[00:00:00] Speaker 02: May it please the court. [00:00:20] Speaker 02: Good morning. [00:00:20] Speaker 02: I'm Michael Sussman. [00:00:21] Speaker 02: I represent the petitioner, Otsego 2000. [00:00:27] Speaker 02: Your Honor's Article 3, Section 2, Clause 1 requires injury, in fact, that is fairly traceable to a defendant's action and may be redressable by favorable judicial decision. [00:00:39] Speaker 02: The Supreme Court reiterated that basic rule in Bank of America Corp versus City of Miami. [00:00:46] Speaker 02: In this case, Your Honor, there's no party to the appeal. [00:00:48] Speaker 02: Marintervina challenged the standing of Otsego 2000. [00:00:52] Speaker 02: But the court last week in a memo requested address to that issue. [00:00:58] Speaker 02: So I would like briefly, at least, to address that issue and answer any questions which the court may have with respect to that matter. [00:01:05] Speaker 02: To establish its standing... Yes, Your Honor. [00:01:09] Speaker 02: Does the organization have members? [00:01:10] Speaker 02: It does not, Your Honor. [00:01:11] Speaker 02: No members. [00:01:12] Speaker 02: It's not a membership organization. [00:01:14] Speaker 02: To establish its standing, an organization must demonstrate, however, that it committed and expended significant resources to accomplish organizational purposes, [00:01:23] Speaker 02: which the challenged agency action frustrated and that those purposes fall squarely within those forwarded by the statute the organization seeks to vindicate. [00:01:33] Speaker 02: Havens Realty versus Coleman established those principles and they've been applied numerous times since. [00:01:39] Speaker 02: Indisputably, an affidavit from JA 260 to 292 established this, Atsego 2000 expended significant organizational resources, [00:01:50] Speaker 02: to ensure proper scrutiny by FERC of this pipeline compressor station expansion project. [00:01:56] Speaker 02: During the administrative review process, it raised numerous issues central to its organizational mission, the preservation of the unique environment in and around Cooperstown, New York. [00:02:06] Speaker 02: This appeal derives from a broader rehearing petition in which Otsego 2000 raised numerous issues, not now before the Court, of particular local environmental and aesthetic concern. [00:02:18] Speaker 02: Atsigo 2000 ultimately concluded that FERC had addressed some of these issues and obtained some concessions of importance to its organizational purpose from the pipeline company. [00:02:36] Speaker 02: My understanding, Your Honor, is that here there was an intense set of organizational activities which were never challenged with regard to standing by anyone. [00:02:45] Speaker 01: But the organization... It doesn't make any difference. [00:02:48] Speaker 01: It doesn't matter if no one challenged it. [00:02:49] Speaker 01: We have an independent obligation to determine... I understand. [00:02:53] Speaker 02: I understand you have that obligation. [00:02:55] Speaker 02: But here, Your Honors, [00:02:57] Speaker 02: The intense and particularized and concrete injury to the organization stems from the lack of inquiry by FERC with regard to an issue of particular importance to that agency, to that organization which has been maintained by that organization throughout the litigation, which is the need to examine the impacts of this particular project with regard to GHG [00:03:21] Speaker 02: This particular inquiry must be justiciable in some manner. [00:03:27] Speaker 02: The nature of the injury here is such that if one applies a too rigorous standing doctrine, it will never be subject to review. [00:03:36] Speaker 04: Well, it could be subject to review by people who live near the project, or it could be subject to review by an associational standing. [00:03:47] Speaker 04: But an organization- You told us in advance that you don't have an associational standing. [00:03:51] Speaker 04: That may mean you don't have standing, but it certainly doesn't mean that no one would have standing. [00:03:55] Speaker 02: But organizational standing does not depend, Your Honor, solely on membership. [00:03:59] Speaker 02: There are cases which indicate... It doesn't depend on it. [00:04:02] Speaker 04: That's the whole point. [00:04:03] Speaker 04: So you have to establish organizational. [00:04:05] Speaker 04: But you said just now that if we don't give you standing, no one would have standing. [00:04:12] Speaker 02: Well, in this particular, I'm speaking about this instance, and here there was a Valentine family, but if you look at the GHG issue, the Valentine would have no greater standing, in fact, than this organization. [00:04:25] Speaker 02: This organization has been advocating for a period, intensely for a period of years with respect to this issue. [00:04:31] Speaker 02: They're the ones who've raised the issue. [00:04:33] Speaker 02: The Valentines were part of the matter, but why would it matter conceptually if the Valentines were part of the case in addition to this organization? [00:04:40] Speaker 02: This organization has had as a principal purpose the vindication of this matter and the insurance that public information is provided which would allow careful analysis in this case and in every case. [00:04:53] Speaker 05: Let me try to ask the standing question a slightly different way. [00:04:56] Speaker 05: Sure. [00:04:59] Speaker 05: Is there anything in the declarations in this case, in your declarations, that show that the Commission's approval of this project [00:05:10] Speaker 05: has impaired the organization's ability to do its work other than the time and resources you spent on the project. [00:05:17] Speaker 05: Absolutely. [00:05:18] Speaker 02: Where? [00:05:18] Speaker 02: Point to those. [00:05:19] Speaker 02: That's what you need to show. [00:05:21] Speaker 02: The work that the organization do is educational. [00:05:23] Speaker 05: No, no, no. [00:05:24] Speaker 05: You need to show me something in the declaration. [00:05:27] Speaker 05: Sure. [00:05:28] Speaker 05: And remember, I'm looking for something that shows [00:05:33] Speaker 05: that the commission's approval of the project has impaired the organization's ability to function, but it has to be something other than the time and resources the organization spent on this case. [00:05:45] Speaker 05: I understand. [00:05:45] Speaker 02: If you... I think that's what you are holding. [00:05:50] Speaker 02: I think that if you look at the affidavits of both Mr. Hsu and Ms. [00:05:54] Speaker 02: Huntsman specifically, they explain that one of the organizational purposes to advance public education and understanding with regard to the issue of GHG. [00:06:04] Speaker 02: What the failure of FERC to do the analysis entails is a lack of public information which is relevant to this organization's intent and purpose to educate and advocate without a neutral, and FERC ought to be a neutral, doing the analyses required. [00:06:21] Speaker 02: What you end up with, the polarization, you have advocacy groups on the one hand, you have advocacy groups on the other hand, and you have no governmental agency, despite NEPA, [00:06:30] Speaker 02: which is doing the required analysis. [00:06:32] Speaker 02: That makes the process of public education and advocacy, which this group is dedicated to in its particular region, much more difficult. [00:06:40] Speaker 02: And that is an injury in fact, because what is required by NEPA [00:06:45] Speaker 02: is the rigorous analysis of all significant environmental effects. [00:06:50] Speaker 02: And with this agency, one would expect this agency would be a fact-gathering agency, has in fact abdicated its responsibility over and again, notwithstanding the decision by this court in the Sierra Club case, has abdicated its responsibility. [00:07:06] Speaker 02: