[00:00:00] Speaker 00:
Please number 20-1206 Ed Al, Delaware River Keeper Network and Maya Van Rossum, the Delaware River Keeper Petitioners versus Federal Energy Regulatory Commission.

[00:00:11] Speaker 00:
Ms.

[00:00:11] Speaker 00:
Manahan for the petitioners, Delaware River Keeper Ed Al, Mr. Blasey for the petitioner, West Rock Hill Township, Mr. Fish for the respondent, Mr. Marwell for the intervener.

[00:00:24] Speaker 07:
Good morning council.

[00:00:27] Speaker 06:
Good morning.

[00:00:28] Speaker 05:
May it please the court.

[00:00:29] Speaker 05:
My name is Casey Manahan representing petitioners, Delaware Riverkeeper Network and Maya Van Rossum, the Delaware Riverkeeper.

[00:00:35] Speaker 05:
Thank you.

[00:00:35] Speaker 05:
I will be addressing it.

[00:00:36] Speaker 07:
You will represent that petitioner and the arguments on behalf of the West Rock Hill Township will be presented by Mr. Blasey.

[00:00:50] Speaker 06:
Yes, your honor.

[00:00:51] Speaker 07:
Thank you.

[00:00:52] Speaker 07:
All right.

[00:00:52] Speaker 07:
Please proceed, Mrs. Manahan.

[00:00:56] Speaker 05:
This challenge is about FERC's blinkered view of a pipeline project's environmental impact and unquestioning acceptance of the applicant's business goals, which led it to conclude that the Adelphia Gateway Pipeline was required by the public convenience and necessity.

[00:01:10] Speaker 04:
Council, may I ask a question at the threshold?

[00:01:14] Speaker 04:
I'm sort of stunned by the number of arguments presented in the brief.

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I've always thought that when

[00:01:24] Speaker 04:
an appellant or a petitioner raises that many arguments, they lose a little bit of their focus.

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Would you tell me what you think your two strongest arguments are?

[00:01:37] Speaker 05:
Yes, Your Honor.

[00:01:38] Speaker 05:
Well, our two strongest arguments here are essentially that FERC failed to take a hard look at the proposal.

[00:01:45] Speaker 04:
Well, that's a general point.

[00:01:46] Speaker 04:
That's a general point.

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Go to the specifics.

[00:01:51] Speaker 04:
Which specific errors do you think they made?

[00:01:57] Speaker 05:
One of the specific errors that they made, Your Honor, was not considering the upstream downstream impacts, essentially the impacts associated with the production and burning of the natural gas.

[00:02:11] Speaker 04:
Is it downstream?

[00:02:12] Speaker 05:
Which has an effect.

[00:02:13] Speaker 04:
Are you talking about downstream or upstream?

[00:02:16] Speaker 05:
Well, both, Your Honor, and it stems from the same error, which is a failure to follow the NEPA regulations and specifically that section 1502.22, which is now 1502.21, which requires them to seek out information about impacts, which in this case they chose not to do.

[00:02:39] Speaker 05:
And if the information regarding those impacts is not available to use alternative methods,

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of measuring those impacts, which is an error that they committed in considering upstream impacts, downstream impacts, and the climate change impacts of the project.

[00:02:56] Speaker 04:
Are you talking about that cost figure?

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What are you talking about specifically?

[00:03:05] Speaker 05:
Well, in the context of measuring the significance of the climate change impacts of the project, the social cost of carbon is a method that we believe that FERC was required to use because it's generally accepted by the scientific community.

[00:03:20] Speaker 04:
I have several questions concerning that.

[00:03:24] Speaker 04:
This is an environmental assessment.

[00:03:26] Speaker 04:
This is not an EIS, right?

[00:03:30] Speaker 04:
Correct.

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And are

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Why would you take the position that the social cost has to be measured in an EA, the preliminary step to just determine whether it's significant or not?

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If you require that to be used, which is the most difficult calculation you could possibly come up with, aren't you merging the EA into the EIS?

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Aren't you saying the EA doesn't work anymore?

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You have to go to an EIS from the very beginning?

[00:04:05] Speaker 05:
Well, Your Honor, our position is that FERC should have performed an EIS, and it should have, in that EIS, considered the social cost of carbon metric as a way of measuring the climate change impact.

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In other words, it was, in your view, arbitrary and capricious to just use an EA.

[00:04:23] Speaker 05:
Well, yes, Your Honor.

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And as a first step, agencies, of course, can begin with an EA to determine the scope or the nature of the environmental impacts.

[00:04:35] Speaker 05:
The EA also comes with the conclusion that there was no significant impact, which here is arbitrary and capricious without even measuring the significance of the climate change.

[00:04:44] Speaker 04:
There's no requirement to use the social cost in the EA.

[00:04:47] Speaker 04:
It's an option, but there's no requirement.

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You can say there's a requirement in the EIS, but it's certainly not in the EA.

[00:04:56] Speaker 04:
It's an option, right?

[00:05:00] Speaker 05:
The EA is used to

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as an initial matter, try to get a grasp of the scope of the environmental impacts of the project and to measure the significance.

[00:05:12] Speaker 05:
They are required to measure the significance of an impact in the EA.

[00:05:16] Speaker 04:
Right, but they don't have to use the social cost calculation in an EA.

[00:05:22] Speaker 04:
They may have in an EIS, but not in an EA.

[00:05:29] Speaker 05:
They would have to use it in the EA, Your Honor, in order to measure the significance.

[00:05:33] Speaker 04:
That's not the way I read the regulations.

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And the regulations say it's an option at the EA school.

[00:05:41] Speaker 09:
And also, Council, can you address whether and to what extent this very discussion was had before the agency?

[00:05:49] Speaker 09:
Because I didn't appreciate that you had made this point, the discussion of whether and to what extent the EA versus EIS required the use of the social cost of carbon tool.

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So I'm trying to assess whether or not this is even something that you preserved.

[00:06:10] Speaker 05:
Yes, in our comments, we had specifically noted, this is in the record number 890, it was not in the joint appendix, but record number 890 at page 60, we stated, the social cost of carbon is a scientifically derived metric to translate tonnage of carbon dioxide or other greenhouse gases

[00:06:32] Speaker 05:
to the cost of long-term climate harm and remains generally accepted in the scientific community.

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And we went on to say that cost monetization is an appropriate tool here where there are alternative modes of NEPA evaluation are insufficiently specific.

[00:06:47] Speaker 09:
So that is what- Did you say that the applicable regulations require the use of that tool in the EA context?

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versus EIS.

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I thought that was the conversation you were having with Judge Silberman right now.

[00:07:05] Speaker 05:
Yes, for specific, well, we did cite the provision, you know, the section 1502.22 provision in support of that statement.

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In the context of an EA or an EIS, here we would say that there's

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Essentially, when you need to measure significance, when you need to conclude that there is no significant impact, that is the method by which you should measure significance based on the regulations provided by CEQ.

[00:07:38] Speaker 07:
So could I just clarify so I understand?

[00:07:43] Speaker 07:
I understand you may have argued that, let me back off.

[00:07:53] Speaker 07:
I thought your argument was that the EA was arbitrary and capricious in part because the agency had declined to measure certain emissions.

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And to the extent that the agency had in a number of cases repeatedly rejected the use of the social cost of carbon,

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you suggested that there was a way for the agency to measure this impact.

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Isn't that the nature of the argument is being made to the agency?

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What I'm just trying to be clear about is from the beginning,

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I thought your position was that the agency had to do more than an EA, where it was rejecting using measuring tools that were available.

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And the commission, the agency explained why it wasn't using the social cost of carbon.

[00:09:16] Speaker 07:
All right.

[00:09:17] Speaker 07:
In other words- Correct.

[00:09:19] Speaker 07:
Yes, I'm just trying to understand.

[00:09:21] Speaker 07:
I mean, the agency and the agency council can tell me I'm wrong, but wasn't it obvious to the agency what the petitioners wanted the agency to do?

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And the agency's response was, we have determined that it is not possible for us to do this for the following reasons.

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And you and the others,

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challenge that reasoning.

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Isn't that how the case comes to us?

[00:09:57] Speaker 06:
Correct.

[00:09:59] Speaker 06:
Yes.

[00:10:00] Speaker 05:
The reasons that FERC put forth for not using the social cost of carbon were not responsive to their obligation to use generally accepted scientific methods, such as the social cost of carbon, which in the past they have not contested that it is generally accepted in the scientific community.

[00:10:19] Speaker 05:
And they also

[00:10:20] Speaker 05:
did not address our argument about the fact that monetized measures, economic measures are appropriate in the context of NEPA.

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It does not need to be tied to a specific environmental harm at a specific site.

[00:10:35] Speaker 05:
The social cost of carbon is a completely valid way of measuring the significance of the impact of climate change.

[00:10:42] Speaker 09:
I hear you saying

[00:10:46] Speaker 09:
and I tried to write it down because there's no transcription live right now, that the reasons that FERC gave were not responsive to their obligation to use this tool.

[00:10:58] Speaker 09:
And so what I'm homing in on is whether when you argued before FERC, you said you have an obligation to use this tool because it is

[00:11:10] Speaker 09:
scientifically valid or whatever, or were you just arguing that it's scientifically valid and you should use this tool?

[00:11:18] Speaker 09:
It's a good thing.

[00:11:19] Speaker 09:
Other people have used it, et cetera.

[00:11:22] Speaker 09:
I understood your prior argument to be more in the nature of the second kind of discussion as it has been, you know, before FERC and they use the same arguments as to why they have chosen not to use it.

[00:11:37] Speaker 09:
But I did not perceive you to be making an argument that the law, some regulation, creates an obligation to use this tool under these circumstances.

[00:11:49] Speaker 09:
So where in the record do you say, FERC, we're not arguing as a persuasive matter to you about how good this tool is.

[00:11:58] Speaker 09:
We're saying you have no choice.

[00:12:01] Speaker 09:
Do you say that somewhere?

[00:12:02] Speaker 09:
And was there a discussion?

[00:12:04] Speaker 09:
And this implicates Judge Silverman's concern or argument, which is, if that was the nature of your discussion, is that true that in the EA context, they have an obligation to use the social, you know, this tool?

[00:12:23] Speaker 05:
Well, what the regulations require FERC to use is a generally accepted scientific method to measure the significance of the climate change impacts of this project.

[00:12:34] Speaker 05:
We and many others have put forth the social cost of carbon as exactly such a method.

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So to the extent that there is no other method identified in the record or otherwise, they are required to use a generally accepted method, which they have also agreed.

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that the social cost of carbon is.

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And essentially, the FERCs, beyond just the climate change impacts, FERC failed to completely account for both the upstream and downstream impacts of the project.

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In the context of upstream impact, the production of natural gas is an indirect effect of the project.

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certification would result in a reasonably foreseeable increase in availability of natural gas.

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But here FERC argued that because of the interconnected nature of natural gas pipelines, it somehow has no way of determining where the gas is coming from and asserts that there's no data in the records showing that the project is even necessary to bring the gas to market.

[00:13:41] Speaker 05:
Simply because the gas will travel through another pipeline first does not mean that the increased production is not reasonably foreseeable.

[00:13:48] Speaker 05:
It doesn't remove it from the realm of impacts that it's required to consider under NEPA.

[00:13:53] Speaker 05:
And as then Commissioner Glick recognized in the 2018 descent, adding capacity does spur demand.

