[00:00:01] Speaker ?:
case number 17-1135 at L, the town of Weybeth, Massachusetts petitioner for federal energy

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Ms.

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Brewer, before you start, you've taken five minutes and co-counsel five minutes.

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How have you divided or have you divided the time by subjects?

[00:00:34] Speaker 05:
We have divided the time by subjects, yes, Your Honor, and I'll be concentrating this morning on the question of first impression.

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which is whether the Federal Energy Regulatory Commission can issue a certificate of public convenience and necessity under the Natural Gas Act before the state has had an opportunity to issue its consistency determination under the Coastal Zone Management Act.

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It is the petitioner's position that in fact the Federal Energy Regulatory Commission cannot issue a conditional CPCN under the Natural Gas Act when the project is going to be affecting coastal lands and the state has not yet had its opportunity to issue its consistency determination under the CZMA.

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The Natural Gas Act expressly preserves the CZMA from preemption for projects that affect coastal lands.

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The Coastal Zone Management Act preserves the rights of states to review and approve such projects before any federal license or permit that affects the coastal lands can be granted.

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I submit to your honors that your recent Delaware Riverkeeper case actually supports the town of Weymouth's position that this conditional CPCM should not have been granted before the Commonwealth of Massachusetts had an opportunity to issue its consistency determination.

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The reason I say that is because...

[00:02:12] Speaker 05:
I'm sorry?

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Have they issued it yet?

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They have not, Your Honor.

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How long does that process usually take?

[00:02:17] Speaker 05:
Well, it is supposed to have been done by now, but the applicant and the state have extended it by agreement, in part because the state said, if you don't agree with this, we are not going to issue you a consistency determination.

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The applicant being the construction company here?

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Exactly.

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Yes, Algonquin.

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How long is it normally supposed to take?

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Six months, I believe.

[00:02:42] Speaker 05:
Thank you.

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So your honor.

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If I may, so under Massachusetts approved, federally approved Coastal Zone Management Program, among its enforceable policies are compliance with Mass General Laws Chapter 91, the Public Water Ways Act.

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You're going to explain why it's different than Delaware where we held it as a condition certificate.

[00:03:07] Speaker 05:
Yes, Your Honor.

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I'm sorry, yes.

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That is because of the focus, as this Court focused specifically on the Clean Water Act,

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language, which said that a federal license or permit that does not result in a discharge into navigable waters could be issued before the water quality certificate was issued by the Under the Clean Water Act.

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Here, this conditional CPCN does affect the coastal lands, and as such, it is contrary to the expressed language of the statute.

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the coastal lands in Massachusetts?

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So what it has done is as soon as the conditional CPCM was granted, it truncated how the Commonwealth of Massachusetts could apply

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its enforceable policies in the course of determining whether it should issue a consistency determination.

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That is because of the way that the Massachusetts Coastal Zone Management Program works.

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As I was starting to say, it has enforceable policies.

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Those enforceable policies have to be met in order to get a consistency determination under the CZMA.

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The enforceable policies of Massachusetts include

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the statutes of Chapter 91 and Chapter 131, Section 40, the Public Water Ways Act and the Wetlands Protection Act.

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Chapter 91 of the Commonwealth of Massachusetts General Laws specifically states that the applicant who has certified that they are in compliance have to comply with local zoning.

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What happened as soon as this conditional CPCN was granted, Algonquin went to the District of Massachusetts for both this and for the Wetlands Protection Act and said, you the state can no longer look at all of the requirements of your

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enforceable policies because they are preempted because of the issuance of conditional CPCN, which would not be the case.

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Based on what?

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I mean, where did they get the idea they could do that?

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Well, in fact, they have gotten a judgment from Judge Denise Casper in the District of Massachusetts that, in fact, they can do that.

[00:05:32] Speaker 02:
That doesn't answer my question.

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What is there about either the conditional certificate

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or the power of this federal agency that authorized cutting off the Massachusetts procedures?