And what that does for organizations like this, Your Honor, is make public education and advocacy more difficult and more polarized. [00:07:14] Speaker 01: That would seem to mean that any organization that has as its object education and advocacy is going to have organizational standing in any agency dispute because they can say that their ability to advocate and educate is impaired by an agency not doing its job. [00:07:40] Speaker 01: I mean, that may be a perfectly [00:07:44] Speaker 01: you know, sound argument, but I don't see how that's consistent with food and water law. [00:07:51] Speaker 02: Well, I think the Supreme Court in Spokio addresses this issue in a more particularized way at page 1549 and 1550 of its decision. [00:07:59] Speaker 02: And there, what the court majority says, and I'm quoting, is the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact. [00:08:11] Speaker 02: In other words, a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified. [00:08:18] Speaker 02: And they cite Federal Election Commission versus Akins, and they cite Public Citizen v. Department of Justice. [00:08:23] Speaker 02: In those cases, those petitioners sought particular information to which they were quote unquote entitled. [00:08:30] Speaker 02: They would deny that information, which was relevant to their advocacy and educational purposes. [00:08:35] Speaker 02: And the court found those denials to give them standing. [00:08:38] Speaker 02: My argument is that very similarly here, [00:08:40] Speaker 02: Advocacy organizations that are working in the public interest to deal with the effects of greenhouse gases are curtailed in that mission by FERC's refusal, systematic refusal now because of its rule making in this process, systematic refusal to gather information in project specific cases and that particularly curtailed advocacy [00:09:00] Speaker 02: To answer your question, Judge Tatel, in this instance, where an organization's purpose is to focus on a specific geographic region, which this entity is clearly doing, they're not any entity, they've been doing this since 1981, and trying to advocate for the aesthetic, environmental, and economic success of that region. [00:09:20] Speaker 02: A project like this, which has potentially deleterious effects, cannot be properly analyzed [00:09:25] Speaker 02: if FARC is going to abdicate its responsibility, and that does impede its ability, that is, the organization's to fill its purpose. [00:09:32] Speaker 02: So you're right, I agree Judge Wilkins, it may be a somewhat expansive doctrine, but I think it's still tailored to that organization's proven track record and purpose. [00:09:41] Speaker 02: It's not just any organization, it's an organization which has, and that's where the Coleman standards come in, devoted significant resources over time to this particular purpose. [00:09:51] Speaker 02: And that advocacy is demonstrated here by [00:09:54] Speaker 02: Oswego's 2000 participation through the years in this process, and it's raising and focusing on this very specific issue. [00:10:02] Speaker 02: So I do think that's sufficient to distinguish it from other organizations, which are even more free-floating, if you will, in their advocacy. [00:10:09] Speaker 02: Here you're wedded to a specific geographic area where this project is forwarded. [00:10:13] Speaker 02: And to your question, Chief Judge Garland, it may be that there are others who have [00:10:18] Speaker 02: standing. [00:10:19] Speaker 02: But there's no doctrine which says that only one party may have standing. [00:10:24] Speaker 04: Allowing to your argument that it's either you or nobody. [00:10:26] Speaker 02: I agree. [00:10:27] Speaker 02: In this case, as I was trying to explain, it's us or nobody. [00:10:30] Speaker 02: It's not that in general there might not have been someone. [00:10:33] Speaker 02: As I pointed out, the Valentines were in this case through the proceeding. [00:10:36] Speaker 02: There was a dispute as to whether they were properly referenced in the petition for review, and we didn't bother to take that point up. [00:10:42] Speaker 02: You didn't bother to do what? [00:10:43] Speaker 02: I'm sorry. [00:10:44] Speaker 05: We didn't bother to appeal. [00:10:47] Speaker 05: It was a decision made. [00:10:48] Speaker 05: Right, no, I know that. [00:10:48] Speaker 05: So you're not contesting. [00:10:49] Speaker 05: The Valentine's aren't petitioners. [00:10:53] Speaker 02: That's correct, as I said. [00:10:54] Speaker 02: In a footnote, we make that point. [00:10:55] Speaker 05: So your stance arises and falls on the standing of the organization. [00:10:58] Speaker 04: That's correct. [00:10:59] Speaker 04: I'm not arguing that, John. [00:11:00] Speaker 04: Okay. [00:11:00] Speaker 04: I think we should give you a chance to let the other judges have a question to go to the merits. [00:11:04] Speaker 02: Go ahead. [00:11:05] Speaker 02: Okay. [00:11:06] Speaker 02: I've reserved three minutes, so I'll try to speak briefly to the merits. [00:11:10] Speaker 02: Basically, our view of the merits is very simple. [00:11:13] Speaker 02: NEPA requires the broadest inquiry as possible. [00:11:17] Speaker 02: And in this sense, it is interestingly analogous to the standing doctrine of the Fair Housing Act, where the Fair Housing Act provides standing as most broadly possible. [00:11:25] Speaker 02: NEPA has a similar substantive provision. [00:11:28] Speaker 02: There is supposed to be broad review. [00:11:31] Speaker 02: What's happened here, and it's not unique to this particular case, it's now been generalized in a number of cases, is that FERC takes the position that certain empirically discernible matters, which ought to be reviewed so the public can understand whether a project meets the NGA standard and the NEPA standard, [00:11:48] Speaker 02: which relates to public interest, public benefit, that relates, particularly at this point in time, to the critical issue of greenhouse gas emissions, the quantum of those emissions, what alternatives there are to those emissions in a particular case. [00:12:03] Speaker 02: If we don't do it in one case, the Hegelian principle is very simple. [00:12:06] Speaker 02: We don't generalize it to other cases. [00:12:09] Speaker 02: Likewise, if we generalize it, we do it in each case. [00:12:11] Speaker 02: It's very simple. [00:12:12] Speaker 02: Here what FERC would like to do is never do it. [00:12:15] Speaker 02: Now, that's very industry cozy. [00:12:17] Speaker 02: We understand all that. [00:12:19] Speaker 02: But the public interest demands more. [00:12:21] Speaker 02: The public interest demands an analysis, as this Court recognized, at least in part, in the Sierra Club case, which is an empirically passable analysis. [00:12:31] Speaker 01: The amici in this case have explained to the Court why... What do you do with the fact that on remand, the Commission tried to do, you know, the analysis in Sierra Club, and what our Court said was, [00:12:44] Speaker 01: Do the analysis or explain why you can't, but you can't just kind of like take the ostrich approach. [00:12:50] Speaker 01: That's right. [00:12:52] Speaker 01: So they explain that they couldn't do the analysis because of the lack of data and all of the assumptions, et cetera, that were necessary. [00:13:03] Speaker 01: And that was not reviewed. [00:13:04] Speaker 01: And that was not reviewed. [00:13:05] Speaker 01: It seems like, you know, you're trying to do an in-run around that case. [00:13:11] Speaker 02: I don't think so. [00:13:11] Speaker 02: Because that case, as Your Honor recognizes, the review that this court did compelled them to do the analysis. [00:13:17] Speaker 02: The analysis may be doable or not doable in any particular case. [00:13:20] Speaker 02: Here they did not do it nor explain why they couldn't do it with any