[00:00:01] Speaker 01: Case number 18-1081 at L. Inheals USA LLC Petitioner versus Federal Energy Regulatory Commission at L. Mr. Phillips for the petitioner. [00:00:11] Speaker 01: Mr. Kennedy for the respondent. [00:00:15] Speaker 01: Good morning. [00:00:17] Speaker 00: Good morning. [00:00:17] Speaker 00: Your Honors may it please the court. [00:00:21] Speaker 00: INEOS is here today asking this Court to instruct the Commission to do its statutory duty. [00:00:27] Speaker 00: Section 3.1 of the ICA makes it unlawful for a common carrier to subject any person or company to any undue or unreasonable prejudice or disadvantage in any respect whatsoever. [00:00:39] Speaker 00: The Commission's refusal to exercise jurisdiction here to consider INEOS' complaints that this separation of these two pipeline systems is nothing but a sham [00:00:49] Speaker 00: denies any oaths of the statutory protection. [00:00:52] Speaker 01: Actually, he has not filed a complaint, has he? [00:00:57] Speaker 00: We have not filed a complaint, but we did file a protest of the tariff, which is the instrument in which they're trying to separate these two pipelines down. [00:01:05] Speaker 01: No, I understand, but I didn't want you to think that we thought that a Section 13 complaint had been filed by your client. [00:01:16] Speaker 00: And I didn't mean to cause any confusion on that, Your Honor. [00:01:18] Speaker 00: I apologize. [00:01:19] Speaker 00: I know the Court has asked the parties to brief questions related to the motion to dismiss these cases for lack of jurisdiction in this Court, so I'm happy to talk about that for a moment and then to talk about the Commission's jurisdiction. [00:01:33] Speaker 00: On this Court's jurisdiction, one of the primary problems we have here is confusion created by the Commission itself. [00:01:42] Speaker 00: The first order issued in this case in July of 2017 was an order issued by staff under a delegation order because there was a lack of a quorum at the time. [00:01:52] Speaker 00: That order was specifically subject to further order from the commission. [00:01:55] Speaker 00: INEOS moved for rehearing, and that order – that further order was issued in January 2018, and that order [00:02:05] Speaker 00: had two things in it that caused the confusion. [00:02:08] Speaker 00: That order both accepted and didn't say that it did so in the past, but specifically the commission said we accept in the present tense the tariffs, and also denied the motion for rehearing, which put INEOS in a difficult position. [00:02:21] Speaker 00: We didn't know whether we should then go ahead and file a petition in the score on the denial for rehearing, or whether we needed to go ahead and file another rehearing motion because of the further order from the commission. [00:02:31] Speaker 00: So we did the best we could and we did both. [00:02:33] Speaker 00: We filed a petition for review related to the denial of rehearing, which was documented in this case as number 1081, and then we sought rehearing. [00:02:43] Speaker 00: And then that rehearing motion was ultimately denied. [00:02:46] Speaker 00: Now the commission is at this court saying that our first petition [00:02:50] Speaker 00: was irrevocably and uncurably too early, and that our second petition filed after they denied our rehearing motion from the further order is too late. [00:02:59] Speaker 00: The Commission would like to have it both ways. [00:03:01] Speaker 00: One of the things that makes that particularly difficult here is that this is the opposite of what the Commission did in the PJM case, which is cited in our briefing at page 35. [00:03:11] Speaker 00: In that case, the Commission did a similar thing. [00:03:13] Speaker 00: There were three orders. [00:03:14] Speaker 00: There was an initial order by staff. [00:03:16] Speaker 00: There was a further order by the Commission itself that purported to both do further things and also to deny rehearing. [00:03:24] Speaker 00: And on the further motion for rehearing, the Commission recognized that the rehearing motion was proper in that case. [00:03:31] Speaker 00: which is the opposite of what they did here. [00:03:33] Speaker 00: So we'd ask the court to find that there is jurisdiction on both of the 1081 and the 1200 cause number because otherwise it would be inequitable to reach the result the commission asked this court to reach, and I think even the commission acknowledges that in their response. [00:03:47] Speaker 