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Case number 20-1238 et al.

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City of Salisbury, North Carolina, petitioner versus Federal Energy Regulatory Commission.

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Mr. King for the petitioner, Mr. Fitch for the respondent.

[00:00:13] Speaker 01:
Good morning, council.

[00:00:14] Speaker 01:
Mr. King, we'll hear from you.

[00:00:16] Speaker 04:
Thank you, your honor.

[00:00:17] Speaker 04:
Good morning.

[00:00:18] Speaker 04:
May it please the court.

[00:00:19] Speaker 04:
My name is Robert King.

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I am with the Brooks Pierce law firm and the North Carolina bar, and I represent the petitioner city of Salisbury in this matter.

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I appreciate and frankly, I'm thrilled to appear before this court as previously indicated to the clerk.

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I would like to reserve two minutes for rebuttal.

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This is a case with a long history, a lot of facts, a lot of sub issues.

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However, the overarching issues relate to the respondent first interpretation of condition nine of the water quality certification issued by the North Fund and Department of Environmental Quality.

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respondent has interpreted the North Carolina Water Quality Certification Condition 9 to allow flooding of the sole source of the city's drinking water supply, which in itself would be a water quality violation.

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That is, FERC has said that what DEQ intended was that CUBE Hydro continued to commit water quality violations, which is a legal oxymoron.

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You cannot simultaneously comply with a water quality certification and at the same time,

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violate water quality standards.

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As a result of respondent spatially incorrect interpretation, the petitioner city has been told that it is just going to have to live with the flooding of its pump station with contaminated sewage laced water, the sole source of drinking water for over 52,000 people.

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I would like to talk about the key mistakes and really one key mistake that got us to where we are today.

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But before I do that, I would like to step back

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and compare where we are today, Election Day 2021, with where we were on a specific date, April 18th, 2008.

[00:01:53] Speaker 01:
And I wanted to do that because- Can I just ask you, sorry, before you get into the details of your presentation, isn't the primary issue before us a pretty straightforward question of,

[00:02:12] Speaker 01:
I guess it's not statutory, but permit construction, which is whether the phrase consistent with Salisbury's design in that second clause of 9B, which is improved access to the pump station consistent with Salisbury's design, whether that consistent with Salisbury design phrase

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refers all the way back to physical modification in the first clause.

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That's what's before us, right?

[00:02:47] Speaker 04:
Well, I would agree, Your Honor, that the interpretation of Condition 9 of the Work Audit Certification is the issue.

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I don't think it is quite as narrow as the Court is putting it.

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And if the court will bear with me, I'd be happy to explain why I think, while I think the court is correct that we are talking about that particular paragraph, I think that the issue that is presented is a little bit broader.

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And the reason that I wanted to look at where we were and where we are today really goes to the issue of interpretation.

[00:03:14] Speaker 01:
Okay.

[00:03:15] Speaker 01:
I mean, I'll let you go on, but just so you know where I am, as I understand the case,

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you need to you need to persuade me that the text works in that way in order to prevail.

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But so you can either do that or explain to me why my framing is wrong.

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So okay, I would be happy to do that.

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I'm always reluctant to ever tell the judge that they're wrong.

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So I will tell you that I think there's a slightly different take on

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And so if I can back up, the reason I wanted to go back to April of 2008 is because by that point, the petitioner had a pump station at this location on the Yankee River for almost 90 years.

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That pump station was experiencing flooding.

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The amount of flooding was getting worse.

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And to state the obvious and to inject a little common sense and common sense is certainly one of the things that's supposed to be applied when you have ambiguous language.

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You don't want to flood buildings for all sorts of reasons.

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you damage the building, you damage what's inside the building, you create health and environmental issues for the people who then have to go into the building.

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And if you come up with a list of the things that you really, really don't want to flood, one of them is gonna be a pump station.

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Because if that is damaged or it is destroyed, then where are you gonna get your drinking water?

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But on April 18th, 2008, the date that I picked, the city of Salisbury had a good day.

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And the reason was because the respondent and their environmental impact statement

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put their finger on the cause of the flooding.

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Um, and the cause of the flooding was cube hydro respondents licensee and the people of the city of Salisbury were relieved by that conclusion because they knew what the problem was.

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They knew what the problem needed to be fixed and they knew who was the cause of it.

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Mr King.

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In all fairness, in all, um, isn't the problem not just that flooding occurs,

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but that flooding occurs in a manner that prevents the pump from working.

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And so therefore you don't have the clean water that the city needs.

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But when you imagine a world in which a solution would allow the pump to operate, not withstanding any flooding.

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And I think that's what Cube has proposed here.

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Am I wrong about that?

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Well, Cube has presented two options, although it's really a fake choice.

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They have said that they will either basically retrofit the building at a cost of less than $3 million, or they will build a new building for a cost of $30 million.

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So your honor is absolutely correct that what Cube Hydro has said is we just have to live with a flooded building and that they will retrofit it to make that work.

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Yes, but I guess the point that I'm homing in on is that just because the building is flooded doesn't mean you necessarily reach

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the disastrous consequences that you suggest, which is that the town has no clean drinking water.

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Cube's solution, I understood, was to allow for the pump to continue to operate, not withstanding any flooding.

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Well, frankly, Your Honor, I'm not sure I agree with that.

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And the reason is this.

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What we are interpreting here is the state's water quality certification.

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The state's water quality certification, by definition, according to the certification itself, according to the Clean Water Act,

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has to involve compliance with water quality standards.

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Allowing this building to flood is in itself a violation of water quality standards, whether the pumps continue to work or not.

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And that's not my opinion, that's the opinion of DEQ.

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When Cube Hydro generated their initial draft report, and as the court will recall, there were three plans that were submitted or prepared prior to the Cube Hydro report or the Cube Hydro plan.

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Every one of those said, we're not going to flood this building.

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Everybody understood that that's not where we're going to end up.

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I understand, but getting back to Judge Katz's question, we're not going to flood this building does not appear in the terms or the text of Condition 9B.

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So can you please respond to his question as to what Condition 9B should be read to me?

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I will absolutely do that, Your Honor.

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I'm going to skip over to the interpretation issue.

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May I address briefly the deference issue, or shall I go straight to the issue of interpretation?

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Whoever you would like.

[00:07:30] Speaker 04:
OK, Your Honor.

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I think the deference issue requires a little bit of conversation, although I think it should be quite brief.

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But the court needs to know.

[00:07:38] Speaker 01:
Let's start.

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Why don't we start with the text?

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Because if the text is clear, then we don't need to, one way or the other, we don't need to get to deference.

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OK.

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Thank you, Your Honor.

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But your honor is absolutely correct.

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As I said at the outset, the issue is the interpretation of condition nine.

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I think everybody can agree that this is not well written.

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I have written in my notes that this is something that was clearly written by an engineer.

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I don't, I don't fault engineers.

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I can't build a bridge and some engineers can not write clear sentences.

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It is the nature of the world that courts and the situation for are presented with issues where the language is not clear and the language is not clear as to what is intended in every respect.

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But two things are clear.

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in reviewing the language here.

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And the language, if the court will bear with me, provides physical modifications to the facility such as protective dike, the pump stations, improved access to the pump station with the road consistent with the city of Salisbury's design or other feasible options for achieving the same results.

[00:08:38] Speaker 04:
Now, I don't know how many times I've read that.

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I'm guessing the courts read it quite a few times.

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If somebody handed me that and explained that to me, I'm not sure that anybody could really do that.

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So then the question is, what can you derive from this?

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And then what do you do given the fact that it is unclear?

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Two things you can derive from this, first of all, is that whatever the state is talking about, the state is requiring compliance with state water quality standards.

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That is saying that you can comply with the water quality certification

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while you violate water quality standards, it's like saying you're pregnant and not pregnant at the same time.

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So one thing that is clear from reading condition nine is that whatever the answer is, there has got to be compliance with water quality standards and you cannot get compliance with water quality standards by flooding the station.

[00:09:24] Speaker 01:
The other thing that's clear- Sorry, where do you get that?

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Where do you get from the condition nine incorporates all of the state

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water quality standards.

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Your honor, the purpose under the Clean Water Act for water quality certifications is that the state is either saying this complies with water quality standards or if you do the following things, you will comply with water quality standards.

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It is actually written in the water quality certification itself, your honor, which says

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And if I could read here, the application and supporting documentation provides adequate assurance that the proposed work will not result in a violation of water quality standards.

[00:10:12] Speaker 01:
I'm sorry, where is that?

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What are you reading from?

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And your honor, I know it's in the water quality certification.

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I'm going to see if I can put my finger on it.

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And I don't know why I did not write specifically in there, but I will get that cite to the court.

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But it says in the water quality certifications that the activities

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will or must comply with the water quality standards.

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So one of the two things that is clear when you read this is that whatever the plan is, the plan has got to bring the operation into compliance with the water quality standards.

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I'll get the core of the specific side to that.

[00:10:46] Speaker 02:
It seems to me that the requirement of compliance with the state water quality standards may be

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take your word for it, applicable here, but I don't see that it's applicable through 9B.

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Just assume for a second that it's not.

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It's your position, I think, that CUBE must comply with the water quality standards, even if it's not in 9B, correct?

[00:11:16] Speaker 04:
You're exactly right, Your Honor.

[00:11:19] Speaker 02:
And other provisions in the plan repeatedly require CUBE to obtain all the permits necessary to carry out its plan.

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Correct.

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And what you're telling us is they won't be able to get that permit.

[00:11:36] Speaker 04:
That is correct, Your Honor.

[00:11:38] Speaker 02:
Well, maybe you're right, maybe you're wrong, but why isn't that something to be determined later on?

