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Case number 20-1247, Union of Concerned Scientists Petitioner versus United States Department of Energy.

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Mr. Bender for the petitioner, Ms.

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Carroll for the respondent.

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Good morning, counsel.

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Good morning, your honor.

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You may proceed.

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Good morning.

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May it please the court?

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My name is David Bender.

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I represent the Petitioner Union of Concerned Scientists in this case.

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UCS asked the court to vacate the Department of Energy's March 2020 final rulemaking order that established criteria and procedures for how the DOE will handle and share category of information called Critical Electric Infrastructure Information, or CEII.

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There are two problems with DOE's rules.

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First, primarily, DOE had no statutory authority to promulgate

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CEII criteria or procedures, Congress explicitly gave exclusive authority to do so to FERC and not to DOE.

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Is your view then that FERC violated the law by specifically determining not to impose criteria or procedures on DOE?

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That's not the basis for the argument of UCS.

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The problem ultimately was when DOE set its own procedures, it went forth and set its own procedures rather than, for example, incorporating FERC's substantive criteria and substantive procedures.

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But wasn't FERC the boss of this matter?

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And did FERC decide necessarily?

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It wasn't necessary?

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to impose regulations upon DOE.

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And the statute said they had authority to do so if they thought it was necessary.

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The statute, I believe, Your Honor, says that FERC will do so.

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And FERC adopted procedures and adopted criteria.

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As I read FERC's order, declining a comment by

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I believe the utility industry representatives to set additional procedures applicable to DOE, it declined to do so, leaving it open for DOE to follow FERC's procedures either on its own on a case-by-case basis or, as I said, to adopt a rule incorporating FERC's substantive criteria, substantive procedures

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for purposes of designations by the DOE.

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I'm not sure you answered my question, counsel, but I understand your point.

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Thank you.

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The UCS also.

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Can I ask you about Article 3 standing before you get to the merits?

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So you've alleged informational injury as a basis for standing.

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Supreme Court has said that being denied information can qualify as a concrete injury for Article III purposes if Congress makes the injury concrete by enacting a disclosure statute giving the public rights to information along the lines of FOIA or FACA or statutes like that.

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This is not a disclosure statute.

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This is the opposite.

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This is a confidentiality statute.

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It's all about protecting information.

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And you don't point us to anything in the statute, which you say creates a right of access to information.

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The right to access to information.

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Well, first of all, Your Honor, I think that UCS has two kind

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categories of injury.

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One is informational injury, as your honor points out.

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And the other is kind of a burden of accessing the information that there are through its rules DOE created kind of additional hurdles, burdens, both a higher standard that UCS needs to show to have access compared to FERC's rules

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There's also the more frequent, unlike Frick's rules, there's no annual kind of clean bill of health to access information.

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So that's imposing some kind of costs to the organization.

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I'm not sure you preserved that one.

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I'll follow up on that.

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But could you just talk about informational injury?

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Sure.

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Thanks, Your Honor.

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The statute here has kind of dual purpose.

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or at least balances two interests.

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One is protecting information, certainly.

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And the other is to allow sharing for that information.

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It's allowed voluntary sharing and the voluntariness is relative to the people who have the information.

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And there's another provision in the statute which says very clearly that nothing in the statute

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requires people to share information who don't want to share information.

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So I'm not sure I followed up.

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So what I'm looking at, Your Honor, is in section D2 of the statute, it provides that commission, being FERC, shall promulgate regulations necessary to

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and then we go down to D. Correct.

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When we say down to D, it's facilitate voluntary sharing with, in between, and by.

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One is the government.

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So that's the holder of the information once it's filed.

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And then sub six is where UCS falls.

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Sure.

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But you're trying to get

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information.

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I mean, you wouldn't be in court.

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The only time you come to court is if you want information that the government doesn't or some other whatever the owner of the electric facility doesn't want to give you that information.

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By definition, you're not seeking voluntary sharing.

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You're seeking an involuntary disclosure order.

