[00:00:00] Speaker 00: Case number 20-5203, Cletus Woodrow-Bohan et al., et al. [00:00:05] Speaker 00: versus Federal Energy Regulatory Commission, et al. [00:00:09] Speaker 00: Ms. [00:00:09] Speaker 00: Hugo for the et al. [00:00:10] Speaker 00: Mr. Solomon for the et al. [00:00:12] Speaker 00: FERC, Mr. Marwell for the et al. [00:00:14] Speaker 00: Mountain Valley Pipeline, LLC. [00:00:18] Speaker 00: Morning, Ms. [00:00:18] Speaker 00: Hugo. [00:00:24] Speaker 01: Good morning, Your Honors. [00:00:25] Speaker 01: It may please the court. [00:00:26] Speaker 01: Mia, you go for landowner petitioners. [00:00:28] Speaker 01: Your Honors, I've asked the clerk to reserve three minutes for rebuttal. [00:00:32] Speaker 01: Your honors, as a general rule, we know that there are two types of questions, questions that go to the agency and questions that can only be raised in district court. [00:00:42] Speaker 01: The issue today is how do we figure out which questions go where? [00:00:45] Speaker 01: How do we know where to start? [00:00:47] Speaker 01: Well, your honors, we don't have to wonder. [00:00:49] Speaker 01: The body of case law actually tells us and it gives us a very clear and consistent line of demarcation. [00:00:57] Speaker 01: On the one hand, under type A questions, the case law shows us three categories of cases that always go to the agency. [00:01:05] Speaker 01: The first category is when a landowner alleges noncompliance with the terms of a certificate. [00:01:11] Speaker 01: The second category is when a landowner is trying to change the location of the pipeline. [00:01:16] Speaker 01: The third category is preemption cases. [00:01:20] Speaker 01: Of those three categories, category number one accounts for probably more than 90% [00:01:26] Speaker 01: of the challenges that we see. [00:01:27] Speaker 01: For example, Category 1 covers Columbia Gas, Western District of Pennsylvania, 2017. [00:01:35] Speaker 01: It covers Millennium Pipeline, Western District of New York, 2011. [00:01:40] Speaker 01: It even covers a case heard in this court just last week, City of Miami, Oklahoma versus Burke. [00:01:47] Speaker 01: In all of those cases, we see that the complaint is a landowner alleging that the certificate itself, the conditions and the terms were violated. [00:01:57] Speaker 01: And so those cases properly go to the agency. [00:02:00] Speaker 01: For example, in Columbia Gas, the landowner is complaining [00:02:05] Speaker 01: that the environmental conditions that were set forth in the certificate were not actually followed by Columbia. [00:02:11] Speaker 01: And so the district court dismissed for lack of jurisdiction. [00:02:15] Speaker 01: Why? [00:02:15] Speaker 01: Because compliance with the certificate is FERC's job. [00:02:19] Speaker 01: FERC does that 24-7. [00:02:21] Speaker 01: In Millennium Pipeline, we see the same thing. [00:02:25] Speaker 02: You might want to talk about the cases that you say include yours, the category of cases that you say include yours, which in your view don't have to go to the agency. [00:02:34] Speaker 01: Yes, your honor. [00:02:35] Speaker 01: That would be category cases under type B. So three categories I'm talking about are type A. The type B cases, for example, we see Johnson v. Robeson, 1974 U.S. [00:02:46] Speaker 01: Supreme Court decision. [00:02:48] Speaker 01: We see Free Enterprise, 2010. [00:02:50] Speaker 01: We see Circo versus Social Security Administration. [00:02:53] Speaker 01: That's a third circuit decision, 2020. [00:02:56] Speaker 01: We see a Thatcher versus Tennessee Gas Company, Fifth Circuit, 1950. [00:03:01] Speaker 01: And that's a case often cited by MVP and FERC. [00:03:05] Speaker 01: But if you look at the jurisdiction question, which is the only question before this court, all of those, that case actually was decided on the merits in the district court and in the Fifth Circuit. [00:03:15] Speaker 01: And it's the exact same question that we have in our account three. [00:03:19] Speaker 01: under the private non-delegation doctrine. [00:03:21] Speaker 01: A very recent case from the US Supreme Court, Penn East, for example. [00:03:25] Speaker 01: Penn East, this US Supreme Court, found that there was jurisdiction for New Jersey to raise that claim. [00:03:32] Speaker 02: But Penn East was already in district court because the district courts have jurisdiction over the condemnation actions, right? [00:03:39] Speaker 02: There's no dispute that had there been a condemnation action in the district court, that this claim could have been brought there, is there? [00:03:46] Speaker 01: Yes, Your Honor, but there are plenty of the cases that have cited Columbia Gas Millennium Pipeline, others cited by MVP. [00:03:55] Speaker 01: Those are all defensive actions that were dismissed in district court, even though they were raised as a defense in response to a condemnation action. [00:04:02] Speaker 01: So the takeaway from Penn East is not that there's jurisdiction because New Jersey raised it as a defense to the condemnation action. [00:04:09] Speaker 01: because we have