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They have said, as Judge Casper agreed with them, that it is due to the preemptive effect of the Natural Gas Act.

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But it doesn't prep the postal zone.

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So maybe the District Court of Massachusetts is wrong, but that doesn't answer the question for us.

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In fact, I assume your argument is that the District Court of Massachusetts is wrong.

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It is, and in fact, the First Circuit is going to be hearing that argument in January.

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All right, so we're obviously not bound by the District Court.

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Our question is, is there anything in the certificate that makes it different than the certificate in the Delaware case that we appell?

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It doesn't say it's preemptive.

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It doesn't say anything else.

[00:06:33] Speaker 05:
Well, we know about the preemptive effect of the Natural Gas Act.

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What I say is that the Coastal Zone Management Act specifically says if the CPCN affects coastal lands, it needs to wait until after the consistency determination is granted by the state of Massachusetts.

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And I see my time is up, Your Honors.

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Thank you.

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I just have a quick question.

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Yeah, sure.

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Have there been any eminent domain proceedings under FERC's certificate order in Massachusetts?

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No.

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There are none.

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But of course, this Court's decision will have broader implications.

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And so I would argue that indeed, while it isn't in this case, an eminent domain power being granted by the CPM certainly would affect coastal lands.

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Thank you, Your Honor.

[00:07:37] Speaker 04:
Good morning, Your Honors.

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I would like to highlight three points related to the brief.

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The first is that FERC violated the Natural Gas Act by failing to evaluate whether Algonquin could realistically comply with the PHMSA regulations on safety.

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The second point is that FERC violated DIPA and the CEQ regulations when it failed to assess the impact of project emissions

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on climate change and also, more importantly, on Massachusetts' ability to comply with its own aggressive climate change goals.

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And the third point, if I can get to it, is that the certificate order was made final by operation of law because the tolling order was invalid.

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I'll begin with the safety issue.

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The issue that we have there primarily is that FERC

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FERC requires the applicant to certify that it can comply with safety regulations, which is a really unremarkable certification because... And they made that certification, didn't it?

[00:08:31] Speaker 04:
Yes, Your Honor, they did.

[00:08:31] Speaker 01:
So why doesn't that just end it?

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Our issue is that FERC didn't evaluate how realistic it was for Algonquin to be able to comply, and that's a point that's really hit home in the interviewee's brief at page two to five, and we cited this also.

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There's a regulation that talks about how if a compressor station is on a property adjacent to another structure,

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It has to be located in a place far away enough so that there's no risk of fire being communicated to the compressor station.

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Here there's only a tenth of a mile, which is about 500 feet, between two structures.

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And it's inconceivable as to how... How is this court supposed to evaluate this?

[00:09:13] Speaker 01:
That's not anything you know anything about.

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I know, Your Honor, but this court can ask FERC to evaluate how realistic it is.

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When the intervenors raised this argument about the close proximity, FERC simply said in the

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In the re-hearing order at Joint Appendix 2981, it just responded with this mantra with respect to the argument that the applicants never analyzed the effect of an incident compensation.

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Did the intervenors file a petition for review?

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They filed a petition.

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And the coalition also made these arguments, Your Honor.

[00:09:51] Speaker 01:
Oh, all right.

[00:09:52] Speaker 04:
Yes, I just.

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So I don't have to look at the intervenors' brief?

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I felt that they amplified the issue in addition to the way we had framed it, but we both made the argument.

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But essentially, FERC's response is that PHMSA is the agency charged with developing the regulations that apply to this case.

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FERC's got to do a little bit more.

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And I think I gave the analogy in our reply brief that if you've got a kid who hasn't done their homework, and they say, Mom, I want to go on a camping trip.

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I'll finish it when I come back, and they're going to come back, and I'll have like a half hour to do it.

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You're not going to let your kid go, because you know that that's not a realistic promise.

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Here, FERC has to at least assess the factors surrounding the safety issue to determine how realistic it is for Algonquin to be able to comply with PHMSA.

