in to see a discussion by the court.

[00:26:34] Speaker 08:
Can you tell me the page where the construction estimates were?

[00:26:53] Speaker 00:
Yes, so this is a JA540.

[00:26:57] Speaker 00:
This is from the Corps' own in-house economist saying that Dominion's cost estimates of alternatives seem bloated and excessive, and I could not justify upwards of 75 percent of their estimates.

[00:27:06] Speaker 00:
On the same page, the same Corps official concluded, quote, the construction duration estimates for various alternatives also seem high too.

[00:27:14] Speaker 00:
So that's what we have from the Corps' own in-house

[00:27:16] Speaker 00:
And this is the problem.

[00:27:18] Speaker 00:
When you don't have a coherent standard, you're telling the public this is how we're judging this alternative versus the project, there's a lot of confusion as to how these numbers that Dominion is coming up with and that the Corps is then taking and incorporating into its analysis.

[00:27:34] Speaker 00:
We don't have any proper benchmark to determine whether or not that is arbitrary.

[00:27:38] Speaker 06:
What do you mean by that?

[00:27:40] Speaker 06:
You've said several times that

[00:27:42] Speaker 06:
You need a benchmark or a standard.

[00:27:44] Speaker 06:
I understand your point that the information that the core supplies has to be accurate.

[00:27:51] Speaker 06:
It's cross estimates, time estimates, and it all has to be accurate.

[00:27:56] Speaker 06:
But say something more about these standards that you say are missing.

[00:28:01] Speaker 06:
Well, first of all, what requires them?

[00:28:02] Speaker 06:
And secondly, what would they look like?

[00:28:05] Speaker 00:
Yes, Your Honor.

[00:28:05] Speaker 00:
So the Clean Water Act's regulations very clearly require the court and dominion to rebut a presumption.

[00:28:11] Speaker 00:
And what the Tenth Circuit has said in looking at that is that the court must, this is a quote, must provide detailed, clear, and convincing information proving impracticability of every single alternative eliminated.

[00:28:22] Speaker 06:
Okay, that doesn't say anything about standing.

[00:28:24] Speaker 00:
So to do that, the only way you can provide clear, detailed and convincing information that an alternative is in fact impracticable as required by the Clean Water Act is by making that showing.

[00:28:33] Speaker 00:
And the only way that an agency can make that showing is by setting forth something on this side of an appropriate metric within this industry is impracticable.

[00:28:43] Speaker 00:
and something on this other side will be practicable.

[00:28:45] Speaker 00:
Without that, the public and the court is left without any ability.

[00:28:48] Speaker 00:
Then what's the standard you're talking about there?

[00:28:51] Speaker 00:
So the standard is that you have to, for costs for example, say for a project of this size, of this magnitude, we look to other comparable projects

[00:28:59] Speaker 00:
done by other companies within the industry, and we determined what would be a practicable project under these circumstances.

[00:29:06] Speaker 00:
They absolutely did not.

[00:29:07] Speaker 00:
There is not a single other project that they looked to to determine what rate payers would find to be reasonable cost.

[00:29:13] Speaker 00:
They did not apply any sort of metric in terms of how this will be shared among 900,000 rate payers.

[00:29:19] Speaker 00:
Instead, they aggregated the cost to make more expensive options look less practicable, and we would submit that that is arbitrary in the purchase and cannot withstand APA review.

[00:29:30] Speaker 08:
Okay, thank you.

[00:29:46] Speaker 02:
Good morning and may it please the court.

[00:29:47] Speaker 02:
My name is Dustin Magomfar and I represent the United States.

[00:29:50] Speaker 02:
With me at council table is Melanie Kasner from the Office of Chief Counsel at the Army Corps of Engineers.

[00:29:56] Speaker 02:
The project at issue is essential to stabilizing the electric grid and providing reliable power to hundreds of thousands of people.

[00:30:03] Speaker 02:
The court took a hard look at the project's potential impacts, examined nearly 30 proposed alternatives, and determined that the selected project would not have a significant impact.

[00:30:13] Speaker 05:
What is your test for highly controversial?

[00:30:16] Speaker 02:
It's the test set forth in this court's decision in town of Cape Creek.

[00:30:20] Speaker 02:
All right.

[00:30:20] Speaker 05:
Well, that test is size, impact, and effect, and effect is clearly

[00:30:25] Speaker 05:
You've been extensively contested in this case.

[00:30:29] Speaker 05:
So I get that this is what you look at to evaluate highly controversial, but why wasn't this highly controversial?

[00:30:37] Speaker 05:
They were debating for years from a broad variety of perspectives with an awful lot of information the effects.

[00:30:47] Speaker 02:
Well, I have several responses to that, Your Honor.

[00:30:50] Speaker 02:
The only element of the highly controversial test that's at issue here is whether there was a substantial dispute as to methodology regarding the effect.

[00:30:57] Speaker 02:
When you do the size, when you do the nature.

[00:30:59] Speaker 08:
Why methodology?

[00:31:00] Speaker 08:
Why is methodology the issue?

[00:31:02] Speaker 02:
Well, that's the alleged, that is the substantial dispute that's been alleged by the appellants, is that there was a dispute as to the methodology for assessing the visual impacts on historic resources.

[00:31:12] Speaker 08:
I thought that dispute is just that there's, about what the effect is.

[00:31:16] Speaker 08:
Why does it have to be about the methodology?

[00:31:24] Speaker 02:
The case law supports that there has to be something more about information.

[00:31:30] Speaker 02:
So for example, this is the Biodiversity Conservation Alliance decision that there has to be information in the record.

[00:31:36] Speaker 02:
What court is that?

[00:31:37] Speaker 05:
I'm sorry?

[00:31:38] Speaker 05:
What court is that?

[00:31:38] Speaker 02:
That's from the 10th Circuit.

[00:31:40] Speaker 02:
Information in the record that casts substantial doubt on the adequacy of the agency's methodology and data.

[00:31:46] Speaker 02:
So that's an example.

[00:31:47] Speaker 02:
It has to be more than just that there's.

[00:31:48] Speaker 02:
Where do they get that idea?

[00:31:50] Speaker 02:
And the idea that there has to be more than just the existence of opposition to the project.

[00:32:01] Speaker 02:
That it can't just be disagreement about what the effect is, because that decision is entrusted to the lead agency's discretion at the end of the day to assess whether the effects of the project are going to be significant.

[00:32:14] Speaker 02:
That's the test.

[00:32:15] Speaker 06:
If there's a dispute about that, I don't understand why the fact

[00:32:19] Speaker 06:
that it's entrusted with the lead agency makes it not controversial.

[00:32:25] Speaker 06:
I don't understand that.

[00:32:26] Speaker 02:
Well, Your Honor, I'm simply saying that the core here is the agency entitled to deference and making the judgment about whether the effects of the project are significant.

[00:32:34] Speaker 02:
But let me walk through the two reasons why there is, in fact, no dispute here with respect to the effect of the project.

[00:32:41] Speaker 02:
So first, talking about the actual kind of substantive back and forth.

[00:32:45] Speaker 02:
There's been a lot of what I would say inaccurate representation in the briefing in this morning about the history of this project.

[00:32:54] Speaker 02:
It is absolutely true, of course, that the Park Service vociferously opposed the project and sent several letters to that effect.

[00:33:00] Speaker 02:
But it's not as if there was some epic back and forth between the agencies here.

[00:33:04] Speaker 02:
The Corps received the comments, they took them seriously, and they moved forward based on them.

[00:33:09] Speaker 02:
So for example,

[00:33:10] Speaker 02:
The primary comments that we see from the Park Service throughout the record and including in the final letter in January 2017, criticizes the assessment of visual effects and the cultural resources effects assessment.

[00:33:23] Speaker 02:
The Corps received those comments, it met with the Park Service to discuss the Park Service's guidance for assessing visual impacts, and then it turned to Domain's contractor, TrueScape, for the preparation of photo simulations.

[00:33:37] Speaker 02:
So TrueScape, which prepared these simulations that show what the project will look like from every relevant vantage point, including on the river, demonstrated that its methodology is consistent with the guidance advocated by the Park Service.

[00:33:53] Speaker 02:
In fact, TrueScape helped develop the guidance that the Park Service asked the Corps to use.

[00:33:58] Speaker 02:
TrueScape revised its photo assessments and it added new simulations responding to the critiques that had been raised.

[00:34:06] Speaker 02:
Now the Corps then conducted several field visits, including by boat on the river, and reasonably concluded that Truescape was sufficiently accurate to analyze the effects both to historic properties and a visitor's experience, and that it was not likely that employing further methods of visual impacts assessment will result in substantively different views or information.

[00:34:29] Speaker 02:
That's a JA 246.

[00:34:30] Speaker 05:
The pictures that I saw on the record

[00:34:34] Speaker 05:
Lots of them focus on far, far away.