[00:11:44] Speaker 04:
Well, there is no later on in this situation, your honor.

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That's one of the problems.

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Why would Q pursue this investment in this expense, if it's so clear that it will not qualify under the DEQ?

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Well, you know, it's a great question, your honor.

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We have assumed for the past 15 years that Fert was going to do, not Fert, that Cube Hydro was going to do what it was required to do.

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And at every turn, they have not done that.

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Much to our surprise, the folks that the respondent have allowed them to do that.

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There were only three plans before, and every one of those plans would have required compliance with our quality standards.

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And yet, basically, out of the blue, Cube Hydro came in and said, look, we understand that every plan that has ever been generated said you will not end up with a flooded building.

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Two of the plans said we're going to build a new building.

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One of the plans said we're going to build a protective dock around the building.

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Everyone understood that you were not going to be flooding this building.

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That's frankly a matter of common sense.

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Now, when Cube Hydro generated their draft report, a month later to the day, the state of North Carolina wrote a letter, and this was in the record before FERC, in which they said, this is not going to be adequate.

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And I'm specifically looking here at the joint appendix at 391, Cube Hydro generated their report on May 14th, 2018.

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On June 14th, 2018, DEQ looked at that report and said, wait a minute.

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And if I could read to the coordinates, here's what DEQ said about Cube Hydra's plan, which is the plan that responded ended up adopting a wholesale.

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And DEQ said, the proposed plan does not address impacts from flooding to the raw water intake.

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Our understanding from the city of Salisbury is that they have experienced increased O&M and equipment damages to the water intake due to flooding.

[00:13:38] Speaker 04:
Please continue to work with the city of Salisbury to address any concerns they may have and modify the plan as needed to address those concerns.

[00:13:47] Speaker 02:
The plan doesn't address the effects of flooding, right?

[00:13:53] Speaker 02:
So modified in order to address the effects of flooding, that doesn't mean it has to prohibit flooding.

[00:13:59] Speaker 02:
It has to address the effects.

[00:14:01] Speaker 04:
Well, your honor raises a good point.

[00:14:04] Speaker 04:
I would submit to the court that I believe that what DEQ was saying is that flooding in itself is prohibited.

[00:14:11] Speaker 02:
Well, that would have been a good thing to say, but they didn't say that.

[00:14:14] Speaker 02:
They said, you've got to address the effects of flooding.

[00:14:16] Speaker 04:
OK, well, and your honor is correct.

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So let me do this.

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If I could go back to condition nine, I was mentioning earlier what it is that we know condition nine means, because it's not clear what everything in condition nine means.

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One is you got to have compliance with water quality standards.

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And the other is that there is something called the city of Salisbury's design.

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That is a thing.

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There were three possibilities as to what could have been referred to there.

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Any of those possibilities, each of those possibilities meant that you were not going to be flooding this building.

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That was what everybody had agreed to.

[00:14:51] Speaker 00:
But Mr. King, the consistent with City of Salisbury's design phrase, and I think this goes back to Judge Katz's original question, seems to be related to access to the pump station with the road.

[00:15:06] Speaker 00:
So can you explain why that is not the right reading of this?

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condition nine provision.

[00:15:12] Speaker 04:
Well, I would start by saying, Your Honor, that that is not what FERC said is the basis for adopting the CUPIDRA plan.

[00:15:18] Speaker 04:
They originally said what Your Honor was saying, that this is really something that DOT should be concerned about, access to the building, and that's what the city of Salisbury's plan means.

[00:15:27] Speaker 00:
I'm just looking at the text, right?

[00:15:31] Speaker 00:
It says,

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improved access to the pump station with the road consistent with the city of Salisbury design.

[00:15:39] Speaker 00:
And you seem to want to read a comma in there such that consistent with the city of Salisbury's design is modifying something else.

[00:15:47] Speaker 00:
And I'm just trying to understand why that is.

[00:15:51] Speaker 04:
Well, I would put it this way, Your Honor.

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If we could understand exactly what DEQ was saying by reading that text, I don't think we would be here.

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I think everybody would agree that this is a poorly written sentence.

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And so the question is, what does it mean?

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Your honor is exactly right.

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There is a provision there that refers to the city of Salisbury's plan.

[00:16:09] Speaker 04:
So when the court or FERC is faced with ambiguity, we have a toolbox full of options that we use here.

[00:16:18] Speaker 04:
canons of construction are one of them.

[00:16:19] Speaker 04:
I mean, canons of construction is sort of like the Bible.

[00:16:21] Speaker 04:
You can find something in there that suits everybody's goals and this post-hoc rationalization from FERC, but that's the interpretation that was being used.

[00:16:30] Speaker 01:
Well, for those of us who take text and canon seriously, why don't you try to parse it?

[00:16:39] Speaker 01:
Because I have to say, to me,

[00:16:42] Speaker 01:
It's not entirely clear, but to me the most natural reading of 9B is it parses into three basic units.

[00:16:55] Speaker 01:
One is physical modifications to the facilities such as a protective dike for a pump station.

[00:17:04] Speaker 01:
Second one is improved access to the pump station with the road consistent with Salisbury's design.

[00:17:13] Speaker 01:
And the third is other feasible options for achieving the same benefits.

[00:17:18] Speaker 01:
I think that's the most natural reading.

[00:17:21] Speaker 01:
So you're welcome to persuade me otherwise, but that's how I read the text and the grammar.

[00:17:32] Speaker 04:
Your honor, look, I agree with the court that there are multiple ways that you can read this.

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And when there are multiple ways that you can read something,

[00:17:41] Speaker 04:
But the process that, as the court knows, that you use is say, OK, what are the reasonable interpretations of what is being written here?

[00:17:49] Speaker 04:
And then we take out the toolbox.

[00:17:51] Speaker 04:
And you look at the language, as the court has indicated, canons of construction, intent, context, and then figure out which one of the reasonable interpretations is the best interpretation.

[00:18:03] Speaker 00:
All right.

[00:18:03] Speaker 00:
Mr. King, I would like for you, before your time runs out, to address the deference question.

[00:18:09] Speaker 04:
OK.

[00:18:09] Speaker 04:
I would be happy to do so, Your Honor.

[00:18:11] Speaker 04:
The one thing that I would say, Your Honor, is the city of Salisbury plan means something.

[00:18:17] Speaker 04:
I think we can agree with that.

[00:18:18] Speaker 04:
And what has happened here is that FERC has written out of the water quality certification that language because they do not go out and find out what the city of Salisbury design is.

[00:18:31] Speaker 04:
It would have taken very little effort for them to do that.

[00:18:34] Speaker 04:
And I think the record is clear and I'll just refer to the brief on that.

[00:18:37] Speaker 04:
On the deference issue, I would say this, Your Honor, the deference policy or the deference approach makes complete sense.

[00:18:42] Speaker 04:
And the idea, obviously, and I know I'm preaching to the choir here, is that when you are dealing with an agency that has an area of expertise, then it makes sense to defer to that agency.

[00:18:53] Speaker 04:
But the fact that the folks at FERC can look at a design and say whether or not a dam is well made

[00:19:01] Speaker 04:
or the fact that they're engineers does not make them experts in North Carolina water quality standards or policies or regulations.

[00:19:08] Speaker 00:
But what do you do with the Amarada Hess case, which sort of takes the notion of deference, not relative to the expertise of the particular agency, but the fact that Congress has given decision-making power to a particular agency?

[00:19:24] Speaker 04:
I think that's a great point, Your Honor, and here's the way I would look at it.

[00:19:27] Speaker 04:
This is not a situation in which Congress has said that that gets to make these decisions.

[00:19:32] Speaker 04:
The Clean Water Act is very clear.

[00:19:34] Speaker 04:
And what the Clean Water Act says is that the state of North Carolina is the beginning and the end of the decisions about the water quality in this situation.

[00:19:42] Speaker 04:
The Clean Water Act is set up that way for a reason.

[00:19:44] Speaker 04:
And that's because the people sitting over in Raleigh who are who have the biological and

[00:19:50] Speaker 04:
geological expertise and understand the action river ought to be able to make the decisions about that, just like the people in Florida make the decisions about the Everglades.

[00:19:59] Speaker 00:
This is in the context of a license.

[00:20:01] Speaker 00:
Do you contest that FERC enforces its own licensing provisions?

[00:20:07] Speaker 00:
The Federal Power Act gives FERC the responsibility for this license?

[00:20:14] Speaker 04:
Yeah, well, they do have responsibility or honor.

[00:20:16] Speaker 04:
I believe we thought the supplemental authority late yesterday that there's actually been a DC.

[00:20:22] Speaker 04:
I'm sorry, California District Court decision that says that the rule that was adopted by the Trump administration in 2020 that says that the federal agencies are the exclusive enforcement authority is vacated improper.

[00:20:35] Speaker 04:
This was written by experts in North Carolina law, experts in North Carolina hydrogeology.

[00:20:41] Speaker 04:
And one of the things that I think is missed here by FERC and their argument is it's not simply that this is not in their area of expertise.

[00:20:49] Speaker 04:
We are talking about something that was drafted by another sovereign power.

[00:20:52] Speaker 04:
And the question that I would ask rhetorically of the court is, would we defer to FERC if they were interpreting the Italian tax code?

[00:20:59] Speaker 00:
But Mr. King, this provision has been adopted per the law into FERC's license.

[00:21:07] Speaker 00:
So are you positing a situation in which for licenses that are 50 years long,

[00:21:16] Speaker 00:
we have to figure out where different provisions came from.

[00:21:19] Speaker 00:
And if they came from places that are other authorities or other agencies or state entities, then they don't get deference for that part of the interpretation, whereas they might with respect to other aspects of the license.