specificity. [00:13:25] Speaker 02: So I don't think you can get around it that simply. [00:13:28] Speaker 02: They should be compelled [00:13:29] Speaker 02: to do the analysis. [00:13:31] Speaker 02: There is no basic reason, and the science advances daily, and it's quite clear from the presentations that have been made by the amici in this case, that the analyses on both ends, up and downstream, is possible to do. [00:13:43] Speaker 02: And what they're... I'm sorry. [00:13:45] Speaker 05: I just want to pick up at your point there. [00:13:47] Speaker 05: The commission says that that's not possible. [00:13:51] Speaker 05: And they say asking the project applicant for that information would be an exercise in futility. [00:13:57] Speaker 05: And then they say why, because the only thing the applicant's doing is delivering the gas to the contracted delivery point. [00:14:07] Speaker 05: So they've given us a paragraph here about why the commission doesn't think it can get the information. [00:14:16] Speaker 05: And our review is for arbitrary and capricious review, right? [00:14:20] Speaker 05: Yes, Your Honor. [00:14:20] Speaker 05: So how do we, what's your best argument for saying that that's [00:14:26] Speaker 05: Commission's explanation for why it can't get the data you want was arbitrary and capricious. [00:14:32] Speaker 05: Because that's what we have to find. [00:14:33] Speaker 02: It's arbitrary and capricious because NEPA commands FERC to do a broad review. [00:14:41] Speaker 02: FERC is entitled to say to an applicant, in order to meet our obligation [00:14:47] Speaker 02: We need from you certain information. [00:14:50] Speaker 02: In this particular case, they do know the two entities, Brooklyn and Mohawk, with whom they have contracts. [00:14:56] Speaker 02: They also are aware of the proportion or percentage of the end use, which will be combustible, how it will be combustible, roughly. [00:15:04] Speaker 02: As this court has said, you don't need exactitude to do the analysis. [00:15:07] Speaker 02: So the idea that they cannot do the analysis, which our own experts have estimated in our papers, and we did that in its submission below, and others have estimated, is simply arbitrary and capricious. [00:15:17] Speaker 02: They're not making an effort. [00:15:19] Speaker 05: My time is up. [00:15:20] Speaker 05: See, what I'm getting at is they give us these reasons. [00:15:22] Speaker 05: And one of the reasons they give is they say, look, it's designed for intermittent peak use. [00:15:27] Speaker 05: It's not even clear what volume of gas will actually be consumed. [00:15:32] Speaker 05: My point is, I understand you don't agree with those reasons. [00:15:36] Speaker 05: What's our basis for saying they're arbitrary comparisons? [00:15:39] Speaker 02: Well, one basis certainly would be to look at the dissentance in the case. [00:15:42] Speaker 02: It's a 3-2 vote in our case. [00:15:44] Speaker 02: And look at the reasoning they adopted, which is far more persuasive as to the availability of analytic tools which would supersede what's being said by the three majority members. [00:15:55] Speaker 02: In other words, [00:15:57] Speaker 02: It would seem to me that there's a strong basis to say it's arbitrary and capricious when the two dissenters point out exactly why the reasoning of the majority is not only facile, but it is subject to a belief that political influences are involved. [00:16:14] Speaker 02: And you know what fosters that here? [00:16:16] Speaker 02: You know that, and I'm sure the court is certainly aware of this, because you've referred to it as a stable decision, there are [00:16:22] Speaker 02: executive orders, there are regulations which the various environmental entities have already forwarded which show how to do the analysis. [00:16:30] Speaker 02: It was only by an executive order by the President which basically commandeered those and say don't do them. [00:16:36] Speaker 02: There are already established ways of doing this which have been recognized. [00:16:39] Speaker 04: What should we take from the fact that they, that at least Ms. [00:16:42] Speaker 04: LeFleur who was on the original panel didn't dissent until [00:16:48] Speaker 04: the re-hearing when the policy issue was raised. [00:16:51] Speaker 04: Is she dissenting only to the policy change? [00:16:54] Speaker 04: Why didn't she dissent from the original decision? [00:16:57] Speaker 02: Obviously, Hirano would have to answer for herself. [00:17:00] Speaker 04: My interpretation of her... You're drawing our attention to the fact that there were dissents. [00:17:03] Speaker 02: I'm reading the dissent, and the way the dissent reads to me, she is making clear that the analysis which Judge Taddle is referring to, Judge Taddle is referring to, is doable. [00:17:13] Speaker 02: Thank you, thank you. [00:17:13] Speaker 02: I'm sorry. [00:17:15] Speaker 02: I'm only suggesting where you should be. [00:17:17] Speaker 02: Several of you. [00:17:18] Speaker 02: Several of you. [00:17:19] Speaker 02: But that's another question for a different day. [00:17:21] Speaker 02: Anyway, the point is, whatever her motivation, whatever her timing, people come to things late. [00:17:27] Speaker 02: She does present, as does Commissioner Glick, a roadmap for how the analysis could be done. [00:17:32] Speaker 02: My time is way past, and I think if you're indulged in this. [00:17:36] Speaker 02: Don't go away yet. [00:17:37] Speaker 02: I have a further question. [00:17:38] Speaker 04: I'm happy to be here, but I'm going to overstate my work. [00:17:44] Speaker 04: We'll hear from Mr. Danley. [00:17:45] Speaker 04: Is that right? [00:17:49] Speaker 03: May it please the Court? [00:17:50] Speaker 03: I'm James Danley, on behalf of the Respondent of the Federal Energy Regulatory Commission. [00:17:55] Speaker 03: I think the briefs do an excellent job laying out most of our position, but I want to mention a couple of things, beginning with one quick clarification. [00:18:04] Speaker 03: The standard for a HEPA review is not and cannot be the broadest possible inquiry, as opposing counsel stated, in fact. [00:18:12] Speaker 03: NEPA is guided by a rule of reason which ensures the agencies determine whether and to what extent to prepare documents in the NEPA process based on the scale and scope of the project in question. [00:18:25] Speaker 03: That has to be the case because NEPA by CEQ regs actually contemplates [00:18:30] Speaker 03: a cascading set of different types of documents depending upon just how large the project is. [00:18:36] Speaker 03: EAs are contemplated to be short and concise. [00:18:39] Speaker 03: EISs are far more involved. [00:18:41] Speaker 03: So it cannot be the broadest possible analysis in all circumstances that would involve an infinite period of time looking at every conceivable aspect. [00:18:50] Speaker 03: I would like to talk about standing for just a brief moment. [00:18:58] Speaker 03: Because representational standing is not available to Otsego, organizational is the only one that can be available, and there is a distinction to be made from the case that was cited by opposing counsel regarding the inability to access information. [00:19:14] Speaker 03: If the interest of the organization is impaired and the actions by the government actually trample them doing their work, that is one thing. [00:19:26] Speaker 03: And so if you restrict them from getting information, that is actually impeding their activities. [00:19:31] Speaker 03: However, the vast majority of cases [00:19:35] Speaker 03: that are cited in the declarations refer to expenditures that the case law is fairly persuasive don't count. [00:19:42] Speaker 03: For example, educating the public, that's food and water watch, that doesn't count. [00:19:46] Speaker 03: Funds spent on litigation or in the pursuit