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I'll next move on to the FERC in this instance.

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And I would like to make a correction in our brief or something that wasn't clear in our brief.

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In this case, FERC is required to look at the indirect impacts of a project, including air quality emissions and the impact on climate change.

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FERC actually, in the certificate order, did in fact quantify the GHG emissions from upstream

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activity.

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However, what it didn't do here with respect to climate change is talk about what the impact was going to be.

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It just made a very conclusory statement that this was going to have no significant impact.

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So that's our first argument.

[00:11:22] Speaker 02:
Well, isn't that a statement?

[00:11:23] Speaker 04:
It made a statement.

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There's no evidence on which to base it.

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It didn't attempt to.

[00:11:28] Speaker 02:
Well, it stated how much would be added in

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greenhouse gas emissions, right?

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And how that compared to what there were before in the region.

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What else?

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Do you make an argument that they should have done?

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I didn't see an argument that they should have done something else.

[00:11:50] Speaker 04:
No, we had said that that part was inadequate.

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The second part of the argument that I think is better discussed more comprehensively in our brief is that FERC really didn't look at how those impacts would affect Massachusetts' ability to comply with its very aggressive climate change.

[00:12:06] Speaker 02:
Well, I thought their argument there is that Massachusetts' program specifically urges more natural gas to replace coal, I guess, or oil.

[00:12:15] Speaker 04:
So the program that the EA looked at was not something that was necessarily related to climate change.

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That was just an energy plan, and the energy plan endorsed the use of natural gas.

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However, there's a statute that we cited, the Massachusetts Global Warning Statute, that requires the state to attempt to reduce emissions by

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25% by 2020 and 80% by 2050.

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So here you have not just this 1,7700 horsepower compressor station in Weymouth, but you've also got upgrades to a total tune of 31,000 horsepower and the associated emissions, and there was no

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analysis of what the impact would be on Massachusetts' ability to comply with its greenhouse gas goals, to reduce those goals.

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And this is an issue, if I could just add, states are very concerned about this.

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If it's hard to take notice in another case, Otsego 2000 versus FERC, it's stuck at 18-1811,

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where the six states filed an amicus brief urging the court to hold FERC to its obligation to review the impacts of projects on climate change because the states are hamstrung.

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They don't have any control over interstate gas regulation and if the interstate projects are going to contribute to climate change, that could very well block the states from

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achieving their goals.

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So at the very least, FERC should, the EA does not even acknowledge the 20% reduction that Massachusetts is required to make.

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And the page in the EA that I'm referencing, this would be the EA 2-143 Joint Appendix 1349.

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That was the sole paragraph that I was able to find in the record up until the rehearing order where FERC addressed

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or there was any discussion of anything remotely related to climate change.

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I see that my time has also expired.

[00:14:20] Speaker 02:
Are there questions from the bench?

[00:14:22] Speaker 04:
No.

[00:14:22] Speaker 04:
OK, thank you.

[00:14:33] Speaker 07:
May I please support Linda Perry for the commission?

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The conditional certificate order that the Commission issued is exactly the same kind of conditional certificate order that was issued in the Delaware River Cooper case that this Court affirmed.

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There is nothing in the conditional certificate order that would affect any land or water use or natural resource of the coastal zone within the meaning of the

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the Coastal Zone Management Act, and therefore there was nothing precluding the Commission from issuing the conditional certificate in anticipation of the Coastal Zone Management Act clearance being granted later on.

[00:15:15] Speaker 06:
You referenced a district court ruling that treated the FERC decision as preemptive of some aspects of the Coastal Zone.

[00:15:23] Speaker 06:
If that's what a district court had held, would that be wrong?

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Your Honor, with regard to preemption, is this court found in its Myersville decision?

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All that the Coastal Zone Management Act, or there they were talking about the Clean Air Act, but they also cited Coastal Zone Management Act cases, all that that protects is what is included in the state plan.

