[00:00:00] Speaker 00: Base number 20-1093 et al. [00:00:03] Speaker 00: Visinos para el bienestar de la comunidad costera et al, petitioners, versus Federal Energy Regulatory Commission. [00:00:10] Speaker 00: Mr. Matthews for the petitioners, Mr. Eddiger for the respondents. [00:00:15] Speaker 01: Good morning, Council. [00:00:16] Speaker 01: Mr. Matthews, when you're ready, please proceed. [00:00:20] Speaker 04: Thank you, Your Honor. [00:00:21] Speaker 04: Nathan Matthews arguing on behalf of petitioners, visinos para el bienestar de la comunidad costera, City of Port Isabel et al. [00:00:28] Speaker 04: Today's cases challenge FERC's simultaneous approval of three neighboring liquefied natural gas or LNG export terminals. [00:00:36] Speaker 04: Cases 10-93 and 10-94 concern the smaller of these two, the ANOVA and Texas LNG projects. [00:00:42] Speaker 04: But these projects are large in their own right and contribute to significant cumulative impacts. [00:00:48] Speaker 04: And our claims in these first cases also apply to the third project, Rio Grande, which we'll be arguing separately. [00:00:53] Speaker 04: I'd like to briefly discuss our four claims presented in these cases. [00:00:58] Speaker 04: I'd like to note first that yesterday, the proponents of the ANOVA project announced that they're seeking to withdraw their FERC certificate. [00:01:05] Speaker 04: So I'm therefore going to focus on the Texas project, although the claims are similar. [00:01:09] Speaker 04: And as I'll explain, withdrawal of the, assuming the ANOVA certificate is withdrawn, that won't influence the other claims in these cases. [00:01:16] Speaker 04: And I can illustrate that first by talking about ozone. [00:01:21] Speaker 06: Can you first address whether if the ANOVA project is withdrawn, does that render this petition moot or unripe? [00:01:39] Speaker 06: Do we still have jurisdiction? [00:01:42] Speaker 04: For the case specifically against ANOVA, I think that if that [00:01:46] Speaker 04: petition is withdrawn. [00:01:47] Speaker 04: I have not conferred with the parties, but I imagine we would all agree that the case against ANOVA 1093 becomes moot. [00:01:57] Speaker 04: That would not render the challenge to FERC certificate for the Texas LNG project, which was a separate case that was consolidated and considered a separate certificate. [00:02:06] Speaker 04: That case is not moot, nor is the case against the Rio Grande certificate. [00:02:13] Speaker 06: I mean, to the extent that a great deal of your challenge deals with cumulative impacts of the projects. [00:02:24] Speaker 06: And that's the way that the environmental impact statement was drafted. [00:02:28] Speaker 06: Why, I mean, [00:02:34] Speaker 06: Why should we go forward with evaluating an environmental impact statement that may actually be obsolete and that FERC may choose to redo? [00:02:46] Speaker 04: If FERC were to announce for the other projects that it was withdrawing the certificates for the Texas and the Rio Grande projects to reconsider its analysis in light of the potential cancellation of the NOVA project, then FERC's action to withdraw their certificates for the other projects [00:03:02] Speaker 04: I suppose might render those other cases moot. [00:03:05] Speaker 04: But as of right now, FERC has outstanding certificates for the Rio Grande and the Texas projects that would allow construction to proceed on those projects. [00:03:13] Speaker 04: And if that construction proceeds, that will harm the petitioners I represent here. [00:03:19] Speaker 04: And I might also be able to illustrate that the cumulative impacts analysis doesn't change [00:03:26] Speaker 04: that drastically. [00:03:28] Speaker 04: Looking at ozone, the NOVA project was responsible for about 7% of the ozone precursor emissions that FERC considered in its cumulative impact analysis. [00:03:38] Speaker 04: So using the methodology that FERC used to calculate potential ozone impacts, subtracting a NOVA out means an increase of 18 parts per billion rather than 19 and change. [00:03:51] Speaker 04: it still causes a potential cumulative ozone levels to exceed 75 parts per billion, which is far greater than the 70 part per billion standard set by the national ambient air quality standard. [00:04:04] Speaker 04: So we still have serious concerns about the cumulative impact of just the other two projects, even if ANOVA doesn't go forward. [00:04:13] Speaker 04: Thank you. [00:04:14] Speaker 05: Somewhat relatedly, there is the [00:04:17] Speaker 05: change in the design of the project since your briefs were filed and I understand that that change is itself the subject of an appeal that you filed in this court as well. [00:04:34] Speaker 05: So why should we deal with the project design [00:04:39] Speaker 05: objections