00: They also acknowledged that the January Further Order constructively reached a different result from the July Order, and therefore I think they don't come out to say this, but I think from that you would have to conclude that the re-hearing did lie from the January Further Order, which would make both of the petitions timely. [00:04:07] Speaker 01: So are you going to discuss the two cases, the two key cases on which the Commission principally relies in filing a motion to dismiss? [00:04:17] Speaker 00: On the actual jurisdiction, referring to the Exxon case and... I'm referring to the Supreme Court and this circuit's decision. [00:04:30] Speaker 00: Your Honor, I apologize, but I'm blanking on which... Southern Railway and Resolute Natural Resources? [00:04:36] Speaker 00: Yes. [00:04:38] Speaker 00: I believe those are the ones that Judge Rogers is referring to. [00:04:45] Speaker 00: So referring then to the question of whether [00:04:47] Speaker 00: The commission, but this court has jurisdiction because the commission simply declined to investigate. [00:04:54] Speaker 00: Is that what the court is asking me to discuss? [00:04:57] Speaker 00: Okay. [00:04:58] Speaker 00: The problem here though is that the commission, in our case, didn't even get to that question. [00:05:02] Speaker 00: In deciding that the commission didn't have jurisdiction at all to decide these issues, the commission didn't get to the point that it got to in the other cases where they declined to exercise or declined to hold a hearing. [00:05:16] Speaker 00: Here we are one step ahead of that. [00:05:18] Speaker 01: You don't deny that the Commission accepted these tariffs but declined to investigate. [00:05:27] Speaker 00: They declined to investigate because they found that they lacked jurisdiction to do so. [00:05:31] Speaker 01: As to part. [00:05:32] Speaker 01: But let's stick with the first. [00:05:34] Speaker 01: They accepted the tariffs but declined to conduct an investigation. [00:05:40] Speaker 00: Period. [00:05:40] Speaker 00: That is what they did, yes, Your Honor. [00:05:42] Speaker 01: So deal with Southern Railway and Resolute. [00:05:46] Speaker 00: The problem is that in order to reach the conclusion that they would not investigate because they said they didn't have jurisdiction, they assumed the answer to our question. [00:05:55] Speaker 01: No. [00:05:56] Speaker 01: According to the Supreme Court and this Court, the Commission has discretion to when it's going to investigate, if it's going to investigate, how it's going to investigate. [00:06:11] Speaker 00: What the commission here said they did, though, is that they said they lacked a jurisdiction to even get to that point. [00:06:16] Speaker 01: As to one matter. [00:06:19] Speaker 00: And that matter, Your Honor, respectfully, is the key matter, because if we're correct that they should investigate, that they do have jurisdiction to determine whether this is a complete abandonment or an incomplete abandonment, then they have jurisdiction to consider the rest of it. [00:06:35] Speaker 00: They have to start with that question. [00:06:38] Speaker 00: because that question underlies everything else. [00:06:41] Speaker 00: Because if it's an incomplete abandonment, if the corporate veil should be pierced because they are using this separation as a sham, then they should further investigate. [00:06:52] Speaker 00: I think the problem is their decision to say that they don't have jurisdiction, their decision to say they don't want to investigate is premised on their conclusion [00:07:02] Speaker 00: that they don't have jurisdiction. [00:07:03] Speaker 03: You can't carve out the decision whether to investigate by the Commission is unreviewable under Heckler versus Cheney. [00:07:13] Speaker 03: You agree with that? [00:07:14] Speaker 00: I agree. [00:07:15] Speaker 03: There's another line of cases which neither party has cited that says that if you have a decision that itself is unreviewable that you, I'm going to quote this if I can find it. [00:07:31] Speaker 03: You cannot carve out of an unreviewable decision some reviewable legal action. [00:07:41] Speaker 03: So for you to say, well, the reason that they didn't investigate is because they thought they didn't have jurisdiction, is to carve out of a non-reviewable action something you think is reviewable. [00:07:57] Speaker 03: And there are at least three or four recent cases in this circuit saying you can't do that in