[00:21:35] Speaker 00:
It seems to me impractical to worry at this point about

[00:21:41] Speaker 00:
who originally drafted the language when it's all been incorporated into FERC's license and FERC is indisputably responsible for interpreting and enforcing that license.

[00:21:55] Speaker 04:
Well, Your Honor, I agree with that to a certain extent, but the way the Clean Water Act is set up

[00:22:02] Speaker 04:
The state of North Carolina is the decider, to use a word that's not really a word, about water quality issues under a federal license.

[00:22:11] Speaker 04:
So I see where your honor is coming from and you may have a situation where 50 years from now we have to interpret something.

[00:22:17] Speaker 04:
But this went straight forward under the Clean Water Act.

[00:22:19] Speaker 04:
This is the state of North Carolina's call.

[00:22:22] Speaker 02:
Where did you ever argue in any of these proceedings and preserve this argument that FERC doesn't have enforcement authority so that that makes the California case somehow relevant here?

[00:22:35] Speaker 02:
You didn't argue that.

[00:22:36] Speaker 04:
No, we did not argue that, Your Honor.

[00:22:39] Speaker 04:
I think the position that we took was that the 2020 rule was inapplicable to this situation because we're dealing with proceedings that began before that.

[00:22:49] Speaker 04:
So my point, Your Honor.

[00:22:51] Speaker 04:
Different point.

[00:22:53] Speaker 04:
Correct, Your Honor.

[00:22:54] Speaker 02:
So this one's not in this case.

[00:22:58] Speaker 04:
Correct, Your Honor.

[00:22:59] Speaker 04:
Yeah, we agree.

[00:23:00] Speaker 04:
I would love to be able to take some advantage of the ruling by the court in California, but I can't do that, honestly, and therefore I can't do it.

[00:23:07] Speaker 04:
I believe I've run way over my time.

[00:23:10] Speaker 01:
We'll keep going while judges have questions.

[00:23:16] Speaker 01:
So I have another one for you, which is, what do we know, if anything, about

[00:23:23] Speaker 01:
the position of the North Carolina Water Control Agency on the specific interpretive questions before us.

[00:23:36] Speaker 01:
They haven't, to my knowledge, sought to intervene or file an amicus brief or otherwise let us know what their position on this is.

[00:23:46] Speaker 01:
And the reason I ask is, let's assume you're right that the

[00:23:53] Speaker 01:
The best entity to interpret condition nine would be the North Carolina agency, but they're not here.

[00:24:02] Speaker 01:
And so really the only choice we have is as between this court and FERC.

[00:24:10] Speaker 01:
And FERC might not be the greatest experts on North Carolina water law, but they're probably a little more expert than we are.

[00:24:19] Speaker 04:
I frankly, I would respectfully disagree with that, Your Honor.

[00:24:21] Speaker 04:
I think that nothing shows FERC's lack of competence in the area of North Carolina water law than the work that they have done in this case.

[00:24:29] Speaker 04:
They have interpreted a water quality certification to allow violations of water quality standards, which even saying that doesn't make any sense.

[00:24:39] Speaker 01:
And yet North Carolina has not sought to intervene or otherwise object.

[00:24:46] Speaker 04:
Well, they did write the letter that I referenced earlier in 2018 where they took issue with the Cube Hydro Plan.

[00:24:53] Speaker 04:
I would have loved for the state of North Carolina to come in here and weigh in on this issue.

[00:24:58] Speaker 04:
My take is that they've got bigger fish to fry and other issues and they figured the city of Salisbury are big boys and they can deal with it themselves.

[00:25:07] Speaker 04:
I agree, it would be easier if the state was in here, Your Honor.

[00:25:10] Speaker 00:
Mr. King, can I just ask you, because you keep suggesting as though this is the end of the road, tomorrow the thing will be built and the city will be flooded.

[00:25:20] Speaker 00:
It seems to me that we just have sort of the beginning of the process.

[00:25:27] Speaker 00:
The condition says provide a plan.

[00:25:30] Speaker 00:
FERC has required a plan.

[00:25:32] Speaker 00:
They've looked at it.

[00:25:34] Speaker 00:
They've given it the go ahead.

[00:25:35] Speaker 00:
But everybody knows, as the condition says later in the text,

[00:25:40] Speaker 00:
that the plan shall be developed in consultation with the city and that FERC has licensing authority over this moving forward.

[00:25:50] Speaker 00:
So aren't you too early to be making these kinds of arguments about FERC's arbitrary and capricious action and the city is going to be flooded, et cetera?

[00:26:02] Speaker 00:
Don't we have enough time to see how this plays out?

[00:26:06] Speaker 04:
Respectfully, Your Honor, the answer is no.

[00:26:09] Speaker 04:
I understand that it says that Cube Hydro will work with the city, which, you know, in itself doesn't mean anything.

[00:26:14] Speaker 04:
It's a legal matter.

[00:26:15] Speaker 04:
This is a one-step process, and the one-step process is the licensee presents a plan and FERC signs off on the plan.

[00:26:25] Speaker 04:
There is not a multi-step process

[00:26:28] Speaker 04:
Where you put in a draft plan and it looks good and bring us a revised plan and that looks good and bring us a revised plan and that looks good.

[00:26:36] Speaker 00:
Let me let me ask you this.

[00:26:37] Speaker 00:
I thought there were other conditions that did require that this ultimately be implemented consistent with state law.

[00:26:44] Speaker 00:
And thus, as the licensor, FERC could, pursuant to subsequent petitions saying that CUBE is not doing what it's supposed to do, that there are violations of state law, couldn't FERC at that point intervene and disapprove and say they have to do something else?

[00:27:05] Speaker 04:
I agree that FERC has that ability.

[00:27:08] Speaker 04:
And to go to Judge Katz's question earlier,

[00:27:10] Speaker 04:
I agree that the state of North Carolina could come in later and say you're violating water quality standards, but the problem is.

[00:27:16] Speaker 01:
Sorry, finish your answer.

[00:27:19] Speaker 04:
I was just going to say that, you know, the problem is that we are where we are today and as near as we can tell.

[00:27:24] Speaker 04:
I mean, except that the plan from cube hydro literally without any comment, or I'm sorry, any modification.

[00:27:33] Speaker 04:
And their only explanation.

[00:27:35] Speaker 02:
My recollection is that that they accepted one of your objections and wrote it into in the rehearing process.

[00:27:42] Speaker 04:
That was for the access element, your honor.

[00:27:44] Speaker 04:
But you're right.

[00:27:45] Speaker 04:
I overstated the case.

[00:27:46] Speaker 04:
This has three elements.

[00:27:48] Speaker 04:
There is a building element, the access element and the dredging element.

[00:27:52] Speaker 04:
They accepted the building element, which is what brings us here today.

[00:27:56] Speaker 04:
just wholesale.

[00:27:57] Speaker 04:
They just put the stamp of approval on it.

[00:27:59] Speaker 04:
Your honor is correct that on rehearing they did make some changes on the access issue.

[00:28:05] Speaker 01:
North Carolina, as I understand it, has ongoing regulatory jurisdiction over this project.

[00:28:16] Speaker 01:
So isn't it the case that if the North Carolina Water Agency

[00:28:25] Speaker 01:
ends up agreeing with you.

[00:28:29] Speaker 01:
I mean, they just, they didn't come in, they have bigger fish to fry, but at some point they take a look at this and say, no, no, this is a real problem.

[00:28:39] Speaker 01:
Can't they just impose a new condition?

[00:28:46] Speaker 04:
Well, I'm not sure if they can come in at this point and change the condition.

[00:28:49] Speaker 04:
I think they could come in with an enforcement action, your honor.

[00:28:52] Speaker 04:
And to go to Judge Jackson's comment, FERC could come in and do something later, but the record is 13 and a half years ago, respondent itself said the cause of the problem is their licensee.

[00:29:06] Speaker 04:
And 13 and a half years after that determination was made, we're sitting here with FERC basically ignoring what has been written by the state of North Carolina.

[00:29:15] Speaker 01:
But we're in a situation where

[00:29:21] Speaker 01:
It seems like the North Carolina agency has ample tools going forward to protect its interests in clean water, non-flooded pump stations, whatever it is.

[00:29:36] Speaker 01:
I thought they could change the condition, but they certainly have other means, right?

[00:29:42] Speaker 01:
I mean, first thing FERC said was, gosh, we don't care very much about this at all because there are all these remedies under state law.

[00:29:51] Speaker 01:
So we have a somewhat expert federal agency and we have a very expert state agency that has ample tools to fix things going forward.

[00:30:06] Speaker 01:
So why wouldn't we, under those circumstances, give a measure of deference to FERC?

[00:30:13] Speaker 01:
And if it ends up that FERC and the North Carolina authorities disagree, the North Carolina authorities can

[00:30:23] Speaker 01:
take care of themselves.

[00:30:25] Speaker 04:
I agree with the court that that is theoretically possible.

[00:30:27] Speaker 04:
What I would say to the court is there is no indication that that is ever going to happen.

[00:30:32] Speaker 04:
There is no indication that the state or FERC is going to change anything that they've done at this point.

[00:30:36] Speaker 04:
And I will add this is in the record.

[00:30:38] Speaker 04:
I mentioned it's been 13 and a half years since we figured out where the problem was.

[00:30:42] Speaker 04:
This building was flooded twice in 2020 to the point that we had to evacuate the building and shut it down.

[00:30:49] Speaker 04:
And members of the court, we are not talking about a building that was built to be flooded.

[00:30:53] Speaker 04:
We are talking about a brick-on-brick masonry building.

[00:30:55] Speaker 04:
And what FERC has said is, it is okay for sewage-laced water that contains trees and debris to slam into that building, and that the city's just gotta live with this.