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And if anything in the state plan is not preempted by the commission orders, and anything that is not in the state plan

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is not protected by the Coastal Zone Management Act.

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If a district court decision were to hold otherwise, FERC would not agree with that reading of the statute.

[00:16:07] Speaker 07:
My understanding is that anything that has been held to be preempted is not part of the Coastal Zone Management Plan, that it is local zoning laws.

[00:16:18] Speaker 07:
I mean, it would be preempted.

[00:16:20] Speaker 07:
Yes, Your Honor.

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I mean, it's protected under the statute.

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It would not be preempted.

[00:16:24] Speaker 07:
Yes.

[00:16:24] Speaker 07:
Yes, that's right, Your Honor.

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If it's part of the state implementation plan, it would not be preempted.

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If it's another local zoning or ordinance or wetlands provision that is not part of the state implementation plan, then it

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it can be preempted by commission action.

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I mean, the commission's order made no findings about what is or is not preempted as far as Massachusetts law goes.

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But that would be the way preemption would work.

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It's only protected if it's part of the state implementation plan.

[00:16:54] Speaker 01:
But you're arguing in your brief that, in this case, the town's wetlands ordinances are not part of the state's coastal plan, right?

[00:17:05] Speaker 01:
Am I right about that?

[00:17:05] Speaker 07:
Well, Your Honor, I think what I was saying is if they're not part of the state implementation plan, then they're not protected.

[00:17:12] Speaker 01:
Well, isn't that what you say in the brief?

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That they're not, in fact, protected.

[00:17:15] Speaker 07:
Well, because what the petitioner was arguing is that by virtue of the certificate order, there are other provisions of law under Massachusetts that would apply but for the certificate order.

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They weren't talking about the state implementation plan.

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They were talking about other Massachusetts laws that they say would apply in the absence of the certificate order.

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But the point is, if it's not part of the state implementation plan, and the presumption of their argument was that it's not,

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then it is not protected from preemption by the savings clause in the Natural Gas Act.

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And with regard to eminent domain, it is the case that there was no eminent domain exercise here for the only project.

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In Massachusetts?

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The only thing that's in the coastal zone, Your Honor, in this entire project, is the Weymouth Station.

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None of the rest of the project is in any coastal zone, so there is no CZMA issue with regard to that.

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In the Weymouth Station, there was no exercise of eminent domain to acquire it.

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And in any event, the petitioners haven't explained how just the exercise initiating an imminent domain proceeding would interfere with the state coastal zone management plan, what part of the coastal zone management plan would actually prevent such thing.

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But it's not an issue here because there wasn't any exercise of imminent domain here.

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Can I ask you a question about the Natural Gas Act claims here?

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And in particular, the commission said part of the reason that granting the certificate in its view was inconsistent with public convenience and necessity was to meet the demand for power in New England.

[00:19:07] Speaker 06:
And then as it turns out, slightly more than half of this is slated to go to Canada.

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How does that analysis work?

[00:19:18] Speaker 07:
Well, the analysis works, Your Honor, because the project facilities that issue here were all designed to enhance the capacity on the Algonquin main line, which runs from New Jersey to Massachusetts.

[00:19:31] Speaker 07:
And there are no facilities on the Maritimes line going from Massachusetts all the way up into Canada, except for one metering station, but it didn't increase any extra capacity.

[00:19:43] Speaker 07:
This is all capacity that's designed to improve service on the Algonquin main line, which is for the purpose of enhancing service in the... They say enhancing service.

[00:19:56] Speaker 06:
I thought they said meeting need, meeting demand in New England.

[00:20:00] Speaker 07:
Well, if you look at the re-hearing order at 118, the commission also said it was to reduce constrictions, constraints on transportation on the Algonquin main line.

[00:20:12] Speaker 07:
And that was, it adds capacity by reducing constraints on the main line, which permits them to serve demands in New England.

[00:20:19] Speaker 07:
And the commission recognized that some of this gas was likely going to be delivered to Canada.