a Hector versus Cheney situation. [00:08:05] Speaker 03: The case that the most recent one, just for your [00:08:09] Speaker 03: information is is crew versus the Federal Election Commission's 830 error 892 fed third 434 decided last year I think if I stated the law the circuit correctly I don't know what your response possibly be I think my response you know would be that we're not trying to carve out [00:08:40] Speaker 00: in the way that the court's described, but instead we're saying we don't even, the commission didn't even get to that question. [00:08:46] Speaker 00: The commission didn't exercise its discretion to decide not to investigate. [00:08:51] Speaker 00: The commission first had this initial question of do we even have jurisdiction? [00:08:55] Speaker 00: And I think that's a completely different question. [00:08:58] Speaker 00: There's a reason that when we have jurisdiction questions before courts, they don't reach the merits. [00:09:03] Speaker 00: They don't affirm or reverse. [00:09:05] Speaker 00: They simply vacate and send it and dismiss. [00:09:07] Speaker 01: I understand your argument, but that's not what the Commission did. [00:09:11] Speaker 01: The Commission accepted the tariffs, but declined to investigate, period. [00:09:21] Speaker 01: In explaining what it had done, it said first, as to part of the issue that your client was raising, it lacked jurisdiction. [00:09:35] Speaker 01: And then it went on to address [00:09:37] Speaker 01: the other issue your client is raising. [00:09:40] Speaker 03: And if I may interrupt, before you answer Judge Rogers' question, which is a good one, let me just remind you that Heckler v. Cheney, which is the leading case, you're familiar with that. [00:09:52] Speaker 03: In that case itself, the agency first said, we don't have jurisdiction, and then went on to give a reason why, even if it did have jurisdiction, wouldn't exercise it. [00:10:05] Speaker 03: So isn't that, I mean, that follows up from Judge Rogers' question, because that's pretty much the situation here. [00:10:15] Speaker 00: Two answers to that, I think. [00:10:17] Speaker 00: The first one is, again, I come back to the fact that their reasons why are premised on their incorrect conclusion that they don't have jurisdiction. [00:10:30] Speaker 00: And the second part of my answer is, to the extent they purport to give any other reasons why, [00:10:35] Speaker 00: Those reasons are flawed for the reasons explained in our brief. [00:10:38] Speaker 01: Well, the Commission cited a decision by this Court, did it not? [00:10:44] Speaker 01: In saying it lacked jurisdiction as to part. [00:10:47] Speaker 00: Yes. [00:10:48] Speaker 01: How do you distinguish that case? [00:10:50] Speaker 00: Because, again, our argument here is that this is not a complete abandonment. [00:10:56] Speaker 00: It's a sham transaction. [00:10:58] Speaker 00: They're saying that it's a complete abandonment, but if we're looking at the abandonment cases, [00:11:02] Speaker 00: both the ones they've cited from this court and the Commission's own decisions. [00:11:06] Speaker 00: We again believe that the corporate veil needs to be pierced here. [00:11:09] Speaker 00: This is done for the purposes of advantaging their own affiliates and disadvantaging others. [00:11:18] Speaker 00: And it's not a situation of selling it completely to a third party. [00:11:22] Speaker 00: It's not a situation of there is no more traffic on this line. [00:11:27] Speaker 01: Well, the Commission did express the opinion that [00:11:32] Speaker 01: This was not a situation in which there was record evidence to show that the transfer of ownership was somehow designed to undercut the purposes of the statute, all right? [00:11:46] Speaker 01: Number one, and I didn't see anything that you put in or your client put in that showed that the commission's finding was clearly erroneous. [00:11:59] Speaker 01: Secondly, the Commission has said to the extent you have concerns, file, I don't want to ask the Commission about this, but file Section 13 complaint. [00:12:12] Speaker 01: And I'm still unclear why your client hasn't done that. [00:12:18] Speaker 00: As to the first part of that, there's really only two findings that they have in there related to [00:12:27] Speaker 00: their explanation or their finding that there's no reason to pierce the corporate veil. [00:12:31] Speaker 00: Our argument there first is there's no record evidence because we haven't had