you've made since the design has changed and you're we're going to hear the problems in that case elsewhere, another case. [00:04:50] Speaker 04: So that there hasn't been a change in the design of the Texas or the ANOVA projects that are in the cases. [00:04:56] Speaker 05: Yes, it's the Rio Grande. [00:04:57] Speaker 04: Yeah, so I'm happy to discuss that now, or we can discuss Rio Grande separately if that case is going to get argued separately. [00:05:05] Speaker 04: We are concerned that the proposed changes in design, even if they are adopted, don't actually resolve our concerns that FERC has approved. [00:05:15] Speaker 05: They change the thing to what you are objecting. [00:05:20] Speaker 05: I don't know if they exacerbate your concerns or mitigate them, but it's a different situation. [00:05:27] Speaker 04: It doesn't resolve our concern. [00:05:28] Speaker 04: One of our claims, [00:05:31] Speaker 04: We also believe that FERC lacks jurisdiction to approve that change. [00:05:34] Speaker 05: Well, that's the argument you'll make in your appeal of that. [00:05:42] Speaker 04: That's correct. [00:05:44] Speaker 04: We are also concerned, though, that FERC has, as of right now, we have a lot of concerns with the design of the certificate, as it has been approved, that FERC's decision was improper. [00:05:57] Speaker 04: when issued, and not all of those claims are impacted by the change in design. [00:06:05] Speaker 05: The change in design reduces the scale of the project by going from six trains to five, right? [00:06:14] Speaker 04: That reduces the footprint. [00:06:16] Speaker 04: Well, it reduces the amount of construction for the project. [00:06:18] Speaker 04: One of our concerns is they haven't actually reduced the project footprint. [00:06:21] Speaker 04: It doesn't reduce impacts related to marine vessel traffic because they're still planning to export the same amount of liquefied natural gas. [00:06:28] Speaker 04: And many of our concerns have to do with the ships moving through the shipping channel and impacting. [00:06:31] Speaker 05: Just assume for the moment that the ships are not within our jurisdiction or within the first jurisdiction, let's say. [00:06:40] Speaker 05: Just assume that for the minute. [00:06:41] Speaker 05: I know it's contested. [00:06:45] Speaker 04: No, we did not believe that the change in design renders the challenge to the Rio Grande certificate moot. [00:06:53] Speaker 05: I don't mean basically all we know about the change in design here is what we've reached what we know from from the three 28 j letters correct. [00:07:05] Speaker 05: That's correct yeah so and the yeah and the document for document approving the change. [00:07:13] Speaker 05: So you want us to address a situation that has changed to some degree about which we know little and about which there will be a full development in a case coming along pretty soon. [00:07:28] Speaker 04: Well, I don't believe that any of the parties in their 28-J letters contended that those changes actually fully mooted out the Rio Grande case. [00:07:38] Speaker 05: It might be a matter of ripeness, but pardon me. [00:07:45] Speaker 05: It's just asking the court to address something that no longer matters to the same degree and that will be addressed elsewhere. [00:08:04] Speaker 05: And if the direction of the change were the opposite, were to expand the project, I think it would still be a very live question as to whether as approved is unlawful or that the NEPA statement is inadequate. [00:08:25] Speaker 05: But where it's a reduction in the scale of the project, [00:08:30] Speaker 05: it would seem to follow that if the EIS was adequate for the larger project, then it certainly is, or almost certainly is for the lesser project. [00:08:42] Speaker 05: So why we should resolve the question of whether the EIS is adequate for the larger project when we don't know how the change is going to affect it, it escapes me. [00:09:00] Speaker 04: believe that any of the parties have contended that that change actually, that there has been a meaningful change with respect to several of our claims. [00:09:08] Speaker 04: And as we argue here, part of the concern with the change is about the foreseeability of future expansion, which is an issue that has actually been made more pertinent rather than less by the change in design. [00:09:27] Speaker 04: We argued [00:09:28] Speaker 04: In case 1045, that it was foreseeable that the output per liquefaction unit would increase and that the company wouldn't seek to use that increased capacity. [00:09:41] Speaker 04: The change in design emphasizes that that is exactly as possible as we said before, that they can produce the authorized volumes with only five units. [00:09:51] Speaker 04: But the design is still leaving a