of specific advocacy, again, doesn't count. [00:19:51] Speaker 03: And remember, that goes back to the basics of standing. [00:19:56] Speaker 03: Lujan requires a particularized injury. [00:19:58] Speaker 03: And when you are advocating for an outcome for a rule that will ultimately be promulgated that's generally applicable, that's not particularized. [00:20:05] Speaker 03: Further, the reallocation of lobbying expenses in Center for Law and Education, that doesn't count. [00:20:11] Speaker 03: So instead, these have been described by the courts variously as self-inflicted injuries that are the decisions made by the organizations. [00:20:19] Speaker 05: Let me just interrupt you. [00:20:20] Speaker 05: I agree with you about most of the declarations. [00:20:22] Speaker 05: But in the Dillingham, I think, is it Dillingham? [00:20:30] Speaker 05: Yeah, the Dillingham affidavit says that since the project was approved, they've spent time and money monitoring air quality and other health consequences of the project. [00:20:45] Speaker 05: Why isn't that enough? [00:20:46] Speaker 03: Yes, sir, Your Honor. [00:20:48] Speaker 05: It's at paragraph six. [00:20:51] Speaker 03: So you, in fact, anticipated where I was going with this. [00:20:56] Speaker 03: The vast majority, as I said, clearly fall into that handful of off-limits categories to establish standing. [00:21:02] Speaker 03: But there are a couple of places in which the declarations talk about the spec analysis. [00:21:11] Speaker 03: And that is described unevenly across the declarations. [00:21:15] Speaker 03: So in some of the declarations, it appears that that is a form of mitigation of the consequences of the decision made by government. [00:21:22] Speaker 03: And that, depending upon how the panel construes those declarations, could be enough. [00:21:27] Speaker 03: Other declarations, though, make it fairly clear that when it was originally started, for example, in the SHU declaration, paragraph 13, that's JA 282, that this was done for the purpose of litigation. [00:21:41] Speaker 03: quoting, in early 2015, Onsega realized that independent air quality and public health data should be collected to document current conditions. [00:21:48] Speaker 03: That was done. [00:21:48] Speaker 05: Well, what do we do when we have two declarations that seem one would be adequate and one suggests it may not be? [00:21:56] Speaker 03: I'm so sorry, you're in a little hard of hearing. [00:21:58] Speaker 05: Oh, sorry. [00:21:59] Speaker 05: What do we do when we have two affidavits? [00:22:01] Speaker 05: Because I saw that point you just made also. [00:22:05] Speaker 05: One affidavit says they're doing monitoring. [00:22:07] Speaker 05: The other suggests [00:22:09] Speaker 05: that perhaps that monitoring is related to the litigation, right? [00:22:12] Speaker 05: Yes. [00:22:12] Speaker 05: What do we do when we have two affidavits that seem to say different things? [00:22:19] Speaker 05: Is it enough that one of the affidavits is by itself sufficient, or if the other affidavit undermines it, what do we do with that? [00:22:26] Speaker 03: So the first thing to mention is that at the outset of litigation, it is the petitioner's burden to establish their standing. [00:22:34] Speaker 05: And only if it's not self-evident. [00:22:36] Speaker 03: That's true. [00:22:37] Speaker 05: Yes, sir. [00:22:37] Speaker 05: Obviously, nobody complained about their standing here, so it's a little hard to say. [00:22:42] Speaker 03: That is true. [00:22:44] Speaker 05: OK. [00:22:45] Speaker 05: You didn't, Dominion didn't, nobody did. [00:22:48] Speaker 03: I acknowledge that. [00:22:51] Speaker 03: Only we did. [00:22:52] Speaker 03: Picky, picky, picky. [00:22:53] Speaker 03: No, no, no, Your Honor. [00:22:54] Speaker 03: I acknowledge that you didn't. [00:22:56] Speaker 03: I realize that... But that goes to the question of self-evident, doesn't it? [00:23:00] Speaker 03: Come on. [00:23:01] Speaker 03: It has to. [00:23:02] Speaker 03: It does, but you have an independent responsibility to do exactly what you did, which is to look into it. [00:23:07] Speaker 05: To decide standing, but not to resolve the self-evident issue. [00:23:10] Speaker 03: No, that's true. [00:23:13] Speaker 03: I would say that that horse has left the barn. [00:23:15] Speaker 03: It's not self-evident if we're engaged in 15-minute colloquies at this point based on the possible informants. [00:23:19] Speaker 05: But the question is whether they had to do it when they filed their petition. [00:23:21] Speaker 03: Yes. [00:23:23] Speaker 05: The horse hadn't left the barn at that point. [00:23:25] Speaker 03: So it is required to establish standing at the time the [00:23:37] Speaker 03: the Article 3 action commences. [00:23:39] Speaker 03: Advanced Management Tech, VFAA 211, F3rd, 633 – that's a 2000 decision from the D.C. [00:23:45] Speaker 03: Circuit – says that if the petitioner lacks standing at the time the action commences, they are not entitled to a federal judicial forum. [00:23:52] Speaker 03: So in the opening salvo of approaching the bench here to get relief, that standing has to be demonstrated. [00:23:59] Speaker 03: Now, I'm not – I'm saying that is a mandatory requirement. [00:24:02] Speaker 03: to open the courthouse doors. [00:24:04] Speaker 03: I haven't yet spoken as to what you should do, which was your original question, Your Honor, when you have seemingly conflicting affidavits. [00:24:10] Speaker 03: My response to that is I could imagine any number of scenarios. [00:24:14] Speaker 03: One is they began it in anticipation of litigation and realized, wow, this is really going to be helpful down the road, and they continued it. [00:24:19] Speaker 03: Maybe that transmogrification of purpose is sufficient. [00:24:22] Speaker 03: I'm not sure that it can actually be extracted from the affidavits as written, but that is, of course, a decision for you to make. [00:24:26] Speaker 03: Further, it could be that different people who are acting as officers of the organization had different purposes. [00:24:33] Speaker 03: I don't know. [00:24:34] Speaker 03: All I can say is that it is rather equivocal what the purpose of it was, and to the extent that it does fall within American society for prevention of cruelty to animals, requirement that litigation and advocacy not count to confer organizational standing, I think that forecloses their opportunity here. [00:24:55] Speaker 03: Did I answer your question properly, Your Honor? [00:24:59] Speaker 05: Why don't you go on to the merits? [00:25:01] Speaker 05: I mean, unless others have. [00:25:03] Speaker 05: But let me start you on the merits, okay? [00:25:05] Speaker 05: Yes. [00:25:05] Speaker 05: Is it the commission's view that if it can't identify the customers and their location as they could in Sierra Club? [00:25:18] Speaker 05: that the greenhouse gas emissions are not reasonably foreseeable? [00:25:26] Speaker 05: Is that the commission's position? [00:25:27] Speaker 03: That is not the position. [00:25:29] Speaker 03: It is not a simple matter of that. [00:25:31] Speaker 03: Well, what is the commission's position? [00:25:33] Speaker 03: The commission's position is when the emissions of downstream GHG – when downstream GHG emissions are reasonably foreseeable, then an inquiry will be performed as required by NEPA and – No, that's not my question. [00:25:46] Speaker 05: My question was – [00:25:48] Speaker 05: Is it the Commission's position that they're not reasonably foreseeable in situations where you can't identify the location and nature of the customers? [00:25:59] Speaker 05: That's my question. [00:26:02] Speaker 03: It is the commission's position as expressed in the order on remand after Sable Trail that under certain circumstances, the court had instructed us in Sable Trail that