[00:20:24] Speaker 07:
Well, more than half here, so this is... Well, Your Honor, actually the commission says

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46% of the gas here is going to be delivered to, this is the certificate order, paragraph 121, 2487.

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that 46% of the project gas is going to be delivered to Maritimes.

[00:20:48] Speaker 07:
But this is delivered to Maritimes in Massachusetts.

[00:20:51] Speaker 07:
That doesn't mean all of it is going to Canada.

[00:20:53] Speaker 07:
Some of it will go to Canada.

[00:20:55] Speaker 07:
But Maritimes also has delivery points.

[00:20:57] Speaker 06:
I saw a 52% number somewhere.

[00:20:58] Speaker 06:
Is that just a wrong number?

[00:21:00] Speaker 07:
Well, no, Your Honor.

[00:21:00] Speaker 07:
That was the petitioner's number.

[00:21:02] Speaker 07:
And the commission said.

[00:21:03] Speaker 07:
OK, so we're close to half, either way.

[00:21:05] Speaker 07:
Well, right, Your Honor, but I'm just saying 52% wasn't the Commission's number.

[00:21:10] Speaker 01:
They were... Did I misunderstand?

[00:21:12] Speaker 01:
I thought your argument was that exports of gas to a country that's part of a free trade agreement are, by definition, in the public interest.

[00:21:22] Speaker 01:
Yes, Your Honor, that is true, and that's... So is that why we don't even have to worry about this?

[00:21:27] Speaker 07:
You don't have to be concerned that there isn't a demonstrated market need for this project, because some of the project gas is going to go into Canada.

[00:21:37] Speaker 07:
Because the exports are already operating under a 2009 presidential permit, where the Department of Energy found it to be in the public interest.

[00:21:47] Speaker 01:
Because Canada is part of a free trade agreement.

[00:21:50] Speaker 01:
Yes, that's right.

[00:21:51] Speaker 01:
Well, suppose the president pulls the country out of NAFTA.

[00:21:53] Speaker 01:
What happens after?

[00:21:55] Speaker 07:
Well, Your Honor, the point the Commission was making with regard to exports is... What about my question about NAFTA?

[00:22:03] Speaker 01:
Suppose there's no NAFTA next year.

[00:22:05] Speaker 01:
Suppose we're no longer part of NAFTA.

[00:22:08] Speaker 07:
Well, at that point, Your Honor, this is where the Department of Energy makes the determination about whether an export is or is not in the public interest.

[00:22:16] Speaker 07:
And if the Department of Energy, who is charged with making that determination, determines a particular export to be in the public interest, it's not...

[00:22:25] Speaker 07:
commission's position or role to dispute that determination, essentially.

[00:22:32] Speaker 06:
And where did they make the specific finding that exporting nearly half of this to Canada is in the public interest in this case?

[00:22:42] Speaker 06:
The Department of Energy, Your Honor?

[00:22:44] Speaker 06:
No, no, no, no.

[00:22:47] Speaker 06:
The public interest under 717.

[00:22:51] Speaker 06:
Where did they make

[00:22:52] Speaker 06:
They decided that this certificate order was justified for public convenience and necessity.

[00:22:57] Speaker 00:
That's right.

[00:22:58] Speaker 06:
And as I had read it, it was the public convenience and necessity they cited was serving the needs of New England, demand in New England.

[00:23:05] Speaker 06:
And then, as it turns out, half of it's going to Canada.

[00:23:09] Speaker 06:
So I may have just not read carefully enough.

[00:23:13] Speaker 06:
Can you just point me to where the commission found that public convenience and necessity were served by creating this gas for Canada?

[00:23:23] Speaker 07:
Your Honor, under the certificate policy statement, the basic determination of whether there's a public benefit to a project comes from the fact that the project is fully subscribed by shippers, that there is a market need for the project.

[00:23:38] Speaker 06:
So that principle would be true if 100% of us were leaving the United States?