[00:31:05] Speaker 04:
And one of the points that I would make is, what would the layperson reaction be?

[00:31:09] Speaker 04:
The layperson reaction is, look, if somebody's flooding my property, the answer is not that a judge is gonna say, well, you're just gonna have to live with it.

[00:31:16] Speaker 04:
or that the person that floods it says, I'll get you a good pair of boots.

[00:31:21] Speaker 04:
Everybody understood as we were going into this that the details, the devil's in the details.

[00:31:25] Speaker 04:
But we all knew we were not going to end up in the building that was flooded.

[00:31:30] Speaker 01:
OK, Judge Jackson, any other questions?

[00:31:33] Speaker 01:
Judge Ginsburg?

[00:31:34] Speaker 01:
No, thank you.

[00:31:35] Speaker 01:
All right, thank you, Mr. King.

[00:31:37] Speaker 01:
Mr. Fish, we'll hear from you.

[00:31:41] Speaker 03:
Good morning, Your Honors, and may it please the court, Jared Fish for the commission.

[00:31:46] Speaker 03:
Mr. King kept referencing compliance with water quality standards, but that's what we're here at disputing.

[00:31:53] Speaker 03:
Whether Cuba can complies with condition nine be to North Carolina's water quality certification determines whether cube has complied with water quality standards.

[00:32:04] Speaker 03:
That's the whole point.

[00:32:05] Speaker 03:
of issuing a water quality certification and conditions there too.

[00:32:09] Speaker 03:
So the question here is whether QB Act can comply with the requirements of condition 9B.

[00:32:14] Speaker 03:
And here's where the court should dispense with this case very easily because there is no preserved dispute on the main issue.

[00:32:22] Speaker 03:
Under either the commission's interpretation of condition 9B or under Salisbury's interpretation of condition 9B, which we disagree with, but even under their interpretation, both

[00:32:32] Speaker 03:
interpretations say that the baseline standard is whether cubes plan achieves the same benefits as a protective diet.

[00:32:41] Speaker 03:
That's in their definition.

[00:32:43] Speaker 03:
It's in our definition.

[00:32:44] Speaker 03:
You don't even need to look at whether the phrase city Salisbury's design modifies the first clause, physical modifications.

[00:32:51] Speaker 00:
I'm sorry, Mr. Fish.

[00:32:52] Speaker 00:
You were breaking up a little bit, so I'm not sure I heard your entire statement.

[00:32:57] Speaker 00:
What, what is the reason why there's no preserved dispute on this?

[00:33:01] Speaker 03:
I apologize, Your Honor.

[00:33:02] Speaker 03:
So the reason is under either our interpretation, and we make this point in our brief at page 34 to 35, under either our interpretation or Salisbury's interpretation, the baseline question, the baseline standard, is whether Cube's plan achieves the same benefits as a protective dike.

[00:33:22] Speaker 03:
and they make no argument in their opening brief that CUBE's plan does not achieve the same benefits.

[00:33:30] Speaker 01:
Is that right?

[00:33:32] Speaker 01:
If consistent with Salisbury's design modifies physical modification to the facility, which it's a tough reading, but you say this question doesn't matter.

[00:33:48] Speaker 01:
Well, I- If Salisbury's interpretation is right, I mean, their design with regard to physical modification is a new pump station that would stay dry.

[00:34:06] Speaker 01:
That's correct, Your Honor, but they- Which is very different from very different from Cube's proposal.

[00:34:15] Speaker 03:
Right.

[00:34:16] Speaker 03:
And I have two answers to that question, Your Honor.

[00:34:17] Speaker 03:
First, that goes to the point that their definition is internally incoherent, because they admit, as they must, that one compliance standard is a protective dike, because that's right in Condition 9b.

[00:34:29] Speaker 03:
And they also admit, as they must, that the last clause that Your Honor identified earlier

[00:34:35] Speaker 03:
or achieves the same benefits, goes back and modifies protective dike.

[00:34:40] Speaker 03:
They also say it modifies city of Salisbury's design, but that doesn't make sense because as you pointed out, your honor, a protective dike is not the same thing as city of Salisbury's design.

[00:34:50] Speaker 03:
That goes to our argument that it doesn't make sense to read city of Salisbury's design as modifying the first clause, physical modifications.

[00:34:57] Speaker 01:
But the- I'm sorry, I thought Salisbury's design

[00:35:02] Speaker 01:
as relevant to physical modification.

[00:35:06] Speaker 01:
They think it's relevant.

[00:35:08] Speaker 01:
So they would say consistent with Salisbury's design means build a new pump station on higher ground.

[00:35:19] Speaker 03:
Correct, Your Honor.

[00:35:20] Speaker 03:
But they also say that Condition 9B allows for a protective dike.

[00:35:23] Speaker 03:
And so here's the incoherence.

[00:35:25] Speaker 03:
They say that a protective dike is consistent with the city of Salisbury's design.

[00:35:30] Speaker 03:
That makes no sense.

[00:35:32] Speaker 00:
Let me ask you this, Mr. Fish, because I understood that at least one of the three plans that they could be referencing in city of Salisbury's design was a plan that included a protective dike and pumps inside the building such that the floor stayed dry.

[00:35:48] Speaker 00:
Am I wrong about that?

[00:35:50] Speaker 03:
No, that's, that's correct, Your Honor.

[00:35:51] Speaker 03:
That's the McGill study from 2007.

[00:35:53] Speaker 03:
That proposed both a protective diet and other measures, including dredging of the river and a new flood flood station, but there's nothing to indicate and here's the key there's nothing to indicate that that plan is is necessary to meet condition nine B's requirements.

[00:36:11] Speaker 00:
But that's the question that we're asking.

[00:36:13] Speaker 00:
It's sort of circular, I think, in your reasoning.

[00:36:16] Speaker 00:
There's nothing to suggest that it's necessary to fulfill the condition.

[00:36:21] Speaker 00:
But our question is, what is necessary to fulfill the condition?

[00:36:25] Speaker 00:
And it seems a little hard to me to, without deference, let's set aside the deference point.

[00:36:32] Speaker 00:
But without deference, it seems a little bit hard to reach the conclusion, looking only at the text, that

[00:36:40] Speaker 00:
the same benefits of a protective dike are what you say they are.

[00:36:48] Speaker 03:
Well, Your Honor, that goes to why the commission looked to the record evidence.

[00:36:53] Speaker 03:
It looked to North Carolina Building Code for constructing and floodplains.

[00:36:58] Speaker 03:
It looked to professional engineering designs, American Society of Civil Engineers codes 24 and 7, and it looked at evidence in the record to determine what North Carolina meant.

[00:37:09] Speaker 03:
As we stated in paragraph 25 of our hearing order,

[00:37:12] Speaker 03:
North Carolina could have.

[00:37:14] Speaker 03:
They had all the control in the world to identify what the key benefits would be.

[00:37:18] Speaker 03:
But they didn't.

[00:37:19] Speaker 03:
They left it up to FERC, the undisputed enforcer of this condition, to determine what the key benefits are.

[00:37:26] Speaker 00:
But as an interpretive exercise, why is that different in kind than Mr. King and petitioners looking to the plans that were in place at the time this was

[00:37:37] Speaker 00:
adopted and saying, obviously, everybody understood that there was going to be no flooding?

[00:37:44] Speaker 03:
Well, I push back that everybody understood that there was no flooding.

[00:37:48] Speaker 03:
So just because we have plans in the record that went above and beyond what Cuba is proposing doesn't mean that the plans in the record that go above and beyond what Cuba is proposing are necessary, set the floor for determining compliance with condition 9B.

[00:38:03] Speaker 03:
There is nothing in the record to indicate

[00:38:06] Speaker 03:
that North Carolina had a different interpretation what Mr King refers to the one letter the June 2018 letter at J 391 North Carolina is referring to flooding at the intake structures is not referring to flooding of the pump station room.

[00:38:21] Speaker 03:
It's the intake structures, but Salisbury's contention is we can't have flooding in the pump station room.

[00:38:29] Speaker 03:
We need to have a completely dry pump station at a higher elevation that's reconstructed someplace else.

[00:38:37] Speaker 02:
Mr. Fish, would a protective dike provide for, assure a dry pump room station?

[00:38:46] Speaker 03:
Well, as we noted, it's unclear, Your Honor, because a protective dike can mean to either confine water or it can mean to control water.

[00:38:55] Speaker 03:
Those are two different things.

[00:38:56] Speaker 03:
We note the definitions of protective dike in our brief.

[00:39:01] Speaker 03:
So the question is, well,

[00:39:02] Speaker 03:
If you're controlling floodwater, as you mentioned earlier, Judge Ginsburg, what is the benefit?

[00:39:07] Speaker 02:
We're looking at what is the benefit to be achieved from a protective dike, not that whatever measure is implemented is a protective dike or does the same- Let's take North Carolina's assertion that what is required here is a dry pump room, okay?

[00:39:27] Speaker 02:
So would a protective dike provide that?

[00:39:30] Speaker 03:
Conceivably, it could provide that your honor I believe the McGill study plans to provide that that protection, though they also said we need to have a new pump new flood pump within the building and flood events and I'll mention here.

[00:39:45] Speaker 03:
There's actually a way that the McGill study is less effective than cube study and McGill study they they proposed keeping the flood room floor, and I think was 642 feet it might have been 643 feet, they didn't propose raising it at all cube here has not only proposed raising.

[00:40:03] Speaker 03:
The three pumps to 652.3 feet which is 3.6 feet above the 100 year flood elevation that is consistent with North Carolina law, professional engineering standards, and by the way what all parties agreed to back in June 2018 Salisbury also agreed to that that that building height that said,

[00:40:20] Speaker 03:
JA404, an email from Jim Beamer.