place for, and they have continued to inform [00:09:56] Speaker 04: investors in the public that they may build a sixth train and therefore increase the output. [00:10:00] Speaker 04: So all of those concerns about increasing. [00:10:04] Speaker 05: I think it's pretty clear in Ferg's view that any increase in output is not authorized under this EIS. [00:10:13] Speaker 05: It will require its own analysis. [00:10:19] Speaker 04: FERC's view is that they have not yet authorized an increase in output. [00:10:23] Speaker 05: Our claim is that regardless... DOE hasn't authorized it. [00:10:27] Speaker 05: Isn't that right? [00:10:28] Speaker 04: That's correct as well. [00:10:29] Speaker 05: So it can't happen. [00:10:31] Speaker 05: I mean, when it happens, it's got to be subjected to an EIS analysis. [00:10:36] Speaker 04: Well, our claim is that the authorized design for the Rio Grande project, which is case 1045, [00:10:45] Speaker 04: It includes infrastructure that can only be justified for an increase in output later on. [00:10:51] Speaker 04: The terminal footprint, which includes filling about 200 acres of wetlands, includes space for a sixth liquefaction unit, the only justification for which would be to do an increase in output. [00:11:03] Speaker 04: If you weren't going to build a sixth unit and you didn't plan on increasing output, you could build a smaller facility that wouldn't require filling all 200 acres of wetlands, among other construction impacts. [00:11:13] Speaker 04: So if FERC is authorizing that wetlands destruction now, then the only justification for that wetlands destruction is to lay a foundation for a future increase in output. [00:11:23] Speaker 04: Then FERC needs to consider the consequences of that future action now, even though FERC hasn't actually authorized building on the foundation and completing the sixth train until a future proceeding. [00:11:35] Speaker 05: Am I correct in recalling that they said that in light of the space created by [00:11:43] Speaker 05: going from six to five that that space will be used for the construction equipment and so on? [00:11:49] Speaker 04: While they have that empty space they will put the construction equipment there but there's no suggestion that they actually need that space or that they couldn't shrink the footprint if they weren't going to save space for a sixth train and you can see that because when they originally proposed the design they weren't [00:12:08] Speaker 04: filling a whole bunch of extra wetlands to make construction space for while they built the sixth train originally, but they don't need that much extra space just for staging and construction. [00:12:20] Speaker 01: Can I ask you a question about the ozone issue and that cuts across both cases to some extent and in particular on if, just hypothetically speaking, I know you resist the premise, but just bear with me for a second. [00:12:31] Speaker 01: Hypothetically speaking, if I thought that the [00:12:36] Speaker 01: treatment of cumulative impacts was enough in the Rio Grande order, the rehearing order, but that treatment hasn't been necessarily incorporated expressly or made its way over to the orders in Texas and let's just assume it was in the case for now, and then where am I at that point? [00:12:57] Speaker 01: Because [00:12:59] Speaker 01: It seems it's cumulative impacts of three projects. [00:13:02] Speaker 01: All three projects have been kind of linked throughout this. [00:13:04] Speaker 01: In fact, the orders were issued on the same day. [00:13:05] Speaker 01: The initial orders were issued on the same day. [00:13:08] Speaker 01: And is there something to, is there something to be done if there wasn't a sort of express incorporation, but the analysis is pretty apparently applicable to all three since after all, we're talking about cumulative impacts. [00:13:23] Speaker 04: Um, [00:13:27] Speaker 04: I think we would strongly resist the premise that the Rio Grande analysis was sufficient. [00:13:32] Speaker 04: We have not argued that there's a meaningful difference between the analysis for ANOVA and Texas versus the Rio Grande analysis. [00:13:39] Speaker 04: I agree that they didn't fully articulate it in the other cases, but we are not asking this court to [00:13:49] Speaker 04: strike the ANOVA or Texas analysis for some reason separate from the Rio Grande, the flaws in the Rio Grande analysis. [00:13:55] Speaker 01: I see. [00:13:55] Speaker 01: Okay. [00:13:55] Speaker 01: Yeah. [00:13:56] Speaker 01: And I totally accept that you resist the premise and I don't mean for you to assume anything, but so for your purposes, if we were to think that the Rio Grande treatment of cumulative impacts was enough, you don't have an independent claim. [00:14:08] Speaker 01: that nonetheless, the lack