[00:34:40] Speaker 05:
And they don't.

[00:34:41] Speaker 05:
We've taken pictures from closest land points at many opportunities.

[00:34:45] Speaker 05:
They are gone.

[00:34:47] Speaker 02:
I disagree, Your Honor.

[00:34:48] Speaker 02:
The photos simulations were taken from every historic resource in the site that the Corps found to be adversely affected under the Section 106 process.

[00:34:57] Speaker 02:
The appellants do not contend.

[00:34:59] Speaker 02:
that there are any sites from which a photo simulation was not prepared.

[00:35:04] Speaker 02:
In fact, the appellants do not contest the accuracy of the truscape simulations.

[00:35:08] Speaker 02:
The NPS final letter in January 2017.

[00:35:11] Speaker 05:
No, no, wait, wait.

[00:35:11] Speaker 05:
So, I mean, Argonne.

[00:35:14] Speaker 05:
Argonne.

[00:35:15] Speaker 02:
An individual at Argonne, not Argonne National Laboratory itself.

[00:35:18] Speaker 05:
Argonne disputed the nature, quantity, and distribution of scenic quality around the project and the types of viewers and the different expected views that people would take.

[00:35:29] Speaker 02:
Those comments that were submitted, the Park Service asked an individual at Argonne to provide comments that was attached to the Park Service's final letter in January 2017.

[00:35:39] Speaker 02:
Those comments discuss entirely the cultural resources effects assessment.

[00:35:44] Speaker 02:
It is absolutely silent as to the methodology used by Trooscape.

[00:35:48] Speaker 02:
It doesn't dispute that Trooscape was accurate.

[00:35:50] Speaker 05:
Just saying, you don't have pictures from the right angles and all the comprehensive angles.

[00:35:54] Speaker 05:
At least when I look at them, it seems to be far away or a couple in the middle of the river.

[00:35:58] Speaker 02:
To the extent that's a fair reading of the argon letter, it's completely belied by the record.

[00:36:02] Speaker 02:
There's an extensive, not only the simulations,

[00:36:05] Speaker 02:
but actual photography from all of the relevant viewpoints documenting the existing views that were used to the... So JA 2678 has the picture from Carter's Grove.

[00:36:16] Speaker 05:
And the angles, at least the red lines that I'm looking there, are all from the furthest corner away in Carter's Grove.

[00:36:21] Speaker 05:
There's none from the closest corner in Carters Grove.

[00:36:23] Speaker 02:
That photo has red arrows on it, you said?

[00:36:25] Speaker 02:
Yes.

[00:36:26] Speaker 02:
Then that's coming from the cultural resources effects assessment.

[00:36:29] Speaker 05:
Why doesn't that?

[00:36:30] Speaker 05:
OK.

[00:36:30] Speaker 02:
That's not the photo simulations that the core is primarily relying on.

[00:36:33] Speaker 05:
Where in the record are the pictures from the closest spot on Carters Grove?

[00:36:36] Speaker 02:
They are all cited in our brief.

[00:36:39] Speaker 02:
I can go try to identify those at this time if you would like.

[00:36:43] Speaker 02:
But we cited from Carter's Grove, from the historic Parkway, from the east end of Jamestown Island.

[00:36:49] Speaker 02:
We cited those specifically as to the Trousgate photo simulations.

[00:36:53] Speaker 02:
We also, another example that I think would be helpful for the court to consider is JA 1240.

[00:37:00] Speaker 02:
JA 1240 is a photo simulation of the completed project with the ghost fleet.

[00:37:06] Speaker 05:
Can you tell how much volume that is?

[00:37:07] Speaker 05:
We got so much volume.

[00:37:12] Speaker 02:
That is very true.

[00:37:16] Speaker 02:
That is in volume four.

[00:37:19] Speaker 02:
So, in fact, the entire, one of the complete sets of photo simulations begins at JA 1189, which is in volume four, and runs through the end.

[00:37:29] Speaker 02:
The ghostly picture that I mentioned, photo simulation, is at JA 1240.

[00:37:34] Speaker 02:
There is no argument raised by the appellants, by the park service, by Argonne, by anybody.

[00:37:39] Speaker 02:
that the truescape methodology, as it was updated, as it was clarified, and then with the additional work that was done in 2016, is inaccurate, is inconsistent with the Park Service guidance, that there are any historic sites in this area that were going to be adversely affected under the 106 process, that did not have photo simulations prepared.

[00:38:00] Speaker 02:
Photo simulations were prepared from on the river, such as the one I just mentioned at JA 1240, to identify the perspective of the boaters.

[00:38:07] Speaker 02:
The core

[00:38:08] Speaker 02:
field verified the accuracy of the TrueScape simulations.

[00:38:12] Speaker 02:
Part of that process also involved comparing the simulations to the actual existing transmission line that runs next to the James River Bridge further down river.

[00:38:21] Speaker 02:
And the Corps reasonably concluded that the TrueScape photo simulations were sufficient to get an accurate understanding of what the project would look like when it was completed.

[00:38:31] Speaker 02:
I will note too that the preparation of the simulations in the JA is not

[00:38:37] Speaker 02:
precisely how they're supposed to be viewed.

[00:38:39] Speaker 02:
They're supposed to be printed at a certain size and then viewed from about 20 inches, depending on which one you're looking at.

[00:38:46] Speaker 02:
But the point is that the court considered the NPS objections.

[00:38:53] Speaker 05:
Is your position that only disputes without methodology can meet the highly controversial standard?

[00:39:00] Speaker 02:
That is the argument that has been presented here.

[00:39:03] Speaker 05:
Is your position on behalf of the government

[00:39:07] Speaker 05:
that only disputes about methodology.

[00:39:11] Speaker 02:
I'm not prepared to draw a bright line test here.

[00:39:14] Speaker 02:
What matters is that in this case, that's the argument that has been presented, that there was a dispute as to the methodology for how to assess the visual effects of this project on historic resources raised by the Park Service and its commenter from Argonne.

[00:39:29] Speaker 06:
Do you think the letter from the Secretary plays any role in this at all?

[00:39:37] Speaker 06:
And what is that?

[00:39:40] Speaker 06:
Is that necessary to your argument?

[00:39:45] Speaker 06:
No.

[00:39:45] Speaker 06:
Your argument is that the Corps completely responded to the National Park Service's concerns and made its own judgment.

[00:39:55] Speaker 02:
That's correct.

[00:39:56] Speaker 06:
That's correct.

[00:39:57] Speaker 06:
So then what's the role of the Zinke letter?

[00:39:59] Speaker 02:
So the Zinke letter is the second reason why there is no dispute remaining between as to the effects of the project.

[00:40:07] Speaker 02:
So as was discussed this morning, first let me say

[00:40:11] Speaker 02:
We categorically reject the idea that Secretary Zinke's letter is subject to APA review or the FOX test for an agency changing its determination.

[00:40:19] Speaker 02:
This is simply a comment letter submitted during a NEPA process.

[00:40:23] Speaker 02:
The Park Service, Secretary Zinke's comments are not subject to APA review here.

[00:40:27] Speaker 02:
So if Secretary Zinke wants to send a letter one day and send a letter the next day in this context that takes a different position, there's nothing in this context that prohibits him from doing so.

[00:40:39] Speaker 02:
So there is no requirement for what the Secretary would have had to have said in his letter somehow to make a difference here.

[00:40:47] Speaker 06:
Well, for it to be useful, wouldn't he

[00:40:52] Speaker 06:
for him to have said, OK, I'm satisfied.

[00:40:56] Speaker 06:
CORE has satisfied me.

[00:40:58] Speaker 06:
Shouldn't the letter about the National Park Service's concerns, shouldn't it even at least have mentioned the National Park Service?

[00:41:07] Speaker 02:
I suppose it could have.

[00:41:09] Speaker 06:
But it didn't, right?

[00:41:10] Speaker 02:
It did not.

[00:41:10] Speaker 02:
But as Your Honor observed, the Secretary of the Interior very much oversees the Park Service.

[00:41:15] Speaker 02:
And it's the ultimate desire at the end of the day with respect to the Park Service.

[00:41:18] Speaker 06:
But he doesn't even mention the concerns of the National Park Service.

[00:41:21] Speaker 06:
I can understand your point about not mentioning the Park Service, but he doesn't even mention the concerns that it raised.

[00:41:27] Speaker 02:
Well, he mentions the concerns that were raised by the previous Secretary in her January 2017 letter, and those were certainly founded on the object.

[00:41:34] Speaker 06:
I don't see, there's nothing in there about it.

[00:41:36] Speaker 06:
You said, well, this is all about methodology.

[00:41:38] Speaker 06:
I don't see anything in there where he even addresses the dispute about methodology.