there is a direct connection that is reasonably foreseeable. [00:26:15] Speaker 03: It has to be on a case-by-case basis because every one of these projects is different. [00:26:19] Speaker 03: So I would be reluctant to draw a line that is not in any of the commission's promulgations and is not mandated by the court. [00:26:30] Speaker 03: If we look at the facts of Sable Trail – I'm sorry, Your Honor, please. [00:26:35] Speaker 05: Well, okay. [00:26:35] Speaker 05: In this case, the Commission says, unlike Sable Trail, we don't know who the customers are, right? [00:26:43] Speaker 05: This gas is just being delivered to local distribution companies, right? [00:26:46] Speaker 03: Yes, Your Honor. [00:26:48] Speaker 05: Okay. [00:26:49] Speaker 05: But why not – why shouldn't the Commission ask for it as part of the application process? [00:26:55] Speaker 05: The Commission says that would be futile, but how does the Commission know that unless it asks? [00:27:00] Speaker 03: So that, of course, is a question that could have been asked. [00:27:04] Speaker 03: It's worth mentioning that they're not jurisdictional to Austin, so we can't compel the information. [00:27:07] Speaker 03: No, no. [00:27:08] Speaker 05: You asked the applicant. [00:27:09] Speaker 03: Oh, the applicant. [00:27:10] Speaker 03: OK, sure. [00:27:10] Speaker 03: That, of course, is a question that could be asked. [00:27:12] Speaker 03: Right. [00:27:13] Speaker 03: That's my question. [00:27:14] Speaker 03: I think it's worth keeping in mind several things. [00:27:17] Speaker 05: I mean, that's what the dissenter points at. [00:27:20] Speaker 05: The dissenter says the commission doesn't know because the commission doesn't ask. [00:27:25] Speaker 05: Right? [00:27:26] Speaker 05: So why not ask? [00:27:27] Speaker 03: So, your honor, there are any number of possible questions that could be asked in the scope of any process. [00:27:33] Speaker 03: This process produced an EA because it is a relatively small project of 60 acres, not of new linear pipe, but instead of just additional intermittent compression capacity. [00:27:45] Speaker 03: that is located at a couple of compression stations. [00:27:48] Speaker 03: Even given the fact that there was a reduced scope because it was an EA, not an EIS, the process was quite robust. [00:27:56] Speaker 05: I just want to interrupt you about that. [00:27:57] Speaker 05: I don't mean to interrupt you, but that was a question I wanted to ask you. [00:28:00] Speaker 05: Is that significant in terms of the regulatory requirement of how you assess an indirect effect? [00:28:08] Speaker 05: Does it make a difference that Sierra Club was an EIS and this is a [00:28:12] Speaker 03: not not for no it doesn't go to whether or not the indirect effect analysis changes that that is the same across some I was getting I'm sorry so just my simple question is I understand that this is a not a great big project but why would why does the Commission say it would be futile to ask so there are two reasons why you the this information is in itself not the dispositive thing [00:28:41] Speaker 03: that the petitioners or dissenters might think. [00:28:43] Speaker 03: And if you'll indulge me in just two seconds, I'll explain. [00:28:47] Speaker 03: The first reason is that this case is unlike Sable Trail in that Sable Trail had a pipe to generators. [00:28:53] Speaker 03: That was the entire purpose, in the words of the court, for the project. [00:28:56] Speaker 03: It had a clear heat rate and efficiency, and you knew what the chemistry would be at the end of burning the gas that the court said was reasonably foreseeable. [00:29:02] Speaker 03: In this case, we have multiple compounding uncertainties. [00:29:06] Speaker 03: And I want to be clear, arithmetically, this is multiplicative, not additive. [00:29:10] Speaker 03: Every time you increase one of these degrees of freedom in the calculation, it becomes harder and harder to tether any number to reality, so it becomes more and more arbitrary. [00:29:19] Speaker 03: This is a small project. [00:29:20] Speaker 03: It is for additional capacity only. [00:29:22] Speaker 03: It is on an intermittent basis for peak use. [00:29:24] Speaker 03: Unlike the generators, LDC's customers vary widely in the efficiency of burning. [00:29:28] Speaker 05: But all the gas is going to be burned, correct? [00:29:31] Speaker 03: No, you're not. [00:29:33] Speaker 03: The gas may, the gas will ultimately go somewhere to be burned, but what's important to understand here, and I was about to come to that as the next point, the LDCs are connected to other transmission pipelines, which means they could displace this additional compression at peak times, could displace more expensive gas from other transmission pipelines connecting to Mohawk and Brooklyn. [00:29:53] Speaker 03: Further, they wouldn't be buying the gas if they weren't going to burn it, correct? [00:29:58] Speaker 03: They would not buy gas if they were not going to burn it. [00:30:01] Speaker 03: But the point is that for every, we do not know, and we cannot know, I argue, that if just because they buy this gas to burn it, and they don't always burn it, often their marketing affiliates will sell it. [00:30:14] Speaker 03: If they don't need it, the capacity is released. [00:30:16] Speaker 03: But assuming that they do burn it, that could just as easily displace gas coming from another... I got that. [00:30:22] Speaker 05: I understand that. [00:30:23] Speaker 05: But you say these are good reasons why on this current record the Commission doesn't know. [00:30:28] Speaker 03: Yes. [00:30:28] Speaker 05: My only question is, why not require the applicant to ask its customers for as much information on that subject as possible? [00:30:39] Speaker 05: Maybe in the end you'll never get it, but unless you ask, we're just guessing here. [00:30:43] Speaker 03: So it could have been asked for. [00:30:46] Speaker 03: I will say that in the process of an NOI for scoping, a scoping meeting, an NOI for a second scoping meeting, a second scoping meeting, the promulgation of the EA, the acceptance and response to comments, the initial decision certifying the project and then rehearing, that was not a subject that was demanded throughout the process. [00:31:08] Speaker 03: when the opportunity to raise infirmities in the record could have arisen. [00:31:13] Speaker 03: We don't have a... Are you saying then that SIGO did not ask you to ask? [00:31:19] Speaker 03: During the process of producing the EA, that's correct. [00:31:25] Speaker 05: Did they ask... Did they raise this in their petition for re-hearing? [00:31:31] Speaker 03: Yes, they asked for... Well, in the petition for re-hearing, they did ask [00:31:36] Speaker 03: for specific analysis, but in the process when the NEPA document was being produced, they asked for a life cycle, I can't remember the wording, I'm afraid, but it's the life cycle analysis, which would be the broadest possible inquiry, to use the opposing counsel's terminology, and that simply is not a requirement under NEPA. [00:31:57] Speaker 05: So your argument then is that this is all the issues I'm raising [00:32:02] Speaker 05: about why the Commission didn't ask are not properly before us. [00:32:05] Speaker 03: Is that correct? [00:32:06] Speaker 03: That's correct. [00:32:06] Speaker 03: Those are forfeited. [00:32:08] Speaker 03: We do not argue that there is forfeiture of arguments that are based directly on the legal holdings of the 2017 Sierra Club decision, but as it comes to the NEPA document, that extremely robust process with multiple opportunities to weigh in and critique, those have to be forfeited. [00:32:23] Speaker 03: There has to be some degree of finality. [00:32:25] Speaker 03: NEPA and the Commission's processes contemplate that. [00:32:29] Speaker 03: Now, I am