[00:14:00] Speaker 05:
And if a proposed pipeline neither increases the supply of natural gas nor decreases the price, then it's hard to imagine why that pipeline would be needed in the first place.

[00:14:11] Speaker 05:
Here, we're not asking FERC to hypothesize about where the natural gas would be produced.

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Rather, they must follow the NEPA regulations, the regulations cited previously, section 1502.22, to at least first attempt to obtain the information.

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And if they cannot obtain the information for whatever reason from the applicant, then they need to take the next step, which is to use other methods of determining what the upstream impacts are, such as

[00:14:39] Speaker 05:
using the structure of the interstate transmission gas lines and using historical data about well usage.

[00:14:46] Speaker 09:
But isn't all of that beyond the, isn't it sort of the upstream?

[00:14:51] Speaker 09:
Isn't that really speculative in a way that is unhelpful?

[00:14:56] Speaker 09:
I mean, how can they possibly know what, unless in the absence of the kinds of data that you say they can't get?

[00:15:04] Speaker 09:
So they try, they ask for data, they try to sort of

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based on what facts exist, predict.

[00:15:14] Speaker 09:
But if they can't do anything more than that, I don't understand why it wouldn't just be sheer speculation as to how this pipeline would affect people upstream.

[00:15:25] Speaker 05:
Well, in this circumstance, they didn't ask.

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They didn't take that first step of trying to get the information about where the gas would be sourced from.

[00:15:33] Speaker 05:
And essentially, that's where they

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at first.

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And then secondly, as we put forth in our comments, there are methods of determining where gas is likely to be produced.

[00:15:44] Speaker 05:
And I think one of the main things that we should focus on here is that what this is, is a certificate for a pipeline saying that it's necessary.

[00:15:52] Speaker 05:
This pipeline is needed.

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We need the gas to be transported on the pipeline.

[00:15:56] Speaker 05:
We need the gas.

[00:15:57] Speaker 09:
But haven't we said many times that, and they looked at precedent agreements, they looked at

[00:16:02] Speaker 09:
They had individual purchasers, I think, that they included.

[00:16:08] Speaker 09:
And hasn't this court sanctioned that kind of analysis and reasoning in the past?

[00:16:17] Speaker 05:
Well, specifically and most recently in this court's opinion in Berkhead, the court left open the circumstance under which a petitioner such as Riverkeeper

[00:16:30] Speaker 05:
claims that the commission didn't seek out the information needed to make those upstream determinations, and that is what we're claiming here.

[00:16:39] Speaker 05:
And in the context of the precedent agreements, you know, our argument is that they failed to rationally explain why the project has a market need because they relied exclusively on those precedent agreements.

[00:16:57] Speaker 04:
Excuse me.

[00:16:58] Speaker 04:
So may I ask you a question?

[00:16:59] Speaker 04:
I got a little confused.

[00:17:03] Speaker 04:
Do I take you to be arguing that the NEPA issue is to be, the agency is wrong in first deciding whether there's a need for this pipeline, whether it's in the public convenience and necessity.

[00:17:22] Speaker 04:
And then secondly, looking at NEPA, you seem to be suggesting

[00:17:27] Speaker 04:
that NEPA is wrapped up in the first step and that it's arbitrary and capricious for the agency to divide it into two steps.

[00:17:39] Speaker 04:
Do I understand you correctly?

[00:17:43] Speaker 05:
Your Honor, I'm sorry.

[00:17:44] Speaker 05:
The first step is, could you identify the first step, please?

[00:17:48] Speaker 04:
Well, first, the agency looks to see whether there is a need, put aside NEPA.

[00:17:55] Speaker 04:
It just looked to see whether there is a need for this pipeline, right?

[00:18:00] Speaker 04:
Public convenience and necessity.

[00:18:02] Speaker 04:
Then it looks to NEPA.

[00:18:05] Speaker 04:
Did you suggest that that's wrong?

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That you had to look at NEPA in the first step to determine whether there's public convenience and necessity?

[00:18:16] Speaker 04:
Do you make that argument?

[00:18:19] Speaker 04:
I got that impression.

[00:18:22] Speaker 05:
The NEPA analysis informs the ultimate conclusion that the pipeline is required by public convenience and necessity.

[00:18:29] Speaker 04:
So in other words, you're challenging the agency's practice, which goes on forever, which is you first decide whether there's a need for the pipeline, public convenience and necessity, and then you look to NEPA to see whether there's environmental impact.

[00:18:47] Speaker 04:
Do you challenge that?

[00:18:51] Speaker 05:
No, Your Honor.

[00:18:53] Speaker 05:
They do determine the need, and then the need is balanced against the adverse impact that are considered in the NEPA analysis.

[00:19:02] Speaker 04:
So you agree NEPA is the second step?

[00:19:08] Speaker 05:
Berk has stated in the past that they do both at the same time.

[00:19:14] Speaker 05:
Essentially, the environmental analysis proceeds at the same time, but yes, the adverse effects are considered.

[00:19:20] Speaker 04:
At a second, oh, then I misunderstood your brief because you're not challenging that.

[00:19:29] Speaker 05:
Not exactly, Your Honor.

[00:19:31] Speaker 05:
We're challenging the fact that they accepted the applicant's assertions of market need without looking further beyond the precedent agreement, which then, you know,

[00:19:47] Speaker 04:
That goes to the first step, public convenience and necessity, not NEPA.

[00:19:55] Speaker 05:
Well, then the NEPA analysis was also similarly deficient, which then minimized the adverse effects of the project and threw off the entire balancing inquiry, which is what FERC takes part in when it concludes that the project is required by the public convenience and necessity.

[00:20:18] Speaker 05:
So essentially our assertion is that it's been skewed by the fact that FERC did not look beyond the precedent agreement to determine need.

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In other words, look beyond the precedent agreement to look at other market factors, other indications that perhaps this gas is not needed.

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And then in considering the adverse impacts of the construction and operation of the pipeline, it failed to consider upstream impacts, downstream impacts,

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climate change impacts, and also the connected project, the pennies pipeline.

[00:20:55] Speaker 05:
So those two errors threw off the entire Natural Gas Act balancing inquiry that FERC takes part in when it decides to certificate pipeline.

[00:21:09] Speaker 07:
Anything further?

[00:21:13] Speaker 05:
No, Your Honor, I see I'm over my time.

[00:21:16] Speaker 07:
That's fine.

[00:21:16] Speaker 07:
We asked some questions.

[00:21:19] Speaker 07:
All right.

[00:21:19] Speaker 07:
Council for West Rock Hill Township.

[00:21:23] Speaker 07:
Mr. Blasey, Mr. Blakey.

[00:21:26] Speaker 03:
Thank you.

[00:21:26] Speaker 03:
May it please the court.

[00:21:27] Speaker 03:
My name is Doug Blasey.

[00:21:29] Speaker 03:
I am counsel to West Rock Hill Township.

[00:21:32] Speaker 03:
I will be seeking to address what I would call micro issues in this dispute where Ms.

[00:21:38] Speaker 03:
Manahan, if you will, I'm putting words in her mouth or

[00:21:41] Speaker 03:
for her, but kind of the macro issues.

[00:21:45] Speaker 03:
And if Judge Silberman were to ask me were there two kind of precise things we're concerned about, I will get to them in greater detail, but there are one is the site chosen for a new compressor station is an existing piece of property in Quaker

[00:22:04] Speaker 03:
called the Quaker Town site, which is 1.5 acres.

[00:22:10] Speaker 03:
And it now contains, I think, a meter station and a pipeline.

[00:22:16] Speaker 03:
And that's it.

[00:22:17] Speaker 03:
There is no compressor station there.

[00:22:20] Speaker 03:
And there is a nearby 41-acre property that has facilities, has the same pipelines, and has electric utility lines on it.

[00:22:29] Speaker 03:
that was rejected essentially by the applicant and FERC as being more suitable.

[00:22:35] Speaker 03:
And we say, and I'll show you shortly, both FERC, PHMSA, and FEMA documents that suggest in general, compressor stations should be on a minimum to 10 to 15 acres

[00:22:48] Speaker 03:
and normally or often can run up to 40 acres and that's an industry practice.

[00:22:54] Speaker 03:
So we find it shocking and dangerous that FERC approved you putting an industrial facility on a 1.5 acre site

[00:23:04] Speaker 03:
And did not adequately consider the impacts on all the neighbors so that in short, is what I'm going to focus on and why I call it the micro issues involved here, and we think the environmental assessment which by the way, at least from.

[00:23:20] Speaker 03:
The old days, when I was more active in the federal government and doing these things, an environmental assessment wouldn't necessarily run 331 pages.

[00:23:30] Speaker 03:
So it's a practice now, it appears by FERC, to put an awful lot into the environmental assessment.

[00:23:38] Speaker 09:
That's good or bad, Mr. Blasey.

[00:23:40] Speaker 09:
Does that help you or hurt you?

[00:23:42] Speaker 03:
It becomes more mechanical, is what I'm really suggesting, Your Honor, that

[00:23:49] Speaker 03:
they've kind of mechanized the process and then having done the EA, they can move either to an environmental impact statement or a FONSI finding of no significant impact.

[00:24:02] Speaker 03:
And I suspect I haven't done the statistics that fairly generally there's a FONSI that follows and they don't need to do an environmental impact statement.

[00:24:12] Speaker 03:
Now, if they had addressed our concerns fully in the EA, I wouldn't be here.

[00:24:18] Speaker 03:
But I think they would get be more likely address fully if there was an environmental impact statement because that's where alternatives need to be, you know,

[00:24:32] Speaker 03:
assessed in detail, the hard look doctrine comes in, and also cumulative impacts would be involved.

[00:24:41] Speaker 03:
So the environmental impact statement process kind of a necessity pushes you further.

[00:24:46] Speaker 03:
But what we're objecting to now is essentially the back of the hand rejection of what we think are very germane local safety concerns and disrespecting the role of local government in trying to protect

[00:25:00] Speaker 03:
other neighboring uses from what is a significant industrial facility on a postage stamp size property.

[00:25:08] Speaker 03:
Right.

[00:25:08] Speaker 09:
So what's your understanding of FERC's reason?

[00:25:12] Speaker 09:
I mean, it's not, you say they did an environmental, we see they did an environmental impact, excuse me, assessment.

[00:25:19] Speaker 09:
They did address this issue.

[00:25:22] Speaker 09:
And so what, why is it insufficient for them to come to the conclusion that

[00:25:30] Speaker 09:
the site that you prefer would have required a larger facility, etc.

[00:25:39] Speaker 03:
It's kind of a compound answer.

[00:25:43] Speaker 03:
I feel they never explained or justified the use of a small site.

[00:25:49] Speaker 03:
That's the core reason.

[00:25:51] Speaker 03:
Now, my township, my client would prefer the alternative site to begin with because it's not in their township.

[00:25:58] Speaker 03:
But if it were to be located in their township, this acreage and size should be sufficient to protect neighboring uses.

[00:26:09] Speaker 03:
that the reasons given by FERC we find are inadequate.

[00:26:14] Speaker 03:
It basically says for the site it chose, oh, it's one, the compressor station itself.

[00:26:21] Speaker 03:
Now this is a fairly large structure because it's gonna be 1.2 acres of building, heavy footings and foundations.

[00:26:28] Speaker 03:
It's an industrial structure, 40 feet high where there's none there now.

[00:26:33] Speaker 03:
It will fit because the applicant owns 1.5 acres there.