[00:41:43] Speaker 02:
Well, Secretary Zinke's letter was primarily in the context of, well,

[00:41:48] Speaker 02:
The letter from Secretary Jewell in 2017 clearly was referring to the objections raised by the Park Service.

[00:41:56] Speaker 02:
So Secretary Zinke was following on the correspondence from his office by his predecessor in articulating this view.

[00:42:02] Speaker 02:
What he does say is that the Department, on behalf of the Park Service, would sign the Section 106 Memorandum of Agreement under the Preservation Act

[00:42:11] Speaker 02:
which constitutes agreement as to the resolution of adverse effects on the historic resources.

[00:42:18] Speaker 02:
So is that the same thing as the NEPA question exactly?

[00:42:22] Speaker 02:
No, but it's certainly indicative that he, as the head of the department, was comfortable with what the Corps had done and that the Corps had resolved the adverse effects on the historic resources.

[00:42:34] Speaker 06:
But your first position is you don't even need that, right?

[00:42:38] Speaker 06:
That's right.

[00:42:38] Speaker 06:
And say why again.

[00:42:40] Speaker 02:
Because the Corps responded to the Park Service's comments.

[00:42:46] Speaker 02:
It took them seriously.

[00:42:47] Speaker 02:
It had additional work prepared to enable it to assess the visual impacts of the project.

[00:42:52] Speaker 02:
And it reasonably relied on that other work, such as the photo simulation, such as its in-person field use, to make the judgment that the visual impacts on the historic resources did not reach the level of significance.

[00:43:05] Speaker 02:
that clearly nothing has been ignored here.

[00:43:08] Speaker 02:
And that's the primary question that the Corps asked when reviewing an agency's decision on current EIS.

[00:43:13] Speaker 02:
I do want to add one other point on the Secretary Zinke letter that I think Judge Millett referenced this morning, which is that maybe the view in the Park Service letters or the other letters is reasonable, but the Corps also had a reasonable view.

[00:43:27] Speaker 02:
So Secretary Zinke's letter, at a minimum, suggests that both views are reasonable and acceptable policy choices for the agency to make.

[00:43:36] Speaker 05:
Controversy?

[00:43:37] Speaker 05:
Highly controversial?

[00:43:38] Speaker 05:
We have really good arguments on both sides.

[00:43:40] Speaker 05:
And I get your points about we're not reviewing the Secretary's decision here at all.

[00:43:47] Speaker 05:
I'm just trying to understand why that would remotely eliminate controversy and not confirm.

[00:43:53] Speaker 02:
A project can be controversial.

[00:43:55] Speaker 02:
The highly controversial factor, it's not just a pure yes-no test, it's the degree of controversy.

[00:44:00] Speaker 02:
But ultimately, what's even more important is that the objections that remain here at the end of the day, to the extent they weren't withdrawn by Secretary Zinke's letter, or from others, is that they go to the court's conclusions.

[00:44:11] Speaker 02:
They don't go to how the court got there.

[00:44:14] Speaker 05:
That's your methodology point.

[00:44:17] Speaker ?:
Great.

[00:44:17] Speaker 02:
But under the standard of review, it does not matter whether the court thinks that the impacts are significant.

[00:44:24] Speaker 02:
It doesn't matter whether the NPS, the Park Service thinks that they're significant.

[00:44:29] Speaker 02:
The only thing that matters is whether the record allowed the court to reach the conclusion that the impacts were not significant.

[00:44:35] Speaker 05:
Whether that conclusion was reasonable.

[00:44:37] Speaker 05:
For the purpose of this question, the question is whether

[00:44:39] Speaker 05:
before could reasonably conclude that the impacts were not highly controversial.

[00:44:46] Speaker 05:
The question of the impacts was not highly controversial.

[00:44:49] Speaker 02:
But the highly controversial test is just one of the intensity factors.

[00:44:53] Speaker 05:
Again, we can go through the other ones as well that are implicated here.

[00:44:59] Speaker 05:
But as to that one, I thought your position was that

[00:45:03] Speaker 05:
There was no controversy left at all, let alone something being highly controversial.

[00:45:07] Speaker 02:
There was opposition left.

[00:45:10] Speaker 05:
So how do we know which opposition counts in a highly controversial analysis?

[00:45:19] Speaker 02:
Well, let's take the Park Service's final letter in January 2017 again, which again is what the appellants primarily are relying on.

[00:45:27] Speaker 05:
Just to back up, what I'm actually trying to do here is understand what your legal rule is for what counts as highly controversial.

[00:45:34] Speaker 05:
Because everyone says, here's this highly controversial test, and just the fact of disagreement can't be enough.

[00:45:42] Speaker 05:
I understand that point.

[00:45:44] Speaker 05:
The word highly controversial has to do some work here.

[00:45:50] Speaker 05:
doesn't, what about, for example, an agency's 180 degree turn after years and years, maybe perfectly justified.

[00:45:59] Speaker 05:
I'm not disputing that for this case.

[00:46:03] Speaker 05:
But there's sort of acknowledging really good arguments on both sides that do not get rejected by secretary.

[00:46:09] Speaker 05:
Maybe he doesn't throw them away, discard them.

[00:46:12] Speaker 05:
You have opposition from a wide variety of entities, in addition to the Park Service, raising a wide variety of different concerns.

[00:46:20] Speaker 05:
You have an enormous number of comments.

[00:46:22] Speaker 05:
You have a record that's replete with describing this as a controversial project.

[00:46:28] Speaker 05:
You start breaking new ground, pardon the pun here, and what it's doing coming across a river that hasn't been crossed anywhere before.

[00:46:36] Speaker 05:
There's going to be modern intrusions on historic landmarks.

[00:46:42] Speaker 05:
Why isn't that totality of circumstances, totality of factors approach relevant to highly controversial and why wouldn't it be met here?

[00:46:51] Speaker 02:
Well, there's obviously a lot there to unpack.

[00:46:53] Speaker 02:
I understand.

[00:46:55] Speaker 02:
I think part of the challenge with respect to trying to identify what is the rule, what is the exact test, I submit that there isn't

[00:47:04] Speaker 02:
a bright line test that's been established.

[00:47:07] Speaker 02:
I think if you look at some of the different cases on this issue, there's, and particularly it's more at the district courts that have kind of grappled with these issues, there's discussion of saying it's not exactly clear what constitutes highly controversial or what is, so that's why I pointed to that 10th Circuit decision that says

[00:47:30] Speaker 02:
So there has to be something more than just opposition.

[00:47:33] Speaker 02:
We know that.

[00:47:34] Speaker 02:
So the question is, what is something more?

[00:47:38] Speaker 02:
And I think that is the question that Your Honor, I think, is struggling with.

[00:47:42] Speaker 02:
And the 10th Circuit example is that court saying, well, we think something more, for example, is quote, information in the record that casts substantial doubt on the adequacy of the agency's methodology and data.

[00:47:55] Speaker 02:
So that's the solution that that court came up with.

[00:47:58] Speaker 02:
for identifying with us something more than just where opposition is.

[00:48:02] Speaker 05:
But opposition... But you weren't ready to embrace that rule.

[00:48:07] Speaker 05:
Well, I'm not saying that that is... Enormous amounts of heated controversy by a wide spectrum of individuals and a wide spectrum of concerns would not be enough.

[00:48:16] Speaker 05:
Am I correct in understanding what you said before?

[00:48:18] Speaker 05:
If I'm not, please tell me.

[00:48:19] Speaker 02:
My point before was that I'm not prepared to take the position that that test set out in the 10th circuit is the only way that someone could ever, that the highly controversial factor could ever indicate significance of the effects.

[00:48:32] Speaker 02:
But I'm saying that is the argument, the primary argument that's presented here.

[00:48:35] Speaker 02:
Now, to address some of the other points that you raised, in terms of the variety of objections, I would submit that there's not that much variety.

[00:48:42] Speaker 02:
It's essentially that this is going to have impacts on the viewshed.

[00:48:45] Speaker 02:
and that there's a dispute by... But that's what this is all about.

[00:48:50] Speaker 02:
Correct.

[00:48:51] Speaker 02:
That's right.

[00:48:52] Speaker 02:
But I'm not... So I think the other thing...

[00:48:54] Speaker 02:
I think the other, that's absolutely right, but it's important to keep in mind I think as well that there are a variety of other potential impacts that were considered that were, the court concluded were absolutely minimal at most and didn't come anywhere near rising to the level of significance.

[00:49:08] Speaker 02:
So the only piece of this project that we are talking about from the question of significance is the visual effects.

[00:49:14] Speaker 02:
So the other piece of this that we haven't had a chance.

[00:49:18] Speaker 06:
But that's the major, that's what this is all about.

[00:49:22] Speaker 06:
I don't need to repeat myself, but it doesn't help me for you to say that's all it's about.

[00:49:30] Speaker 02:
My point is from evaluating the potential for whether this is a highly controversial project, all the other impacts clearly do not come anywhere close to it.