dozens, in fact, hundreds of cases where the landowner raises a defensive claim in response to the condemnation action, and it's still dismissed. [00:04:18] Speaker 01: And that's because of the nature of the claim. [00:04:21] Speaker 01: In fact, I point the court to page 2262 of the US Supreme Court's decision, Chief Justice Roberts speaking for the majority. [00:04:30] Speaker 01: And he says, quote, but they have again misconstrued the issue in this case as whether the United States can delegate its ability to sue states. [00:04:39] Speaker 01: The issue is instead whether the United States can delegate its eminent domain power to private parties. [00:04:46] Speaker 01: Your Honor, that's the Supreme Court's language. [00:04:48] Speaker 01: Page 2262, Chief Justice Roberts is saying two important points. [00:04:53] Speaker 01: Number one, Penn East is about delegation. [00:04:56] Speaker 01: Number two, the majority is telling us which kind of delegation. [00:05:00] Speaker 01: He's saying in that quote, he's saying it's not about the delegation of the exemption to 11th Amendment immunity, [00:05:06] Speaker 01: It's actually about the delegation of the power of eminent domain to a private party. [00:05:10] Speaker 01: Right, but that doesn't speak to how and why it's in the district court. [00:05:15] Speaker 01: Yes, your honor. [00:05:15] Speaker 01: It's in district court because they raised it as a defense. [00:05:18] Speaker 01: But so we're looking at and we're saying. [00:05:20] Speaker 01: why did the Supreme Court find that there was jurisdiction and so and so we asked what what's the difference between pennies because that was raised as a defense to the condemnation action. [00:05:30] Speaker 01: What is the difference between that defensive claim why is there jurisdiction there and why is there no jurisdiction in these other cases where landowners repeatedly raise other defenses why are those routinely dismissed what makes pennies different and so that's why it's important to understand what the nature of the claim is because [00:05:48] Speaker 01: Unlike an appellate court, where it matters how the claim got there, in the district court, you look at the statute that confers jurisdiction and it doesn't matter if it's offensive or defensive. [00:06:00] Speaker 01: The controlling question is, what is the nature of the claim? [00:06:03] Speaker 01: And that's why Penn East, just like Thatcher v. Tennessee, yes. [00:06:06] Speaker 01: even though they're raised defensively, there is jurisdiction in the district court. [00:06:11] Speaker 02: Well, it very much does matter under Straubridge and under the well-pleaded complaint rule whether something's raised as a claim or raised as a defense. [00:06:20] Speaker 01: In the context of the Natural Gas Act, I think this language from the majority speaks to [00:06:25] Speaker 01: how we determine which claims relating to a pipeline can stay in district court and can only be raised in district court and which claims can't because Chief Justice John Roberts goes on to explain that that distinction, that substantive distinction about what the substance is of the defensive claim is critical to the Supreme Court's decision because if it were, if Penn East were about [00:06:45] Speaker 01: 11th amendment. [00:06:47] Speaker 01: If that was the delegation that was important, then the delegation has to be unmistakably clear. [00:06:52] Speaker 01: The language has to be unmistakably clear. [00:06:55] Speaker 01: But because Penn East is about the delegation of federal eminent domain power to a private party, because that's the central question, the delegation language does not need to be unmistakably clear. [00:07:06] Speaker 01: And that's why that distinction is critical, and that's what makes Penn East different. [00:07:11] Speaker 01: But moving back to the categories of cases, which are most of the cases that we see. [00:07:16] Speaker 03: Did New Jersey seek to set aside Burke's order in Penn East? [00:07:22] Speaker 01: No, Your Honor. [00:07:23] Speaker 01: Actually, it was a constitutional facial. [00:07:26] Speaker 01: Your Honor, as I see, my time has expired. [00:07:29] Speaker 01: I've reserved three minutes for rebuttal. [00:07:32] Speaker 02: Can I? [00:07:32] Speaker 02: You can continue. [00:07:33] Speaker 02: We'll give you rebuttal time as long as the judges have questions. [00:07:37] Speaker 02: They won't use up your rebuttal time. [00:07:40] Speaker 02: Okay. [00:07:40] Speaker 02: Thank you, your honor. [00:07:41] Speaker 01: To your ears. [00:07:42] Speaker 03: Well, so it was my follow-up. [00:07:44] Speaker 03: If, if New Jersey didn't seek to modify first order in Denise, which I agree with you, they did not, um, is do you seek to modify or set aside first order in this case? [00:07:54] Speaker 01: No, your honor, neither New Jersey nor we seek to modify the actual order. [00:07:58] Speaker 03: And you don't, you don't want to set aside first order in this case. [00:08:01] Speaker 01: No, Your Honor. [00:08:02] Speaker 01: That's not the relief that we seek. [00:08:07] Speaker 01: We seek to find that the entire scheme is unconstitutional. [00:08:13] Speaker 03: Why do you want to do that? [00:08:15] Speaker 01: We want the NGA to be found unconstitutional. [00:08:18] Speaker 03: Why do you want it to be found unconstitutional? [00:08:20] Speaker 01: Under the non-delegation doctrine. [00:08:22] Speaker 03: Why do you [00:08:25] Speaker 03: your client as opposed to any other person in the world who might not have standing. [00:08:31] Speaker 03: What does your client want this court to find that there's a non delegation? [00:08:37] Speaker 01: I think your honor's point is going to standing. [00:08:40] Speaker 01: My clients have to have a concrete and particularized injury. [00:08:43] Speaker 01: In fact, it's capable of being addressed. [00:08:45] Speaker 03: It's not just standing. [00:08:46] Speaker 03: My question is I'm trying to get out. [00:08:48] Speaker 03: What would be the fact of [00:08:51] Speaker 03: us agreeing with you. [00:08:53] Speaker 03: And I think the effect of us agreeing with you is that [00:08:58] Speaker 03: would be set aside. [00:08:59] Speaker 01: No, Your Honor, the effect of this court agreeing with me today is only that my clients get a trial on the merits, a hearing on the merits in the district court. [00:09:07] Speaker 01: That's the only question today. [00:09:09] Speaker 01: And that was what happened in New Jersey. [00:09:11] Speaker 01: And in fact, the rule, the rule, we're not seeking to set it aside because as noted by the Supreme Court in Penn East, New Jersey did the reason they say it's not like the city of Tacoma is because New Jersey did not run [00:09:24] Speaker 01: the state court to try to enjoin the penny certificate. [00:09:27] Speaker 03: If you had a trial in the district court, what can you want? [00:09:31] Speaker 03: What would happen? [00:09:34] Speaker 01: It would not be able to issue all certificates in the entire country would be void. [00:09:37] Speaker 01: But the district court has one, including the certificate in this, including the certificate that's affecting our clients. [00:09:43] Speaker 01: But such would be true as well. [00:09:44] Speaker 03: If New Jersey had one, are there any cases in what you described in the beginning is category B, uh, where the effect [00:09:56] Speaker 03: the effect of the case would have been to set aside a per quarter? [00:10:01] Speaker 01: Uh, the pennies, your honor, the, oh, in under, under category one, two and three, they. [00:10:06] Speaker 03: No, no, no, sorry. [00:10:07] Speaker 03: So you said the category A not like your case. [00:10:10] Speaker 01: Yes. [00:10:10] Speaker 03: There's three subcategories. [00:10:12] Speaker 03: You said category B is like your case. [00:10:14] Speaker 01: Yes. [00:10:14] Speaker 03: So I'm asking you if there are any precedents in category B where the effect of a successful suit would have been to set aside a per quarter? [00:10:24] Speaker 01: Well, Your Honor, if something if the enabling legislation is rendered unconstitutional, then the effect is that all certificates would be set aside, not just your particular certificate. [00:10:32] Speaker 01: I point Your Honor to Delaware Riverkeeper 2018 decision from this court and to no gas pipeline 2014 another decision from this court. [00:10:40] Speaker 01: I'm sorry, what was NO gas pipeline? [00:10:43] Speaker 01: Is that what you mentioned? [00:10:44] Speaker 01: Yes, NO gas pipeline 2014, where the DC Circuit Court actually found decline to exercise jurisdiction because this court said the first did not have jurisdiction in the first instance and therefore the DC Circuit does not have jurisdiction in the second instance. [00:10:58] Speaker 01: And that was also a claim where those two cases, there were, MVP says there were no orders that were being [00:11:05] Speaker 01: that were involved in those two claims, but there actually were certificate orders in both of those claims. [00:11:10] Speaker 01: And this court said that those have to originate in district court, even though there was an order that would be affected. [00:11:14] Speaker 02: In Delaware, Riverkeeper, they said it had to be originating in district court, but they didn't question its origination in district court. [00:11:21] Speaker 02: And there they said that that was because it was a challenge to the Budget Act. [00:11:25] Speaker 02: Yes, Your Honor. [00:11:25] Speaker 02: It wasn't a challenge to certificate orders, either in particular or in general. [00:11:30] Speaker 01: Yes, your honor. [00:11:31] Speaker 01: That's true. [00:11:31] Speaker 01: It was a challenge rising under the Budget Act. [00:11:34] Speaker 01: But the point is it's analogous to this case because it's not arising under the Natural Gas Act. [00:11:39] Speaker 01: And we know what arising under means because I point the court to Johnson v. Robeson. [00:11:43] Speaker 01: Page 367, the Supreme Court defines arising under as meaning the application of a particular provision of the statute to a particular set of facts. [00:11:53] Speaker 01: And under type A cases, and this maybe goes to