the chance to investigate it. [00:12:36] Speaker 00: That's the reason we asked the commission to set it for a hearing and give us a chance to do that discovery because we believe there are enough indicators, enough red flags here that give us the opportunity to make that investigation. [00:12:47] Speaker 01: So what are the red flags that you cited to the commission? [00:12:51] Speaker 00: We have the timing of their, when they did this in respect to our request for interconnection, [00:12:58] Speaker 00: There's the fact that they are continuing to delay and deny us on that issue. [00:13:04] Speaker 01: Well, Leverett says it's investigating. [00:13:08] Speaker 00: For two and a half years. [00:13:09] Speaker 00: They asked us for additional information. [00:13:11] Speaker 00: And this isn't in the record, but they asked us for additional information. [00:13:13] Speaker 01: Well, if it's not in the record, you can't bring it to us as a reason to grant your petition, correct? [00:13:19] Speaker 00: Because we need to get that more information. [00:13:22] Speaker 01: You may need more, but the question is, did you put some basis for the commission to think [00:13:29] Speaker 01: that our decision was not applicable. [00:13:33] Speaker 00: Yes. [00:13:34] Speaker 00: Again, because of the very close relationship that's going on here, this is not a situation of even putting it in a completely different part of the company. [00:13:41] Speaker 00: We pointed out to the commission to this court, the same person is president of Mid-America and vice president of Lever. [00:13:47] Speaker 00: The same person signed it. [00:13:48] Speaker 01: But the commission comes back and says, the rates haven't changed, the regulations haven't changed, nothing's changed except [00:13:59] Speaker 01: It's gone from one sub or affiliate to another. [00:14:02] Speaker 01: And it's perfectly legitimate for a business to do that, as in some evidence, as the commission has suggested, that this is a way to foil the purposes of the statute. [00:14:20] Speaker 00: Yes, and again, I think because of the close relationship of those entities, because of the timing, the close relationship in time to our interconnection request, the fact that the result of this is that essentially only affiliates [00:14:34] Speaker 00: of this company can now nominate destination and endpoints on the Leverett system. [00:14:40] Speaker 00: It's completely separate. [00:14:41] Speaker 00: There's no joint tariff that would allow someone to nominate a destination and origin pair on MAPL and on the new Leverett system for South Eddy. [00:14:53] Speaker 00: Those things altogether we think are enough that at a minimum we should be allowed to investigate that further. [00:14:59] Speaker 01: And I want to go back to the idea that... Well, you can investigate it further. [00:15:03] Speaker 01: Your argument is that the Commission has declined at this time to investigate it. [00:15:09] Speaker 00: By denying our request, the Commission denies our ability to do an investigation under the eagerness of the Commission, to discover it, and to ask the Commission to rule on whether this was a proper tariff and a proper separation. [00:15:22] Speaker 00: That's the whole point. [00:15:22] Speaker 00: All we're asking for is for this Court to tell you. [00:15:25] Speaker 01: Do you know that a corporation can decide to [00:15:29] Speaker 01: shift the ownership of one part of its operation from one entity to another. [00:15:35] Speaker 00: As long as it's not for an improper purpose, which is the purpose of the statute. [00:15:38] Speaker 01: Yes, and the commission said there was no evidence before it to find that this transfer of ownership was for the purposes of undercutting the purposes of the statute, because the rates remain the same, the regulations remain the same, everything remain the same, except a different name. [00:16:00] Speaker 00: And with respect, that actually brings up an interesting point, which is if everything remains the same, then it undercuts the commission's first decision that this is a complete abandonment and that it therefore doesn't have jurisdiction. [00:16:13] Speaker 00: I struggle to understand how it can be a complete abandonment on the one hand and everything is the same on the other hand. [00:16:18] Speaker 00: If everything's the same, then it's not an abandonment. [00:16:20] Speaker 00: The commission has jurisdiction and should exercise it. [00:16:23] Speaker 