[00:26:39] Speaker 03:
But then when it publishes guidance and they're in the record, this is the cover page of the FERC guidance.

[00:26:46] Speaker 03:
What do I need to know about an interstate natural gas pipeline on my property?

[00:26:52] Speaker 03:
They talk about generally compressor stations on 10 to 40 acres.

[00:26:57] Speaker 03:
And another document by FEMA and PHMSA also referenced in the,

[00:27:04] Speaker 03:
both our argument and briefs.

[00:27:06] Speaker 03:
This is called hazardous mitigation planning practices for land use planning and development near pipelines.

[00:27:15] Speaker 03:
There when they talk about compressor stations these two federal agencies say generally these stations are placed on 15 to 40 acres.

[00:27:24] Speaker 03:
So for FEMA, or FERC rather, in its decision to simply say, oh, it fits on 1.5 acres and be silent on the safety implications of what is a very different facility than a pipeline in the ground with the right-of-way, we find is inherently

[00:27:46] Speaker 03:
arbitrary and capricious and unresponsive to its duties even in the EEA process.

[00:27:53] Speaker 03:
Forget getting to the environmental impact statement.

[00:27:57] Speaker 03:
They need to explain to people why what they're doing is appropriate and if there appear to be contradictions in the process, explain them away, justify it,

[00:28:07] Speaker 03:
So what do people at the end of the day feel or know?

[00:28:10] Speaker 03:
Oh, the government's treated me fairly.

[00:28:13] Speaker 03:
I understand its decision.

[00:28:15] Speaker 03:
I was either right or wrong on this.

[00:28:17] Speaker 03:
The things I was right on, they kind of changed to deal with.

[00:28:20] Speaker 03:
And where I misunderstood something, they've explained it so I can go home and sleep at night.

[00:28:25] Speaker 03:
We have people that are afraid to be near this facility because they have no such justification.

[00:28:31] Speaker 03:
And that's what, at core, we find wrong.

[00:28:35] Speaker 03:
Now the second issue is when it came to talking about the alternative, which in an EA they don't have to do as completely, they kind of ignore the fact that it's 41 acres.

[00:28:48] Speaker 03:
41 acres with the same pipelines going through them.

[00:28:51] Speaker 03:
41 acres that has a high-tension transmission line going through it.

[00:28:55] Speaker 03:
So if they did need electricity, there's plenty of it there.

[00:28:59] Speaker 03:
And say instead, oh, it's 2.3 acres.

[00:29:03] Speaker 03:
Because they've only used 2.3 acres.

[00:29:06] Speaker 09:
Are you saying they didn't say anything about the downside of putting it on the alternative facility?

[00:29:13] Speaker 03:
They did.

[00:29:16] Speaker 03:
We thought those were fairly shallow reasons, but they support it by saying, oh, they're only using 2.3 acres.

[00:29:23] Speaker 03:
So they never really addressed the size availability and the isolation potential that that site would offer for a new compressor station being located.

[00:29:36] Speaker 03:
Now, you could have done it elsewhere if they thought there were downsides and these are fairly in my,

[00:29:43] Speaker 03:
I can talk about them, but they're speculative.

[00:29:48] Speaker 03:
They could look at the site where they are, then acquire enough property so that you can safely build it there.

[00:29:54] Speaker 03:
Instead, they've done it on what I call a postage dam, and the neighboring uses are all residential.

[00:30:01] Speaker 03:
They could be within 25 feet of the fence line.

[00:30:05] Speaker 03:
FERC FIMSA rules suggest, oh, we got to be concerned about neighboring uses that might create a fire hazard

[00:30:12] Speaker 03:
on to the compressor station forget the compressor station haven't been hazard to us, but talk about the neighbors, you could have a backyard barbecue you can have a fire pit, you can have your kids running a motors, you know motor.

[00:30:25] Speaker 03:
What do you call them those little hot rods motorized hot rods.

[00:30:28] Speaker 03:
you've got to cut your grass and you're 25 foot away from a compressor station that's near the fat fence line.

[00:30:35] Speaker 03:
So these are among other things.

[00:30:37] Speaker 03:
Now, one other thing with the postage stamp size lot, there wasn't adequate room to move around it with emergency equipment, which is another.

[00:30:45] Speaker 09:
I'm sorry to interrupt you on my own time.

[00:30:49] Speaker 09:
Were these concerns what you are expressing now raised to FERC in the

[00:30:56] Speaker 09:
period of time as they discuss.

[00:30:58] Speaker 03:
I'm not sure I completely were these concerns I miss your verb.

[00:31:01] Speaker 09:
What were they raised, where was yes, where they brought to first attention is too small, etc, etc.

[00:31:09] Speaker 03:
Is that in the record, and we did it in three steps your honor and they're kind of laid out in the brief but let me quickly do it.

[00:31:16] Speaker 03:
The first one, and it was before my involvement, so they weren't thinking per se only about environmental impact statements and the permitting.

[00:31:28] Speaker 03:
They were thinking the township was thinking about local zoning and setbacks.

[00:31:33] Speaker 03:
So the first set of comments the township filed early was about zoning and our setbacks.

[00:31:40] Speaker 03:
And we think this is too tight.

[00:31:42] Speaker 03:
Then when that was seemed to be being rejected, they came to me and they asked and we looked for an environmental and engineering consultant to try to go into it in more detail.

[00:31:53] Speaker 03:
So a second set of comments went in and was accepted by FERC, by RT Environmental Services looking at safety setbacks, fire hazards and other

[00:32:05] Speaker 03:
components of site design where we found this inadequate and submitted that in great detail and then started to raise the pamphlet issues themselves and show other fire sites.

[00:32:18] Speaker 03:
And then when that again seemed to be

[00:32:20] Speaker 03:
being rejected in the order, in our petition for rehearing, we submitted all of these issues again in greater detail, including the pamphlets, to make sure they were in front of the agency.

[00:32:35] Speaker 09:
So as a matter of administrative law, having fully presented the various concerns that you have,

[00:32:44] Speaker 09:
What is arbitrary about FERC's consideration of those concerns and its rejection?

[00:32:51] Speaker 09:
Are you saying that they weren't sufficiently responsive in the sense that they didn't tell you, they didn't respond to your comments?

[00:33:00] Speaker 09:
I mean, your argument, as a matter of administrative law, I'm struggling to see whether your argument is just FERC chose something we dislike

[00:33:11] Speaker 09:
and we told them very much that we disliked it and we gave them other options and they rejected them or that they've done something that we have considered to be a violation of administrative principles because they haven't looked at what you've given them or they haven't explained why it is that they rejected it.

[00:33:33] Speaker 09:
So are you in administrative law world or in policy world in terms of your objection?

[00:33:39] Speaker 03:
Well, there can be disagreements over policy and so and there there's deference to an agency making it but I would say there's both substantive and procedural failures, the questions we raise we think deserved greater

[00:33:54] Speaker 03:
investigation than provided.

[00:33:57] Speaker 03:
Now, I would say that falls to the FONSI, which I think was inappropriate and not justified.

[00:34:06] Speaker 03:
And if you then don't have a FONSI, you do an EIS.

[00:34:09] Speaker 03:
So these would have been developed more fully, investigated more fully in the EIS.

[00:34:15] Speaker 03:
Now, on the substantive side directly, I think to have a bulletins and published to the world

[00:34:24] Speaker 03:
these pamphlets and the script describing things.

[00:34:28] Speaker 03:
And I'll mention a third.

[00:34:30] Speaker 03:
third circuit case in just a moment, the FEMA one is 40 or 50 pages.

[00:34:38] Speaker 03:
Not all on compressor stations, by the way, but talking about what is normal in the industry.

[00:34:44] Speaker 03:
Now, I think they want to talk normal rather than hazard, because I think there's a greater hazard here, and that's a little bit no-no to address.

[00:34:53] Speaker 03:
But if you're saying 15 to 40 acres or 10 to 40 acres is the normal,

[00:34:59] Speaker 03:
to then in your record say, oh,

[00:35:02] Speaker 03:
1.2 is enough, 1.5 is enough, and that's good enough.

[00:35:07] Speaker 03:
That's not good enough to not be arbitrary and capricious decision-making, in my judgment.

[00:35:13] Speaker 03:
You've got to explain it.

[00:35:15] Speaker 03:
Now, maybe you say, oh, this is like a nuclear reactor.

[00:35:18] Speaker 03:
We're putting 10-foot concrete walls around it.

[00:35:21] Speaker 03:
There can be no this.

[00:35:22] Speaker 03:
There can be no that.

[00:35:24] Speaker 03:
We don't need that larger space in this setting.

[00:35:27] Speaker 03:
There's none of that.

[00:35:28] Speaker 03:
It's just that, trust us.

[00:35:30] Speaker 03:
We think it's OK here.

[00:35:32] Speaker 03:
And then when you say, well, you do have an alternative site that got plenty of room, oh, well, they don't want to use it.

[00:35:41] Speaker 03:
And by the way, it's only 2.3 acres when it's 40 some.

[00:35:46] Speaker 03:
So it's casual the way these issues are being dismissed.

[00:35:51] Speaker 03:
That's really what it amounts to.

[00:35:53] Speaker 03:
Now, an immediate neighbor, the McCarthy's, who I've been authorized to say a few words on behalf of, which support our position,

[00:36:01] Speaker 03:
are immediate and are concerned about noise and vibration.

[00:36:05] Speaker 03:
They submitted documents and references to documents that they thought made their properties unlivable.

[00:36:11] Speaker 03:
They feel they never got adequate response.

[00:36:14] Speaker 03:
So if you look at our briefs on these things, we're the locals who feel we're adversely impacted and we're not being treated in a transparent and fair way.

[00:36:25] Speaker 03:
Lastly, let me just say one last thing here regarding the township.

[00:36:29] Speaker 03:
It's a unit of government.

[00:36:31] Speaker 03:
Yes, the federal government's much bigger, clearly has some preemptive rights here and authorities as FERC has, but has been told to work in cooperation with other governments that have responsibility for public health and safety.

[00:36:45] Speaker 03:
So the township, which has a land use and zoning role, wants to be able to tell its citizens that the immediately adjacent residential zoning is lawful and safe.

[00:36:58] Speaker 03:
Now, if it feels it can't do that, given these tight boundaries and the concerns we've expressed and tries to put conditions on the future use of that property, it runs afoul of condemnation, eminent domain, taking the property rights.

[00:37:14] Speaker 03:
So the township is trying to say to its neighboring government, FERC, and say, help us, serve with us,

[00:37:24] Speaker 03:
articulate a result that people feel confident is safe to them and to the immediately adjacent uses.

[00:37:32] Speaker 03:
And that's what we feel has been lacking in the way these kind of narrow or micro points have been dealt with.

[00:37:38] Speaker 03:
It's okay, trust us, we're here from the federal government and you can do that, right?

[00:37:43] Speaker 03:
And that's not an answer.

[00:37:45] Speaker 03:
So I think or procedural in terms of the EIS process.

[00:37:51] Speaker 07:
All right, thank you.

[00:37:52] Speaker 07:
Why don't we hear from a respondent for Mr. Fish.

[00:37:59] Speaker 02:
Good morning, your honors and may it please the court, Jared Fish for the commission.

[00:38:03] Speaker 02:
If I may, I'd like to focus on four issues that appear to be where the panel is focusing social cost of carbon issue, the upstream downstream indirect effects, the issue of market need and our balancing and Quaker town compressor station.