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believe what UCS is seeking is information that the FERC would voluntarily share under its rules, but that DOE would not voluntarily share under DOE's rules.

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That's the category of information that by operation of FERC's rules,

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Go down to, so we're in four, go down a couple of sub paragraphs to six.

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Six says nothing in this section shall require a person or entity in possession of CEII to share such information with any list of people or other person or entity.

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any federal, state, political subdivision, tribal authority, or any other person or entity?

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Correct.

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The ability to access information then comes from, I guess, the overlay of the Freedom of Information Act, which then allows UCS and others the public access to information held by the government.

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And then the question is, does the information fall within an exception

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being in this case, the CEII statute.

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Is your point, counsel, that we have to assume the merits for purposes of standing.

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And then the question is, why do you have Article III standing, even assuming, arguing to your view on the merits?

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You don't show any declination of information

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Again, you're on two categories, right?

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One, and I think we're going to come back to is the kind of the increased administrative burden of seeking.

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Well, we'll get to that secondly.

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And there's an interesting question whether it's appropriate even to raise that in a reply brief.

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We have a couple of opinions on that.

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But let's assume, let's talk about the first issue where you've shown no concrete injury

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in the case, have you?

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In terms of declination of information, even assuming you have a right to the information.

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I think that's right, Your Honor, and that's why it was pled as an increased risk.

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We're anticipating application.

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How does that meet standing?

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Don't you have to show something concrete?

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According to the court's decision, a risk, which then interprets the Supreme Court's Clapper decision, a risk of future harm is sufficient to show a concrete injury, which is what we're looking at in this case.

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The UCS regularly seeks the type of information that is covered by

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or at least the rulemaking order suggests will be covered by a CEII designation by the Department of Energy, in which case UCS will either have to show an affirmative national security interest in disclosing it to UCS or be denied.

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This is all very speculative, isn't it?

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I don't see how that establishes Article III injury.

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And even assuming you could do that,

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How do you meet the rightness challenge?

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I guess, responding to both of those, Your Honor, a future injury is always, in some sense, speculative.

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But it's nevertheless an injury if there is a substantial likelihood that it will impact UCS.

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And so in this case, UCS says

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through its declarations as well as its rehearing petition.

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These are categories of information that UCS regularly and anticipates seeking in the future and based on its interpretation will be denied access to under DOE's rules.

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That's a future harm but it's sufficient to show kind of an imminent injury to UCS.

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the ripeness question, Your Honor.

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I just asked you, Counsel, before you got to ripeness.

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Even assuming the declarations are as you suggest, what about the discretion that's allowed in DOE's rule?

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Your Honor, I believe the question is, would

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Would DOE, even if it had adopted FERC's rules, kind of substantive criteria and procedures, couldn't DOE nevertheless deny access kind of under some discretionary room within FERC's rules?

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And I believe that there's,

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we've addressed in the reply brief, which is even if there would be a similar harm under a different interpretation, to meet the requirements for standing, we need to show an injury under the rules that exist, I guess, under DOE's unlawful rule.

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That isn't diminished by the fact that there may be an injury, a future injury,

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similar future injury under a discretionary decision, absent the illegal rule.

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And quickly addressing, into my rebuttal, but quickly addressing your honor's question about redressability.

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In this case, the issue posed is the legality, whether or not DOE's rules meet the statutory delegation of authority and whether they are arbitrary or capricious.

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And that issue is ripe and can be redressed by an order of vacating those rules.

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It doesn't require, and it's not premised application of them to a particular denial.

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But on that ripeness question, you have two criteria.

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The first is whether you have a pure legal issue as an avid laboratory.

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But the second is, have you been harmed?

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Are you harmed?

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And that seems quite speculative.

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Depends how DOE interprets a request.

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But DOE has already announced in the preamble how it's going to interpret a request, at least to a particular set of information that UCS regularly seeks and obtains, which is the OE417 form.

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In the preamble to its final rulemaking, DOE has already announced it is going to exercise.