[00:49:39] Speaker 02:
So the question is the visual effects.

[00:49:41] Speaker 02:
Now if I can, the piece of this we haven't talked through quite as much is how the core reached its conclusion that the visual effects here did not rise to the level of significance.

[00:49:51] Speaker 02:
We've talked about the methodology piece, we've talked about the reliance on the... Sorry, can I just adjust your sentence before you go on to prove that point?

[00:49:57] Speaker 05:
Because what's of interest to me is how they concluded, not being more significant, but that there was not a high level of controversy about visual effects.

[00:50:06] Speaker 05:
How did they conclude that?

[00:50:07] Speaker 02:
They concluded that because they addressed the Park Service's comments.

[00:50:12] Speaker 05:
I mean, and I would point to the... But it's taking... If what you're saying is they said,

[00:50:21] Speaker 05:
I hear you.

[00:50:22] Speaker 05:
Boy, there's a lot of people from a lot of different perspectives opposing this.

[00:50:28] Speaker 05:
We heard you.

[00:50:29] Speaker 05:
That doesn't tell me there's not a controversy.

[00:50:31] Speaker 02:
Well, again, I disagree with the idea that there's a lot of different perspectives that are represented here.

[00:50:35] Speaker 02:
Yes, a lot of people sent form comment letters saying, please don't do this.

[00:50:39] Speaker 05:
Actually, I'm glad you brought up the state government, because that's the point I wanted to make.

[00:50:45] Speaker 05:
There's sources that are cited in the brief from the state government.

[00:50:48] Speaker 05:
You've got the antiquities spokes.

[00:50:50] Speaker 05:
You've got the National Trust for Historic Reproduction.

[00:50:52] Speaker 05:
It's not just, and we can put to the side, it's not just an in-house fight, for example, between, I assume there was no decision by Secretary Zinke, it's not just an in-house fight between, or internal to the government fight between the park, surface, and the court.

[00:51:06] Speaker 05:
You have a lot of outside interests.

[00:51:08] Speaker 05:
There are enormous amounts of public comment.

[00:51:11] Speaker 02:
All from the, my point, I don't disagree at all with that.

[00:51:14] Speaker 02:
You're absolutely right.

[00:51:15] Speaker 02:
My point that I was trying to make was that it's all from the perspective of historic preservation.

[00:51:20] Speaker 02:
And so I was saying in terms of the kind of universe of comments and nature of the comments, they're all coming from the same perspective of we think this project will have an unacceptable impact on historic resources.

[00:51:31] Speaker 02:
So I do want to make the point though that the State Historic Preservation Office, Virginia, I'm blanking on the actual name, but the

[00:51:39] Speaker 02:
referred to under the Preservation Act as the SHPO, the State Historic Preservation Officer, concurred in the Section 106 Memorandum of Agreement.

[00:51:47] Speaker 08:
Before you lose on the other two points, you might want to respond to their arguments about the CWA and about Section 110F.

[00:51:55] Speaker 08:
Why don't we start with 110F?

[00:51:58] Speaker 08:
Assume for the purposes of this question that you are wrong and the district court is wrong about the meaning of directly.

[00:52:04] Speaker 08:
What happens next?

[00:52:08] Speaker 02:
So I will reluctantly assume it.

[00:52:12] Speaker 08:
No, I'm not asking you to concede.

[00:52:14] Speaker 08:
I'm just asking you to assume.

[00:52:17] Speaker 02:
So our position is, as was discussed this morning, that the court doesn't need to resolve the question, because the court did satisfy the requirements of Section 110.

[00:52:25] Speaker 02:
Explain how that is.

[00:52:27] Speaker 02:
So first, they informed the Advisory Council and the Park Service that there is a national historic landmark that is that it would be adversely effective, as that is understood within the meeting of the Preservation Act, and provided extensive information.

[00:52:41] Speaker 02:
So this, going back, that landmark is Carter's Grove.

[00:52:45] Speaker 02:
The question with respect to Section 110F solely relates to Carters Grove.

[00:52:50] Speaker 02:
It's only about listed National Historic Landmarks.

[00:52:53] Speaker 02:
So the Corps informed the Advisory Council and the Park Service that Carters Grove would be adversely affected.

[00:52:59] Speaker 08:
That's sort of the 106 question.

[00:53:00] Speaker 08:
What about the 110F?

[00:53:01] Speaker 02:
That is the 110F question.

[00:53:03] Speaker 08:
Well, I'm going to read the statute.

[00:53:04] Speaker 08:
Tell me how you satisfied that.

[00:53:07] Speaker 08:
So part of that is... A responsible federal agency shall to the maximum extent possible undertake such planning and actions as may be necessary to minimize harm to the landmark.

[00:53:19] Speaker 02:
Right.

[00:53:19] Speaker 02:
And I began with the procedural because the next sentence of the statute says that the Corps has to provide the Council an opportunity to comment with regard to it.

[00:53:26] Speaker 02:
So the way that it minimized the harm to Carter's Grove

[00:53:31] Speaker 02:
was that it considered the number and distance of towers from the Carters Grove mansion that would be viewable when it was determining the route that the towers would take across the river.

[00:53:42] Speaker 02:
So there are two towers, on the selected route, there are two towers that will be visible from the house.

[00:53:48] Speaker 02:
The house, Carters Grove is listed on the National Register because- It's on the entire thing, landmark, not just the house.

[00:53:53] Speaker 02:
Yes, but it's registered on the historic, on the register for its architectural police.

[00:53:58] Speaker 05:
Is the entire part of Grove, not just the house, protected as a national historic land?

[00:54:03] Speaker 02:
Right, I said yes it is.

[00:54:05] Speaker 05:
My point is that... So then why is it, we're back to the problem with the perspectives where you're looking from.

[00:54:10] Speaker 05:
Why are we just looking from the house?

[00:54:11] Speaker 02:
Well, we're not.

[00:54:12] Speaker 02:
So in the record, there's ample documentation of photography

[00:54:16] Speaker 02:
from a variety of points on Carter's Grove, from the shore, from midpoints, from the house itself.

[00:54:21] Speaker 02:
Again, the house is designated and registered because of its architecture.

[00:54:25] Speaker 02:
That's why the property is on the landmark.

[00:54:28] Speaker 02:
That is why the focus is on the house, because the house is the center point and it's listed for its architecture.

[00:54:34] Speaker 02:
If you're standing right at the shore, then yes, there are more towers that are visible.

[00:54:40] Speaker 02:
If you're at the house, there's only two that are visible.

[00:54:42] Speaker 02:
The closest is 1.76 miles away, and the Corps considered the number

[00:54:49] Speaker 02:
of towers that would be dual from the mansion and the distance of those towers when choosing among the four different routes that the towers could take across the river.

[00:54:57] Speaker 02:
The Corps minimized the harm to Carter's Grove by selecting the tower route that would minimize the number of towers visible from the mansion.

[00:55:05] Speaker 05:
To the maximum extent possible?

[00:55:07] Speaker 02:
Yes, of the four routes they chose the route that had the fewest number of towers visible from the mansion.

[00:55:11] Speaker 05:
But does 110 require you to maybe rethink even what routes you're considering up front because you have

[00:55:19] Speaker 05:
No, I disagree.

[00:55:22] Speaker 02:
And this goes back to some of the discussion this morning.

[00:55:25] Speaker 02:
First, Council was conflating some of the requirements of 106 with 110F.

[00:55:29] Speaker 02:
The guidelines are not binding.

[00:55:31] Speaker 02:
The Corps is not required to follow them, even if Section 110F applies.

[00:55:39] Speaker 02:
The guidelines?

[00:55:41] Speaker 02:
The guidelines are not binding.

[00:55:43] Speaker 02:
They have no regulatory effect.

[00:55:44] Speaker 02:
Not binding because, among other things, they say they're not binding, isn't it?

[00:55:47] Speaker 02:
They do say they're not binding.

[00:55:48] Speaker 02:
And then the Park Service has no authority provided by Congress to promulgate binding regulations to implement Section 19F.

[00:55:55] Speaker 05:
I don't know if they get any difference at all, or are they even challenged?

[00:55:58] Speaker 05:
Are those guidelines challenged in this case by the court?

[00:56:00] Speaker 05:
Or do they say they're wrong?

[00:56:03] Speaker 02:
No, they just said they're inapplicable.

[00:56:05] Speaker 05:
Exactly.

[00:56:06] Speaker 05:
Are you disputing that their guidelines, so your position is what they say is wrong, the guidelines are wrong, should we look at that?

[00:56:14] Speaker 02:
The guidelines are simply not relevant because they're not binding.

[00:56:17] Speaker 02:
They have no regulatory effect.

[00:56:18] Speaker 02:
The core is it is not arbitrary and capricious.