[00:38:19] Speaker 02:
The first matter on social cost of carbon issue petitioners did not preserve this issue for this courts to confer jurisdiction on this court.

[00:38:30] Speaker 02:
Miss manahan quoted a statement from their comments on the environmental assessment record 830.

[00:38:36] Speaker 02:
that the argument has to be made in a rehearing application to the commission after initial order is issued.

[00:38:43] Speaker 02:
That is not a quote from the rehearing application.

[00:38:47] Speaker 02:
So it's not preserved on that basis alone.

[00:38:50] Speaker 09:
Now, looking at the rehearing application- Did they cite a regulation in the hearing application?

[00:38:57] Speaker 02:
Your Honor, they cited a sub-provision of that regulation, 1502.22b-4, but their argument was not that

[00:39:06] Speaker 02:
Even if you accept the Commission's reasons for not using the social cost of carbon tool, you still have to turn to theoretical, generally accepted practices in the field because you can't rely on only ideal methods.

[00:39:21] Speaker 02:
They did not make that argument.

[00:39:22] Speaker 02:
To the contrary, they argued that social cost of carbon tool is the best out there.

[00:39:27] Speaker 02:
They said, we perfectly could measure the economic significance of greenhouse gas emissions.

[00:39:37] Speaker 09:
How do you distinguish the circumstances in terms of preservation, in this case, from the senos, which I understand had a similar kind of scenario?

[00:39:50] Speaker 09:
And this court held that they had preserved it.

[00:39:53] Speaker 02:
Correct your honor but but there, and this is in the addendum to our response to Delaware Riverkeepers 28 a letter there the petitioners expressly stated that the Commission can't just rely on universally accepted methods, they have to look to less than ideal methodologies.

[00:40:12] Speaker 02:
because this regulation compels that.

[00:40:16] Speaker 02:
There is no argument that even if accepting FERC's explanation for rejecting the tool as true, this regulation still says, no, you can't just rely on ideal information.

[00:40:28] Speaker 02:
We accept that sometimes there's unavailable or incomplete information, then you have to turn to theoretical approaches.

[00:40:33] Speaker 02:
All Delaware Riverkeeper argued was, this is the best out there.

[00:40:36] Speaker 02:
In fact, the next sentence after they cite the regulation is to say,

[00:40:40] Speaker 02:
the social cost of carbon tool is better than other methodologies.

[00:40:43] Speaker 02:
And they say that because it monetizes environmental impacts.

[00:40:48] Speaker 07:
Well- Let me ask you though, I don't understand your point.

[00:40:51] Speaker 07:
I mean, if the agency has rejected that methodology and given its reasons and the petition says, basically we disagree with those reasons, it's the best out there.

[00:41:03] Speaker 07:
So you have to use it.

[00:41:05] Speaker 07:
What more has to be said?

[00:41:07] Speaker 02:
Well, I personally agree with your honor, and I would rest on that explanation if it wasn't for Vecino's.

[00:41:16] Speaker 02:
Vecino said, notwithstanding our reasons for rejecting the tool, we still had to consider it under 1502.22b.

[00:41:25] Speaker 02:
But I also have a merits answer, and this goes to Judge Solis.

[00:41:28] Speaker 07:
Well, let me just be clear.

[00:41:30] Speaker 07:
There are many ways of making the same argument.

[00:41:34] Speaker 07:
The fact that the argument wasn't a copycat of the CNOS isn't dispositive, is it?

[00:41:42] Speaker 02:
Well, it is in this case, Your Honor, because then you just have competing allegations on whether the tool is good or it's not useful.

[00:41:52] Speaker 02:
The commission gets deference for highly technical judgments and determining that this tool actually is not useful because there's no settled on discount rate.

[00:42:00] Speaker 02:
There's no generally accepted method for measuring the incremental impact on the environment using the tool.

[00:42:06] Speaker 02:
And there's no criteria for monetizing which impacts are significant for NEPA purposes.

[00:42:13] Speaker 02:
So you just have competing substantive arguments.

[00:42:16] Speaker 04:
Did you take the position that whether or not it's useful?

[00:42:22] Speaker 04:
is more appropriate at the EIS stage than the EA stage?

[00:42:29] Speaker 02:
Well, Your Honor, I would take one step back and say we said that we did measure significance here.

[00:42:37] Speaker 02:
And that's what petitioners say we needed to use the social cost of carbon tool to do.

[00:42:41] Speaker 02:
But we actually did measure the significance of the emissions.

[00:42:44] Speaker 02:
We measured the amount of emissions going to the Kimberly-Clark plant.

[00:42:51] Speaker 04:
No, I understand that.

[00:42:52] Speaker 04:
Did you take the position that you didn't have to go to the social cost at the EA stage?

[00:42:59] Speaker 02:
I don't think we said that specifically in looking at the EA versus the EIS.

[00:43:05] Speaker 02:
It wasn't presented to us in that way.

[00:43:07] Speaker 02:
in the hearing application.

[00:43:10] Speaker 02:
So we didn't really have an opportunity to address that.

[00:43:13] Speaker 04:
But I would say you're- I see you're saying the petitioner did not raise the allegation or the argument that you had to use the social cost.

[00:43:26] Speaker 02:
Well, that would put us into EIS land versus EA land.

[00:43:31] Speaker 02:
They just said you have to use it to measure significance.

[00:43:35] Speaker 04:
And they didn't put that- And your position was?

[00:43:38] Speaker 02:
Our position was, as we have said before, and this court has upheld before in Earth Reports, Air Club Appalachian Voices, that the tool is not appropriate for project-level reviews of environmental impacts.

[00:43:51] Speaker 02:
And this court has affirmed- Mr. Fish, can I just clarify?

[00:43:54] Speaker 09:
Because I understood you right now to say they said you had to use it.

[00:43:58] Speaker 09:
Or did you mean they said you should use it because it's the best available, et cetera?

[00:44:04] Speaker 09:
What I'm trying to tease out in terms of understanding preservation is whether they made an argument that was essentially an hour-based, hour I mean the case, a kind of interpretation argument that based on what this regulation says, as long as we can demonstrate

[00:44:32] Speaker 09:
that it's scientifically, whatever the language is, scientifically a good tool or whatnot, you then have to use it.

[00:44:41] Speaker 09:
Or were they just saying, this is such a great tool, you should use it, at which point you repeated the various arguments that you've had all along about why you think it's not that great.

[00:44:52] Speaker 02:
The latter, Your Honor.

[00:44:53] Speaker 02:
All I read them to be stating is the only reason they even cited the regulation

[00:45:00] Speaker 02:
was to quote the phrase generally accepted in the scientific community.

[00:45:04] Speaker 02:
And they made no argument on that point at all.

[00:45:07] Speaker 02:
So that distinguishes this from Vecinos, but there's, to get to Judge Silberman's initial question to Ms.

[00:45:13] Speaker 02:
Manahan, just looking at the text of 1502.22, it does not apply to environmental assessments.

[00:45:21] Speaker 02:
It applies by its terms to environmental impact statements.

[00:45:26] Speaker 02:
And it also states,

[00:45:28] Speaker 02:
this regulation comes into play when an agency is evaluating reasonably foreseeable, significant adverse effects.

[00:45:35] Speaker 02:
Well, if you're already evaluating effects that the agency has deemed to be significant, you're in EIS land, you're not in EA land, because the whole point of conducting an environmental assessment is to determine whether there are significant effects in the first place.

[00:45:49] Speaker 09:
So even on the- Can I just say that to the, so I think that

[00:45:53] Speaker 09:
discussion about EIS versus EA also sort of implicates the preservation question because what you would expect that someone who was seeking to preserve this argument would have made that point.

[00:46:06] Speaker 09:
In other words, they would have said, we understand that the regulation that we're pointing to only applies in EIS, but we are saying that you are required to do this in the EA context as well.

[00:46:18] Speaker 09:
Another question about preservation

[00:46:21] Speaker 09:
is in this context in general, isn't there a requirement, like in a rehearing context, that you have to be very clear on what it is that you are arguing from the standpoint of preservation?

[00:46:33] Speaker 02:
Absolutely, Your Honor.

[00:46:34] Speaker 02:
And I think that's why Ms.

[00:46:35] Speaker 02:
Manahan referred back to their comments on the EA and completely ignored the very little that they said in their rehearing application.

[00:46:43] Speaker 02:
The focus here is on the rehearing application.

[00:46:45] Speaker 02:
This court has said time and again, in Ameren, in Allegheny Power,

[00:46:50] Speaker 02:
The rehearing requirement is applied punctiliously.

[00:46:53] Speaker 02:
Any objection has to be made explicitly.

[00:46:56] Speaker 02:
And anything short of that, any indirect objection, or as we have here, an incorporation by reference, by way of citing in a footnote a sub-provision of a regulation, it does not meet that requirement.

[00:47:09] Speaker 02:
So we have both, it's procedurally forfeited, our jurisdictionally forfeited.

[00:47:14] Speaker 02:
And even if it wasn't, it's wrong on the merits, because we're in EA land, not in EIS land.

[00:47:20] Speaker 02:
But the broader point is we did measure significance.

[00:47:26] Speaker 02:
We didn't need to use a social cost to carbon tool.

[00:47:29] Speaker 02:
Petitioners repeatedly state that an economic analysis is necessary here, but that's belied by the regulations 1502.23 expressly says we don't need to conduct a cost benefit analysis.

[00:47:43] Speaker 09:
Moving to your next, you had four points I think you wanted to make.

[00:47:46] Speaker 09:
You said we measured significance.

[00:47:48] Speaker 09:
Wasn't there at least

[00:47:50] Speaker 09:
a circumstance in which you actually didn't undertake to measure significance and that is, or at least the impact.

[00:47:59] Speaker 09:
And that is with respect to the downstream impact of the greenhouse gas emissions on a certain segment of the pipeline.

[00:48:08] Speaker 09:
When you talk about that, why are petitioners wrong about your obligation to do that and the fact that you didn't do it in this circumstance?

[00:48:19] Speaker 02:
Right, so your honor, I want to be clear.

[00:48:21] Speaker 02:
We're all talking about the same thing.

[00:48:23] Speaker 02:
There's a lot of gas being transported on this pipeline.

[00:48:27] Speaker 02:
Petitioners don't challenge the fact that we didn't measure the downstream impact from the 525,000 decatherms that are transported on Zone North, because that's just pre-existing service.

[00:48:37] Speaker 02:
This certification does not cause any new environmental impacts.

[00:48:41] Speaker 02:
They're not challenging our measuring of the gas going to the Kimberly-Clark plant.

[00:48:46] Speaker 02:
All they're challenging is the 100,000 decatherms

[00:48:48] Speaker 02:
on zone south.

[00:48:51] Speaker 02:
And that any, so any determination about the result in greenhouse gas emissions is speculative in that case, because we don't know the destination or the end use.

[00:49:06] Speaker 09:
Why didn't you just, haven't we said that under those circumstances, you can make reasonable inferences, right?

[00:49:13] Speaker 09:
Isn't the record such that it's pretty clear that an overwhelming percentage of

[00:49:18] Speaker 09:
natural gas being piped in this way is combusted.

[00:49:22] Speaker 09:
Why didn't you make those kinds of assumptions and calculate it consistent with that?

[00:49:28] Speaker 02:
Well, I have a couple of answers to that.