your question as well, Judge Walker, under type A cases, the two key takeaways are it goes to the agency. [00:12:01] Speaker 01: if it requires factual development and there's an opportunity for error correction. [00:12:06] Speaker 01: If the agency and the pipeline company can't fix the problem, then it has to go to district court. [00:12:14] Speaker 01: And that's what we see in Penn East. [00:12:16] Speaker 01: All right, Ms. [00:12:16] Speaker 02: Hugo, we'll give you the three minutes that you sought to reserve for rebuttal. [00:12:21] Speaker 02: And we'll hear now from Mr. Solomon on behalf of the commission. [00:12:25] Speaker 02: Thank you, Your Honors. [00:12:35] Speaker 02: Morning, Mr. Solomon. [00:12:36] Speaker 05: Good morning, and may it please the court, Robert Solomon, for the commission. [00:12:47] Speaker 05: Your honors, I think I will start with Judge Walker's question. [00:12:52] Speaker 05: What were the plaintiffs here seeking to do? [00:12:55] Speaker 05: What was their intent? [00:12:56] Speaker 05: Were they seeking to modify the FERC order and the FERC certificate? [00:13:02] Speaker 05: And the district court judge here understandably found based upon the complaint [00:13:09] Speaker 05: that the plaintiffs filed in federal district court, that the target was in fact the FERC order and the FERC certificate. [00:13:21] Speaker 05: The Supreme Court Penn East decision reaffirms that the appropriate inquiry for the court is to ascertain whether the challenge is effectively, and Your Honor spoke about the effect, [00:13:36] Speaker 05: whether it is effectively a collateral attack on the FERC order and the FERC certificate. [00:13:43] Speaker 05: And what the district court here, Judge Boesberg, found was that the complaint names Mountain Valley Pipeline as a defendant, counts two and three challenge the sub-delegation of eminent domain authority to private entities, including Mountain Valley Pipeline, [00:14:05] Speaker 05: The complaint sought to void ab initio all certificates issued by the FERC and the complaint sought to enjoin the exercise of eminent domain authority under 15 USC 717 F subsection H. So I asked you a question about pennies in pennies. [00:14:31] Speaker 04: Could New Jersey have [00:14:33] Speaker 04: intervened in the FERC proceedings and been a party to a petition in the Court of Appeals and raised its sovereign immunity arguments in the Court of Appeals. [00:14:52] Speaker 05: I think the answer is yes, but I need to qualify. [00:14:56] Speaker 05: New Jersey was in fact a party in the FERC proceedings and did petition for review. [00:15:05] Speaker 05: The various instrumentalities of New Jersey are petitioners in the 18-1128 et al. [00:15:15] Speaker 05: case, which is captioned as Delaware Riverkeeper et al. [00:15:19] Speaker 05: versus first. [00:15:22] Speaker 05: So all of the arguments that New Jersey appropriately preserved in its petition for agency rehearing can be articulated to the Court of Appeals on review of the order. [00:15:37] Speaker 05: The 11th Amendment issue is a little different because as the Supreme Court found in Penn East, that was a defense to the state of New Jersey being hailed into federal district court. [00:15:57] Speaker 05: and was a defense that allowed the state to raise its state sovereign immunity and to challenge the indignity and front of a private certificate holder. [00:16:12] Speaker 05: hailing New Jersey into court and initiating the condemnation proceeding. [00:16:19] Speaker 05: So even though New Jersey can raise all of the issues that it raised in the first proceeding to the Court of Appeals, Pennies demonstrates that that is one category of issue that is properly presented to the district court. [00:16:40] Speaker 04: Let me make sure I understand you. [00:16:44] Speaker 04: Is there any part of the argument that New Jersey made in the U.S. [00:16:51] Speaker 04: District Court with respect to the 11th Amendment that it could not have made before the Court of Appeals? [00:16:59] Speaker 04: Yes or no? [00:17:03] Speaker 05: Yes, I would say there is a part, and the part is the 11th Amendment constitutional challenge, whether the certificate delegated to the private certificate holder, the federal exemption from the exercise of state sovereign immunity, because as the Supreme Court found in Penn East, [00:17:31] Speaker 05: The certificate, the FERC order, did not address the issue of eminent domain over state lands. [00:17:41] Speaker 02: So it wouldn't have really been ripe until there was an effort to exercise the eminent domain authority? [00:17:46] Speaker 05: I think that's correct. [00:17:47] Speaker 05: Whether phrased as a jurisprudential concern, rightness, or whether it's raised as a statutory prerequisite under the Natural Gas Act, that particular 11th Amendment issue is appropriately raised [00:18:06] Speaker 05: in the district court, but any other issue that seeks to modify or set aside the for order is entirely within the exclusive jurisdiction of the court of appeals on review of the for court. [00:18:23] Speaker 02: So if there's a