01: So why is the complaint process not available to your client? [00:16:30] Speaker 00: I don't think we've ever said it's not available to us. [00:16:38] Speaker 00: The fact that we have an alternate remedy through the complaint process does not really answer the question of whether the commission has jurisdiction over this process, and whether we should first get this resolved before we get to the complaint process, which is our point. [00:16:51] Speaker 00: We just want the commission to exercise its jurisdiction. [00:16:55] Speaker 00: And the last point I want to make, and I think it's important, and I know I'm way over my time and I appreciate the court's indulgence, [00:17:01] Speaker 00: This court just last Friday reminded the Commission that this court insists on reasoned justification and even to the extent that the Commission says, okay, we don't have jurisdiction, but if we do have jurisdiction, we're not going to exercise it. [00:17:17] Speaker 00: I would say that what's in these orders as their explanation for why they're not going to exercise it does not pass muster. [00:17:23] Speaker 00: We've explained in our brief, there's really only two things that they put in there as to why they say that they don't need to exercise their jurisdiction. [00:17:30] Speaker 00: The first is an assumption about whether the two systems are interconnected, which we say is an open issue we want investigated. [00:17:37] Speaker 00: And the second issue is something where they make a factual error. [00:17:40] Speaker 00: where they say that we've never been connected to the MAPL system, which is simply wrong. [00:17:44] Speaker 00: And I know in their brief, they say what they really meant there was that we've never been connected to the new, to the South Eddie system. [00:17:51] Speaker 00: But that's not what they said in their actual order. [00:17:53] Speaker 00: And so I'd say to the extent that they have said they've made a decision not to exercise that jurisdiction, they've not adequately explained that. [00:18:00] Speaker 00: And in a minimum, the court needs to send it back and ask them to explain that. [00:18:04] Speaker 00: So we'd ask that this court instruct the commission to exercise jurisdiction [00:18:09] Speaker 00: to investigate whether this is a proper tariff, and to at a minimum provide a reasoned explanation for its decisions. [00:18:17] Speaker 00: Thank you. [00:18:28] Speaker 01: Good morning. [00:18:28] Speaker 02: Good morning, Your Honor. [00:18:29] Speaker 02: It's Robert Kennedy on behalf of the Commission. [00:18:32] Speaker 02: We believe there's a number of jurisdictional hurdless here, and I'll start with the one the Court spent the most time on, Southern Railway and Resolute Natural Resources. [00:18:41] Speaker 02: This court and the Supreme Court has held that the Commission's decision not to investigate under Section 15.7 is not subject to judicial review for a number of reasons. [00:18:51] Speaker 02: A, the language of the statute, and B, as the Supreme Court said in Southern Railway, the decision not to investigate is not a ruling on the lawfulness of the tariff at all. [00:19:01] Speaker 02: It's simply a decision that at this time the Commission will not initiate an investigation. [00:19:07] Speaker 02: Section 13, as the court noted, is available to any petitioner if they want to allege a violation of the ICA, and the Commission will respond to that, and Southern Railway makes clear that that decision in response to the Section 13 complaint is subject to judicial review. [00:19:23] Speaker 01: So hypothetically, let's suppose the Commission says, we're accepting the tariffs for filing, but we are not going to conduct an investigation, and the first reason [00:19:37] Speaker 01: it gives for that decision is we lack jurisdiction, as do one of the actions here. [00:19:48] Speaker 01: Suppose, just hypothetically, that that is clearly erroneous, both as a matter of law and fact. [00:19:59] Speaker 01: At what point does someone in the petitioners' [00:20:08] Speaker 01: posture have an opportunity to challenge that decision? [00:20:16] Speaker 02: In that respect, I think they would have to bring a Section 13 complaint. [00:20:19] Speaker 01: That's the only way. [00:20:20] Speaker 02: I believe so. [00:20:20] Speaker 02: The Court in Resolute Natural Resources recognized another possible exception, and the question there is if what the Commission did in accepting the tariffs and declining