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It will find that DOE announced in its preamble that it intends to

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designate OE417 forms as CEII, which then means UCS no longer has access to those, which they regularly access, absent a high showing of national security interest, which is not required of them under FERC's rules.

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That's an injury, a non-speculative injury that is- Why?

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Until you have a denial of information that you would otherwise get.

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you don't have an injury and it's not clear to me you would ever have it.

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They use the term, they didn't use national security, they use another term that really is synonymous, right?

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I see I'm into my, I'm past my time.

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Please answer the judge's question.

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Thank you.

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The FERC rules have a negative

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determination, a gating criteria, which is, it just cannot be a national security risk compared to DOE's rules, which is requires an affirmative showing of a national, affirmative national security interest in the disclosure.

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And there's a gulf between the two, right?

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Where information sharing with UCS is neither a harm nor affirmatively, you know, in advancing the national security interest.

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And it's that,

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category of information that DOE's rulemaking preamble says, at least as to one category of forms that UCS regularly gets, that it is going to deem them CEII, which is then requires UCS to meet a higher burden and do so each time as opposed to once per year under the FERCS rules.

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And those are injuries to UCS that are

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reasonably foreseeable.

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I mean, as DOE has announced, it's going to happen.

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Can I ask another question on injury, which is this statute has a judicial review provision governing specific determinations of CEII.

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This is paragraph 11.

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And that seems to allow parties to go to district court and seek review of a decision.

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And it requires the district court to examine the documents in camera to make a decision.

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So why isn't that good enough to enable you to litigate

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case by case when there's a concrete dispute about specific information.

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Your honor, I'd see the two as categorically different.

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This case involves the standards that will apply and the procedures that will apply in designating and the section 11.

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But when you're in an enforcement action, you can always argue that the standards are unlawful.

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It's unclear that we

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can do that given the standards are created through a rulemaking order.

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That's section 825 L says we need to challenge in a petition to this court within a certain period of time.

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Whereas the- But paragraph 11 says notwithstanding 825 L, you can bring the as applied challenge once certain information is designated.

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And even if you were right, we've often held, and when a regulation is challenged and isn't right, you've satisfied your obligation to come to the court to challenge the regulation.

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And we would hold it until you had a concrete injury that was right.

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I think it's Eagle Pitcher, which we first decided that.

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Isn't that correct?

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I believe that's correct, Your Honor.

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There's a procedural difference here as well, which is some of the harm will have occurred to UCS before in both the delay and the denial, before it can be reviewed under section 11.

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And that delay in accessing information that it regularly relies on,

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is an injury separate from the injury of being denied ultimately whether or not UCS has access to the information.

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So to follow DOE's rules will require a longer delay and it will require additional showings in the effort to access the information

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before the decision that's reviewable under section 11, which is the denial itself.

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All right, why don't we hear from counsel for respondent and we'll give you some time on the bottle.

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Thank you.

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Yes, counsel for respondent.

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Yes, good morning, your honor.

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May it please the court, Sarah Carroll on behalf of the government.

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DOE and FERC's rules are very similar, far more similar than different.

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And for that reason, petitioner cannot establish Article III standing.

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Even putting aside the informational interests point that Judge Katz has raised, petitioner can't show a substantial risk or a certainly impending threat that it will be denied information it would have received under FERC's rule.

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And I think it's important and related to this to clear up a couple of things that my colleagues said that aren't quite right.

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that make the rules sound more different than they are.

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So for example, Mr. Bender said that DOE announced that it intends to designate these OE417 forms as CEII, but that's simply not true.

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DOE adopted the same substantive criteria for designating CEII that FERC adopted.

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If you look at the regulatory provisions, DOE expressly incorporated the provision establishing FERC's criteria

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And DOE made clear in the preamble to the final rule and in its rehearing order that it will designate information.

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by applying those criteria on a case by case basis.

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So I understand council your argument that if you put the two rules side by side, there are a lot of similarities, but obviously the department thought it was necessary to promulgate a separate rule.

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So it wasn't just doing the same thing as FERC and council has pointed to a couple of things in its brief and this morning.

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And I think you'll have to address those don't you.