[00:56:20] Speaker 05:
I look at them as like an expert opinion at least, not binding on the way they analyze this.

[00:56:28] Speaker 02:
Well, two things, Your Honor.

[00:56:32] Speaker 05:
There's no obligation to do so.

[00:56:36] Speaker 02:
So why would the test for whether the core was arbitrary or capricious here rely on non-binding guidelines that have no regulatory effect?

[00:56:44] Speaker 02:
But I want to make two other points on this issue as well.

[00:56:47] Speaker 02:
First is that we disagree, I think, with the point that you made this morning, which is that even if Section 110-F applies, the guidelines are still not binding.

[00:56:54] Speaker 02:
and still have no regulatory effect.

[00:56:56] Speaker 02:
So we don't concede that even if 110f applied, that the guidelines would have any regulatory effect.

[00:57:01] Speaker 02:
There'd be no obligation for the Corps to consider or follow those guidelines.

[00:57:05] Speaker 02:
But also, if we do look at the substance of the guidelines, the guidelines say that the obligation is to consider prudent and feasible alternatives.

[00:57:15] Speaker 02:
The Corps considered 28 alternatives as part of its work here.

[00:57:21] Speaker 02:
and determined that all but one were not practicable.

[00:57:23] Speaker 06:
That was all done by an agency that thought 110F wasn't applicable, right?

[00:57:35] Speaker 02:
That is correct.

[00:57:36] Speaker 02:
Correct, right?

[00:57:37] Speaker 02:
Yes, that's right.

[00:57:39] Speaker 06:
So explain to me, I mean, I understand your argument that we can look at the record and determine that the agency complied with 110F.

[00:57:51] Speaker 06:
on our own, but it seems to me it's very different when the agency itself says it doesn't even apply.

[00:57:57] Speaker 06:
How can we find that an agency that says it isn't obligated to comply with 110F nonetheless did so?

[00:58:07] Speaker 06:
In other words, wouldn't it be possible that if we sent it back and the agency knew it had an obligation to comply, its analysis would be different, maybe more rigorous?

[00:58:17] Speaker 02:
It's theoretically possible, but I don't see any support or any basis in the appellant's argument for suggesting it would be here.

[00:58:24] Speaker 02:
And so even if the agency says, we don't have to comply with this part of it.

[00:58:29] Speaker 02:
Well, it could say that, right?

[00:58:30] Speaker 02:
Right.

[00:58:31] Speaker 02:
But that doesn't mean that the agency's actions cannot, in fact, satisfy the requirements of 110F, which at the bottom is just a heightened procedural standard with respect to national historic landmarks.

[00:58:42] Speaker 06:
So your point is that in response to my concern, well,

[00:58:47] Speaker 06:
challengers here haven't pointed to anything in the agency's response that would indicate it didn't otherwise comply.

[00:58:54] Speaker 06:
Is that your point?

[00:58:55] Speaker 02:
That's right.

[00:58:56] Speaker 02:
That's right.

[00:58:56] Speaker 02:
In some of the discussion this morning, the Council was attempting to rely on the Presidio case from the Ninth Circuit to answer this question of what more should they have done.

[00:59:03] Speaker 02:
But that, again, that's the part where the actions that Council identified in Presidio were part of the 106 process.

[00:59:12] Speaker 02:
That was part of the exchange of views in the initial development of the project.

[00:59:15] Speaker 02:
The question

[00:59:16] Speaker 02:
The Ninth Circuit concluded in those circumstances that they didn't see what more the agency could have done.

[00:59:23] Speaker 02:
And again, they haven't showed anything particular here.

[00:59:26] Speaker 02:
They considered 28 alternatives.

[00:59:28] Speaker 05:
They rejected, they... Can you show me one in rejecting those alternatives or just point me to where I would find that the Corps, to the maximum extent possible,

[00:59:42] Speaker 05:
in its planning, as well as its actions, minimize harm to this landmark, to the maximum extent possible.

[00:59:49] Speaker 02:
Many of those alternatives would have avoided any visual effects whatsoever by burying the line underneath the river.

[00:59:54] Speaker 02:
Those were all reasonably rejected as impracticable.

[00:59:57] Speaker 02:
So what more could be done than to consider alternative?

[01:00:02] Speaker 05:
By the James Bridge.

[01:00:03] Speaker 02:
They considered that.

[01:00:04] Speaker 05:
I know, but to the maximum, did they do it

[01:00:06] Speaker 05:
with the goal of avoiding obstructing the view from this landmark to the maximum extent possible.

[01:00:13] Speaker 05:
Is that in the record, as opposed to a feasibility balancing?

[01:00:17] Speaker 02:
Well, you're not going to find precisely that in the record.

[01:00:23] Speaker 02:
And the reason why is because the agency action here is the issuance of a permit under the Clean Water Act.

[01:00:29] Speaker 02:
So the primary question for alternatives is whether an alternative is practicable.

[01:00:33] Speaker 05:
I know, but I'm just calling up on whether the record here would assure us that 110 was satisfied.

[01:00:42] Speaker 05:
So I'm just quoting the statutory language to you, because this does seem to put a pretty heavy thumb on the scale at a very early stage in how you even think about

[01:00:52] Speaker 05:
designing or planning your options.

[01:00:55] Speaker 02:
There is no authority offered for the idea that the Section 110F procedural standard could trump the applicability test under the Clean Water Act.

[01:01:04] Speaker 02:
Why?

[01:01:05] Speaker 02:
So there's no authority.

[01:01:06] Speaker 05:
I'm sorry, so you read the statutory language as just redundant of the Clean Water Act test.

[01:01:13] Speaker 02:
I am saying that where the agency action is issuance of the permit,

[01:01:16] Speaker 02:
The primary question in evaluating alternatives is whether those alternatives are practicable.

[01:01:21] Speaker 02:
We do not agree.

[01:01:22] Speaker 02:
Appellants have not offered any authority that shows that you would have to consider an impracticable alternative solely because of 110f.

[01:01:31] Speaker 05:
Well, it all depends on what you mean by impracticable.

[01:01:33] Speaker 05:
If impracticable means cost, as it did to some options.

[01:01:37] Speaker 02:
Well, impracticable means any of the bases that are identified.

[01:01:39] Speaker 05:
And then how do you reconcile that with maximum extent possible?

[01:01:43] Speaker 02:
So I think you can reconcile that by saying,

[01:01:46] Speaker 02:
to the maximum extent possible, meaning if an alternative is not practicable under the Clean Water Act and your action is a Clean Water Act permit, then it is not too possible to further consider all an alternative that cannot be considered further under... Has anybody adapted that view of 110?

[01:02:04] Speaker 05:
I don't think there's... Any court, any agency, anybody, the core of anybody?

[01:02:08] Speaker 02:
Appellants have offered no authority for their proposition.

[01:02:10] Speaker 05:
I'm just asking whether you just gave me a view on how we should read the statutory language.

[01:02:14] Speaker 05:
I'm just asking if there's any authority for it whatsoever.

[01:02:17] Speaker 02:
The closest I would point to is the Ninth Circuit's discussion.

[01:02:20] Speaker 02:
That is, I think, the most extensive discussion of 110F that I am aware of.

[01:02:26] Speaker 02:
I would note that there is no case law that has ever found that 110F applies to a federal project where there is no physical impact on a national system.

[01:02:34] Speaker 08:
Can we talk about practicability then?

[01:02:37] Speaker 02:
Yes.

[01:02:38] Speaker 08:
So the other side raises a couple of questions.

[01:02:45] Speaker 08:
One is, how do we know this is too costly to be practicable?

[01:02:50] Speaker 08:
What's the test for that?

[01:02:52] Speaker 08:
Second, how much of this is based on reliability with respect to the amount of time that's required of the underwater project?

[01:03:02] Speaker 08:
And then third is this reference to the one sentence in an internal document saying, I have some doubts about construction time.

[01:03:12] Speaker 08:
Could you respond to all three of those?

[01:03:14] Speaker 02:
Yes.

[01:03:16] Speaker 02:
So I'll make the threshold point.

[01:03:19] Speaker 02:
that the appellants have not identified a single alternative that was rejected solely on the grounds of cost.

[01:03:24] Speaker 02:
So even if there was some merit to their argument, which there is not, then it wouldn't change anything about the court's Clean Water Act practicability analysis and the court's consideration of the issue we submit can end there.

[01:03:38] Speaker 02:
They offer no authority other than pointing to Utahns in the 10th Circuit

[01:03:43] Speaker 02:
to suggest that there has to be an objective benchmark set for determining the practicability analysis.

[01:03:49] Speaker 02:
And Utahns doesn't actually say that.

[01:03:51] Speaker 02:
Utahns makes reference to having to establish impracticability.

[01:03:54] Speaker 02:
Here, what we're talking about is, so they point to a specific alternative that would cost $391 million.

[01:04:01] Speaker 02:
The selected project would cost $178 million.