[00:23:46] Speaker 07:
Well, the Commission said that it didn't matter that the demand was either foreign or domestic.

[00:23:52] Speaker 07:
for purposes of determining the market need for the project, particularly in circumstances.

[00:23:57] Speaker 06:
Then why do they say this was to meet a need in New England?

[00:24:00] Speaker 07:
Because it did address constraints in New England.

[00:24:03] Speaker 07:
But it won't, Your Honor.

[00:24:04] Speaker 06:
If 1% were going to New England, would it be sufficient to justify the decision to say this is meeting a need in New England and just not be explicit about a public convenience necessity of

[00:24:16] Speaker 06:
doing all these changes in Weymouth to get gas to Canada?

[00:24:20] Speaker 06:
These decisions could well be made.

[00:24:21] Speaker 06:
I'm just asking, doesn't the Commission have to make that hard decision and be upfront about what it's deciding?

[00:24:27] Speaker 07:
A couple of things about that, Your Honor.

[00:24:29] Speaker 07:
In the first place, the Commission specifically addressed this point about, they made arguments about the fact that this was going to Canada, and the Commission specifically addressed

[00:24:38] Speaker 07:
the issue about the fact that some of these precedent agreements contemplated that some of this gas was going to go to Canada.

[00:24:44] Speaker 07:
But when you're talking about in New England, it's not that there was any error in the Commission's statement that it was addressing demand in New England.

[00:24:55] Speaker 06:
When I was addressing this, maybe you pointed me to the right place in the decision, where in response to these concerns, because I'm afraid I read the decision maybe a little bit differently than you did.

[00:25:08] Speaker 06:
They said, sure, that's fine if half of this goes to Canada.

[00:25:13] Speaker 06:
That's in the public, that's consistent with public convenience and necessity of a free trade zone or for whatever reason they might choose.

[00:25:22] Speaker 06:
Did I just miss that in the decision?

[00:25:26] Speaker 07:
Well, Your Honor, the basic finding was that the precedent agreements demonstrate market demand for the project.

[00:25:33] Speaker 04:
Market demand where?

[00:25:35] Speaker 07:
Market demand for the project in both New England, but there is also some Canadian deliveries.

[00:25:44] Speaker 06:
The Commission said that this was meeting market demand in Canada, too?

[00:25:49] Speaker 07:
Yes, Your Honor.

[00:25:50] Speaker 07:
It said, if you look at the rehearing,

[00:25:52] Speaker 07:
Paragraph 39 of the rehearing order, 2937, the commission answered the arguments about the fact that some of it was going to go to Canada.

[00:26:09] Speaker 07:
And the commission said that that didn't change the conclusion, that there was market demand for the project.

[00:26:16] Speaker 07:
It was served market demand.

[00:26:17] Speaker 06:
No, they just say that's the problem there.

[00:26:20] Speaker 06:
They're not saying that this project is

[00:26:22] Speaker 06:
that these contracts or that we're finding that this is necessary to meet demand either in New England or Canada, they say elsewhere, it's about New England, and then, oh, you're telling us about these contracts, but go talk to the Department of Commerce about getting an export license.

[00:26:40] Speaker 06:
But if really, what I'm trying to figure out is if there, imagine a hypothetical where New England didn't need it.

[00:26:48] Speaker 06:
Maybe it would take 1%, but they don't really need it.

[00:26:52] Speaker 06:
But 99% is going to go to China.

[00:26:57] Speaker 06:
Or just to pick X foreign country, so I'm not naming anybody.

[00:27:00] Speaker 06:
X foreign country.

[00:27:02] Speaker 06:
Can the Commission say we find public convenience and necessity because this will meet demand in New England when only 1% of it's doing that and 99% of it's going to country X?

[00:27:16] Speaker 07:
Well, it wouldn't much be the case in that circumstance, Ron, or that it would be meeting demands in New England.