of the express incorporation in Texas and Nova is something that is actionable because presumably the same analysis will just be then stamped over. [00:14:19] Speaker 04: And that's correct. [00:14:21] Speaker 04: Okay, I see that I'm into my rebuttal time. [00:14:28] Speaker 01: So let me make sure my colleagues don't have additional questions for you at this time. [00:14:31] Speaker 01: And you've got you've got another 10 minutes in the other case, too. [00:14:34] Speaker 01: Anyway, but we'll give you rebuttal time in this case as well. [00:14:36] Speaker 05: All right, when you say this case, are we on 1045? [00:14:40] Speaker 01: We are on, not yet, we're on. [00:14:42] Speaker 05: 43 and 1044. [00:14:43] Speaker 01: Yeah, yeah, exactly. [00:14:45] Speaker 01: But Mr. Matthews, I think he's arguing both cases and therefore. [00:14:48] Speaker 05: Distinction is elided a bit, yes. [00:14:56] Speaker 05: Okay, well, I think my questions can all be raised under the flag of the other case. [00:15:04] Speaker 01: So can mine, I think. [00:15:06] Speaker 01: Good. [00:15:07] Speaker 01: Well, we will give you a little bit of rebuttal time for this case, too, Mr. Matthews. [00:15:10] Speaker 01: But why don't we hear from the commission at this point? [00:15:13] Speaker 01: Thank you, Mr. Adegar. [00:15:16] Speaker 03: Thank you, Your Honor, and may it please the Court. [00:15:18] Speaker 03: I'm Scott Edgar with the Federal Energy Regulatory Commission, and I just want to pick up a bit with the issue of the ramifications of ANOVA's announcement. [00:15:31] Speaker 03: I do want to make clear that the Commission stands by its orders in [00:15:36] Speaker 03: the Texas LNG case and I'm glad to talk about those orders. [00:15:42] Speaker 03: The cumulative effects analysis that it did in that case was appropriate, complied with NEPA at the time the commission did that environmental analysis and that [00:15:55] Speaker 03: continues to be true today. [00:15:58] Speaker 03: I think I heard my friend on the other side logically concede that the cumulative effects analysis, the cumulative effects must have been reduced. [00:16:11] Speaker 03: But that isn't the reasoning that I'm necessarily asking this court to affirm the orders. [00:16:17] Speaker 03: We believe that those orders were correct at the time they were issued. [00:16:21] Speaker 03: And I'm glad to talk about [00:16:23] Speaker 03: further details of the issues. [00:16:29] Speaker 06: So just to be clear, the commission doesn't intend to revisit the EIS based on [00:16:41] Speaker 06: this action yesterday of the withdrawal of the ANOVA facility? [00:16:45] Speaker 03: If Your Honor is referring to the EIS in Texas LNG, that is correct, Your Honor. [00:16:51] Speaker 03: The Commission's that environmental impact statement and stands by those orders as it pertains to Texas LNG. [00:17:02] Speaker 01: Well, but on cumulative impacts, so in the Texas order and the Innova order, since we've got those cases together, I know that I know, I know them, I will go away. [00:17:11] Speaker 01: But on cumulative impacts, there's just nothing in those orders. [00:17:16] Speaker 01: On cumulative impacts on ozone, there's a reference to it in the discussion about communities. [00:17:22] Speaker 01: Yes, there is an analysis in the Rio Grande order. [00:17:26] Speaker 01: but there's just nothing in these orders, right? [00:17:29] Speaker 03: That's not quite right, Your Honor. [00:17:31] Speaker 03: I would, in particular, point, Your Honor, to direct Your Honor's attention to paragraph 50 of the Texas LNG rehearing order. [00:17:39] Speaker 03: This is at JA 697. [00:17:44] Speaker 03: And in that paragraph, the commission explicitly incorporates paragraphs from Rio Grande Rehearing Order, particular paragraphs 51 to 56 and 61 to 62. [00:17:58] Speaker 03: And this is the ozone analysis that we've been talking about. [00:18:02] Speaker 03: That is explicitly incorporated. [00:18:06] Speaker 01: in these orders here. [00:18:07] Speaker 01: And remind me, this is the ANOVA order or the Texas order? [00:18:10] Speaker 03: That's Texas. [00:18:11] Speaker 03: I can provide ANOVA as well. [00:18:13] Speaker 01: But the same thing as in both of them? [00:18:15] Speaker 03: Yes, Your Honor, paragraph 50 in the Texas LNG brief hearing order. [00:18:19] Speaker 03: That's at JA697. [00:18:21] Speaker 03: And I'm going to leave out the ANOVA sites. [00:18:32] Speaker 01: Where is the incorporate? [00:18:33] Speaker 01: Because I don't understand how this is an incorporation. [00:18:36] Speaker 01: All it says is, this is the reference. [00:18:38] Speaker 01: It says in the order on rehearing for Rio Grande, the commission estimated the cumulative emissions could result in ozone concentrations of 76.5 that would