[00:40:25] Speaker 03:
But they also propose raising the floor either through a mezzanine, building a mezzanine, or actually reconstructing the floor to ensure that it's at a height where the pumps would be accessible during a flood event.

[00:40:40] Speaker 03:
The McGill study doesn't even propose doing that.

[00:40:43] Speaker 03:
So again, it comes back to what are we talking about

[00:40:46] Speaker 03:
As you mentioned, Judge Ginsburg earlier, we're looking at what are the effects of a protective dike.

[00:40:52] Speaker 03:
The condition 9B does not specify what are the key benefits, what are the key effects that we're looking to.

[00:40:58] Speaker 03:
So it was up to FERC to make that determination.

[00:41:02] Speaker 01:
But I mean, isn't Mr. King has a pretty powerful intuitive argument that

[00:41:12] Speaker 01:
come on, you're talking about a flood protection plan and the plan is you flood the building, but raise the key equipment in the air.

[00:41:24] Speaker 01:
And there's all this business of, you know, the plan includes amphibious equipment to get to the stuff.

[00:41:32] Speaker 01:
So like the plan stays on, but the people who run the equipment need to,

[00:41:38] Speaker 01:
put on scuba gear to get up there to run the equipment?

[00:41:43] Speaker 01:
Would anyone understand that as a reasonable flood control plan?

[00:41:49] Speaker 03:
Well, actually, your honor, the commission found that that was not reasonable.

[00:41:52] Speaker 03:
So in the rehearing order, it rejected the amphibious vehicle method for ensuring access to the pump station.

[00:41:58] Speaker 03:
It rejected the cubes plan that sought compliance with the second part of condition 9B, which is improved access to the pump station with the road.

[00:42:06] Speaker 03:
It said amphibious vehicles don't cut it.

[00:42:09] Speaker 03:
We need workers to be able to access the flood station in a dry environment in a flood event.

[00:42:15] Speaker 03:
So FERC sent that part of Cube's plan, not in dispute here, not an issue here.

[00:42:20] Speaker 01:
Okay, fair enough.

[00:42:21] Speaker 01:
So I'll retract the rhetorical flourish, but the point is the plan still contemplates that people have to sort of get through floodwaters to go up to the equipment in the floodwaters in the building.

[00:42:42] Speaker 03:
I don't believe that's correct, Your Honor, because again,

[00:42:44] Speaker 03:
In addition to raising the pumps, Cube is proposing to build a mezzanine floor above the flood waters to ensure that there's dry access so that even if the pump station room is flooded below that level, there's still dry access.

[00:43:02] Speaker 03:
In September of this year it's beyond the record here, but in September of this year cube filed a revised or sorry earlier than that cube filed a revised plan to ensure improved access with the road and the commission recently in September approved that aspect of the plan so you have soup to nuts dry access.

[00:43:21] Speaker 03:
to the pump station facilities during a flood event, notwithstanding that lower levels of the pump station might be flooded during 100 year event.

[00:43:29] Speaker 03:
And the key here is there's nothing in the record to indicate North Carolina found that flood waters reaching below a raised mezzanine or reaching below the pump

[00:43:42] Speaker 03:
The actual pumps themselves is non-compliant with condition 9B.

[00:43:46] Speaker 03:
And again, North Carolina had all the control in the world.

[00:43:49] Speaker 03:
They could have written condition 9B more specifically to say, you need to have a dry pump room.

[00:43:56] Speaker 03:
They could have written it to say, you need to construct a new relocated pump station, like in the Blackman Beach study.

[00:44:04] Speaker 00:
What is FERC's position about whether or not a flooded pump room is consistent with North Carolina law?

[00:44:12] Speaker 00:
Mr. King opened with the suggestion that flooding the pump station could not be the right interpretation because it would otherwise be a violation of North Carolina law.

[00:44:27] Speaker 00:
And so therefore the condition should not be read that way.

[00:44:30] Speaker 03:
Your honor, Mr. King didn't identify what North Carolina law he's talking about.

[00:44:35] Speaker 03:
And again, this goes back to the point that

[00:44:39] Speaker 03:
Ensuring compliance with North Carolina is why we have Condition 9B in the first place.

[00:44:43] Speaker 03:
The question here for determining compliance with North Carolina law is whether CUBE complies with Condition 9B.

[00:44:49] Speaker 03:
So it all comes back to whether CUBE complied with Condition 9B and what 9B means.

[00:44:54] Speaker 02:
I thought Mr. King did read a provision of North Carolina DEQ regs or their statute.

[00:45:00] Speaker 02:
I don't know which.

[00:45:02] Speaker 02:
Well, pardon me, no.

[00:45:04] Speaker 02:
He read from North Carolina's direction for the plan to deal with the effects of flooding.

[00:45:15] Speaker 03:
Your honor, effects, right, that's in the June 2018 letter, the effects of flooding of the water intakes that are, and that's separate and apart from discussing flooding of the pump station room.

[00:45:28] Speaker 03:
I see.

[00:45:29] Speaker 03:
And that's all North Carolina said about it.

[00:45:32] Speaker 03:
And again, in April of North Carolina had another opportunity to comment on the plan in April of 2020 North Carolina wrote another letter.

[00:45:43] Speaker 03:
you know, this is after the commission issued its initial order approving this aspect of Cube's plan, the physical modifications to the pump station facilities.

[00:45:52] Speaker 03:
And it didn't have any objection to what the commission did at all.

[00:45:56] Speaker 03:
All it said was actually we took the provenance of condition nine is FERC's own words taken nearly verbatim from FERC's 2008 final environmental impact statement.

[00:46:13] Speaker 03:
And if you look at JA 171, that was FERC environmental measure 17 attached to his final environmental impact statement, it's the same.

[00:46:21] Speaker 03:
It's the exact same wording.

[00:46:23] Speaker 03:
So all North Carolina did was it said, okay, we'll take that language.

[00:46:27] Speaker 03:
You, FERC, opted not to include it in your 2016 license, but we're gonna include it in our water quality certification without any embellishment, without providing any more specifications on what we think is necessary.

[00:46:38] Speaker 03:
We're just gonna take FERC what you said.

[00:46:41] Speaker 03:
And if anything, that bolsters the case for deference to the commission in interpreting this provision.

[00:46:49] Speaker 03:
We wrote it originally.

[00:46:52] Speaker 01:
I may not be understanding what the cube plan allows, at least based on your representation.

[00:47:01] Speaker 01:
So I read it as offering two alternative solutions.

[00:47:12] Speaker 01:
One is to raise the entire pump station building.

[00:47:19] Speaker 01:
or the alternative is to raise the operating equipment within the pump station building, put it on an elevated catwalk within the existing structure.

[00:47:33] Speaker 01:
Is that fair?

[00:47:36] Speaker 03:
Correct, John.

[00:47:37] Speaker 03:
I don't know if I construed the first option is raising the whole building is raising.

[00:47:41] Speaker 01:
Okay, but I'm actually more interested in the second one because the second one does seem to contemplate

[00:47:48] Speaker 01:
compliance in a scenario where the physical building is flooded, but the key equipment is above the water level and therefore can run.

[00:48:05] Speaker 01:
Correct.

[00:48:07] Speaker 01:
Which brings me back to my question a while ago, just that

[00:48:14] Speaker 01:
really seem like a flood control plan.

[00:48:19] Speaker 01:
I mean, you referenced professional standards.

[00:48:25] Speaker 01:
I mean, if we were to look at professional standards for water intake facilities, would we see some principle that it's fine for the building to be flooded as long as the equipment is up on stilts?

[00:48:40] Speaker 03:
In a word, Your Honor, yes, because the American Society of Civil Engineers code seven, which we relied in part on says you need to raise essential structures to two to three feet above the 100 year flood level.

[00:48:54] Speaker 03:
Salisbury does not dispute that the 100-year flood level is 648.7 feet.

[00:48:58] Speaker 03:
Salisbury does not dispute that if you raise the three pumps, the central structures, to 3.6 feet above that level, 652.3 feet, that they will continue to operate.

[00:49:10] Speaker 03:
Salisbury does not dispute that the remaining equipment that wouldn't be submersed would not be able to operate during a flood event.

[00:49:19] Speaker 03:
There's no dispute on the main points.

[00:49:21] Speaker 03:
And I'd go back, because we're talking about

[00:49:24] Speaker 03:
What is the effect?

[00:49:26] Speaker 03:
What is the benefit of a protected dike?

[00:49:29] Speaker 03:
Salisbury does not dispute in their opening brief that Cube's plan does not provide the same benefits as a protected dike.

[00:49:36] Speaker 03:
That's the whole ball game.

[00:49:37] Speaker 02:
They've way... Well, you just switched from the singular to the plural.

[00:49:40] Speaker 02:
So that prompts my question.

[00:49:42] Speaker 02:
How come surviving the 100-year flood is the only benefit when the condition calls refers to benefits plural?

[00:49:51] Speaker 03:
Well, Your Honor, the last clause or achieves or other feasible options for achieving the same benefits refers back to the first clause, physical modifications to the pump station, and it refers back to the second clause, improved access to the pump station with the road.

[00:50:06] Speaker 03:
So right there, you've got two benefits.

[00:50:09] Speaker 03:
One benefit.

[00:50:10] Speaker 03:
derived from physical modification pump station another benefit derived from improved access with the road, but even if that weren't the case, there are other benefits that are provided by cubes plan they provide measures to reduce debris accumulation.

[00:50:25] Speaker 03:
in the pump station.

[00:50:26] Speaker 03:
That's actually a concern that Salisbury has raised in the past.