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Yeah, I agree that there are differences the rules are not identical.

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For one thing, first on putting up before I get to the more substantive differences your honor referred to there of course

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formalistic different changes that need to be made.

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FERC's rule refers to, for example, a FERC CEII coordinator doing things and that wouldn't make sense in the context of a DOE rule.

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But so for example, this national security provision that's in DOE's rule, this is another one of the things that I wanted to clear up because I think this is another area in which petitioner is kind of seeing a difference between the rules that isn't really there.

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It's true that FERC's rule does not include that language.

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But FERC's rule says that in deciding whether to share a CEII, FERC's CEII coordinator is to balance the requester's need for the information against the sensitivity of the information.

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Well, yes, but the department's rule puts the burden on the requester.

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All right, so that's the difference here, isn't it?

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Well, the important clarification that I want to make, Your Honor, is that contrary to petitioners reading, the department's rule does not require a requester to make an affirmative showing that disclosure would help national security.

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The requester has to show that disclosure would not hurt national security.

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But as we, I think we mentioned this.

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Yeah, so the answer to my question is yes.

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The burden is on the requester to show that

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releasing the requested information would not harm national security, to prove a negative, basically.

[00:23:51] Speaker 03:
I think that's right, Your Honor, but I think that is true of FERC's rule as well.

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I can't speak for FERC, of course, but I would be very surprised if FERC released CEII without having received what it viewed as adequate assurance that release of the information would not hurt national security.

[00:24:10] Speaker 02:
Excuse me, Counsel.

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As you quite interesting just pointed out, you can't speak for FERC.

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That raises the question that we asked you to address.

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Is FERC a necessary party here?

[00:24:27] Speaker 03:
Your honor, we don't think that FERC is the proper respondent or a necessary party here.

[00:24:32] Speaker 03:
I would start with this court's decision in Hoopa Valley Tribe v. FERC, which held that federal rule of Civil Procedure 19 addressing Joinder does not apply in this court.

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And instead, the governing rule is Rule 15 of the Rules of Appellate Procedure.

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Which is silent on the question.

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Which is really silent on the issue.

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Right.

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This court held in Hoopa Valley that the proper respondent under Rule 15 is the agency that issued the order.

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And here, as I think you noted.

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But that's a distinguishable case, isn't it?

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Because here, the crucial decision was made based on the statute.

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FERC made the decision that it wasn't necessary to impose the same criteria or procedures on ZOE.

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And that was a Chevron deference kind of question, wasn't it?

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Whether it was necessary or not.

[00:25:32] Speaker 03:
I agree, Your Honor, that I think a lot of petitioners' complaint here really comes down to what FERC did in 2016 and FERC's decision that it was not necessary to bind DOE with criteria or procedures.

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Petitioner could have challenged FERC's rule at the time it was issued.

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Petitioner participated in the rulemaking, did not address this issue, did not file a rehearing petition, did not file a petition for review within 60 days as required by Section 825L.

[00:26:02] Speaker 02:
Now you're suggesting that FERC, he should have challenged FERC, that FERC was a necessary party, even though our rules don't address it one way or another.

[00:26:16] Speaker 03:
Well, I'm saying, Your Honor, that if petitioner was unhappy that FERC did not regulate DOE, petitioner had ample opportunity to challenge what FERC did.

[00:26:25] Speaker 03:
But petitioner made clear that they do not challenge FERC's decision.

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And I think Your Honor is right, that given FERC's decision, that it was not necessary to establish regulations binding DOE.

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was well within its authority to use the discretion that FERC had expressly left it.

[00:26:46] Speaker 03:
For example, FERC's rehearing order on its rule makes very clear that FERC does not think that DOE is required to change its regulations or it's precluded from designating CEII in accordance with the statute.

[00:27:02] Speaker 03:
And DOE was well within its authority to issue its rule, sort of as a matter of good government, to tell members of the public how it intended to exercise the leeway that FERC had left with it.

[00:27:15] Speaker 02:
But DOE did adopt, at least arguably, your position, the same criteria as FERC had adopted.