[00:27:22] Speaker 06:
I mean, the thing is... Less than half is their position, or half may be in your position.

[00:27:27] Speaker 06:
So why don't they... I'm just asking why, whether they could or couldn't make such a finding, but they didn't seem to do so here.

[00:27:34] Speaker 06:
And I'm wondering for reason, decision-making, and transparency purposes, why they didn't just deal with that.

[00:27:42] Speaker 06:
Why didn't they just discuss the legitimacy of sending

[00:27:46] Speaker 06:
a determination that Needham Canada supports this project.

[00:27:54] Speaker 07:
I believe that they did, Your Honor.

[00:27:57] Speaker 07:
If you look at not only the rehearing order at paragraph 39, but also note 86 there, they also talk about the role of the Department of Energy, and they also cite to their valley crossing decision.

[00:28:13] Speaker 07:
And in that valley crossing decision, the Commission explains

[00:28:16] Speaker 07:
that free trade exports to free trade countries promote the public interest by decreasing trade barriers and increasing the flow of goods and services.

[00:28:27] Speaker 07:
And it's in note 86 in your joint appendix at 2938.

[00:28:32] Speaker 07:
It's the valley crossing decision that the commission cites.

[00:28:39] Speaker 07:
And the valley crossing decision explains why

[00:28:42] Speaker 07:
In the Commission's view, the public interest is served by free trade exports.

[00:28:47] Speaker 02:
There's a statute that says it's in the public interest to export to Canada.

[00:28:52] Speaker 07:
Absolutely, Your Honor.

[00:28:53] Speaker 07:
Section 3 of the Natural Gas Act says that the Department of Energy is required to find exports to free trade countries to be in the public interest.

[00:29:03] Speaker 07:
But the Valley Crossing decision was just explaining the Commission's view of why that is the case.

[00:29:08] Speaker 02:
But the Natural Gas Act... Why that is the case is that the Congress of the United States said so.

[00:29:13] Speaker 02:
I don't think the agency has any more to say on that question.

[00:29:17] Speaker 07:
Right.

[00:29:17] Speaker 07:
Right, Your Honor.

[00:29:18] Speaker 06:
That's absolutely right.

[00:29:19] Speaker 06:
I mean, the Natural Gas Act... They wanted to say that in their decision.

[00:29:21] Speaker 06:
This is to meet some need in New England and it's also to send it to a country and explain that.

[00:29:27] Speaker 06:
They just didn't do that here.

[00:29:28] Speaker 06:
I just don't understand why they didn't just say what was going on.

[00:29:33] Speaker 07:
But again, Your Honor, the focus on New England was because that's where the project facilities were going to be.

[00:29:39] Speaker 07:
There isn't anything, there's nothing from Massachusetts on that is a project facility that's enhancing anything having to do with the exports.

[00:29:48] Speaker 07:
It's all project facilities, and Algonquin has precedent agreements for that capacity on its main line.

[00:29:56] Speaker 07:
in Connecticut and in Massachusetts.

[00:30:00] Speaker 07:
They're making deliveries there.

[00:30:01] Speaker 07:
It is serving demands in New England.

[00:30:04] Speaker 07:
I mean, there's nothing wrong with the Commission's statements to that effect.

[00:30:08] Speaker 02:
All right.

[00:30:08] Speaker 02:
We're eight minutes over here.

[00:30:09] Speaker 02:
Does anybody else on the panel have any other questions?

[00:30:14] Speaker 02:
OK.

[00:30:14] Speaker 02:
Thank you.

[00:30:14] Speaker 02:
We'll hear from the intervener.

[00:30:22] Speaker 00:
Good morning, Your Honor.

[00:30:22] Speaker 00:
Jeremy Marwell for Respondent Intervenors Alconquin and Maritimes.

[00:30:26] Speaker 00:
If I could start with need and then touch on the Coastal Zone Management Act.

[00:30:29] Speaker 00:
This court has repeatedly upheld determinations of need that are based on contracts for the transportation service in cases like Myersville, Minisink, and Sierra Club v. Ferg.