[00:49:31] Speaker 02:
First, Your Honor, I don't know of any case that says you can take a gross estimate of generalized impacts across the country and apply that to a case-specific project-level review.

[00:49:44] Speaker 02:
As this court said in Berkhead, quoting this court's long-go decision in Calvert-Cliffs,

[00:49:48] Speaker 02:
NEPA requires case-by-case fact-specific analysis on this particular project.

[00:49:52] Speaker 02:
The question is whether the downstream impacts are reasonably foreseeable for this project.

[00:49:57] Speaker 09:
Yes, but okay, fine.

[00:49:59] Speaker 09:
So we have the facts of this case, 100,000 or whatever decagrams zone south.

[00:50:06] Speaker 09:
We've narrowed it, okay?

[00:50:08] Speaker 09:
And you're saying the reason why we didn't

[00:50:11] Speaker 09:
try to calculate the greenhouse gas emissions that would come from the transportation of that is because we didn't know where it was going.

[00:50:19] Speaker 09:
First of all, there is a footnote in the record at one point where you speculate that it's going to a particular place or at least part of it, right?

[00:50:29] Speaker 09:
Isn't there

[00:50:30] Speaker 09:
some discussion I'm trying to find in my notes quickly here.

[00:50:35] Speaker 09:
Calpine, don't you talk about Calpine?

[00:50:37] Speaker 09:
At least some of it is going to Calpine?

[00:50:39] Speaker 02:
No, Your Honor.

[00:50:40] Speaker 02:
No.

[00:50:42] Speaker 02:
We expressly stated that in the certificate order and the hearing order, we don't know it's going to Calpine because there are no agreements to take it there.

[00:50:50] Speaker 02:
Actually, what Adelphia found out when we asked them, we did our due diligence under Birkhead.

[00:50:55] Speaker 02:
We asked the pipeline whether they knew the end use and destination, and they responded that

[00:51:00] Speaker 02:
it was that 100,000 deck therms was being transported further to the interstate grid, either on the Columbia pipeline system or Texas Eastern.

[00:51:07] Speaker 02:
That parkway lateral that we're talking about goes to the calpine plants, but it also goes to the Columbia interstate system and the Texas Eastern interstate system.

[00:51:16] Speaker 02:
And so what they know is it goes onto the interstate system, not to the calpine plant.

[00:51:23] Speaker 09:
So we would be- Even so, haven't we said in Sable trail at least,

[00:51:30] Speaker 09:
that the lack of knowledge of the end user doesn't absolve you of trying to estimate what might happen on the assumption that it's all going to be combusted.

[00:51:44] Speaker 09:
Why can't you give the upper limit of the potential impact and then maybe it won't be and we'll all be happy, but at least you would have tried to estimate assuming that it is all consumed.

[00:51:58] Speaker 09:
Why didn't you do that?

[00:52:00] Speaker 02:
No, your honor, I respectfully disagree that that's what stable trail and Burkhead say if that was the case, where if it's transported on the interstate system and because we know nationally most gases combusted that we have to assume that this gas will be combusted then Burkhead's rule statement.

[00:52:18] Speaker 02:
that it's not correct that in all cases, it's reasonably foreseeable gas would be combusted, where they agreed with the commission on that.

[00:52:27] Speaker 02:
That statement is nullified.

[00:52:28] Speaker 02:
There's no meaning to it.

[00:52:31] Speaker 02:
And further, Birkhead said, it didn't stop at saying we should have just foreseen that the gas would be combusted because, you know,

[00:52:40] Speaker 02:
Someone might reasonably think that they said they spent pages saying, actually, no, we agree with the commission we're crediting the commission statement that any use and destination are important.

[00:52:51] Speaker 02:
And the problem there was that the commission had not asked the pipeline for that information.

[00:52:56] Speaker 02:
They said NEPA requires- I understand, Mr. Fish.

[00:52:58] Speaker 09:
I understand.

[00:52:59] Speaker 09:
But it seems to me that your argument would make more sense if there was some other alternative out there.

[00:53:06] Speaker 09:
If we were in a world in which 50% of natural gas is combusted and 50% of it is treated in some other way, and you say, we don't know which way this is happening, so we can't make the estimate, that's one thing.

[00:53:20] Speaker 09:
But I thought there was testimony or something in the record that suggested that like 98% of the natural gas actually ends up in this way.

[00:53:30] Speaker 09:
So doesn't that impact the reasonable foreseeability analysis?

[00:53:35] Speaker 02:
I know, Your Honor, not here, because again, we're talking about the specific project.

[00:53:40] Speaker 02:
That 97% figure does nothing to answer whether the particular gas here is going to be transported to, say,

[00:53:47] Speaker 02:
a chemical plant and be used as feedstock and for their part river keeper concedes that river, you know, if you look at river keepers arguments pages 29 through 30 of their opening brief and page 10 of the reply brief, they agree with us that more information would be useful.

[00:54:03] Speaker 02:
to determining whether combusting this transported gas is reasonably foreseeable.

[00:54:10] Speaker 02:
They say, we should have asked the shipper.

[00:54:12] Speaker 02:
We should have gone beyond Adelphia, tried to find out any use and destination from the shipper.

[00:54:16] Speaker 02:
Well, that argument is jurisdictionally forfeited because they didn't make it in their hearing application.

[00:54:20] Speaker 02:
So it's not properly before the court.

[00:54:22] Speaker 02:
But on the reply brief, they actually doubled down on that point.

[00:54:25] Speaker 02:
They say, yes, it's perfectly possible that the gas transported here

[00:54:28] Speaker 02:
Could be used as feedstock as opposed to being combusted, but they say we have this 97% figure so so forget about the project level case specific review just go with that number and think of the implications if it's enough to just use gross national statistics to determine project level impacts.

[00:54:46] Speaker 02:
What does that mean for determining impacts on wetlands of a particular project or, you know, a forest service timber sale?

[00:54:54] Speaker 02:
Can an agency just rely on gross national generalized figures?

[00:54:57] Speaker 09:
Here's the problem, Mr. Fish.

[00:54:59] Speaker 09:
It seems like we are in sort of a zero-sum game world.

[00:55:04] Speaker 09:
In other words, fine.

[00:55:06] Speaker 09:
I hear that it's

[00:55:09] Speaker 09:
project level thing and we really shouldn't be relying on national statistics about what's going to happen to this gas.

[00:55:16] Speaker 09:
But it appears as though FERC plugged in zero.

[00:55:19] Speaker 09:
I mean your assumption as a result of saying we don't know where it's going is we're assuming that it has no impact.

[00:55:28] Speaker 09:
So that can't be right.

[00:55:30] Speaker 09:
I mean, there must be something that comes with this.

[00:55:33] Speaker 09:
And so I'm trying to understand why it would be reasonable or any more reasonable to allow the agency to assume that there is no effect just because we don't know what the end user is going to be.

[00:55:46] Speaker 02:
Yeah, I disagree, Your Honor.

[00:55:48] Speaker 02:
First of all, our responsibility under environmental assessment as set forth in Myersville

[00:55:53] Speaker 02:
is to make sure we have not ignored any issue.

[00:55:56] Speaker 02:
Not that we've resolved every issue, but that we have not ignored every issue.

[00:55:59] Speaker 02:
We consider this.

[00:56:01] Speaker 02:
And the test is whether an impact is reasonably foreseeable.

[00:56:05] Speaker 02:
So that necessarily means that some impacts might not be reasonably foreseeable, even though they will occur.

[00:56:11] Speaker 02:
Our inquiry does not depend on absolute knowledge of what an occurrence will be.

[00:56:17] Speaker 02:
If it's not reasonably foreseeable, we don't have an obligation to speculate.

[00:56:21] Speaker 02:
NEPA is all about not speculating, to speculate

[00:56:23] Speaker 02:
on what that ultimate effect would be.

[00:56:27] Speaker 02:
And I would just reiterate, this court before has upheld a finding of no significant impact where the commission had less than complete information on downstream significance.

[00:56:37] Speaker 02:
And Judge Rogers' opinion in Earth reports dealing with greenhouse gas emissions from a liquefied natural gas facility, the commission said, we don't have a reasonable metric for measuring significance of those greenhouse gas emissions.

[00:56:51] Speaker 02:
And we stated our reasons why.

[00:56:53] Speaker 02:
And the court upheld that.

[00:56:54] Speaker 02:
They upheld our FONSI.

[00:56:57] Speaker 02:
So we're really not in new territory here.

[00:57:00] Speaker 02:
And if it was true that we're obligated to speculate based on gross national statistics, then all of that discussion and all of that instruction in Birkhead that we've taken very seriously about trying to gather information on end use and destination

[00:57:16] Speaker 02:
is superfluous.

[00:57:17] Speaker 02:
And I'll just add, it's not as though if, you know, this is really an extreme case where there's really no information on where the gas is going after it's put into the interstate pipeline.

[00:57:27] Speaker 02:
I can think of other instances where we might not have the perfect information that we had in Sable Trail, where it would be a closer question.

[00:57:35] Speaker 02:
Say we knew the destination of the gas, but it's a big industrial facility that includes both a power plant and a chemical plant.

[00:57:43] Speaker 02:
So in that case, we would know the destination for the gas, but we might not be sure on any given day what the end use is.

[00:57:48] Speaker 02:
Well, maybe that presents a closer question because it's at least some of the times going to a power plant and some of the times going as feedstock to a chemical plant.

[00:57:57] Speaker 02:
Maybe that's a closer issue.

[00:57:59] Speaker 02:
But we're not in that land here.

[00:58:02] Speaker 02:
Petitioners are asking us to engage in total speculation about what's happening to this gas.

[00:58:09] Speaker 02:
And this court's case law, respectfully, does not require that.

[00:58:13] Speaker 04:
As far as the- You want us to assume that the gas will be combusted at some point, somewhere nationally.

[00:58:25] Speaker 04:
And you had to assume that in every case of a pipeline.

[00:58:30] Speaker 04:
Would that shut down all gas production?

[00:58:38] Speaker 02:
Or gas transportation?

[00:58:39] Speaker 04:
I'm not sure, Your Honor.

[00:58:42] Speaker 04:
Not just gas.

[00:58:43] Speaker 04:
transportation gas production under first jurisdiction.

[00:58:47] Speaker 02:
I mean it.

[00:58:49] Speaker 02:
Well, we would still you know we're talking about a NEPA review here so even if even if we had to.

[00:58:56] Speaker 02:
you know, make that assumption, I guess, you know, because NEPA's action forcing and does not command a substantive result, maybe there still would be some discretion there.

[00:59:06] Speaker 02:
But if we had to assume, if we had to assume that we had to speculate, I guess is a way I would rephrase, I hope fairly your question, your honor, then, you know, we would be engaging in speculation here.

[00:59:21] Speaker 02:
And this court's case law expressly says we can't do that.

[00:59:26] Speaker 02:
If I might turn briefly to the upstream.

[00:59:30] Speaker 02:
Well, I see I'm out of time I can turn to the upstream impacts or Why don't you give us a brief sentence or two.

[00:59:38] Speaker 02:
Okay.

[00:59:40] Speaker 02:
Your Honor, the petitioners assume

[00:59:43] Speaker 02:
that upstream gas production is a reasonably foreseeable proximate cause of this pipeline.

[00:59:49] Speaker 02:
And we explained thoroughly paragraph 243 of its certificate order, J596, and we're hearing more paragraph 123, J897 to 98, why that's not true.