[00:27:27] Speaker 03:
Yes.

[00:27:27] Speaker 02:
As opposed to procedures.

[00:27:30] Speaker 03:
That's right, Your Honor.

[00:27:31] Speaker 03:
The criteria are the same.

[00:27:33] Speaker 03:
The procedures are slightly different, not very different.

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And for that reason, as I was saying earlier, petitioner can't establish standing to even bring this statutory argument or any of its other claims because it can't show that these very small differences in the procedures

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Will actually lead to the denial of information.

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It would have received under first.

[00:27:57] Speaker 04:
Well, if I can just go back to the point I'm trying to understand here is I understand your view or the department's view is that these two ways of Implementing the statute are really very similar All right.

[00:28:16] Speaker 04:
Yeah, but they're not identical you acknowledge that I do acknowledge and in responding to

[00:28:22] Speaker 04:
just before Judge Silverman came back to the necessary party issue, you said you'd be surprised if FERC would release documents that are requested without making a determination that this would not adversely affect national security.

[00:28:42] Speaker 04:
And that may well be so, but the question here is who has the burden?

[00:28:47] Speaker 04:
And you're not suggesting, as I read your brief,

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the requesting party would have the burden in submitting a request to prove this negative.

[00:29:00] Speaker 03:
That bars the request, in effect.

[00:29:05] Speaker 03:
So a couple of responses, Your Honor.

[00:29:07] Speaker 03:
First, both FERC and DOE require that people requesting CEII submit a detailed written request explaining why they need the information, how they will protect it, how they will use it.

[00:29:18] Speaker 03:
And that requires the requester to establish, among other things, that it can take good care of the information.

[00:29:26] Speaker 03:
Another important point that I want to note at this

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At the structure is that petitioner did not even mention this national security provision and it's rehearing petition before DOE and this court has made very clear that 825 L the statutory provision.

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under which petitioner seeks judicial review, imposes an unusually strict exhaustion requirement.

[00:29:48] Speaker 03:
So having failed to raise this before the agency, petitioner can't press it before this court.

[00:29:54] Speaker 03:
But even if petitioner could, FERC and DOE both put the onus on a requester to show that its access to this information won't cause harm.

[00:30:08] Speaker 04:
So I think you make a nice point on the national security argument, but I wonder about the lack of annual designation and then that type of thing.

[00:30:22] Speaker 04:
I mean, these are going to be very, as I would understand it, fairly burdensome requirements if you're broaching anything that may come close to national security.

[00:30:35] Speaker 04:
whether the rule says anything about it or not.

[00:30:37] Speaker 04:
I mean, the whole rule is assigned to provide protection.

[00:30:43] Speaker 04:
So to the extent there are differences, your point as I understood it is, even if there are differences, for purposes of standing, there's no showing here that any request would be denied under the DOE rule.

[00:31:02] Speaker 04:
that wouldn't be denied under the FERC rule.

[00:31:06] Speaker 04:
And isn't that the major hurdle here for, I shouldn't ask you, but for the CSI?

[00:31:16] Speaker 03:
petition.

[00:31:17] Speaker 03:
Yes, I think that's one of probably the major hurdle.

[00:31:20] Speaker 03:
There are other major hurdles on the I'm glad your honor mentioned the burden point because I wanted to be sure to note that petitioner indeed did not make these burden arguments related to standing in the opening brief, our brief therefore doesn't address it because it wasn't raised in a timely manner.

[00:31:37] Speaker 03:
But, you know, even if they had raised the rules of DOE's rule does not impose a larger burden on

[00:31:45] Speaker 03:
a significantly larger burden on petitioner than FERC's rule would, and I could explain that if it would help the court, but it's also just not preserved.

[00:31:57] Speaker 03:
I wanted to be sure I addressed any other questions the court might have.

[00:32:04] Speaker 00:
Can you just assume, it's a big assumption, but assume we get to the merits.

[00:32:13] Speaker 00:
How do you justify any differences in the designation standards?