[00:50:29] Speaker 03:
So not just maintaining continued operation of the pumps themselves, but also removing debris.

[00:50:35] Speaker 03:
Also dry access to the pumps during a flood event by building the mezzanine or raising the whole floor.

[00:50:42] Speaker 03:
That's another benefit.

[00:50:43] Speaker 03:
So whichever way you cut it, CUBE has, CUBE has complied with the plural benefits in Incondition 9B.

[00:50:51] Speaker 00:
So Mr. Fish, can you discuss deference

[00:50:55] Speaker 00:
Is it FERC's position that FERC is entitled to deference in this situation?

[00:51:02] Speaker 00:
And if so, why so?

[00:51:03] Speaker 03:
Yes, Your Honor.

[00:51:04] Speaker 03:
And it's because of what you identified earlier.

[00:51:06] Speaker 03:
Congress said so.

[00:51:08] Speaker 03:
Congress didn't have to write Section 1341D of the Clean Water Act as it did.

[00:51:12] Speaker 03:
It wrote it to say that any conditions imposed in a state water quality certification shall become part of the FERC license.

[00:51:21] Speaker 03:
And they could have just said a state gets to issue a water quality certification with conditions, and that's a standalone document that is implemented by the state.

[00:51:30] Speaker 03:
It is enforced by the state, they didn't have to give for any control over that but they did Congress entrusted actually made it first responsibility to administer water quality certifications.

[00:51:42] Speaker 03:
And under Amarada Hess, the court said, the requisite expertise, which is the basis for granting deference, is reflected in Congress's grant of jurisdiction to the agency charged with implementing that provision.

[00:51:58] Speaker 03:
That's exactly what Congress did here in Section 1341D of the Clean Water Act.

[00:52:05] Speaker 01:
Suppose North Carolina had intervened and said, no, no, we think that Salisbury's interpretation of condition nine is the right one.

[00:52:17] Speaker 01:
Would you still be claiming deference?

[00:52:21] Speaker 03:
In a word, Your Honor, yes, I think we would.

[00:52:23] Speaker 03:
Because again, Congress said, look, state, you have all the power in the world to write your conditions as you'd like.

[00:52:32] Speaker 03:
Court cases have have said before, the American Rivers case the Second Circuit case 1997 for must accept those conditions hook line and sinker, we can't modify them we can't reject them.

[00:52:46] Speaker 03:
That's exactly what we did here.

[00:52:47] Speaker 03:
But once it's part of the license, Congress said in the Clean Water Act that FERC, it is part of the FERC administered license.

[00:52:55] Speaker 03:
And in fact, the Second Circuit in American Rivers also said FERC enforces those terms.

[00:53:01] Speaker 01:
Now- That seems like a very strange assignment of interpretive authority in a scheme where

[00:53:12] Speaker 01:
the state agency is the composer of the condition.

[00:53:18] Speaker 01:
And FERC is very specifically disabled from changing the condition.

[00:53:25] Speaker 01:
And you're saying, well, okay, but we get to change the condition within the bounds of interpretive ambiguity, even as against the competing state interpretation.

[00:53:39] Speaker 01:
That seems odd.

[00:53:41] Speaker 03:
Well, Your Honor, it doesn't seem odd.

[00:53:44] Speaker 03:
If you look at what's what makes first determination reasonable first determination is only reasonable.

[00:53:50] Speaker 03:
If we consider what the record reflects.

[00:53:53] Speaker 03:
So if North Carolina had said in its June 2018 letter.

[00:53:58] Speaker 03:
What we meant by condition nine B is a new relocated pump station.

[00:54:03] Speaker 03:
It's the black and beach design which they could have easily done but they didn't say that it's the black and beach design from 2011.

[00:54:08] Speaker 03:
That's what we interpret condition nine BS requiring.

[00:54:12] Speaker 03:
Well then, arguably, for it would have been unreasonable.

[00:54:15] Speaker 03:
in interpreting condition 90 as doing something else, but that's not in the record.

[00:54:20] Speaker 01:
Okay, but let's just assume, let's assume genuine interpretive ambiguity.

[00:54:27] Speaker 01:
In other words, there are two different answers to the question before us that are reasonable, right?

[00:54:34] Speaker 01:
Which is the only circumstance in which deference matters.

[00:54:40] Speaker 01:
I don't know why we would follow

[00:54:43] Speaker 01:
as against North Carolina?

[00:54:48] Speaker 03:
Well, again, yes, it would be a closer issue, Your Honor, if North Carolina had submitted different comments, if it had intervened in this dispute, if it had filed or even filed an amicus brief in this dispute, or at any point said something differently.

[00:55:03] Speaker 03:
Perhaps that would be a closer question.

[00:55:05] Speaker 03:
And maybe the standard wouldn't be so much Chevron deference, maybe it would be closer to Skidmore deference, whether our interpretation, you know, is reasonable under all the circumstances and has the power to persuade.

[00:55:17] Speaker 03:
But as you mentioned earlier, Judge Katz, the question here, ultimately, is between who gets to decide in this situation for or the court.

[00:55:25] Speaker 03:
And Congress said FERC, you do have some expertise in implementing a water quality certification conditions.

[00:55:34] Speaker 03:
We've said so by way of granting you jurisdiction to enforce Clean Water Act certifications.

[00:55:40] Speaker 01:
And do you agree that this scheme leaves the North Carolina agency with

[00:55:48] Speaker 01:
options going forward if let's say hypothetically we rule for the commission in this case the North Carolina agency has concerns they want to toughen up the condition do they have means for doing that going forward.

[00:56:04] Speaker 03:
I'm not sure I would agree that, well, I'd say that there are means for holding Cubiac and speech to the fire.

[00:56:11] Speaker 03:
I'm not sure about North Carolina.

[00:56:13] Speaker 03:
So this would be a different issue, perhaps in a different case, whether North Carolina can come back in and change its condition.

[00:56:19] Speaker 01:
Let me slightly modify it.

[00:56:21] Speaker 01:
Do they have means for protecting the water control interests

[00:56:28] Speaker 01:
either through modifying the condition or just through whatever mechanisms there are under state law for enforcing state law.

[00:56:38] Speaker 03:
So in condition seven of the water quality certification, they do reserve the right to enforce violations of its conditions.

[00:56:47] Speaker 03:
We have not disputed that.

[00:56:49] Speaker 03:
That's not on consideration here.

[00:56:51] Speaker 03:
So I'm wary of prejudicing my agency and saying what the latitude for North Carolina is in the future.

[00:56:59] Speaker 03:
But they certainly reserve the right in condition seven and

[00:57:01] Speaker 03:
and we did not dispute condition seven.

[00:57:04] Speaker 03:
But I'd further note, Salisbury also has recourse with the commission.

[00:57:09] Speaker 03:
As this court said in its North Carolina case under 16 USC 825H, the commission has broad remedial powers to revoke a license, to suspend a license in case of violations.

[00:57:20] Speaker 03:
And as this court said in the Alcoa case at Pinsight 974, which also dealt with certification conditions,

[00:57:27] Speaker 03:
The commission can suspend a license in the case of a water quality certification violation and Salisbury can petition the commission

[00:57:35] Speaker 03:
to take such enforcement action.

[00:57:38] Speaker 03:
Our regulations, 18 CFR 385.703, provide a party with the power to file a motion for remedial leave that's within the discretion of the commission.

[00:57:53] Speaker 03:
And we have that remedial discretion.

[00:57:55] Speaker 00:
So this is not- Mr. Fish, is this also the answer to their point about the proposals being so preliminary

[00:58:04] Speaker 00:
Burke was acting arbitrarily because they don't have enough information or details is the answer well as the license proceeds and and more.

[00:58:14] Speaker 00:
And the plan is actually implemented for still retains the authority as the license or to oversee it in some sense.

[00:58:22] Speaker 03:
certainly retains the authority to oversee it going forward, yes, your honor.

[00:58:26] Speaker 03:
I would say that that argument raised by them is jurisdictionally forfeited because they didn't raise it in their rehearing application.

[00:58:33] Speaker 03:
And as to Salisbury's point that, well, the first time FERC used the word conceptual design was in the rehearing order, Q's plan didn't change between the time of the initial order and the rehearing order.

[00:58:44] Speaker 03:
If it was too conceptual for Salisbury for purposes of the initial order and including that objection in the rehearing application,

[00:58:53] Speaker 03:
the same thing and hears the same objection hears, whether you're talking about the hearing order or the initial order.

[00:58:59] Speaker 03:
So that that issue is jurisdictionally forfeited at the outset.

[00:59:02] Speaker 03:
But, you know, again, this goes back to North Carolina having all the power in the world to tell for what to do, but leaving it ambiguous.

[00:59:11] Speaker 03:
They didn't define what a plan was to be.

[00:59:13] Speaker 03:
And the definition of plan ranges from anything conceptual, a goal or an aim.

[00:59:18] Speaker 03:
to something more comprehensive and intention to do something or something even more comprehensive, a detailed formulation of a plan of action.

[00:59:25] Speaker 03:
None of the definitions actually are Salisbury's preferred definition, which is a certain set of modifications or a final design.

[00:59:33] Speaker 00:
So can I just be clear on your forfeiture point because I understood that cube.

[00:59:40] Speaker 00:
that Cube did say things like, this plan is not going to protect the pump station from future settlement and flood impact at JA866.

[00:59:50] Speaker 00:
The Cube's plan would allow for the station to be flooded in that same way.

[00:59:57] Speaker 00:
And this was in the hearing request.

[00:59:58] Speaker 00:
So why is it that you think that this is not sufficient?

[01:00:02] Speaker 00:
I'm looking at JA860 and 866.