[01:04:05] Speaker 02:
The court looked at that and said, that's over $200 million more expensive.

[01:04:11] Speaker 02:
That is,

[01:04:12] Speaker 05:
excessive in terms of cost as compared to where the proposed project is.

[01:04:27] Speaker 05:
Balancing all of the interests on the other side, how do we know that's too much more?

[01:04:32] Speaker 02:
Well, because we don't balance all of those other interests at the practicability test.

[01:04:36] Speaker 02:
Under the CORE's regulations, 40 CFR 230.10 A2, we look at cost, logistics, and technology in light of overall project purpose.

[01:04:45] Speaker 02:
That's it.

[01:04:46] Speaker 02:
So questions about effects?

[01:04:47] Speaker 05:
We might look at that under 110.

[01:04:51] Speaker 02:
But we're talking about the Clean Water Act.

[01:04:54] Speaker 02:
The CORS regulations, you don't consider visual effects on historic resources.

[01:04:58] Speaker 02:
That would come in under the public interest review when you get to that part of the permitting process.

[01:05:04] Speaker 02:
At the practicability test, it's just cost, logistics, and technology.

[01:05:08] Speaker 02:
This court has said in Van Antwerp that a reasonable analysis of cost is entitled to deference.

[01:05:13] Speaker 02:
I'd also point to the Friends of Santa Clara River decision out of the Ninth Circuit, which said the court is not required to use any specific metric for evaluating costs.

[01:05:22] Speaker 02:
It just has to be reasonable under the standard arbitrary and capricious review.

[01:05:26] Speaker 02:
That's for how much it costs.

[01:05:27] Speaker 02:
How about for whether it's practicable?

[01:05:29] Speaker 02:
Well, I think it's not just how much it costs, but it's also for what metric the core uses.

[01:05:33] Speaker 02:
Essentially, what is the core's approach to assessing costs?

[01:05:37] Speaker 02:
That's entitled to deference, so long as it is reasonable.

[01:05:40] Speaker 02:
And we submit that it was here.

[01:05:42] Speaker 02:
What about reliability?

[01:05:48] Speaker 02:
Reliability.

[01:05:49] Speaker 02:
So that goes to overall project purpose.

[01:05:53] Speaker 02:
Two components of the overall project purpose are relevant here.

[01:05:56] Speaker 02:
One is compliance with respect to the mercury and air toxic standard, and the second is to ensure compliance with the mandatory reliability standards.

[01:06:05] Speaker 02:
So the timing specifically, Judge Garland, you referenced various points in the record this morning that I frankly can't add much to that go to exactly why doubling the length of time from the alternative NPCA, so two years for the selected project, five years for that one,

[01:06:22] Speaker 02:
That is inconsistent with overall project purposes, which include compliance with the air toxic standards and compliance with the reliability standards.

[01:06:32] Speaker 02:
And the fact that the longer delay would lead to a greater risk of blackouts and perpetuating a reliability emergency in the area.

[01:06:43] Speaker 05:
Talk about risk.

[01:06:44] Speaker 05:
Do you know what that risk is?

[01:06:46] Speaker 02:
I'm sorry.

[01:06:47] Speaker 02:
Which risk, Your Honor?

[01:06:48] Speaker 02:
Of blackouts.

[01:06:50] Speaker 05:
Like, how to quantify that?

[01:07:06] Speaker 02:
I may defer to counsel for Dominion to try to tackle that one better than I can.

[01:07:10] Speaker 02:
I will say that the risk is most acute in the summer and the winter because that's when the demands for heating and cooling are the greatest.

[01:07:17] Speaker 02:
I will note that Dominion in its opposition to the motion for injunction pending appeal included a declaration saying that, so essentially the way this works is if they detect that they're getting within a certain threshold

[01:07:30] Speaker 02:
computer system takes over that will automatically initiate the blackouts if it kind of to prevent a fault and that they did have to arm that system I believe it was twice earlier this year.

[01:07:41] Speaker 02:
In neither case did it actually get activated such that the blackouts occurred but they have had to arm that system.

[01:07:47] Speaker 08:
Could you go ahead with one sentence?

[01:07:50] Speaker 02:
Yes, so the record.

[01:07:51] Speaker 02:
So council is identifying again taking one part out of

[01:07:56] Speaker 02:
one internal reviewers.

[01:07:58] Speaker 02:
So the person they're talking about was the sustainability program manager.

[01:08:02] Speaker 02:
She was asked to look at a number of the alternatives.

[01:08:05] Speaker 02:
She did raise a couple of questions about cost.

[01:08:08] Speaker 02:
Other folks from the Corps who reviewed this were their chief electrical engineer, another electrical engineer.

[01:08:14] Speaker 02:
Both of them concurred in those all fed into the Corps' white paper analysis of alternatives.

[01:08:21] Speaker 05:
Do you know what those folks within the Corps that were making their own review

[01:08:26] Speaker 05:
Does the record show what steps they did to make this an important review?

[01:08:33] Speaker 05:
Did they just

[01:08:36] Speaker 05:
look at what Dominion said and see if it made sense.

[01:08:39] Speaker 05:
Did they do their own research?

[01:08:41] Speaker 02:
They had the information from Dominion, they had the information that was submitted by the appellants, by the appellants retained consultants.

[01:08:48] Speaker 02:
They essentially had available to them all of the relevant information and then they were able to, they did pose questions to Dominion.

[01:08:58] Speaker 05:
We did?

[01:08:59] Speaker 05:
Yes.

[01:09:00] Speaker 05:
Yes.

[01:09:01] Speaker 05:
And do they rely on this, there's this whole thing about the Taborish folks wanting this information from Dominion and then, I don't want to go into a lot of history, but did these engineers inside the Corps rely on that information from Dominion?

[01:09:19] Speaker 02:
Well, the data that was

[01:09:23] Speaker 02:
that they claimed they were denied was it certainly informed what Dominion had prepared in terms of its discussion of the various alternatives and what the options are.

[01:09:33] Speaker 05:
I'm sorry.

[01:09:34] Speaker 05:
Did they have with it?

[01:09:36] Speaker 05:
And I'm not saying we're wrong with that.

[01:09:39] Speaker 05:
I'm just saying, did they have that information that the folks ultimately said they didn't need?

[01:09:43] Speaker 02:
I don't know if there's evidence in the record that shows that they had the raw data, but they certainly had all of Dominion's.

[01:09:49] Speaker 05:
They had Dominion's analysis.

[01:09:50] Speaker 02:
Yes, they had Dominion's analysis, which was based on that data.

[01:09:53] Speaker 02:
So in addition, I would also point out to the fact that they also had the review by PJM, the independent neutral third party, that was asked to opine on certain of the alternatives.

[01:10:05] Speaker 02:
And the other point of the record I would point to Judge Garland with respect to the costs

[01:10:09] Speaker 02:
is the evaluation of costs that was performed by the State Corporation Commission, which the Corps specifically referred to the fact that the costs had been reviewed as part of and evaluated as part of the State Corporation Commission's process, and that specifically the Commission had decided that the realities of underground alternatives

[01:10:35] Speaker 02:
were inconsistent with the needs of the project with respect to complying with mass and to ensuring sufficient reliability.

[01:10:43] Speaker 02:
My last point I would say is that under the Crutchfield County of Hanover in the Fourth Circuit and Nuclear Info and Resource Services in this circuit, it was established precedent that it was reasonable for the Corps to rely on the data that was submitted by today.

[01:10:58] Speaker 08:
All right, we're about 30 minutes over.

[01:10:59] Speaker 08:
Does anybody else on the panel have a question?

[01:11:02] Speaker 08:
Thank you.

[01:11:14] Speaker 01:
I'm going to hold you to your six minutes, sorry.

[01:11:17] Speaker 01:
It seems perfectly fair, Your Honor.

[01:11:19] Speaker 01:
Good morning, and may it please the court.

[01:11:20] Speaker 01:
My name is Albert Lynn, and I represent Dominion Energy.

[01:11:24] Speaker 01:
If I may, I'll start with the NEPA question that the government council addressed.

[01:11:31] Speaker 01:
I'd like to try to answer the question about what exactly there can be a controversy over, whether it's methodology or

[01:11:41] Speaker 01:
the ultimate conclusions i think the first place to start your honor is

[01:11:45] Speaker 01:
What is the alleged controversy here?

[01:11:48] Speaker 01:
And I think if you look at the briefs and the letters, you will see that there's essentially two things over which there's alleged controversy, methodology and scope of review.

[01:11:58] Speaker 01:
And I think the second is, as has been discussed today, this idea of what was the ultimate conclusion on significance.

[01:12:05] Speaker 01:
I think the reason why you can't consider, there's two reasons why just a dispute over the ultimate conclusion on significance

[01:12:14] Speaker 01:
can arise to a controversy.