[00:32:21] Speaker 00:
Statute seems clear as can be that FERC has an obligation to promulgate the criteria and processes for designation and FERC and DOE may designate pursuant to those criteria and processes.

[00:32:43] Speaker 03:
I wanna be sure that I'm understanding your honor's question.

[00:32:47] Speaker 03:
Are you just asking how we read that language to give DOE authority to issue its own rule or are you wondering about kind of- Its own rules that are different from FERC's.

[00:33:00] Speaker 03:
Right, well, as I was discussing with Judge Silberman, FERC decided that it was not necessary to bind DOE and that it would be better not to do so in light of differences between their activities and their missions.

[00:33:11] Speaker 03:
And so FERC therefore left DOE with room to designate CEII through, you know, as it saw fit.

[00:33:20] Speaker 03:
And there are minor differences, as I was discussing with Judge Rogers, between the procedures, though not the criteria for designating CEII, but DOE explained that it adopted those differences primarily because

[00:33:33] Speaker 03:
DOE receives much of the CEII or Clean CEII in its possession through voluntary submissions.

[00:33:41] Speaker 03:
So as I understand it, DOE does a lot of cooperative work with outside entities to try to work together to protect the energy infrastructure.

[00:33:51] Speaker 03:
And that's something that Congress clearly cared a lot about in the FAST Act.

[00:33:55] Speaker 03:
For example, subsection E of the statute emphasizes that DOE is supposed to, that the agencies are supposed to work

[00:34:03] Speaker 03:
you know, to communicate as much as possible with other entities as they can to cooperate on these things.

[00:34:08] Speaker 03:
And so DOE did make some small tweaks to its procedures to, I think, in the interest of kind of giving entities, submitting very sensitive information, a little comfort that a little, you know, perhaps more comfort that it wouldn't be disclosed without at least thoroughly airing the issues and making sure that disclosure wouldn't pose, you know,

[00:34:33] Speaker 03:
big problems, but that is well within the discretion that FERC left to DOE, which is consistent with the statute.

[00:34:46] Speaker 00:
I understand that's your position, but the statute seems to require DOE to use FERC's criteria.

[00:34:58] Speaker 03:
The way we read that language, I understand your point, Your Honor.

[00:35:02] Speaker 00:
Your theory has to be that there's some general default grant of rulemaking authority within DOE that they can enlist to supplement the standards that govern CEII.

[00:35:23] Speaker 00:
And that just seems very strange when the CEII system is very specific, is self-contained in this statute, has a lot of detail and contemplates coordination and some degree of hierarchy as between FERC sort of over and directing DOE.

[00:35:45] Speaker 03:
I agree that

[00:35:46] Speaker 03:
the statute contemplates that FERC will be in some ways at least sort of in charge of the CEII enterprise.

[00:35:53] Speaker 03:
And I don't think we would contend that DOE could structure its CEII program in a way that FERC didn't want it to or had told it not to do, but we think that DOE is designating CEII pursuant to FERC's

[00:36:13] Speaker 03:
rule when essentially, you know, in its rulemaking, FERC said, we don't think we need to adopt things that would bind DOE and we're going to leave DOE discretion.

[00:36:23] Speaker 03:
And DOE is acting pursuant to that decision.

[00:36:27] Speaker 02:
But your point is, you argue that the criteria that DOE has adopted is the same.

[00:36:36] Speaker 02:
That's your position.

[00:36:37] Speaker 02:
The procedure, the procedure, only the procedures are different.

[00:36:41] Speaker 03:
Yes, and only slightly different.

[00:36:44] Speaker 00:
Right, but the statute at every critical term talks about criteria and processes together as things that some things are done by FERC and DOE can designate under rules criteria and per criteria and processes established by FERC.

[00:37:08] Speaker 03:
That's true.

[00:37:10] Speaker 03:
But again, FERC in making its rule decided to leave DOE with latitude to make these discussions.