to initiate an investigation, if that's beyond their [00:20:36] Speaker 02: authority, then that could be subject to immediate judicial review. [00:20:40] Speaker 02: But going beyond that and getting into the reasons why the Commission declined to investigate is not subject. [00:20:47] Speaker 01: So you're relying on the line of authority that Judge Randolph alluded to in his... Well, I think we're mainly relying on this Court's ExxonMobil. [00:20:56] Speaker 01: No, I understand. [00:20:57] Speaker 01: But I was just trying to understand so I'm clear that if there's a decision that the Commission has made over which this Court has no jurisdiction, [00:21:07] Speaker 01: That's the end of the matter as far as this court is concerned at this time. [00:21:13] Speaker 01: But if, in making that decision, the commission offered a legally erroneous reason, that simply is not something that we have any jurisdiction to review at this time in this proceeding. [00:21:29] Speaker 02: The last bit being the key piece, at this time in this proceeding. [00:21:33] Speaker 01: So even in Resolute, we were not suggesting [00:21:37] Speaker 01: that the court would have jurisdiction in that situation. [00:21:42] Speaker 01: I just want to be clear. [00:21:43] Speaker 02: Not in the situation I believe you're describing, as if saying, and just to be clear, and I know you said it's hypothetical, but that is not the situation here. [00:21:52] Speaker 02: The commission looked at the Mid-America cancellation tariff and said, based on this court's decision and based on the statute of the language of the ICA, we don't have jurisdiction over complete cancellation of service. [00:22:05] Speaker 02: Then it went on to say, [00:22:07] Speaker 02: INEOS wants us to look at this as a whole, let's do that. [00:22:10] Speaker 02: Even if we did have jurisdiction, we don't believe there's any reason to conduct an investigation here because the tariff doesn't change any configuration of the system at all. [00:22:19] Speaker 02: It's open to all comers, and we really don't see how this affects INEOS's competitive position. [00:22:27] Speaker 03: In a nutshell, if the Commission has absolute discretion whether to conduct an investigation, [00:22:34] Speaker 03: It can't abuse absolute discretion. [00:22:38] Speaker 02: I believe that's correct. [00:22:39] Speaker 02: Correct. [00:22:42] Speaker 01: So do you have any sense of what was meant when we talked about an exception? [00:22:49] Speaker 02: like in Resolute? [00:22:52] Speaker 02: Well, Resolute talks about two and one's not really an issue here because it relates to suspensions and there there's a statutory obligation to give reasons and even there I'll note the court said we'll look at the reasons to make sure they're there but in the Exxon pipeline case said we're not going to get into the merits of it we're just going to make sure it's there so [00:23:10] Speaker 02: I think in this case where we have unreviewable discretion to suggest that it's appropriate to get into merits isn't appropriate. [00:23:16] Speaker 02: The other, again, the other exception noted in Resolute Natural Resources is if whatever action is at issue, if the commission didn't have [00:23:24] Speaker 02: authority to take it. [00:23:26] Speaker 02: If it was beyond its jurisdiction, if the action the commission took was beyond its statutory authority. [00:23:31] Speaker 01: So if it had no authority to accept without conducting an investigation? [00:23:36] Speaker 02: Yeah, I mean maybe if it was an interstate pipeline and somehow the commission accepted it and didn't otherwise, maybe. [00:23:45] Speaker 02: But as I said, I believe there are standing issues here, and also the dueling petitions for review. [00:23:50] Speaker 02: But unless the court has any particular questions, I'll stop here. [00:24:01] Speaker 01: Thank you. [00:24:03] Speaker 01: No. [00:24:03] Speaker 01: Counsel, awful petitions. [00:24:14] Speaker 00: I think where I'd start is what we talked about before. [00:24:20] Speaker 00: By saying that they don't have jurisdiction, and the Commission found it didn't have jurisdiction, then that's not an exercise of discretion. [00:24:29] Speaker 00: They didn't even get to that question. [00:24:30] Speaker 00: They did, and we'll talk about in a second their alternative argument. [00:24:33] Speaker 00: But the first statement of we lack jurisdiction can't be an exercise of discretion. [00:24:39] Speaker 00: And they