[01:12:15] Speaker 01:
One is there's some circularity there because the existence of a controversy under the regulations is what informs whether there is a significant effect.

[01:12:25] Speaker 01:
And so the fact that there are just disputes over whether or not there is a significant effect can't feed back into creating a controversy that is enough for there to be a significant effect.

[01:12:39] Speaker 05:
And I think that's... That doesn't make sense to me.

[01:12:43] Speaker 05:
If you had a case where there was vehement, lengthy, extensive disputes about the view and the agency was of the opinion, this is a really close call on significance.

[01:12:59] Speaker 05:
There are really valid, seriously held views about what the impact of this is on the views, how bad this is, how it's going to affect people, experts saying different things.

[01:13:13] Speaker 05:
Why wouldn't that be exactly what would be one of the things that would be factored into whether something's highly controversial for purposes of its significance?

[01:13:23] Speaker 01:
Again, I think, I'll try to come at it again from a different angle.

[01:13:28] Speaker 01:
The other answer to that is that significance, as this court has said in the public citizen case, that ultimate conclusion is left to the judgment of the action agency.

[01:13:40] Speaker 01:
And so the idea that simply because... Well, not the unreviewed judgment.

[01:13:46] Speaker 01:
Well, it has to be rational, right?

[01:13:47] Speaker 05:
It has to be reviewed, and part of the way we review it is we look at these factors that they've identified.

[01:13:52] Speaker 05:
And we say is there a decision consistent with what they've said would trigger an environmental impact statement?

[01:13:59] Speaker 01:
Which is why, Your Honor, I think there's a circularity to that because if the existence of controversy informs whether or not

[01:14:06] Speaker 01:
there's a significant impact, the fact that there is dispute over whether there's a significant impact doesn't seem to be able to circle back around and create a controversy that is sufficient for significance.

[01:14:19] Speaker 01:
And I do think it undermines the case law that says that the ultimate determination is left to.

[01:14:26] Speaker 01:
And I understand the deference there is.

[01:14:27] Speaker 01:
There's, of course, a judicial review as to rationality of that.

[01:14:30] Speaker 01:
But the determination of significance

[01:14:33] Speaker 01:
is left to the agency.

[01:14:35] Speaker 08:
You want to say something about what your other counsel left for you to say something about, namely?

[01:14:41] Speaker 01:
The reliability, yes.

[01:14:44] Speaker 01:
The first place I would point to, Your Honor, is a lot of this was addressed in the briefing on the stay request.

[01:14:49] Speaker 01:
And there are... We'll refresh our regulations.

[01:14:53] Speaker 01:
Of course.

[01:14:53] Speaker 01:
But they were a different panel.

[01:14:54] Speaker 01:
There are a lot of declarations in there that I would urge this Court just to take a look at.

[01:14:58] Speaker 01:
I think the simplest answer to this is

[01:15:02] Speaker 01:
The Secretary of Energy has ordered, has determined that there is an ongoing electrical emergency under his authority.

[01:15:10] Speaker 01:
And under that authority, he has ordered that the two plants that were shuttered that have led to the reliability problem here must be available to be refired up and to run in order to meet the electrical demand in the peak times.

[01:15:26] Speaker 01:
And those two plants have been fired up over the past few years.

[01:15:31] Speaker 01:
Again, those declarations they described that were part of the reason those were shut down in compliance with the MAPS EPA order.

[01:15:41] Speaker 01:
But there's also reliability concerns with those two plants, the Yorktown 1 and Yorktown 2 plants.

[01:15:47] Speaker 01:
Again, those are discussed in those declarations as to why there is such an urgent need for some kind of a project.

[01:15:54] Speaker 01:
And as PJM has concluded, this is the only project that will meet that.

[01:15:58] Speaker 01:
What about the cost problem?

[01:16:00] Speaker 08:
The cost problem.

[01:16:01] Speaker 01:
Under the Clean Water Act issue?

[01:16:05] Speaker 01:
Yes.

[01:16:05] Speaker 01:
I think the issue there, Your Honor, is you have to start from the fact that none of the alternatives here were rejected purely on the basis of cost alone.

[01:16:17] Speaker 01:
I think if you were looking at something that was rejected purely on the basis of cost alone,

[01:16:22] Speaker 01:
They might have a point, right?

[01:16:24] Speaker 01:
If you had something that cost $250 million, something that cost $260 million.

[01:16:29] Speaker 01:
That was the only reason, the only thing the agency looked at, and it said the $260 million one is not practicable.

[01:16:37] Speaker 01:
They may have a point that you need to articulate some kind of a more objective standard for why that $10 million difference makes

[01:16:44] Speaker 01:
you know, is dispositive.

[01:16:46] Speaker 01:
But here, all of the alternatives that they're talking about were rejected for not just cost, which, Judge Malan, as you noted, it is a significant difference.

[01:16:55] Speaker 01:
I mean, it's half again as much.

[01:16:57] Speaker 01:
It's $260 million versus $391 million.

[01:17:00] Speaker 01:
And that's assuming an apples to apples comparison, which it isn't, as the government explains, they included mitigation costs into the 260 for the SCIFS project, but not into what for the 390, because that was never assessed.

[01:17:14] Speaker 01:
But in addition, they took into account the logistical concerns, the reliability concerns, and really this is just the review is for the classic rational review for a cost-benefit analysis, when you've got

[01:17:28] Speaker 01:
costs on one side, and the question of reliability, what is the benefit of the particular project, and you weigh them.

[01:17:34] Speaker 01:
And that's not something that requires a particular cutoff, like some number that they identify over which the project would be too costly to be practicable.

[01:17:47] Speaker 06:
Can I just take you back to this controversy question?

[01:17:50] Speaker 01:
Yes, you are.

[01:17:51] Speaker 06:
I'm struggling, I think, as Judge Mallett is, with your effort to distinguish a methodology from

[01:17:58] Speaker 06:
the ultimate decision.

[01:18:00] Speaker 06:
Suppose you have a case where by the time you get to the final decision, there's no dispute at all about the methodology.

[01:18:09] Speaker 06:
In other words, both sides agree, say in this case, that the simulations are accurate.

[01:18:15] Speaker 06:
And suppose those simulations show like total blockage of the view.

[01:18:21] Speaker 06:
And the agency nonetheless says, well, we have the ultimate decision.

[01:18:25] Speaker 06:
We conclude no significant impact.

[01:18:28] Speaker 06:
Are you saying that other agencies disagreeing about how to interpret those does not create a substantial controversy?

[01:18:39] Speaker 01:
Yes, Your Honor.

[01:18:40] Speaker 01:
I am saying that that does not create a controversy, but that doesn't mean, as Judge Malette pointed out, that the significance determination by the agency is not reviewable.

[01:18:50] Speaker 01:
I think there's, and I appreciate your question, because I think it gets to the rub of the distinction here.

[01:18:56] Speaker 01:
It's one thing to say, as we do, that the judgment of significance is left to the agency, and that judgment

[01:19:03] Speaker 01:
whether they were right or wrong, whether it was rational or not, and therefore rational concluding that an EIS was not necessary, is subject to this court's review.

[01:19:11] Speaker 01:
And you can look at that, and you can look at all of the other objective factors that the other side has put in and pointed to, and determine whether there's a rational connection between those objective factors and the, here, the subjective conclusion about the aesthetic impacts that the court drew on significance.

[01:19:29] Speaker 01:
But that doesn't mean that it creates a controversy.

[01:19:33] Speaker 01:
Controversy, as these other courts have said, and as this court has said in Cape Creek, I think, is things that sort of go into determining the objective factors for drawing the ultimate conclusion.

[01:19:48] Speaker 01:
And so their disputes here about methodology, if they had continued to exist, would

[01:19:56] Speaker 01:
clearly create a controversy.

[01:19:57] Speaker 01:
I think our position here and the Corps' position is, if you look, if you really go through, and I think this is what Judge Lambert did, if you really go through their letters and determine what were their complaints about methodology, that the Corps didn't look at visitorship impacts, that they didn't follow the Park Service guidance for assessing visual impacts, and that there weren't considerations of views on the river itself.

[01:20:27] Speaker 01:
And then you look at what the court did in response in 2016 and the questions that they asked of dominion and the responses that were given and the additional simulations.

[01:20:35] Speaker 01:
And then you look at what they rely on in their reply brief, which is all of their letters from 2017.

[01:20:40] Speaker 01:
And I think if you lay those letters from 2017 next to the additional analysis that was done in 2016, you will not find

[01:20:49] Speaker 01:
anything in those letters that addresses the additional analysis that was done in 16.

[01:20:54] Speaker 01:
I think that's the government's point which is the methodological dispute, the disputes about the factors that lead into the ultimate

[01:21:02] Speaker 01:
judgment on the conclusion about significance, that was resolved.