[00:37:17] Speaker 03:
And even if petitioner were right that DOE should instead be applying FERC's very slightly different procedures, there's certainly no good reason to think things would come out significantly differently, which I think is relevant to the merits, but also to the standing point.

[00:37:35] Speaker 00:
Brings us back to standing.

[00:37:36] Speaker 00:
OK, thank you.

[00:37:39] Speaker 03:
All right, anything further council?

[00:37:42] Speaker 03:
Nothing unless the court has more questions.

[00:37:45] Speaker 04:
All right, thank you.

[00:37:46] Speaker 04:
So we'll hear from council.

[00:37:53] Speaker 04:
Give you another two minutes.

[00:37:54] Speaker 01:
Thank you, your honor.

[00:37:56] Speaker 01:
I want to address a couple of statements that are incorrect, at least based on my reading from my colleagues.

[00:38:05] Speaker 01:
The statement that there's no affirmative showing required by DOE's rules in order for UCS to access CEII.

[00:38:13] Speaker 01:
That can't be squared with the rule that the agency wrote.

[00:38:19] Speaker 01:
Subsection J2 of DOE's rules specifically says a request by a non-federal entity, that's UCS, shall not be entertained unless requesting non-federal entity demonstrate

[00:38:33] Speaker 01:
that the release of information is in the national security interest.

[00:38:37] Speaker 01:
That's an affirmative showing the burden rests on UCS to make it each and every time it seeks to access CEII.

[00:38:46] Speaker 01:
That's categorically different.

[00:38:48] Speaker 04:
So what about the forfeiture argument?

[00:38:51] Speaker 01:
Your Honor, this issue is the specifics of this rule is a question of access.

[00:39:01] Speaker 01:
who can access and under what conditions.

[00:39:03] Speaker 01:
And that was specifically preserved in the rehearing petition at JA36.

[00:39:11] Speaker 01:
UCS says they have effectively no means to access CEII under DOE's rules, unlike FERCs.

[00:39:21] Speaker 04:
And it was- So I guess the argument is you may have made the broad statement, but you didn't alert the agency to the specifics

[00:39:30] Speaker 04:
that you're concerned about and arguing today before the court?

[00:39:36] Speaker 01:
Your Honor, I believe if you look at the response at JA10, where DOE responds to this, they cite the specific, they cite DOE's rule, J2, and they cite FERC's not really the same, but kind of analogous in 388113G.

[00:39:56] Speaker 01:
and compare the two.

[00:39:58] Speaker 01:
It was enough.

[00:39:59] Speaker 01:
And FERC's response shows that it was enough to alert it to this difference.

[00:40:04] Speaker 01:
And that's why it responded the way it did.

[00:40:08] Speaker 01:
See that I'm out of time.

[00:40:08] Speaker 01:
Thank you, Your Honor.

[00:40:09] Speaker 02:
And we asked that- I'd like to ask one last question.

[00:40:13] Speaker 02:
Why did you not forfeit the burden argument?

[00:40:16] Speaker 02:
You only raised it in the reply brief.

[00:40:19] Speaker 01:
It's similar to my response to Judge Rogers, which is we raised the inability

[00:40:26] Speaker 01:
of UCS to access information once it's designated as CEII in the opening brief.

[00:40:34] Speaker 01:
And then as the standing argument was made, that we, I guess, put more detail to it.

[00:40:42] Speaker 01:
And the J2 subsection is more detailed, but it falls within the overall power.

[00:40:50] Speaker 02:
Isn't there a difference between denial to information and burden

[00:40:56] Speaker 02:
in gaining the information?

[00:40:59] Speaker 02:
They're two different concepts, aren't they?

[00:41:02] Speaker 01:
They're related, Your Honor, in that if we can't meet the burden, we don't get the information.

[00:41:07] Speaker 01:
And that's the problem.

[00:41:09] Speaker 01:
That's a clever response.

[00:41:13] Speaker 01:
Nothing further.

[00:41:14] Speaker 01:
Thank you, Your Honor.

[00:41:16] Speaker 04:
Thank you.

[00:41:16] Speaker 04:
We'll take the case under advisement.