[01:00:06] Speaker 03:
Let's see.

[01:00:10] Speaker 03:
Well, that's so right.

[01:00:15] Speaker 03:
So your honor, those are objections to the actual elements of the plan, if it was to be designed.

[01:00:23] Speaker 03:
That's separate and apart from arguing that the plan is not definitive enough to know whether it's sufficient, whether it will protect worker safety, or whether it will cause debris accumulation.

[01:00:35] Speaker 03:
We understand that, well,

[01:00:37] Speaker 03:
taking their allegations as true, we understand that a new relocated pump station wouldn't have those same say, you know,

[01:00:49] Speaker 03:
negative effects, but that just points to the laser focus Salisbury has on ensuring that any Cubiac in design is a new relocated pump station because they want the 2011 Black and Beach Report to be the definitive baseline for- All right, but what about page 874?

[01:01:11] Speaker 00:
Cube all but admits that its plan is not sufficiently developed for meaningful review.

[01:01:16] Speaker 00:
The commission staff approved the plan anyway.

[01:01:20] Speaker 00:
That seems to me to be directly the argument that you say that they forfeited.

[01:01:24] Speaker 00:
And so I'm still a little confused by this forfeiture argument.

[01:01:29] Speaker 03:
I'm looking at 874 in the middle of the page at P. Hugo, this plan is not sufficiently developed for me and for you.

[01:01:39] Speaker 03:
Perhaps, Your Honor, but

[01:01:42] Speaker 03:
I'd say that that's distinct from arguing that it's just simply a conceptual design that can't be implemented from something that's a final design or a certain set of modifications.

[01:01:54] Speaker 03:
But even on the merits, we win here because there's nothing in condition 9B or in the definition of plan that requires it to be a certain set of modification or a final design as Salisbury would like it to be.

[01:02:08] Speaker 03:
If I could just make a point on that.

[01:02:10] Speaker 01:
Just ask what one odd aspect of this case to me.

[01:02:15] Speaker 01:
This goes partly to your comments about the latitude that North Carolina would have going forward but and may also go more broadly to the question of deference which is.

[01:02:31] Speaker 01:
It's a little bit been a little bit schizophrenic here about whether they really want to own this problem.

[01:02:41] Speaker 01:
I mean, they said on the front end, they said that something like condition nine isn't even necessary because there are all sorts of remedies in state court under state law for people

[01:02:57] Speaker 01:
like Salisbury to protect their interests.

[01:03:00] Speaker 01:
I think they even said that Burke lacks authority to afford redress to people like Salisbury.

[01:03:08] Speaker 01:
And then on the back end, I think there were certain micro

[01:03:14] Speaker 01:
objections about things like mold issues and such.

[01:03:17] Speaker 01:
And FERC's response to that was, oh, we're not gonna start adjudicating mold issues, take that to the appropriate state authorities.

[01:03:28] Speaker 01:
So you sort of wanna own this, but not really.

[01:03:33] Speaker 01:
And why should we give you deference under those circumstances?

[01:03:40] Speaker 03:
Well, Your Honor, first, if I could push back on the premise of your question, FERC has not said it didn't want to own this.

[01:03:48] Speaker 03:
It was FERC that first raised the issue of sediment accumulation and its impacts to the pump station in the 2008 environmental impact statement.

[01:03:57] Speaker 03:
It was FERC that raised that.

[01:03:59] Speaker 03:
All FERC said was, we don't think we have this roving power to impose restrictions on

[01:04:08] Speaker 03:
other facilities on anything that our license dam might affect.

[01:04:12] Speaker 03:
We don't have this roving power or responsibility to do that.

[01:04:16] Speaker 03:
We don't think that's within our jurisdiction.

[01:04:19] Speaker 03:
So it was a question about authority to do something, not whether it was feasible or... Sorry, tell me if I parsed this wrong.

[01:04:32] Speaker 01:
I'm reading from my notes.

[01:04:34] Speaker 01:
You said,

[01:04:36] Speaker 01:
In the initial order approving the plan, you said that FERC had deemed the condition unnecessary because FERC has no authority to hear claims about the impact of a dam on third parties like Salisbury.

[01:04:58] Speaker 01:
You said that Salisbury can seek redress

[01:05:01] Speaker 01:
for whatever harms to prevent or get compensated for whatever harms it may suffer in state court.

[01:05:10] Speaker 01:
And you said that Section 10C of the Federal Power Act expressly preserves that ability.

[01:05:18] Speaker 01:
It seems like it's a pretty hands-off approach, not a hands-on approach.

[01:05:23] Speaker 03:
I believe what we said, Your Honor, was in any event, the original environmental measure 17, which is the same thing as condition 9B to the water quality certification, isn't necessary because North Carolina included it in its water quality certification.

[01:05:38] Speaker 03:
So we all get to the same end result here.

[01:05:41] Speaker 03:
And yes, we said that if there are problems with flood impacts to the Salisbury pump station caused by QB Atkins dam, then proper redress is in state court.

[01:05:56] Speaker 03:
That is consistent with what this court has said about seeking review of state imposed water quality certification.

[01:06:07] Speaker 03:
In the Alcoa case, we said expressly,

[01:06:10] Speaker 03:
the place where an interested party challenges a violation to a water quality certification and certification itself is in state court.

[01:06:20] Speaker 03:
So we didn't, we simply.

[01:06:22] Speaker 01:
Which tends to suggest that ongoing enforcement and administrative authority is vested somewhere other than in the commission.

[01:06:36] Speaker 03:
No, no, your honor, because that

[01:06:40] Speaker 03:
because, again, Congress said in Section 1341D that the certification conditions become part of the license.

[01:06:47] Speaker 03:
And it's always been understood.

[01:06:48] Speaker 03:
I don't know of any authority saying that FERC does not have enforcement or administrative power to implement water quality certifications once they're part of the license.

[01:06:58] Speaker 03:
And if I could just add a coda to that statement, Salisbury submitted a 20-day letter last night regarding the Northern District of California's remand of the 2020

[01:07:10] Speaker 03:
Section 401 Clean Water Act rulemaking that doesn't affect this issue at all that the enforcement authority for FERC over water quality certifications existed long before as the Second Circuit recognized back in 1997 in the American Rivers case.

[01:07:26] Speaker 03:
That was

[01:07:28] Speaker 03:
just one small piece of that rulemaking where EPA simply confirmed that authority.

[01:07:34] Speaker 03:
That rulemaking and EPA seeking a voluntary remand of that rulemaking was about several other issues and, in my opinion, much larger issues.

[01:07:45] Speaker 03:
So that vacatur of that rulemaking from 2020 has no effect whatsoever on determining

[01:07:52] Speaker 03:
whether FERC has enforcement and administrative authority over water quality certifications.

[01:08:00] Speaker 01:
That's all I have.

[01:08:01] Speaker 01:
Judge Jackson, anything else?

[01:08:02] Speaker 00:
No, I'm all set.

[01:08:04] Speaker 00:
Thank you.

[01:08:04] Speaker 01:
Judge Ginsburg?

[01:08:05] Speaker 01:
No, thank you.

[01:08:06] Speaker 01:
Thanks, Mr. Fish.

[01:08:08] Speaker 01:
Mr. King, we'll give you a few minutes for rebuttal.

[01:08:12] Speaker 04:
Thank you, Your Honor.

[01:08:13] Speaker 04:
I'd like to make five quick points, two of which are just providing information that Judge Ginsburg asked.

[01:08:20] Speaker 04:
I had read earlier

[01:08:22] Speaker 04:
language in the water quality certification that requires compliance with water quality standards.

[01:08:27] Speaker 04:
And I apologize for not having that site earlier.

[01:08:29] Speaker 04:
That is at JA196 in the middle of that page.

[01:08:34] Speaker 04:
The entire purpose of water quality certifications is that you have to comply with the water quality standards.

[01:08:39] Speaker 04:
You cannot violate a water quality standard and simultaneously comply with the water quality certification.

[01:08:46] Speaker 04:
Judge Ginsburg also asked whether or not protective dyke in this situation keeps the building

[01:08:51] Speaker 04:
dry on the inside.

[01:08:53] Speaker 04:
I agree that if that language in the abstract council may be correct that you can read it a couple of different ways.

[01:09:00] Speaker 04:
But that language is actually contained.

[01:09:02] Speaker 04:
That phrase is contained in condition nine.

[01:09:07] Speaker 04:
And in the record, there is only one plan that refers to protective dikes.

[01:09:11] Speaker 04:
And that is one of the three plans that existed at the time.

[01:09:15] Speaker 04:
Um, that's McGill.

[01:09:16] Speaker 04:
I'm sorry.

[01:09:18] Speaker 02:
That's McGill.

[01:09:19] Speaker 04:
Yes, yes, correct.

[01:09:21] Speaker 04:
And that one did require the building to be dry on the inside.

[01:09:25] Speaker 04:
So I just wanted to address those two things.

[01:09:26] Speaker 04:
The bigger point I wanted to make here, I mentioned earlier that there are a lot of tools that the court can use.

[01:09:30] Speaker 04:
The tool that I think is overlooked here is common sense.

[01:09:34] Speaker 04:
The whole goal here is figuring out what DEQ meant.

[01:09:37] Speaker 04:
Do we really think that the state environmental quality agency wanted and expected

[01:09:45] Speaker 04:
the water intake building, the pump station to be flooded with contaminated water and a building that cannot stand the impact of contaminated water for their employees to be perched over these contaminated flood waters on some sort of catwalk.

[01:10:00] Speaker 04:
And when we said to FERC, this is not engineering, this is not possible either as a matter of engineering or as a matter of law, FERC's reaction was, that's not our problem.