FERC order and there's rehearing sought, but there are private landowners who do not participate and are not really paying much attention, and then when a condemnation proceeding is filed in federal district court against them, [00:18:46] Speaker 02: Is it open to them to raise the kind of claim then that Ms. [00:18:49] Speaker 02: Hugo's clients are seeking to raise, or is it your view that those would have been forfeit because of failure to raise them in the certificate? [00:18:59] Speaker 05: It is our view that those claims would have been forfeited. [00:19:03] Speaker 02: They can't be raised defensively, unlike the claims. [00:19:09] Speaker 05: And I know the defensive versus offensive terminology was raised in the Supreme Court decision, but the operative inquiry is whether the claim is in fact a collateral challenge [00:19:22] Speaker 05: an effort to modify or set aside. [00:19:27] Speaker 05: I should point out, of course, that there's no argument as to any deficiency in terms of the notice that the landowners- Well, it wouldn't be necessarily an effort to set aside the certificate order. [00:19:38] Speaker 02: It would be an effort to say, you can't enforce against me, certificate order being what it is. [00:19:45] Speaker 02: You can't enforce against my land because there's a constitutional defect. [00:19:51] Speaker 05: Well, this is the relevant inquiry. [00:19:53] Speaker 05: It's always a fact-based inquiry. [00:19:56] Speaker 05: Plaintiffs are trying to turn this into a categorical, generic exception that if there is a delegation claim or if there is some type of constitutional claim that necessarily takes the matter outside of appropriate channeling through the agency and then through the [00:20:21] Speaker 05: Court of Appeals, I do want to point out that even though the agency in the certificate order said that it wouldn't act as an Article III court and make a judgment on the constitutionality of the statute, the agency in paragraphs 58 to 63 of the certificate [00:20:48] Speaker 05: did address some of the predicate threshold issues. [00:20:56] Speaker 05: The commission made reference to the Berkeley and Bold Alliance cases that were percolating in federal district court. [00:21:04] Speaker 05: It noted that the statute, not the agency, is the entity that conveys eminent domain authority. [00:21:12] Speaker 05: It noted that as this court has held, the agency's public convenience and necessity finding acts as the public use Fifth Amendment finding. [00:21:27] Speaker 05: And even more particular and even more germane to this case, in the rehearing order, paragraph 73 to 75, the agency addressed [00:21:40] Speaker 05: the issue raised by actual intervener parties in the agency proceeding that Congress had improperly delegated eminent domain authority to private certificate holders. [00:21:57] Speaker 05: And the agency said that the courts have found [00:22:02] Speaker 05: that that type of delegation is constitutional. [00:22:08] Speaker 05: Referencing the Thatcher case, that was the 1950 Fifth Circuit decision. [00:22:18] Speaker 05: And it makes sense that the agency would want to do this, as the courts have found, even though we're not experts on adjudicating constitutional issues, the agency can bring its experience in administering the statute. [00:22:35] Speaker 05: We can bring that to bear. [00:22:38] Speaker 05: We can possibly obviate the need to address the constitutional issue in the first instance. [00:22:46] Speaker 02: Judge Wilkins, do you have further questions? [00:22:48] Speaker 05: No, I did not. [00:22:50] Speaker 02: All right. [00:22:50] Speaker 02: Thank you very much, Mr. Solomon. [00:22:53] Speaker 05: Thank you, Your Honor. [00:22:55] Speaker 02: And we'll hear now briefly from Mr. Marwell for Mountain Valley Pipeline. [00:23:02] Speaker 06: Good morning, Your Honors. [00:23:03] Speaker 06: Jeremy Marwell for Appellee Mountain Valley Pipeline. [00:23:07] Speaker 06: I could just make three quick points responsive to what dialogue that has just been occurring. [00:23:12] Speaker 06: The claim that was pleaded in the complaint and addressed in the [00:23:15] Speaker 06: court decision below sought, addressed a complaint that sought to seek, sorry, sought to set aside the Mountain Valley Pipeline Certificate. [00:23:24] Speaker 06: You can see that at JA 20-23 where they specifically asked the court to declare void all certificates in Mountain Valley was named as a defendant [00:23:32] Speaker 06: sought that relief. [00:23:33] Speaker 06: It had an opportunity to disclaim that relief at any point, but I think it is too late for them to do that now. [00:23:40] Speaker 06: And this court can decide the case that was pleaded in the complaint and not reach broader questions if there are concerns. [00:23:48] Speaker 06: On Penn East, I think that was different because as was discussed, New Jersey did not seek to set aside the Penn East complaint in the district court where it was attended in the condemnation proceeding. [00:23:58] Speaker 02: You said the pennies complaint. [00:24:00] Speaker 02: You mean the