well aware of the fact that I've gone three minutes over. [00:32:32] Speaker 03: Do you have any questions, Your Honors? [00:32:35] Speaker 03: Apparently not. [00:32:36] Speaker 03: Thank you. [00:32:37] Speaker 04: Thank you, Your Honor. [00:32:45] Speaker 00: Good morning, Your Honors. [00:32:46] Speaker 00: May it please the Court? [00:32:47] Speaker 00: My name is Kate Stetson, representing the Intervenor Dominion Transmission. [00:32:51] Speaker 00: I want to start by clarifying a couple things on standing, if I could. [00:32:56] Speaker 00: Judge Tatel, you asked about the Dillingham Declaration, and in particular whether the paragraph devoted to discussion of monitoring was or was not separate from the litigation, because of course we know from Food and Water Watch and from other cases that [00:33:11] Speaker 00: expenses that are incurred, including an investigating before litigation, or expenses relating to testing to see if the defendant has violated the law are self-inflicted injuries. [00:33:22] Speaker 00: That's what this court called it in the Equal Rights Center versus Post Properties case. [00:33:27] Speaker 00: So if you look at the Dillingham Declaration in paragraph 6, [00:33:30] Speaker 00: On Joint Appendix 274, Ms. [00:33:34] Speaker 00: Dillingham begins by saying, when it became apparent that our efforts to stop the project or secure needed mitigation might fail, [00:33:41] Speaker 00: Otsego 2000 began to document baseline conditions at the site. [00:33:46] Speaker 00: So that was investigation, obviously, in preparation for litigation. [00:33:51] Speaker 00: And I say that because, as Mr. Danly touched on, the tenor and the thrust of all of these declarations save, of course, for the Valentines, who are not petitioners here. [00:34:02] Speaker 00: But the thrust of all of these declarations is that there was time and money and resources spent [00:34:08] Speaker 00: in opposition to this project. [00:34:10] Speaker 00: You can see that in the Pope Declaration of pages 5 and 6, John Appendix II, 69 to 270, Dillingham Declaration 5, Shue Declarations pages 3 to 11, [00:34:23] Speaker 00: all of them detailing the investigation and opposition that went into this project, that was the basis for standing. [00:34:30] Speaker 00: Now what you heard Mr. Sussman say this morning is something quite different. [00:34:35] Speaker 00: What you heard Mr. Sussman say, attaching himself to FEC versus Akins, is this is an informational injury. [00:34:42] Speaker 00: You did not hear Mr. Sussman cite anything to a declaration because there's nothing in the declarations, or in the brief for that matter, which doesn't contain a standing section, [00:34:52] Speaker 00: that talks about the kind of informational injury that FEC v. Akins was talking about. [00:34:58] Speaker 00: That is the difference, I would say, between this case and a case like PETA, which involved a denial both of information that an entity said that it needed in order to advocate and a denial of an avenue of redress for that organization [00:35:16] Speaker 00: to challenge certain treatment of certain types of poultry that weren't covered under a particular regulation. [00:35:22] Speaker 00: That is an informational injury that at times has been found to give rise to standing. [00:35:27] Speaker 00: There is nothing in these declarations [00:35:29] Speaker 00: that supports this belated claim of informational injury. [00:35:33] Speaker 00: And I would say, too, that the standing here is not self-evident. [00:35:37] Speaker 00: My failure to raise standing in the brief was an oversight. [00:35:40] Speaker 00: And I say that because in the usual case, as Judge Tatel, you pointed out, an organization like this usually has members that advocate for their own [00:35:52] Speaker 00: recreational or aesthetic interests. [00:35:55] Speaker 00: I made the assumption that this was one such entity. [00:35:57] Speaker 00: It's not. [00:35:58] Speaker 00: We've established it doesn't have members. [00:36:00] Speaker 00: We've established it's an organization seeking its own standing, and these declarations established that the basis for its standing is improper. [00:36:08] Speaker 00: Briefly on the merits. [00:36:10] Speaker 05: Can I just ask you a specific question about that? [00:36:12] Speaker 05: I'm curious about your reactions to the question I was asking Commission Council about whether or not it's really futile for the Commission to ask your client to produce as much information as possible about where and how this gas will be consumed. [00:36:32] Speaker 00: I think I probably have three responses if I could. [00:36:36] Speaker 00: The first is to echo Mr. Ganley's point that this, of course, was not an argument that was presented to the Commission, so it's forfeit. [00:36:42] Speaker 00: Got that. [00:36:43] Speaker 00: Okay. [00:36:43] Speaker 06: Set that aside for a minute. [00:36:44] Speaker 00: The second point is to echo your observation that when you're talking about [00:36:50] Speaker 00: the commission's explanation. [00:36:51] Speaker 00: There's only a certain extent to which the court probably should dig underneath that. [00:36:55] Speaker 00: But the third substantive response is when it comes to finding information about one's customers' customers, I do think that it is futile in this context, particularly even if you could take a snapshot at any particular time about where certain gas is either coming from or going to. [00:37:15] Speaker 00: when it is routed through a local distribution company, through that LDC's pipeline systems, and to a number of end customers, all of whom may change depending on the weather and the year, even if you could take a snapshot of that at some time during the scoping process, that snapshot wouldn't do much good at the time of decision or at the time of challenge. [00:37:37] Speaker 05: Well, how do we know that unless we ask? [00:37:39] Speaker 00: I'm sorry? [00:37:40] Speaker 05: How do we know that unless we ask? [00:37:42] Speaker 05: In other words, [00:37:44] Speaker 05: I hear what you're saying, and I understand what the Commission says about this, but it seems curious to me that everybody is saying, you say in your brief, you say in your brief at page 23, you say, how gas will be used is not foreseeable. [00:38:01] Speaker 05: The Commission says it's futile to ask. [00:38:05] Speaker 05: But we wouldn't be guessing about any of this if the Commission were required to simply ask Dominion to get all the information it can about the use. [00:38:15] Speaker 05: And maybe the answer from Dominion's customers will be, you know, we just don't know because, you know, it could go here, it could go there, we don't know what time of year it will be. [00:38:24] Speaker 05: Then we'd have a record. [00:38:26] Speaker 05: We just don't have a record. [00:38:28] Speaker 00: I think that there are many aspects of this appeal that we wouldn't be guessing about if the petitioner had raised them below. [00:38:36] Speaker 00: You have the Joint Appendix 84, the commission saying no party. [00:38:38] Speaker 05: But suppose they had raised it. [00:38:41] Speaker 00: Suppose they had raised the indirect effects that we're now talking about here. [00:38:44] Speaker 05: Let's just assume for a minute we don't agree that it's not raised. [00:38:48] Speaker 05: It's hypothetical. [00:38:49] Speaker 00: So assuming that it's raised. [00:38:51] Speaker 05: Why not ask? [00:38:52] Speaker 00: I think the reason not to ask is, for the most part, the reason that I've already given, which is NEPA is not a statute that asks for information for information's sake. [00:39:05] Speaker 05: And if you have FERC – if you have the commission explaining to this court – Susan, this is information about whether or not there are indirect environmental effects from the project that the