[01:00:00] Speaker 02:
We explained that the causal arrow generally goes from

[01:00:07] Speaker 02:
well production first to pipeline construction, that well production is more dependent on changes in gas prices, changes in construction costs, changes in national market demand.

[01:00:20] Speaker 02:
But we also said, even if you assume the causal error goes the other way and that it goes, you build a pipeline first and that induces new construction, well, we don't know that any well field where this gas is coming from doesn't have another outlet to reach the market.

[01:00:37] Speaker 02:
And if that's the case, that breaks the chain of causation because you don't know that this pipeline rather than the other pipeline actually induced that new production and further.

[01:00:46] Speaker 02:
And that was the explanation.

[01:00:48] Speaker 04:
In other words, your argument, this is not equivalent to the baseball field in Iowa.

[01:00:53] Speaker 04:
Just because you build it doesn't mean it'll come.

[01:00:57] Speaker 02:
Right.

[01:00:58] Speaker 02:
Exactly, your honor.

[01:00:59] Speaker 07:
But what I'm hearing, if it's big, it's too big for us to figure out what's happening.

[01:01:04] Speaker 07:
Well, that's not the assumption underlying the statutes calling for FERC review, much less the regulatory system.

[01:01:19] Speaker 02:
Well, Your Honor, this court in Sierra Club versus Department of Energy said

[01:01:24] Speaker 02:
it's those upstream impacts are not reasonably foreseeable in part because we're talking about a highly reticulated interstate natural gas pipeline system where on any given day gas could be coming from a source field in Northeast Pennsylvania versus a source field in Northwest Pennsylvania or another state entirely.

[01:01:42] Speaker 07:
And so we don't- What I'm trying to get you to address is that type of argument makes a mockery of the statutory scheme

[01:01:53] Speaker 07:
Congress enacted with the idea that FERC, for example, was going to give serious consideration to the objections and do the best it could.

[01:02:06] Speaker 07:
No one's asking for it to be a miracle worker here, but the notion that the expert agency created by Congress is unable to provide any guidance here

[01:02:23] Speaker 07:
once it decides, well, there's more than one multiple or there may be multiple explanations is troubling.

[01:02:31] Speaker 07:
And I agree that our court has endorsed this approach from time to time, but it seems we're getting to the point where analysis is becoming more sophisticated.

[01:02:46] Speaker 07:
And if we need to develop or if the industry needs to develop tracer systems,

[01:02:53] Speaker 07:
We can develop tracer systems, but the notion that big means it's impossible to evaluate.

[01:03:02] Speaker 07:
I don't know what's left of Congress's creation of FERC.

[01:03:08] Speaker 07:
It's going to be a rubber stick.

[01:03:09] Speaker 07:
The bigger a project is, the less it can do.

[01:03:13] Speaker 02:
No, Your Honor, I respectfully disagree because you could, first of all, you could envision a scenario where, you know, there's developers want to build a new greenfield well site for natural gas.

[01:03:29] Speaker 02:
And they say, we need a pipeline company to build a pipeline to get it to market.

[01:03:34] Speaker 02:
And so this pipeline is built, or the pipeline's, you know, built in, and that's enough to induce that well production at that particular site.

[01:03:44] Speaker 07:
Well, then we have, you would have causation, or at least it's a closer question, whether you'd have causation because you don't have- I understand there'll be some projects, but what I'm suggesting is, and the pipelines are savvy as to what's happening in the regulatory field and in the judicial field, they know how to put these packages together in order to present FERC with the conundrum it has identified.

[01:04:14] Speaker 07:
So I don't think either of us has to speculate about that.

[01:04:19] Speaker 07:
That's what we're seeing.

[01:04:22] Speaker 07:
And what's left of the regulatory scheme is concerning.

[01:04:28] Speaker 07:
That's all I'm suggesting.

[01:04:30] Speaker 07:
And I'm not suggesting that our court hasn't said, well, it's up to Congress to do more if it wants more out of the agency.

[01:04:39] Speaker 07:
But haven't we more or less reached that point?

[01:04:42] Speaker 02:
Well, I agree your honor one way would be for Congress to enact legislation that that says we need to take a different route here but I'd also say, first of all,

[01:04:51] Speaker 02:
River Keepers arguments on the impacts here, the upstream impacts they want us to look at are highly localized.

[01:04:58] Speaker 02:
They talk about new water lines, new roads being built.

[01:05:01] Speaker 02:
Those highly localized environmental impacts will vary from one location to another.

[01:05:06] Speaker 02:
It kind of goes back to the 97% general growth statistic on downstream.

[01:05:11] Speaker 02:
You can't just generalize the impacts of truck traffic in one location as in another location.

[01:05:16] Speaker 07:
So by their very allegations- I take the commission's point.

[01:05:21] Speaker 07:
that you cannot fault us if you don't give us the objection to respond to.

[01:05:30] Speaker 07:
So if you want us to look at a regulation and deal with the commission's interpretation and application of it, then cite the regulation.

[01:05:41] Speaker 07:
These general objections are simply not enough.

[01:05:46] Speaker 07:
I thoroughly agree with that.

[01:05:48] Speaker 07:
And so finally,

[01:05:50] Speaker 07:
In the Sino court says, you know, as we often say, the agency creates these regulatory systems, it's deemed to know what its regulatory system provides.

[01:06:03] Speaker 07:
So, you know, act in conformity with your regulations.

[01:06:09] Speaker 07:
And I think a lot of the argument that you've been making here and in your brief is, you know, nobody made these arguments.

[01:06:16] Speaker 07:
It's fine to make them now, but it's too late.

[01:06:19] Speaker 07:
And so I think that these objections in the future are going to have to be more precise.

[01:06:26] Speaker 07:
And there may be instances, including in this case, where the court thinks there was an adequate issue in terms of notifying the agency.

[01:06:39] Speaker 02:
I apologize for interrupting.

[01:06:41] Speaker 07:
No.

[01:06:43] Speaker 02:
Yes, Your Honor.

[01:06:43] Speaker 02:
And if I could just pick up on one point you made

[01:06:46] Speaker 02:
Because this man had also mentioned that they cited 1502 point to to be with regard to upstream impacts.

[01:06:52] Speaker 02:
But they only cited it for the proposition that upstream impacts are reasonably foreseeable they didn't cite it at all for the proposition that Okay, maybe for has all these explanations about why it can't determine whether it's reasonably foreseeable.

[01:07:06] Speaker 02:
And we don't accept it.

[01:07:07] Speaker 02:
But even assuming they're right, you still need to look at theoretical other approaches in the field in order to see if that reasonable foreseeability determination passes muster.

[01:07:22] Speaker 02:
And that goes to your point, Your Honor.

[01:07:24] Speaker 02:
Perhaps they could have made a more specific objection.

[01:07:26] Speaker 02:
Perhaps they could have cited other methods, tracer analyses, that we should have employed or they thought we should have employed.

[01:07:33] Speaker 02:
in order to make a more robust determination, but they didn't do so.

[01:07:38] Speaker 02:
In fact, everything they say is it's ipsy dixit.

[01:07:41] Speaker 02:
They just say we had information that was reasonably available, but they don't cite anything for that proposition.

[01:07:47] Speaker 07:
Well, I understand that argument, but I'm a little troubled by the notion that the petitioner is the one who is supposed to be the expert on what is out there in terms of the methodologies that have been developed in the industry

[01:08:04] Speaker 07:
or in the academy.

[01:08:07] Speaker 07:
When the regulation puts an obligation on FERC, in any event, not to expand this.

[01:08:16] Speaker 07:
Anything further?

[01:08:17] Speaker 07:
I know you said your time was up and I said, give us a couple of sentences.

[01:08:21] Speaker 07:
Anything more?

[01:08:22] Speaker 02:
I could give you a couple sentences on market need that might just come up in 30 seconds.

[01:08:28] Speaker 02:
I think there's a little confusion here on the public need analysis that goes into the balancing public or public benefit analysis goes in balancing public benefit versus adverse effect and the finding of public convenience and necessity.

[01:08:43] Speaker 02:
They're two different things.

[01:08:45] Speaker 02:
The finding of public convenience and necessity is our certificate order.

[01:08:48] Speaker 02:
That's our December 2019 order, which by its terms considers both the balancing test

[01:08:54] Speaker 02:
and the NEPA analysis, it comes last.

[01:08:57] Speaker 02:
And so by arguing in the reply brief at pages five to six that we determined public convenience and necessity before we conducted the NEPA analysis is just wrong on the record.

[01:09:09] Speaker 02:
They're two different things.

[01:09:11] Speaker 02:
And finally, I would just say our finding of no significant impact is reasonable here.

[01:09:16] Speaker 02:
95% of this project is already built.

[01:09:18] Speaker 02:
It's already in operation.

[01:09:20] Speaker 02:
81% of the new 4.7 miles of pipeline being built is constructed along existing rights of way.

[01:09:27] Speaker 02:
And both of the compressor stations, Marcus Hook and Quaker Town, are built on existing facility sites, which as Mr. Blasey stated, already have industrial equipment on them.

[01:09:36] Speaker 02:
I thank your honors.

[01:09:37] Speaker 02:
I ask that the court deny the petition for review.

[01:09:41] Speaker 04:
Did the council have an opportunity to fully address the township's arguments?

[01:09:48] Speaker 02:
I'm happy to address the townships arguments as well.

[01:09:53] Speaker 09:
I would quickly give us the sort of thumbnail as to why Mr lazy is wrong.

[01:09:59] Speaker 02:
Yes, yes, your honor.

[01:10:00] Speaker 02:
First, our obligation underneath is to offer a brief discussion of alternatives.

[01:10:07] Speaker 02:
We did that by looking at five different alternative or four different alternative sites the Quaker town site.

[01:10:13] Speaker 02:
And the question under mini-sync is whether we clearly address the issue.

[01:10:17] Speaker 02:
We did that for all the five preserved issues.

[01:10:20] Speaker 02:
And Mr. Blasey and Ms.

[01:10:21] Speaker 02:
Manahan are incorrect in relying on comments they made on the environmental assessment as a basis for arguing that this court has jurisdiction over objections that were not made in their rehearing applications.

[01:10:37] Speaker 07:
All right, so let's thank you very much, council.

[01:10:41] Speaker 07:
Thank you, your honor.

[01:10:42] Speaker 07:
Mr. Fish.

[01:10:43] Speaker 07:
All right, we'll hear from Mr. Marwell for Intervener.

[01:10:51] Speaker 01:
Thank you, Your Honor.

[01:10:51] Speaker 01:
Jeremy Marwell, Council for Intervener in Adelphia Gateway.

[01:10:55] Speaker 01:
If I could, I'd like to touch briefly on the preservation point, then discuss downstream.

[01:11:00] Speaker 01:
And I would also like to talk about the status of the project since we're several months after the briefs that we filed in the court.

[01:11:07] Speaker 01:
With regard to preservation, we agree with the Commission, this issue was not squarely put before the Commission in the sense of giving them a fair opportunity to address it.

[01:11:17] Speaker 01:
The rehearing request is JA795.

[01:11:20] Speaker 01:
And I think if you read that, there's one sentence

[01:11:24] Speaker 01:
with an unexplained footnote in the context of an argument where Delaware Riverkeeper was saying, these are the numbers we think would be generated if you apply the social cost of carbon tool.

[01:11:34] Speaker 01:
They said 80 million, 20 billion, whatever it was.