[00:30:39] Speaker 00:
And if I can clarify, these are contracts for capacity.

[00:30:43] Speaker 00:
So contracts for transporting gas.

[00:30:45] Speaker 00:
They're not contracts for gas.

[00:30:47] Speaker 00:
Pipeline doesn't own the gas.

[00:30:49] Speaker 00:
And 100% of these contracts are for transporting gas on pipeline facilities in the United States.

[00:30:55] Speaker 00:
I think that may help respond somewhat to the idea that some of the gas is going to go to Canada.

[00:31:01] Speaker 01:
And the way the contracts work, which were filed... So Canada is not relevant?

[00:31:05] Speaker 00:
I don't think Canada is relevant under this Court's cases that do not look behind the market evidence of demand as shown by contracts.

[00:31:14] Speaker 01:
None of the capacity will be used to deliver gas to Canada?

[00:31:18] Speaker 00:
No, so I wouldn't go so far.

[00:31:20] Speaker 00:
The President's agreements, there are a number of President's agreements with different shippers, a range of shippers.

[00:31:25] Speaker 00:
Some shippers have delivery points on the Algonquin system, which is 100% in the United States.

[00:31:29] Speaker 00:
Some of the gas is going onto the maritime system in Massachusetts.

[00:31:33] Speaker 00:
There are delivery points in New Hampshire and Maine.

[00:31:36] Speaker 00:
And some of the contracts have delivery points at the Canadian border.

[00:31:39] Speaker 00:
But shippers are purchasing what's called firm capacity, which gives them the right to ship.

[00:31:43] Speaker 00:
They don't always use that firm capacity.

[00:31:45] Speaker 00:
They may not always deliver to the same delivery point, depending on what the market need is.

[00:31:51] Speaker 00:
So I think under the court's cases, and especially in light of the... You know, it was all told to FERC at the time.

[00:31:56] Speaker 00:
Yes, the President's agreements are filed as part of the application, so they're part of the record.

[00:32:01] Speaker 06:
I mean, agreements are, but they were explicit that some percentage of this is going to the Canadian border.

[00:32:07] Speaker 00:
I believe the President's agreements indicate the range of potential delivery points, and some of the contracts allowed the shipper to go all the way to the Canadian border, so that's correct.

[00:32:17] Speaker 00:
But none of them are for transportation in Canada.

[00:32:21] Speaker 01:
And that's in the public interest because

[00:32:23] Speaker 01:
Because of the statute.

[00:32:24] Speaker 01:
Because of the statute, right?

[00:32:26] Speaker 00:
Yes.

[00:32:28] Speaker 00:
If I could briefly touch on the Coastal Zone Management Act and maybe correct the record.

[00:32:32] Speaker 00:
The Massachusetts Coastal Zone Management authorities have not rejected the application.

[00:32:37] Speaker 00:
It is ongoing.

[00:32:38] Speaker 00:
Algonquin has agreed to extensions of time because as part of the process, Algonquin is obtaining certain state permits that are part of the federally protected coastal zone management program.

[00:32:50] Speaker 00:
Those permits have been granted by the state regulators to Algonquin but have been appealed and we have to work through those state appeals process.

[00:32:57] Speaker 00:
But the certificate did not affect, did not cut off anything about the Massachusetts Coastal Zone Management Proceedings.

[00:33:04] Speaker 00:
The preemption case involved state laws that were not part of the federally approved program and therefore preempted.

[00:33:10] Speaker 02:
Are there any other questions?

[00:33:13] Speaker 02:
Thank you.

[00:33:14] Speaker 02:
Is there any timeline?

[00:33:16] Speaker 02:
Are you each taking?

[00:33:18] Speaker 02:
I'll give you another minute.

[00:33:21] Speaker 02:
All right, we'll take the matter under submission.

[00:33:25] Speaker 02:
Thank you very much.