commission is about to license, namely emission of greenhouse gases. [00:39:21] Speaker ?: Yes. [00:39:21] Speaker 05: information for information's sake? [00:39:24] Speaker 00: Well, with one exception with respect to the methodology question that Judge Wilkins asked, which I wanted to get to in a moment, but with respect to your question about customers' customers, to some extent I think this is information for information's sake because of the changing nature of that customer base. [00:39:41] Speaker 00: So simply asking for information about every possible customer upstream or downstream is not necessarily going to inform FERC's view [00:39:48] Speaker 00: When the Commission says it's not achievable for us to ask questions about the pipelines, or in this case the compressor station modifications, [00:40:00] Speaker 00: leading to the LDCs, which lead to customers, I think there is an extent to which we need to take that futility determination on its face. [00:40:11] Speaker 00: The other related issue, and the one I mentioned that relates to the question Judge Wilkins asked, if I could pause on this for just one minute, there are, of course, differences both in foreseeability and causation between this case and Sable Trail. [00:40:24] Speaker 00: But the question about, and I think is an important one too, because Sable Trail held that the Commission either had to explain itself or do the analysis. [00:40:34] Speaker 00: And here, at Joint Appendix 100 to 101, the Commission explains why it cannot do the analysis. [00:40:42] Speaker 00: So when I talk about information for information's sake, [00:40:45] Speaker 00: Even if the Commission were required to go back and gather information about Dominion's customers' customers, even if the Commission were required to go back and analyze emissions from indirect effects which were not preserved below, at the end of the day, he would have the problem that the Commission on remand and sable trail identified. [00:41:05] Speaker 00: which is that the Commission has yet to come up with a viable method for testing how those emissions affect climate change project by project. [00:41:15] Speaker 01: But, I mean, I guess after Sierra Club or Sable Trail, given the way that the NEPA regulations are written, I'm talking about 40 CFR 1502, [00:41:33] Speaker 01: point 22 and I think it's 23. [00:41:37] Speaker 01: And those are written on the assumption, right, that the agency is willing to get all available information and try to get complete information because it says that, you know, where the information isn't available or complete, then the agency should explain why that is. [00:42:01] Speaker 01: So you wouldn't have that [00:42:03] Speaker 01: that regulation, you know, stating that obligation unless it were assumed that an agency would, you know, make every attempt to get complete information that is available. [00:42:19] Speaker 01: So given that and given what we said in disabled trail, why isn't Judge Tatel completely right that, you know, there should be at least an obligation to make the record? [00:42:34] Speaker 00: I think that it pains me to say Judge Tatel is wrong, but the reason that Judge Tatel is not completely right is that in this... [00:42:50] Speaker 00: In this case, what the Commission is being asked to do is something the Commission has already explained why it cannot do. [00:42:57] Speaker 00: That was not the case in Sable Trail. [00:42:59] Speaker 05: Well, actually, the Commission's explanation about why it can't get the information is all about upstream effects. [00:43:10] Speaker 05: The Commission's actually – There's almost nothing on downstream other than this sentence about intermittent – intermittent. [00:43:19] Speaker 00: Well, I think there are two different strands of argument here. [00:43:22] Speaker 00: One of them has to do with information gathering, and one of them has to do with using the information to assess climate change. [00:43:28] Speaker 00: Your questions, Judge Tatel, are about the information gathering. [00:43:31] Speaker 00: Right. [00:43:31] Speaker 00: And you're right. [00:43:32] Speaker 00: With respect to upstream effects, as this Court has held in other Sierra Club cases, the 827 F-39 Sierra Club, [00:43:39] Speaker 00: upstream information about where gas is coming from. [00:43:43] Speaker 00: When the Commission says, we don't know where in this shale play the gas is coming from, that is sufficient. [00:43:49] Speaker 05: You're right. [00:43:50] Speaker 05: I wasn't, I mean, just speaking for myself, I thought the Commission's explanation about upstream was fine. [00:43:58] Speaker 05: But by contrast, there's nothing quite like that for downstream. [00:44:03] Speaker 00: No, and I think that is because the Commission... It's because the Commission has an ass. [00:44:08] Speaker 00: I'm sorry? [00:44:09] Speaker 05: Never mind. [00:44:10] Speaker 00: The Commission, with respect to downstream, explained why this case was different from Sable Trail with respect to reasonable foreseeability and causation. [00:44:20] Speaker 00: It didn't rely on an information issue with respect to downstream. [00:44:26] Speaker 00: But with respect to what the Commission can do with that information, that was my point to Judge Wilkins. [00:44:31] Speaker 04: I'm not sure why. [00:44:32] Speaker 04: So it seems to me you're mixing two arguments. [00:44:35] Speaker 04: You're mixing the first argument about how much gas is going to be emitted with the second argument, which is what is its consequence for climate change. [00:44:48] Speaker 04: And in Sable Trail, we distinguish those two arguments. [00:44:52] Speaker 04: We concluded that there was an indirect effect with respect to the release of the gas. [00:44:59] Speaker 04: And we said, [00:45:02] Speaker 04: So our discussion so far has explained that FERC must either quantify and consider the project's downstream carbon emissions or explain in more detail why it cannot. [00:45:12] Speaker 04: Then it goes on to a second argument. [00:45:14] Speaker 04: Sierra Club proposed a further analytical step. [00:45:17] Speaker 04: That's the one about social cost of carbon. [00:45:19] Speaker 04: That's the one that's discussed at 100 to 101. [00:45:23] Speaker 04: But we've never suggested that even if FERC thinks that it can't evaluate the climate effect, that it doesn't have to evaluate the emissions effect. [00:45:33] Speaker 04: In fact, we have subsequent cases where we agreed that social cost of carbon wasn't the model that they had to apply. [00:45:40] Speaker 04: But that didn't absolve them of the responsibility [00:45:44] Speaker 04: the indirect effect of gas release. [00:45:49] Speaker 04: And I think you're mixing the two arguments. [00:45:51] Speaker 00: I don't intend to, Chief Judge Garland. [00:45:53] Speaker 00: My point with respect to the indirect effects is, and this again assumes you get past standing in our failure to preserve argument, my point on indirect effects is that there are qualitative distinctions between this case, both with respect to the scope of the project and reasonable foreseeability and causation that distinguish it from Sable Trail in that respect. [00:46:13] Speaker 00: My further point on the use of the information, even if it had been gathered, [00:46:19] Speaker 00: was that NEPA is a rule of reason statute. [00:46:22] Speaker 04: And when you have the commission already on record, both under... So is your position that even if it were foreseeable how much greenhouse gas, how many, how much, whatever the right word is for a problem, greenhouse gases were emitted because it all went to a single plant and was all burned in that single plant, and every day we knew exactly how much was released, you would say still not required because there's no [00:46:48] Speaker 04: tests like social cost of carbon, which