pennies certificate? [00:24:02] Speaker 06: Right. [00:24:02] Speaker 06: I'm sorry. [00:24:02] Speaker 06: It did not seek to set aside the pennies certificate in the condemnation case. [00:24:08] Speaker 06: In fact, it went further than that. [00:24:10] Speaker 06: It conceded that for purposes of the condemnation case, the certificate was valid. [00:24:15] Speaker 06: It also conceded that pennies had eminent domain authority. [00:24:18] Speaker 06: It had a very narrow 11th Amendment argument, which was just that pennies could not be the name on the plaintiff, could not be named in the complaint in executing the eminent domain. [00:24:28] Speaker 02: Not the pennies could not be named, but that. [00:24:30] Speaker 06: Pennies could not be the named plaintiff. [00:24:32] Speaker 02: The named plaintiff. [00:24:33] Speaker 06: In bringing the condemnation case. [00:24:35] Speaker 06: And they said if the United States or FERC brought the complaint, there would not be an 11th Amendment problem because the state had surrendered its sovereign immunity. [00:24:44] Speaker 06: So that claim was far away from the certificate. [00:24:48] Speaker 06: It was not tied up with the pennies certificate in the way that the claim here is where they named a specific certificate holder and sought relief against that certificate. [00:24:57] Speaker 02: What about Delaware Riverkeeper? [00:25:01] Speaker 02: Isn't that a claim that actually could have been brought through the agency? [00:25:08] Speaker 06: Well, the way this court analyzed that claim in the no gas pipeline case in Delaware Riverkeeper was that it was collateral to the dispute about the certificate because they were just talking about the funding structure that was set up in the budget act. [00:25:26] Speaker 06: And this court, I think we have to take those cases understanding the way this court. [00:25:33] Speaker 06: identified the claims and the court said, we view that as I take it to be essentially wholly collateral to the dispute about the certificate. [00:25:42] Speaker 06: These claims are not that again, because most obviously they seek to set aside the mountain valley. [00:25:50] Speaker 02: But stepping back and looking at them, are they really wholly collateral? [00:25:52] Speaker 02: I mean, couldn't those same issues have been raised as an objection in a particular case? [00:26:01] Speaker 02: that the funding structure created bias, that therefore there was a sort of a pro-pipeline energy, and that meant that particular landowners were more likely to be, you know, bulldozed, and therefore that should have been raised in that context. [00:26:19] Speaker 02: Standing, interest, why do we care about? [00:26:22] Speaker 06: One could imagine, and as applied, [00:26:26] Speaker 06: bias claim that in a particular proceeding, the decision-maker showed bias, the way this court... Or both. [00:26:32] Speaker 02: That it's facially, it's inviting that, and it's happened in our case. [00:26:36] Speaker 02: I mean, that's often we have both. [00:26:38] Speaker 06: Right. [00:26:39] Speaker 06: I think the way this court described the claim in Delaware Riverkeeper, it used the word structural bias. [00:26:46] Speaker 06: And so the point was, it was not something particular about ceding the FERC certificate proceeding. [00:26:52] Speaker 06: It used the word structural bias because the claim was focused on the funding structure that was set up. [00:26:58] Speaker 02: Although to be fair, Ms. [00:26:59] Speaker 02: Hugo characterizes the claim here as a really structural claim. [00:27:03] Speaker 02: I mean, about the delegation of authority. [00:27:08] Speaker 06: I think the way the claim is characterized in the complaint, which seeks specific relief against a particular FERC certificate, and each of the substantive complaints, I mean, I take the point that there is something structural about the non-delegation argument, they say. [00:27:26] Speaker 06: Public convenience and necessity words in the natural gas sector are not an intelligible principle to guide first discretion. [00:27:33] Speaker 06: But the count ends by saying, and therefore you need to avoid the certificate. [00:27:38] Speaker 02: And we're not going to see that if we go back and pull up the complaint in Delaware Riverkeeper. [00:27:43] Speaker 06: Well, so I think to be fair, the complaint in Delaware Riverkeeper, which I looked at, was fairly wide range. [00:27:53] Speaker 06: And in the district court in that case, arguments were made that there might be as applied claims and facial or structural claims encompassed within the language. [00:28:05] Speaker 06: I read the district court decision there and this more importantly, this court's decision as saying that the court understood itself to be resolving the structural [00:28:14] Speaker 06: And the arguments were made in district court in that case, that if there were as applied claims sort of encompassed within the complaint, that those were collateral attacks on the certificate and needed to be channeled through that process. [00:28:28] Speaker 02: I apologize. [00:28:29] Speaker 