[01:11:37] Speaker 01:
And so to drop an unexplained footnote, particularly in the context where the commission has repeatedly explained its reasons for not using the social cost of carbon, and this court has repeatedly upheld them, we think,

[01:11:49] Speaker 01:
That glancing reference is not enough to put the commission on notice that they were making the distinct argument that was at issue in the Sino's and that they're making now in this court.

[01:11:59] Speaker 07:
With respect to your signing 795.

[01:12:04] Speaker 01:
That's right, your honor.

[01:12:05] Speaker 01:
That, as I understand it, that is Delaware River keepers rehearing request before the commission, which is the jurisdictional prerequisite for preserving an argument in the court.

[01:12:16] Speaker 07:
Right.

[01:12:17] Speaker 07:
I'm just looking specifically.

[01:12:20] Speaker 07:
Because you say it's not enough to drop a footnote.

[01:12:24] Speaker 01:
Yeah, so the sentence is the first sentence of the second paragraph on that page.

[01:12:32] Speaker 01:
The sentence reads, the SCC, that's social cost of carbon, is a scientifically derived metric to translate tonnage of carbon dioxide or other greenhouse gases to the cost of climate harm.

[01:12:44] Speaker 01:
and remains generally accepted in the scientific community.

[01:12:47] Speaker 01:
Footnote 360 is a site to the regulation or a sub-provision of the regulation.

[01:12:54] Speaker 01:
In the context of what this section of their hearing request is arguing, and given the fact that the requirement to raise an issue with specificity is explicit in the statute, and this court has said you have to raise it with particularity, the argument that I think is now being made, which is regardless of

[01:13:13] Speaker 01:
the commission's long-standing arguments and position about why it won't use the social cost of carbon, it had an obligation under that regulation to use it anyway.

[01:13:22] Speaker 07:
I don't see that fairly- Well, I appreciate your argument, but I also know that while this court has talked about the obligation to make your objection specific, when we cited that specific requirement for regulation, when the case got to the Supreme Court, it made short shrift of that.

[01:13:43] Speaker 07:
all right, and said that the objection was adequately presented.

[01:13:48] Speaker 07:
So I think we have to give some credence to the notion that the expert agency knows what's going on here when the argument is presented in the context of arguing that FERC has failed to use this

[01:14:14] Speaker 07:
a methodology.

[01:14:17] Speaker 07:
And we have some authority suggesting that to the extent this court has deferred previously to FERC's notion that this is unreliable, et cetera, that that is no longer a legitimate reason for rejecting the methodology.

[01:14:44] Speaker 07:
I take your point though.

[01:14:46] Speaker 07:
They don't focus on the regulation the way they did in the other case on which they rely.

[01:14:52] Speaker 07:
And they don't quite make the specific argument that we're suggesting.

[01:15:01] Speaker 07:
So is your position then that even though in making an argument FERC has cited the relevant regulation

[01:15:13] Speaker 07:
Your argument is more than, it needs to do more than put it in a footnote.

[01:15:20] Speaker 07:
Your argument is even word in the body of the petition.

[01:15:27] Speaker 07:
There has to be some explanation of how this regulation is demanding more than what it did.

[01:15:37] Speaker 01:
I think that's right, Your Honor.

[01:15:39] Speaker 01:
I mean, I do think it's interesting that it's only in a footnote.

[01:15:42] Speaker 01:
But in addition, there are no words in that paragraph of the hearing request that say FERC.

[01:15:49] Speaker 01:
We recognize that you've given these reasons.

[01:15:50] Speaker 01:
We recognize you've been upheld.

[01:15:52] Speaker 01:
But nonetheless, this regulation compels you to do something different.

[01:15:56] Speaker 01:
I don't see those words.

[01:15:57] Speaker 01:
I see a passing reference

[01:15:58] Speaker 01:
to their assertion that it's generally accepted, I don't see the separate legal argument.

[01:16:05] Speaker 09:
Which, Mr. Maxwell, you would have expected them to make after the long history of them saying similar things and FERC responding in the way that it had and this court upholding it.

[01:16:18] Speaker 09:
So if we are now in a world of a new argument about the regulation, I would think that we would have expected to see in the text

[01:16:28] Speaker 09:
this is a new argument, please focus on it, here's what we're saying.

[01:16:33] Speaker 01:
Precisely, because otherwise, I mean, if the court has already upheld the same reasons that are being articulated here, one, you know, where's the argument going?

[01:16:42] Speaker 01:
And I mean, it's, it's 140 something page rehearing requests with 400 plus footnotes, you know, I do think it's important to

[01:16:50] Speaker 01:
have the reasonable burden on the commission and what does a rehearing order look like if this kind of glancing reference is enough to preserve for appeal, then obviously the commission is going to need to respond to all such glancing references.

[01:17:04] Speaker 07:
Well, the commission's EA's are no longer 25 pages long.

[01:17:09] Speaker 01:
No, they're not but but there has also been pressure on the commission, and I mean the commission speak to this to move more quickly on rehearing orders in response to this courts on bonk decision.

[01:17:22] Speaker 01:
So I do think there, I mean, there, there has to be some there is value in in the court's traditional view that this is an argument.

[01:17:30] Speaker 01:
The arguments need to be raised with particularity, and that's a jurisdictional requirement of this court's cases.

[01:17:34] Speaker 09:
Can you quickly do downstream consequences before your time runs out?

[01:17:39] Speaker 01:
Yes, and I think I may be out already, but I'd be happy to.

[01:17:42] Speaker 01:
I would urge the court, I know there were a number of important and perhaps broader questions raised about downstream, but we have a record here, and we have specific arguments that were raised.

[01:17:53] Speaker 01:
And I understand that the argument raised in the blue brief to be FERC should have quantified downstream emissions

[01:18:00] Speaker 01:
from burning gas at the calpine plant, which is off something called the parkway lateral.

[01:18:05] Speaker 01:
And what FERC said in response to that, well, they asked us, you know, do you have a contract?

[01:18:12] Speaker 01:
What's your contract on Zone South?

[01:18:14] Speaker 01:
And we said, well, it's actually a contract with a shipper going to an interconnection with another interstate pipeline system.

[01:18:22] Speaker 01:
We did not have a contract with Calpine, the Calpine plants going off the Parkway lateral.

[01:18:27] Speaker 01:
To this day, we do not have a contract with Calpine going off the Parkway.

[01:18:30] Speaker 01:
a lateral and we said no, the gas is going in to the broader interstate pipeline system.

[01:18:36] Speaker 01:
So I think if Birkhead is the law and in Birkhead the court said

[01:18:43] Speaker 01:
They rejected both arguments from left and right.

[01:18:45] Speaker 01:
They said sable trail is not limited to its facts, but also sable trail doesn't mean that it is always an indirect effect.

[01:18:53] Speaker 01:
And here I would propose that when you have a project that is largely interconnecting the existing pipeline grid, providing optionality and other pathways for gas, this is sort of the extreme

[01:19:06] Speaker 01:
case where it is hardest to make a prediction because all you know is some incremental capacity that's going into the broader grid.

[01:19:13] Speaker 01:
And I understand the instinct that's been articulated that the commission needs to do something and make reasonable inferences.

[01:19:20] Speaker 01:
But I do think it's important to understand that FERC created a highly liquid market for this transportation capacity and it is released, it is

[01:19:31] Speaker 01:
purchased by some shippers, it is released when they don't need it, and that's why it works well.

[01:19:36] Speaker 01:
And so, you know, it could be that the gas is going to replace, be a more reliable substitute for gas being used by a plant.

[01:19:45] Speaker 01:
That's what we know would have been true for Calpine had they ever bought service from us.

[01:19:49] Speaker 01:
They already had gas, but this would have been an alternate source.

[01:19:52] Speaker 01:
That's sort of like the

[01:19:53] Speaker 01:
power plants in the north, or it could be like the Kimberly Clark plant where we know this gas was used to demolish a coal-fired, a waste coal-fired plant.

[01:20:02] Speaker 01:
So that's, that's on-net ameliorative.

[01:20:04] Speaker 01:
And I think if you read the fairest reading of stable trail in Burkhead,

[01:20:08] Speaker 01:
is that the commission can and has to make judgments in light of the nature of this market.

[01:20:15] Speaker 01:
I mean, I understand the instinct, but the notion that you can have a tracer or something, it's like, where is a particular electron going to go in the power grid?

[01:20:24] Speaker 01:
The whole point and value and redundancy and strength of this network is that it is highly liquid.

[01:20:30] Speaker 07:
Well, I think that's very helpful, actually, Mr. Marwell.

[01:20:35] Speaker 01:
Thank you, Your Honor.

[01:20:37] Speaker 01:
Could I briefly address the status of the project?

[01:20:39] Speaker 07:
Yes.

[01:20:40] Speaker 01:
OK.

[01:20:41] Speaker 01:
The Zone North, which is the portion of the project which replaced existing service to two power plants that have no backup source of gas, has been in service since day one.

[01:20:50] Speaker 01:
That's where we just bought the asset, the existing pipeline that has been in the ground since the 1970s.

[01:20:56] Speaker 01:
The Zone South facilities remain under construction.

[01:20:59] Speaker 01:
There's been a little bit of slippage in some of them, but they are actively under construction.

[01:21:03] Speaker 01:
Some of them will be ready for service later this year, November, December.

[01:21:07] Speaker 01:
Others are going to slip a little bit.

[01:21:08] Speaker 01:
But those facilities, as we said in our brief, are needed.

[01:21:12] Speaker 01:
And in fact, as the commission contemplated in its order, Adelphi has continued to seek shippers, customers.

[01:21:19] Speaker 01:
And the pipeline today is 98% subscribed.

[01:21:22] Speaker 01:
So we've had additional evidence of need.

[01:21:25] Speaker 01:
So I'd be happy to answer questions about upstream or anything else, but I'm sorry.

[01:21:30] Speaker 09:
So that last set of comments was about remanding without vacator as opposed to with.

[01:21:36] Speaker 09:
Is that what you were addressing?

[01:21:38] Speaker 09:
Are you trying to talk about mootness sort of?

[01:21:41] Speaker 01:
Oh, no, I wasn't making a mootness suggestion, Your Honor.

[01:21:43] Speaker 01:
I think, of course, cases would weigh against us on mootness.

[01:21:48] Speaker 01:
No, I was hoping that you don't get to remand without vacator.

[01:21:52] Speaker 01:
But recognizing that there's been some vigorous discussion, I just wanted to emphasize, you know, this is not a case mean this is an unusual case in some respects because the pipe has been in the ground since the 1970s so into the court has addressed the circumstances where you might vacate there's concern about sort of

[01:22:09] Speaker 01:
rush to construct and do the environmental review later, I would suggest that's not at all what's happening here.

[01:22:15] Speaker 01:
And I would just urge that the consequences of vacator would be very severe here, particularly for the northern segment where there's been no environmental effects at all.

[01:22:25] Speaker 01:
It's just a paper.

[01:22:26] Speaker 01:
We bought it from the other owner and we've continued exactly the same service that these power plants have been taking.

[01:22:32] Speaker 01:
We certainly think you should deny the petitions, but if you were to remand on anything, particularly because the court remanded without vacate or in basinos where the same CEQ regulation was an issue, this seems like a substantially stronger case for application of that doctrine.

[01:22:49] Speaker 07:
All right.

[01:22:49] Speaker 07:
Thank you very much.

[01:22:50] Speaker 01:
Thank you, Your Honor.