can evaluate greenhouse gases. [00:46:51] Speaker 04: Is that your position? [00:46:52] Speaker 04: I think that's totally inconsistent with what we said. [00:46:55] Speaker 05: It's also not the Commission's position. [00:46:58] Speaker 05: Right. [00:46:59] Speaker 00: I think it is. [00:47:00] Speaker 00: It's consistent with what the Commission says at pages 100 to 101 of the Joint Appendix. [00:47:05] Speaker 04: That's why they reject the social cost of carbon test. [00:47:08] Speaker 04: That's not why they reject the indirect effect. [00:47:12] Speaker 04: But let me just be clear on Dominion's position. [00:47:14] Speaker 04: Dominion's position is [00:47:15] Speaker 04: that even if every single bit of the gas could be traced to a burn in one location, the burn would still not be an indirect effect. [00:47:25] Speaker 04: because you couldn't measure its effect on climate change rather than just on the release of gas. [00:47:29] Speaker 00: Is that your position? [00:47:30] Speaker 00: I see your point. [00:47:32] Speaker 00: No. [00:47:32] Speaker 00: If what we are doing here is looking at something that looks exactly like a sable trail scenario, you have a pipe to a plant that's going to burn the gas, I don't think it would be available to us to argue that that's not an indirect effect. [00:47:48] Speaker 04: That's what I understand the second point. [00:47:50] Speaker 00: Yes, and it is the second point that I was making, which is, what do you do with that indirect effect of the information? [00:47:55] Speaker 04: That's a separate argument on whether they have to do anymore after that. [00:47:57] Speaker 04: That's correct. [00:47:57] Speaker 04: Let me ask you another question. [00:47:58] Speaker 04: With respect to the policy change? [00:48:00] Speaker 00: Yes. [00:48:01] Speaker 04: All right. [00:48:01] Speaker 04: I understand the argument that this is within the discretion. [00:48:05] Speaker 04: It's not an enforcement question. [00:48:07] Speaker 04: Different administrations take different positions, et cetera. [00:48:13] Speaker 04: One of the reasons that they give is, and this is at page 86, [00:48:21] Speaker 04: is a causation reason. [00:48:24] Speaker 04: That is, if the argument – on the one hand, you could say the argument is simply we, FERC, are saying that if NEPA doesn't require us to do it, we're not going to do it. [00:48:34] Speaker 04: That's a classic discretionary argument. [00:48:37] Speaker 04: I can't tell, frankly, whether that's the position they're taking or whether they're taking the position reflected in the previous paragraph [00:48:45] Speaker 04: that there's no causation because the grant of the certificate of need and necessity, convenience and necessity isn't enough for causation. [00:48:56] Speaker 04: Because that part seems inconsistent with our decision that's here. [00:49:00] Speaker 00: I think if it were the latter, that does seem inconsistent. [00:49:03] Speaker 00: I understood paragraph 44 of the Commission's decision, this is Joint Appendix 86, to mean that after experimenting for a couple years with setting out upper bound theories that the Commission took care, I think, in those cases to explain we are not attributing causation to these numbers. [00:49:22] Speaker 00: We're just going to lay these numbers out. [00:49:24] Speaker 00: that the Commission concluded, just as you mentioned, Chief Judge Garland, in a policy decision, that it was no longer going to incorporate that into its environmental NEPA analysis, that it was not useful for all of the reasons that it had explained. [00:49:40] Speaker 00: It wasn't useful to the NEPA analysis if it couldn't tie those upper bound effects to either reasonable foreseeability or causation. [00:49:49] Speaker 04: That is... It's a causation question I'm interested in. [00:49:52] Speaker 04: Yes. [00:49:52] Speaker 04: Do you read them as taking the position that the legal causation is not satisfied by the Commission's ability to grant or not grant the certificate? [00:50:08] Speaker 00: I don't read them as taking that broad position, because I think Stable Trail forecloses that broad position. [00:50:15] Speaker 00: What Stable Trail held, of course, was that where you have a pipeline delivering gas to a plant, the certificate process was a legal cause of that. [00:50:24] Speaker 00: What I understood the Commission to be saying here is that where you have not a pipeline delivering gas to a plant, but modifications to or a couple new compressor stations, [00:50:36] Speaker 00: delivering gas to a local distribution company, which delivers it through its pipes to unknown end users, you don't have the kind of pinpoint legal cause that you have. [00:50:46] Speaker 04: So it's an approximate cause argument, not a commission doesn't have authority to do this. [00:50:52] Speaker 00: That's my understanding, yes, that there are just too many additional data points, essentially, between what approval is happening here, the approval to modify a compressor station, and the end-use burning of the gas that was found to be sufficiently correlated in Sable Trail to be a legal cause. [00:51:11] Speaker 00: That is a very hyper-attenuated chain here, where it wasn't in Sable Trail. [00:51:18] Speaker 04: Let me ask you, are there other questions from that? [00:51:20] Speaker 04: Okay, thank you very much. [00:51:21] Speaker 00: Thank you very much. [00:51:23] Speaker 04: I know the petition doesn't have time, but we've given the other side some extra time, so we'll give you two extra minutes. [00:51:29] Speaker 02: I just want to point out from the record that there was preservation at all levels with regard to the issues before the court. [00:51:38] Speaker 02: First at JA 174-175. [00:51:42] Speaker 02: which is an excerpt from the letter dated December 3rd, 2014, which was an attempt to guide the commission in what it would in fact review. [00:51:52] Speaker 02: There's a plain request for what's called cumulative upstream and downstream impact study, comprehensive build-out analysis of potential negative downstream and upstream, et cetera. [00:52:02] Speaker 02: That's there. [00:52:03] Speaker 02: So to the extent that's being represented the opposite, I don't believe it to be accurate. [00:52:09] Speaker 05: Does that, do those documents, [00:52:12] Speaker 05: Do they say that the commission should be asking Dominion to ask its customers for this [00:52:23] Speaker 02: These include, but are not limited to, the likelihood of future power plants, storage facilities, distribution networks, and other types of gas infrastructure. [00:52:30] Speaker 02: That information could only be obtained, as I understand, for exposition from the customers. [00:52:35] Speaker 02: So it doesn't say specifically, ask your customers. [00:52:38] Speaker 02: But the nature of the analysis requested makes clear that the information would have to be gathered. [00:52:44] Speaker 02: So I don't think there's any valid distinction there. [00:52:48] Speaker 02: On 11-18-15, in light of what was produced, there were additional comments made. [00:52:56] Speaker 02: And I'll point out JA-221 and 222 for the record. [00:53:00] Speaker 02: Again, I won't read it, but it makes very clear the nature of the inquiry asked for. [00:53:04] Speaker 02: And in fact, obviously, that inquiry could not have been engaged without the information Judge Taylor you're referring to. [00:53:12] Speaker 02: And then at 246 and 247, the hearing application petition, again, there's very clear indication of the scope of what's being argued here. [00:53:22] Speaker 02: There's no change in scope. [00:53:24] Speaker 02: Thank you for your attention. [00:53:26] Speaker 02: Okay, thank you. [00:53:27] Speaker 04: We'll take a matter on the submission. [00:53:31] Speaker 04: We'll take a brief break while the next group comes up.