02: I think it interrupted you. [00:28:30] Speaker 02: You got up and said you had three points. [00:28:32] Speaker 02: And I think I derailed you. [00:28:33] Speaker 02: If you very quickly want to address. [00:28:34] Speaker 06: I'd rather answer your question. [00:28:36] Speaker 02: If you very quickly want to address any remaining points you have. [00:28:39] Speaker 06: The third was to respond to your question about whether if a landowner lacked notice, could they raise these claims in a defensive posture in a condemnation case? [00:28:50] Speaker 06: First, I think there are no claims about lack of notice here. [00:28:58] Speaker 06: 122 is a listing of all of the notice and actual participation that these landowners undertook in the Mountain Valley certificates. [00:29:07] Speaker 06: They were aware of it, and they actually participated. [00:29:11] Speaker 06: They just chose not to intervene. [00:29:12] Speaker 06: But I think the basic line is we agree with FERC that if it is a collateral challenge to a certificate, that cannot be raised in a condemnation. [00:29:22] Speaker 06: Thank you. [00:29:32] Speaker 01: Your honor, just a few brief points. [00:29:34] Speaker 01: First of all, to address Mr. Solomon's point that some type of constitutional claim has to go to district court, the question isn't, is it a facial or an as applied constitutional claim? [00:29:46] Speaker 01: The question is, is it a fact intensive inquiry or not? [00:29:50] Speaker 01: If it requires factual development and there's an opportunity for error correction, such as the pipeline company is not in compliance with the certificate, they violated the environmental conditions, [00:30:00] Speaker 01: or we want to change the location of the pipeline, then it goes to the agency. [00:30:04] Speaker 01: If the constitutional question is a pure question of law that only Congress can fix, as is in this case, then it goes to the district court. [00:30:12] Speaker 01: Second, Your Honor, moving the pipeline in this case doesn't fix anything because whether the pipeline is on Jamie's property or on Bobby's property, the law is unconstitutional at all facts. [00:30:21] Speaker 02: But it very much does change things with respect to your clients and their [00:30:26] Speaker 02: their stake in the case, it could be that Burke could see a claim such as the claim your clients are raising and say, hmm, [00:30:37] Speaker 02: We don't think that's a problem, but to the extent that it is, we don't want to deal with that now. [00:30:42] Speaker 02: And we're going to reroute the pipeline. [00:30:45] Speaker 02: Other people are not interested in raising this issue and obviate the need. [00:30:49] Speaker 02: Or some other course of conduct that neither resolves the constitutional issue, which I understand your clients have [00:30:59] Speaker 02: desire to have resolved. [00:31:02] Speaker 02: But that also doesn't implicate your client's property. [00:31:05] Speaker 02: So that's part of what we've at least in our case law about [00:31:11] Speaker 02: these channeling statutes have looked at, that kind of of obviation or resolution of a presented constitutional issue. [00:31:19] Speaker 01: Yes, Your Honor, it would remove standing from our clients, but the same would be true in Thatcher versus Tennessee gas. [00:31:26] Speaker 01: The same would be true in pennies. [00:31:27] Speaker 01: The same would be true in Delaware Riverkeeper. [00:31:29] Speaker 01: The same would be true in Enno. [00:31:31] Speaker 01: a gas pipeline because there was a FERC certificate and that would be rendered unconstitutional. [00:31:36] Speaker 01: So that can't be the rule and it's not the takeaway. [00:31:39] Speaker 01: If New Jersey had won on the merits, for example, the certificate, the penny certificate affecting New Jersey's property would be void, but not under an as applied challenge, but under a facial attack, a pure question of law where there's no opportunity for error correction. [00:31:53] Speaker 01: Second, Your Honors, to the point about Mr. Solomon and Mr. Marwell's point about, well, this was in pennies. [00:31:59] Speaker 01: The only difference is they raised it in the condemnation action. [00:32:01] Speaker 01: So it's not a collateral attack. [00:32:04] Speaker 01: Well, first of all, that's not the rule because of all these other cases that were dismissed that were raised defensively, for example, noncompliance with the certificate. [00:32:10] Speaker 02: But second, and when you refer to all these other cases, you had mentioned some out of jurisdiction cases, but you have a D.C. [00:32:16] Speaker 02: Circuit or Supreme Court case on that. [00:32:19] Speaker 02: Pardon, Your Honor. [00:32:20] Speaker 02: You referred to all these other cases where the claim was raised in a defensive posture was... Yes, so raised in a defensive posture. [00:32:30] Speaker 01: Pardon? [00:32:31] Speaker 02: Was dismissed. [00:32:32] Speaker 01: Yes, was dismissed. [00:32:33] Speaker 01: So for example, AmEnergy versus Rockies, Maine Council of Atlantic Salmon Federation versus National Marine