[01:21:06] Speaker 01:
They may not have withdrawn their objections, but I don't think it's a matter of law that's required.

[01:21:12] Speaker 01:
Because you can't have a situation where if they simply adhere to objections that have been addressed, but offer no reasons as to why the additional analysis is faulty, that that would simply create controversy.

[01:21:26] Speaker 01:
So all that's left then, if the methodological concerns are addressed,

[01:21:30] Speaker 01:
is the question of the ultimate conclusion on significance.

[01:21:33] Speaker 01:
And again, that is reviewable by this court.

[01:21:35] Speaker 01:
I think we're out of time.

[01:21:38] Speaker 06:
Yeah.

[01:21:39] Speaker 08:
OK.

[01:21:40] Speaker 08:
Thank you, Your Honor.

[01:21:42] Speaker 08:
You're out of time.

[01:21:43] Speaker 08:
There's no doubt about that.

[01:21:44] Speaker 08:
On the other hand, since we went so far over, are you both speaking?

[01:21:49] Speaker 08:
You both are speaking.

[01:21:51] Speaker 08:
Two minutes for each of you.

[01:21:52] Speaker 08:
Thank you.

[01:21:56] Speaker 03:
Thank you, Your Honor.

[01:21:58] Speaker 03:
for very quick points focusing on section 110F in two minutes.

[01:22:03] Speaker 03:
To say the guidelines are not binding is not the same thing as saying that they can just be ignored, which apparently is what happened here.

[01:22:09] Speaker 03:
That's not reason decision-making we would submit.

[01:22:13] Speaker 06:
I don't understand that point.

[01:22:14] Speaker 06:
I don't want to take that for your time, but I don't get that.

[01:22:17] Speaker 06:
Go ahead.

[01:22:18] Speaker 08:
That doesn't make sense to me.

[01:22:21] Speaker 08:
It's not just that they're not binding.

[01:22:22] Speaker 08:
It says the guidelines have no regulatory effect.

[01:22:26] Speaker 08:
That's correct.

[01:22:29] Speaker 08:
I think it's perfectly fine to totally ignore them if you're the agency when they say that.

[01:22:36] Speaker 03:
I guess our position is it would be one thing if the court had said we see these guidelines, we don't think they apply here for the following reasons.

[01:22:43] Speaker 03:
That would be one thing.

[01:22:44] Speaker 06:
But they say they're not binding.

[01:22:46] Speaker 06:
Why do they have to repeat that?

[01:22:51] Speaker 03:
They are, these guidelines are the thing that was promulgated at the direction of Congress to help federal agencies comply.

[01:22:58] Speaker 06:
Why don't you go on to your second, third, and fourth ones?

[01:23:01] Speaker 03:
Don't waste all your time on this one.

[01:23:03] Speaker 03:
Second, just correcting the record, the Presidio case is a Section 110F case.

[01:23:07] Speaker 03:
The three things that were mentioned, changing the project dramatically, adding three alternatives.

[01:23:11] Speaker 03:
incorporating the majority of the recommendations of the Park Service that was all done as Section 110F compliance, 811F3rd at 1170-72.

[01:23:22] Speaker 03:
Following up on Your Honor's point about Carters Grove and the absence of photographs, there is, however, the following from the Cultural Resources Report at JA 2023 and 2024.

[01:23:34] Speaker 03:
quote, nearly all the structures located in the river crossing would be visible from the shore, and, quote, the close proximity to the resource and views to the proposed river crossing in particular would detract from the resources qualifications for listing in the National Register and as a national historic landmark.

[01:23:50] Speaker 03:
And finally, JA 1484, this is a letter from the Advisory Council on Historic Preservation, not from the trust or any other party here.

[01:24:00] Speaker 03:
making it clear that part of the significance of the Carters Grove landmark is its relationship to the river.

[01:24:07] Speaker 03:
Quote, originally designed in landscape to achieve a calculated view across its holdings to the river and present an intentional appearance to the river.

[01:24:15] Speaker 03:
Thank you.

[01:24:23] Speaker 00:
Thank you.

[01:24:23] Speaker 00:
I'd like to make three brief points.

[01:24:26] Speaker 00:
First, the government and Dominion are attempting to rewrite this court's test from town of Cave Creek.

[01:24:30] Speaker 00:
It says nothing about methodology.

[01:24:32] Speaker 00:
It says a dispute as to the size, nature, or effect, which is exactly what we have here.

[01:24:37] Speaker 08:
I took their argument to be that the arguments you made were about methodology.

[01:24:41] Speaker 00:
That is absolutely not our position and our briefs reflect that very extensively.

[01:24:46] Speaker 00:
Here, the Park Service, Argonne National Laboratory, and every other entity with subject matter expertise challenged both the ultimate impact conclusions as significant and also challenged the methodologies that led to them.

[01:24:57] Speaker 00:
So there's no point, we don't think the court needs to reach methodologies, but if the court wants to, J886 through 94, JA475 through 88,

[01:25:07] Speaker 00:
J.A.

[01:25:07] Speaker 00:
411 through 19 and J.A.

[01:25:09] Speaker 00:
534 through 37 are all very detailed methodological disputes with what the court did here.

[01:25:17] Speaker 00:
Again, we don't think the court needs to reach that.

[01:25:18] Speaker 00:
That's not this court's test, but nevertheless, the Park Service, Argonne National Laboratories, and everyone else disputed both of those problems.

[01:25:25] Speaker 00:
Second of all, it is not correct, as the government stated, that no one disputes the August 2016 photo simulations as accurate.

[01:25:33] Speaker 00:
That is entirely belied by everything the Park Service and other agencies said after that date.

[01:25:38] Speaker 00:
I would again point the court to the agency's final letter, which was in January 2017.

[01:25:43] Speaker 00:
That's at JA 475 to 88.

[01:25:45] Speaker 00:
And in particular, I would point the court to JA 1237.

[01:25:49] Speaker 00:
which shows Dominion's own photo simulation from in the river, more than a half mile from these towers, and you can see how it looms over anything else in the landscape.

[01:25:58] Speaker 00:
This is not at all comparable to anything which is out there, which is why the Park Service repeatedly said this is a significant impact as far as visitor impacts, visual impacts, historic impacts, and every other type of resource in this unique area.

[01:26:10] Speaker 00:
Finally, on the reliability issue under the Clean Water Act, Dominion pointed the Court to its declarations.

[01:26:17] Speaker 00:
We would submit that we also filed declarations with the Court at this emergency injunction stage from former NERC officials saying that this reliability concern is overblown, that it has been presented in a way that is not entirely accurate, and that this risk of rolling blackouts is not nearly as serious as has been presented to this Court.

[01:26:34] Speaker 00:
So we think that is relevant to the Clean Water Act.

[01:26:36] Speaker 08:
Can I ask a question?

[01:26:37] Speaker 08:
Maybe your partner on this knows the answer.

[01:26:40] Speaker 08:
This sustainable program manager statement about construction costs, what is the expertise of the sustainable program manager?

[01:26:49] Speaker 08:
Do either of you know?

[01:26:50] Speaker 03:
Your Honor, we don't see that in the record, but presumably this was... Well, do we have any reason to think that this is a construction expert?

[01:26:58] Speaker 08:
That's my question.

[01:27:00] Speaker 03:
I don't.

[01:27:00] Speaker 03:
This was, however, the expert to which the Corps kicked this matter.

[01:27:05] Speaker 03:
In other words, this person was selected by the Corps to review

[01:27:09] Speaker 03:
I know.

[01:27:11] Speaker 08:
They appear to have asked a number of people to comment.

[01:27:14] Speaker 08:
I just wonder, is this person somebody with expertise in construction costs?

[01:27:19] Speaker 08:
That's all I'm asking.

[01:27:21] Speaker 05:
Fair enough.

[01:27:26] Speaker 05:
Thank you.

[01:27:29] Speaker 00:
I'll be honest, I found that argument quite circular, Your Honor.

[01:27:34] Speaker 00:
I didn't understand it.

[01:27:35] Speaker 00:
The fact is, if an impact is significant, which every single agency here with expertise, which the Corps does not have in terms of historic resources, every single agency with expertise said the impacts will be significant.

[01:27:47] Speaker 00:
The Park Service found this is highly controversial under these regulations.

[01:27:50] Speaker 00:
And everything we know about both methodologies and impacts here shows a highly controversial action, including Secretary Zinke's letter itself.

[01:28:01] Speaker 00:
So, you know, we don't understand that argument.

[01:28:03] Speaker 00:
We don't think it's consistent with this Court's precedents, and it's certainly not consistent with NEAP and its regulations.

[01:28:08] Speaker 08:
Thank you.

[01:28:08] Speaker 08:
Thank you.

[01:28:08] Speaker 08:
We'll take a matter under submission.

[01:28:10] Speaker 08:
We'll take a brief break while everybody changes their chairs.