[01:10:11] Speaker 04:
Well, apparently that's the city of Salisbury's problem that the thing that FERC has approved

[01:10:15] Speaker 04:
cannot be done.

[01:10:19] Speaker 02:
Why wouldn't it be Cube's problem if they cannot build what they're talking about, then they've got to do something else.

[01:10:30] Speaker 04:
Well, I guess, to a certain extent, you're correct, Your Honor, but how much time are we going to spend with them not getting it right the first time?

[01:10:38] Speaker 04:
And here's the point that I want to make, Your Honor.

[01:10:41] Speaker 04:
The problem that we've got here is that while

[01:10:44] Speaker 04:
Condition 9B is not clearly written.

[01:10:47] Speaker 04:
It clearly is referring to a city of Salisbury design.

[01:10:50] Speaker 04:
And the interpretation that has been made by FERC acts like the state of North Carolina does not exist.

[01:10:55] Speaker 04:
When you're interpreting language that is ambiguous, you choose the potential interpretations of the language that you have.

[01:11:02] Speaker 04:
And what FERC has done in this situation is torn that page out and thrown it away and said, well, you can live with a hundred year flood because everybody agreed that that's the goal, which is an absolute false statement.

[01:11:15] Speaker 01:
The idea of flooding the building, but raising the equipment, it's a little counterintuitive to me, but what's your response to Mr. Fish's point that there are recognized industry standards of flood protection and that is one thing that is a permissible option.

[01:11:44] Speaker 04:
Well, it may be a permissible option as a matter of engineering if the state of North Carolina was not in charge of this, but the state of North Carolina has used the phrase, the city of Salisbury's design, and that has got to mean something.

[01:11:57] Speaker 04:
And the first thing that Fert should have done when they sat down and said, you know, gosh, they said the city of Salisbury's design, what are they talking about?

[01:12:04] Speaker 01:
Okay, and that goes back to your major interpretive point.

[01:12:10] Speaker 01:
I guess I'm just trying

[01:12:13] Speaker 01:
I'm trying to see if there's a separate common sense point that like, you know, no competent engineer would think that you can flood the building and raise the equipment.

[01:12:27] Speaker 01:
And it sounds like that instinct is wrong.

[01:12:31] Speaker 04:
Well, I mean, that's exactly right.

[01:12:34] Speaker 04:
And I will tell you, Ron, the thing that I found most shocking when I got involved in this case

[01:12:39] Speaker 04:
was that when the city of Salisbury said, look, here are the engineering studies that showed that what Cube Hydro was talking about doing doesn't work and cannot be done.

[01:12:48] Speaker 04:
And they have to comply with the requirement of sound and prudent engineering.

[01:12:52] Speaker 04:
FERC said, we don't have to comply with that standard.

[01:12:55] Speaker 00:
They said- Isn't that standard one that comes from FERC's regulations relative to,

[01:13:06] Speaker 00:
actual projects that it is approving?

[01:13:11] Speaker 04:
Well, I think it is, Your Honor.

[01:13:13] Speaker 04:
I think the finer points of that are addressed in our brief.

[01:13:16] Speaker 04:
And I would just defer to our brief.

[01:13:18] Speaker 00:
I mean, I don't know how you can have it both ways, Mr. King.

[01:13:21] Speaker 00:
You've been saying over and over again that this is a North Carolina thing, that this is a North Carolina water quality people are controlling it.

[01:13:30] Speaker 00:
And yet, somehow, in this moment, you would like to have the court import

[01:13:34] Speaker 00:
a FERC regulation and say that FERC should be faulted for not having applied it?

[01:13:40] Speaker 04:
Oh, no.

[01:13:41] Speaker 04:
Actually, that's a great point, Your Honor.

[01:13:42] Speaker 04:
I wish I thought of that before I started saying these things.

[01:13:45] Speaker 04:
Here's my point, Your Honor.

[01:13:46] Speaker 04:
I think that that regulation sets a floor on what FERC can do.

[01:13:51] Speaker 04:
It doesn't provide the answer.

[01:13:53] Speaker 04:
But I think what it means is whatever it is that FERC approves, it has to be something that you can actually do as a matter of engineering.

[01:14:00] Speaker 04:
This is the state's call.

[01:14:02] Speaker 04:
But whatever they do, they got to get that part of it right.

[01:14:05] Speaker 04:
It's got to be a matter of proper engineering.

[01:14:07] Speaker 04:
And if I could, I'd just make two real quick points.

[01:14:12] Speaker 04:
As the Supreme Court said in Kaiser versus Wilkie, consider that if you don't know what some text means, you would probably want to ask the person who wrote it.

[01:14:21] Speaker 04:
Now, we think that this court ought to reverse and say,

[01:14:24] Speaker 04:
and interpret that language in condition 9b to mean the Black and Beech report or something that yields a similar benefit or the same thing.

[01:14:33] Speaker 00:
I understood Mr. Fish to say that FERC wrote it originally.

[01:14:36] Speaker 00:
Maybe I misheard him.

[01:14:38] Speaker 00:
But did you hear that?

[01:14:39] Speaker 00:
And if so, what's your response to that?

[01:14:42] Speaker 04:
Well, there is similar language, not identical language, but very similar language in the EIS.

[01:14:46] Speaker 04:
And I agree with that.

[01:14:47] Speaker 04:
And I believe that DEQ took that language and modified it for their own purposes.

[01:14:51] Speaker 04:
So I think council's about 85% right on that.

[01:14:54] Speaker 04:
It is similar, but it is DEQ's language ultimately.

[01:14:58] Speaker 04:
And it was DEQ's call under the Clean Water Act as to what language they use.

[01:15:01] Speaker 04:
But as they say, there's nothing new under the sun and people frequently borrow work from somebody else.

[01:15:07] Speaker 00:
And I think- Doesn't that at a minimum undermine your point on deference?

[01:15:12] Speaker 00:
that if this was language that the state originally adopted from the EIS and used to its own purposes, then aren't we back to FERC should be given some deference with respect to how it should be interpreted?

[01:15:26] Speaker 04:
Well, I think, Your Honor, would be correct if we were not operating in the context of the Clean Water Act.

[01:15:30] Speaker 04:
The Clean Water Act is built around the idea of federalism.

[01:15:33] Speaker 04:
It's built around the idea the statement with Caroline in this situation is not consulted on this.

[01:15:37] Speaker 04:
They do not get input.

[01:15:38] Speaker 04:
They do not get to look at a draft.

[01:15:40] Speaker 04:
They are the beginning and the end of the discussion.

[01:15:42] Speaker 04:
And that has been provided by Congress.

[01:15:45] Speaker 04:
And I don't think it matters, frankly, your honor, if DEQ copied 50 pages word for word, if it's their word quality certification, it's their word quality certification and what they say is the end of it.

[01:15:57] Speaker 02:
I have that- When Council for the City spoke about this language coming from the EIS,

[01:16:08] Speaker 02:
He used the word verbatim.

[01:16:09] Speaker 02:
Do you think that's not quite accurate?

[01:16:12] Speaker 04:
I do not think it is verbatim, Your Honor.

[01:16:14] Speaker 04:
I think it is very close.

[01:16:16] Speaker 04:
But it is very close.

[01:16:18] Speaker 04:
I think there are some very small differences.

[01:16:20] Speaker 04:
The last point that I would make is simply to refer the Court to the Federal Power Act.

[01:16:25] Speaker 04:
And if the Court will bear with me.

[01:16:26] Speaker 04:
Federal Power Act provides each licensee here under shall be liable for all damages occasioned to the property of others,

[01:16:33] Speaker 04:
by the construction, maintenance, or operation of the project works or the works of pertinent or accessory there to constructed under the license.

[01:16:40] Speaker 04:
Now the courts have said that does not mean that PERT can issue damages.

[01:16:44] Speaker 04:
They cannot make Cube Hydro pay the city of Salisbury damages.

[01:16:48] Speaker 04:
Well, if they can't make them pay damages, what does it mean?

[01:16:51] Speaker 04:
It means that whatever it is that's being done by the licensee has got to be fixed.

[01:16:56] Speaker 04:
And I go back to the layperson's interpretation.

[01:16:58] Speaker 04:
If somebody is flooding your property,

[01:17:00] Speaker 04:
You know, at the end of the day, whatever the answer is going to be, it's not going to be, you got to suck it up.

[01:17:04] Speaker 04:
Your property is going to be flooded, and that's just too bad.

[01:17:07] Speaker 04:
That's what the federal government has said to the city of people of Salisbury.

[01:17:11] Speaker 04:
That's just too bad.

[01:17:12] Speaker 04:
You're just going to have to live with a flooded building.

[01:17:15] Speaker 04:
That cannot be what DEQ had intended.

[01:17:18] Speaker 04:
At the very least, Your Honor, we would request that they be remanded so that FERC can go to the people that actually wrote the language and say to DEQ, look, help us out.

[01:17:26] Speaker 04:
We've already been to the D.C.

[01:17:27] Speaker 04:
Circuit.

[01:17:27] Speaker 04:
This is all about what you intend.

[01:17:29] Speaker 04:
What exactly did you mean when you said the city of Salisbury's plan, but it is not flooding the building.

[01:17:34] Speaker 04:
As that song goes, you can't get there from here.

[01:17:38] Speaker 01:
I appreciate the court's time.

[01:17:39] Speaker 01:
Judge Jackson, anything else?

[01:17:41] Speaker 00:
No, thank you.

[01:17:42] Speaker 01:
Judge Ginsburg?

[01:17:43] Speaker 01:
No, thank you.

[01:17:45] Speaker 01:
Thanks to both counsel for helpful arguments.

[01:17:47] Speaker 01:
The case is submitted.