Fisheries, all cases cited by MVP and FERC. [00:32:42] Speaker 01: But again, they were dismissed for lack of jurisdiction because the agency can't fix the problem. [00:32:47] Speaker 01: it would be unconstitutional in all locations at all times and if the rule is it's only there's only jurisdiction if it's raised defensively well they don't want that to be the rule because that would open up pandora's box if if every defensive claim can be heard in district court you'd have a district court judge deciding what kind of snail or bat is endangered or whether there's a less intrusive route and that can't be the rule and it's not the rule the rule is is it fact intensive and is there an opportunity for error correction if the answer is yes then it goes to the agency if the answer is no then it goes under pennies then there is jurisdiction [00:33:17] Speaker 03: Mr. Marwell said that your clients participated in the proceedings but chose not to intervene and make this non-delegation argument. [00:33:30] Speaker 03: Why not? [00:33:32] Speaker 01: Your honors, I point the court to Taylor v. Sturgill. [00:33:34] Speaker 01: Justice Ginsburg says there is no duty to intervene and there is no preclusive effect for a failure to intervene, number one. [00:33:40] Speaker 01: And number two, had they gone through the review scheme, this court, once it got to the appellate court, would have properly declined jurisdiction as it did in Delaware Riverkeeper, as it did in NO Gas Pipeline. [00:33:51] Speaker 01: Because FERC has to have jurisdiction in the first instance. [00:33:55] Speaker 01: If we were to go to FERC today and they were to probably sit on it for six to 12 months, but after sitting on it, their decision is going to be, we can't answer this question. [00:34:03] Speaker 01: So there's a lack of agency action. [00:34:05] Speaker 02: And so there are no... That's a difficult argument for you to make in this case, where the direct appeal from the agency proceedings and from the denial of rehearing has been long resolved. [00:34:17] Speaker 01: It may be a difficult argument, and it's a rare argument. [00:34:20] Speaker 01: However, I think this court has found under its precedent that FERC has to have jurisdiction in the first instance for the appellate court to have jurisdiction in the second instance. [00:34:28] Speaker 01: Otherwise, we're wasting everybody's time, not just the landowners and the agency's resources, but also if I'm an investor in MVP and there's a constitutional question, it's in my interest to have an answer from the district court on is this constitutional or not? [00:34:41] Speaker 01: Because I'm a businessman, business hates uncertainty, and I want the district court to tell me, [00:34:45] Speaker 01: if it's actually the project is going to go through. [00:34:48] Speaker 02: But this court also can make those decisions. [00:34:50] Speaker 02: It's a question not of whether you get a federal form. [00:34:53] Speaker 02: It's a question of in what sequence and when. [00:34:56] Speaker 01: This court can't make the decision if FERC didn't have jurisdiction over the question in the first place, which they told us in the certificate order. [00:35:04] Speaker 01: We can't answer the question. [00:35:05] Speaker 02: That's not the case. [00:35:06] Speaker 02: I mean, we decide constitutional issues that FERC doesn't have sort of jurisdiction over all the time, don't we? [00:35:13] Speaker 01: You decide other as applied questions, but not pure questions of law that only where there's no opportunity for FERC to fix it. [00:35:20] Speaker 01: But you said the distinction is not facial versus as applied. [00:35:23] Speaker 01: It's not because that line is hazy. [00:35:25] Speaker 01: That is a general rule. [00:35:26] Speaker 01: What is your distinction? [00:35:27] Speaker 01: Just to say the distinction is if it's a fact intensive inquiry where there's an opportunity for error correction, then it's under type a and that covers all of the cases where a landowner is alleging noncompliance with the certificate or where you want to move the location of the pipeline. [00:35:42] Speaker 01: So Berkeley, for example, they reference that in their argument. [00:35:45] Speaker 01: That was a, that was an argument that said there's no public need. [00:35:48] Speaker 01: or public benefit in this particular location but they're not saying in Berkeley they're not saying there's the certificate can't ever be valid under any facts which is what we're saying they're instead saying there's no public need there's no public benefit in this particular route and so again we see an opportunity for error correction because the agency can move the location of the pipeline or they can add taps where there is public need and so that would [00:36:13] Speaker 01: that would avoid the constitutional question altogether. [00:36:16] Speaker 01: In our instance, there's nothing they can do to fix the problem. [00:36:20] Speaker 01: Right. [00:36:21] Speaker 01: Thank you very much. [00:36:22] Speaker 01: Thank you, Your Honors. [00:36:24] Speaker 01: The case is submitted.