[01:22:52] Speaker 07:
So Council for Delaware River Keepers, you have a couple of minutes on the panel.

[01:22:59] Speaker 05:
Thank you, Your Honor.

[01:23:01] Speaker 05:
I'd just like to emphasize, as Mr. Marwell pointed out, the citation at JA0795, where we did raise the point on rehearing that FERC was required to use social cost of carbon because it's generally accepted in the scientific community.

[01:23:18] Speaker 05:
I think, you know, regardless of whether it's in a footnote or not, it's a citation to a regulation that they're required to follow, and that regulation

[01:23:26] Speaker 05:
specifically says that the agencies evaluate.

[01:23:29] Speaker 07:
Help me out then.

[01:23:30] Speaker 07:
I mean, what I found particularly helpful, Mr. Marwell's saying, essentially, we're in a changed energy world.

[01:23:41] Speaker 07:
Congress authorized, these are my words, not his, but Congress authorized FERC to do precisely what it's done here.

[01:23:51] Speaker 07:
And now we have this

[01:23:54] Speaker 07:
very liquid and expansive market that ultimately is to benefit the consumer through reliable supply at reasonable cost.

[01:24:05] Speaker 07:
And in that context, the requirement that the objection be specifically stated in a petition for rehearing seems to me to have particular significance.

[01:24:20] Speaker 07:
What's your response to that?

[01:24:24] Speaker 05:
Well, our response is that we believe we sufficiently raised that objection here.

[01:24:29] Speaker 05:
We specifically stated that it's generally accepted in the scientific community, referred to the regulation, which says that the agency needs to use generally accepted methods.

[01:24:39] Speaker 05:
We pointed out how cost monetization is appropriate, where there's alternative modes that can't be used.

[01:24:47] Speaker 09:
You know, we're basically safe.

[01:24:48] Speaker 09:
Ms.

[01:24:49] Speaker 09:
Manahan, you might have something in terms of your

[01:24:53] Speaker 09:
suggestion that that was enough to preserve the argument that FERC had to do it, if we all agree that the regulation that you're pointing to is applicable in this circumstance.

[01:25:04] Speaker 09:
This takes us all the way back to Judge Silberman's very first question, which is, given that there is not universal acceptance that the regulation that you cited applies in the EA context,

[01:25:20] Speaker 09:
then you're just citing to that regulation, it seems to me, does not go far enough to make the point in and of itself that FERC had to do it in this context.

[01:25:34] Speaker 09:
This citation could very well mean, look, you might have had to do it in EIS world because it's generally scientifically whatever.

[01:25:44] Speaker 09:
And in this context, we are just pointing to that to show you that this is a really good tool.

[01:25:51] Speaker 09:
Other courts have done it.

[01:25:52] Speaker 09:
If you had picked EIS, you probably would have had to do it.

[01:25:56] Speaker 09:
But we understand your EIA world and our corpus of arguments are no different than what we have been saying all along.

[01:26:04] Speaker 09:
and that you've responded to all along, which is just, we really think this is great and you should do it.

[01:26:12] Speaker 09:
I feel like you needed to say more at least at the threshold of this regulation applies to this circumstance.

[01:26:21] Speaker 09:
And as a result, you don't have a choice.

[01:26:25] Speaker 09:
And I don't see that in this document.

[01:26:27] Speaker 09:
And Mr. Fish says you point to maybe saying that somewhere else,

[01:26:31] Speaker 09:
But do you can see that this would be the relevant document that we need to look for to determine whether or not you preserve this issue?

[01:26:40] Speaker 05:
Yes, Your Honor.

[01:26:41] Speaker 05:
This is the relevant document, the request for review.

[01:26:43] Speaker 09:
And 795 is the place.

[01:26:45] Speaker 09:
795 is where you say you preserve this issue.

[01:26:49] Speaker 09:
Yes, Your Honor.

[01:26:50] Speaker 05:
OK.

[01:26:53] Speaker 05:
But overall, essentially, when it comes to downstream emissions, there was some discussion

[01:27:01] Speaker 05:
there's sensitive discussion with Mr. Fish on downstream emissions and whether the 97% figure is sufficient to essentially estimate the amount of greenhouse gas emissions.

[01:27:14] Speaker 05:
What this court says in Berkhead is it does not contradict that.

[01:27:18] Speaker 05:
What this court says in Berkhead is that it's not categorically reasonably foreseeable in every circumstance that all capacity on a pipeline is going to be

[01:27:26] Speaker 05:
is going to be combusted, and that's true in the- Roger, please.

[01:27:33] Speaker 07:
She'll have to call you back.

[01:27:43] Speaker 05:
That is true in the context where there is information in the record that the gas is going to be used for another purpose.

[01:27:49] Speaker 05:
For example, if there was information in the record that some of the capacity was going to a chemical plant,

[01:27:54] Speaker 05:
we would concede that it's not categorically reasonably foreseeable that that portion of gas is going to be combusted.

[01:28:00] Speaker 05:
But when you have a statistic such as 97%, I think that then you can say it is reasonably foreseeable that the gas that you cannot identify a specific end use for is going to be combusted.

[01:28:11] Speaker 05:
And finally, the essential issue here is that the public needs FERC to understand exactly how these projects are needed, why this gas needs to be transported, why this gas needs to be

[01:28:24] Speaker 05:
combusted to bring necessary gas to the public, especially in the context of climate change, one of the most pressing issues of our time.

[01:28:32] Speaker 05:
And when this industry combusts fossil fuels, we need to understand that these projects are needed.

[01:28:38] Speaker 05:
So some of these questions about where the gas is coming from and where the gas is going to is very pertinent.

[01:28:43] Speaker 05:
And even sometimes in the context of when pipelines are describing their projects, they'll say, hey, we're trying to bring gas from this shale region to this market.

[01:28:54] Speaker 05:
We, as the public we expect her to understand those dynamics and to tell us exactly how they're going to impact the public.

[01:29:02] Speaker 05:
Thank you, your honor.

[01:29:03] Speaker 05:
Thank you.

[01:29:03] Speaker 05:
All right.

[01:29:07] Speaker 07:
Council for petitioner West Rockies township Mr blazing.

[01:29:17] Speaker 03:
I told this honorable court that I would provide a case citation on the 40 acre principle that the industry believes is present.

[01:29:26] Speaker 03:
So I just realized I forgot or didn't.

[01:29:29] Speaker 03:
So that was Delaware Riverkeeper versus US Army Corps of Engineers.

[01:29:34] Speaker 03:
It's found that the 869 fed third 148 in 2017.

[01:29:40] Speaker 03:
It's a third circuit.

[01:29:41] Speaker 03:
And let me just quote,

[01:29:42] Speaker 03:
what they say.

[01:29:43] Speaker 03:
So this goes back to this presumption that's broadly held that compressor stations, which are industrial facilities, which didn't in any level pre-exist at Quaker Town, need more space.

[01:29:58] Speaker 03:
So Tennessee's gases application on October 9, 2015, Tennessee gas submitted an application to FERC for approval of the Orion project.

[01:30:09] Speaker 03:
Its application included an environmental report which discussed and rejected compression alternatives.

[01:30:17] Speaker 03:
Tennessee Gas explained that building compressor stations would require Tennessee Gas, quote, to obtain approximately 40 acres per site, per end, total of 80 acres, close per end, close quotation.

[01:30:35] Speaker 03:
And it goes on.

[01:30:36] Speaker 03:
So this is the third circuit reporting on this.

[01:30:38] Speaker 03:
This is another example of what is perceived as needed to build a safe station.

[01:30:47] Speaker 03:
And here we're told 1.5 acres is OK.

[01:30:50] Speaker 03:
Trust us.

[01:30:52] Speaker 03:
And that we think is inadequate, completely inadequate.

[01:30:55] Speaker 03:
I'm sorry, Your Honor, I kept talking.

[01:30:57] Speaker 03:
I've got some more things to say, but what was your question?

[01:31:00] Speaker 09:
No, no, it's all right.

[01:31:01] Speaker 09:
I just wanted to highlight Mr. Fish's point that

[01:31:05] Speaker 09:
FERC believes its obligation is to consider and discuss the alternatives.

[01:31:10] Speaker 09:
You seem to be suggesting with that case that they need to discuss the alternatives in a certain way, that they need to specifically address the inadequacies of the other places, the other alternatives.

[01:31:27] Speaker 09:
And I'm kind of wondering where that level of duty comes from.

[01:31:32] Speaker 09:
Do we have cases that suggest that in their discussion of the alternatives or is there a regulation that says we have to lay out exactly what we found to be problematic with the other places?

[01:31:45] Speaker 03:
I don't and I guess I would look for that and ask permission and obviously

[01:31:51] Speaker 03:
expect responses from others if you wanted us to do that.

[01:31:54] Speaker 03:
I can't off the top of my head.

[01:31:57] Speaker 03:
My perception of the environmental assessment process has always been that you look for these issues.

[01:32:05] Speaker 03:
And if something broader is lurking, that's what triggers.

[01:32:09] Speaker 03:
You've got to use your judgment as the administrative agency to seek more.

[01:32:15] Speaker 03:
And what we have been saying is what is in front of them as fact,

[01:32:20] Speaker 03:
leads you to say, we are out of sync with practice and fact, and we need to do more.

[01:32:31] Speaker 03:
More could be, and this is FERC's authority, and my client may say, oh, keep your mouth shut on this, but FERC could have said,

[01:32:40] Speaker 03:
Oh, 20 or 25 acres here.

[01:32:42] Speaker 03:
It can be obtained.

[01:32:43] Speaker 03:
There's some large properties.

[01:32:45] Speaker 03:
Acquire a few of them.

[01:32:46] Speaker 03:
We can make a safe site here.

[01:32:48] Speaker 03:
We want it here.

[01:32:49] Speaker 03:
And we probably would have very little reason to say you really need to consider or take the other alternative.

[01:32:57] Speaker 03:
The reason we say the other alternative was given short shrift was that it already was sized to what appears to be industry practice, and they just dismiss it.

[01:33:09] Speaker 03:
don't need to do it.

[01:33:11] Speaker 03:
That's what was so bothersome about that.

[01:33:13] Speaker 03:
Now, yes, in an EIS process, it clearly the alternatives would have been given greater consideration all of the implications.

[01:33:23] Speaker 03:
I can look for a case if this course wants, and we'll try to find it very quickly, that talks about the interface between EA and EIS on an issue like this and see if we can be helpful to you there.

[01:33:35] Speaker 07:
Any other argument?

[01:33:37] Speaker 03:
I just have one last kind of set of information to give.

[01:33:40] Speaker 03:
Again, Judge Silverman had asked what were the, or maybe it was you Judge Jackson, where we had

[01:33:46] Speaker 03:
raised these issues and they're in the, I call them the R references because there are many pages.

[01:33:52] Speaker 03:
One was R 890, the second time the township raised was the R 920, and finally R 939 was the rehearing petition that we offered.

[01:34:04] Speaker 03:
So R,

[01:34:08] Speaker 03:
request to this court is to make sure that the reason we want to remand to the agency is that it develops and proposes for the public a safe project that people can have confidence in.

[01:34:25] Speaker 03:
And we think it is lacking at this point given the decision that's been made.

[01:34:30] Speaker 07:
All right.

[01:34:31] Speaker 07:
Thank you all.

[01:34:32] Speaker 07:
We'll take the case under advisement.