couldn't have exercised their discretion to decline to review because they found no jurisdiction. [00:24:43] Speaker 00: That's the preliminary question. [00:24:45] Speaker 00: That's the thing that we asked this court to review and to say they were wrong. [00:24:49] Speaker 00: And again, what we heard here from my colleague was to say, we don't have jurisdiction because it's not a complete cancellation. [00:24:57] Speaker 00: But that is to assume the question we've asked them to consider, which is that it's not a complete cancellation because of the fact that they should pierce the corporate bank. [00:25:07] Speaker 00: And for all the red flags that we talked about before. [00:25:12] Speaker 00: But moving to the second question, again, I don't think that they've given enough of a reason explanation to say that everything's the same. [00:25:19] Speaker 01: Could I just be clear on the record? [00:25:20] Speaker 01: The only red flag I heard you mention was timing. [00:25:23] Speaker 00: There's also the extremely close. [00:25:25] Speaker 00: This isn't just sending it to another division of the company. [00:25:29] Speaker 00: It's under the exact same control as it was before, the same person. [00:25:33] Speaker 01: So timing, same control. [00:25:37] Speaker 01: Anything else? [00:25:39] Speaker 01: Red flags. [00:25:40] Speaker 00: Yes. [00:25:40] Speaker 00: Everybody keeps saying there's no functional difference. [00:25:44] Speaker 00: It's being operated exactly the same as it was before. [00:25:46] Speaker 00: The same people are making decisions. [00:25:48] Speaker 00: about both of these pipelines as we're making them before. [00:25:51] Speaker 00: That's not a complete abandonment. [00:25:53] Speaker 00: All the cases here that they've cited that talk about complete abandonment is when they're getting out of the business of carrying product. [00:26:01] Speaker 00: That's not what happened here. [00:26:03] Speaker 00: They didn't get out of the business of carrying the product. [00:26:05] Speaker 00: The same company is doing the same thing they were doing before. [00:26:08] Speaker 00: The other thing I'd point out [00:26:10] Speaker 00: is that even the commission recognizes there is an adverse impact here. [00:26:14] Speaker 00: This is a Joint Appendix 169. [00:26:16] Speaker 00: While it may be the case that INEOS will be subject to some adverse economic effects due to its lack of access to the south at the origin point, the fact is no shipper can reserve service on the canceled points. [00:26:28] Speaker 00: And it says, in any event, we're not getting there because we don't have jurisdiction. [00:26:32] Speaker 00: So the jurisdiction question is fundamental to this. [00:26:35] Speaker 00: And I think that while they do come back later and say, even if we had jurisdiction, we wouldn't exercise it, for the reasons we've talked about in our brief and I talked about in my opening, they haven't given enough of an explanation, a reasoned justification for their failure to exercise that jurisdiction. [00:26:49] Speaker 00: But the fact is, the first question, the first thing, and we understand this may be a matter of sending it back down on this jurisdiction question, [00:26:59] Speaker 00: And that may be as far as it goes, but they have to do that. [00:27:02] Speaker 00: They need to exercise that jurisdiction. [00:27:04] Speaker 00: The harm we face is that they are not doing what Section 3.1 says they're supposed to do. [00:27:10] Speaker 00: And I think that brings it, at least to some extent, in the exception identified in the resolute case. [00:27:16] Speaker 00: By refusing to exercise jurisdiction here, [00:27:19] Speaker 00: They are violating their statutory command to avoid and to stop any sort of prejudice whatsoever. [00:27:26] Speaker 00: That's the language in the statute, and that's the language that should be enforced. [00:27:29] Speaker 00: Undue prejudice. [00:27:31] Speaker 00: I'm sorry? [00:27:32] Speaker 01: Undue prejudice. [00:27:34] Speaker 00: But they didn't even get to that. [00:27:35] Speaker 01: No, no, no, no, no, no. [00:27:36] Speaker 01: But I'm just saying, I'm talking about... Undue prejudice. [00:27:39] Speaker 00: under prejudice whatsoever, but by refusing to exercise their jurisdiction, they have acted outside the statutory command that they're supposed to prevent that from happening. [00:27:48] Speaker 01: Thank you. [00:27:49] Speaker 01: I thank the case under advisement.