exceed the NAICS. [00:18:49] Speaker 01: And then there's just no analysis of that at all. [00:18:51] Speaker 01: It's just a statement about what's said in Rio Grande. [00:18:55] Speaker 01: I take your point. [00:18:56] Speaker 01: It would have been perfectly straightforward just to say, and for the reasons set forward in the Rio Grande order, the cumulative impacts [00:19:03] Speaker 01: we don't think pose an issue with going forward with this project, but it just doesn't do that. [00:19:09] Speaker 01: It just goes on then to talk about the impact on minority and low-income populations, which is a different issue. [00:19:16] Speaker 01: It's related, but it's a different issue. [00:19:22] Speaker 03: I do think it's incorporated there. [00:19:25] Speaker 03: I think also there are some [00:19:28] Speaker 03: I do want to point out that the ozone analysis for this project, Texas LNG, wasn't required under the Clean Air Act, under the requirements for the prevention of significant deterioration. [00:19:45] Speaker 03: So an ozone analysis wasn't actually necessary for this project or ANOVA. [00:19:56] Speaker 03: But again, I think that's, [00:20:00] Speaker 03: And the other thing I would add. [00:20:03] Speaker 01: Don't you think you at least have to engage with cumulative impacts in this order? [00:20:08] Speaker 03: I do want to point out, Your Honor, that the rehearing requests did not specifically address ozone outside the context of environmental justice. [00:20:25] Speaker 01: So I didn't read you to actually be making a jurisdictional argument that this argument is not properly before us. [00:20:32] Speaker 01: I think one of the interveners did, but are you saying that? [00:20:35] Speaker 02: Yes, and I think the commission pointed out that... Did the commission make a jurisdictional argument in its brief? [00:20:46] Speaker 01: I didn't think so, but I might be misremembering. [00:20:48] Speaker 03: We pointed out in our brief, I'm looking for the reference, we pointed out in our brief [00:20:54] Speaker 03: that Sierra Club didn't raise the ozone issue outside the context of environmental? [00:21:03] Speaker 01: I think you might have made an observation to that effect, but did you actually make a jurisdictional argument? [00:21:07] Speaker 01: I didn't understand it. [00:21:08] Speaker 01: I don't ever remember you citing anything that said that we didn't have jurisdiction over it because it wasn't properly flagged for rehearing, but I might well be misremembering. [00:21:17] Speaker 01: Just correct me if I'm wrong. [00:21:18] Speaker 03: No, I don't think we, I fully developed them and fully developed the argument, but just observed that it was based and that just goes. [00:21:27] Speaker 05: We did say, did you not say, I thought you did, that therefore it wasn't properly before the court? [00:21:34] Speaker 01: I don't know that we said. [00:21:35] Speaker 01: I don't think so. [00:21:37] Speaker 05: Not even that, okay. [00:21:40] Speaker 01: I don't recall it, but I know, I believe one of the interveners made the argument, the intervener made the argument, but I don't, I don't know that [00:21:46] Speaker 01: the commission did, but in any event, I don't mean to derail. [00:21:49] Speaker 03: I raise that, Your Honor, to explain why the order is developed this way and why there isn't a separate section. [00:21:58] Speaker 03: But I do stand by the argument that this analysis was incorporated in these orders. [00:22:07] Speaker 03: The ozone analysis, the cumulative ozone effects analysis in the Rio Grande case. [00:22:14] Speaker 01: I mean, it just may be a formalism. [00:22:16] Speaker 01: I take the point that it was done in Rio Grande. [00:22:19] Speaker 01: But it would have been so easy to do something other than mention the stat, the 76.5 number from Rio Grande, and then do nothing else. [00:22:30] Speaker 01: Because I think a person who's not well versed in all of this wouldn't necessarily know that the commission's even relying on what the answer was in Rio Grande, as opposed to flagging the emissions level. [00:22:44] Speaker 03: I would emphasize as well that the commission didn't just, didn't stop with acknowledging and incorporating the analysis from Rio Grande. [00:22:59] Speaker 03: The commission also relied on that here specifically and obviously in the environmental justice section, which is where it came up in the rehearing requests. [00:23:22] Speaker 06: And I guess just to have you on record with respect to whether the notice we got yesterday of the withdrawal of the ANOVA facility, does that affect either mootness or rightness of this petition? [00:23:46] Speaker 06: What is your position? [00:23:48] Speaker 03: And when your honor refers to this petition, Texas LNG? [00:23:51] Speaker 03: Texas's, yes. [00:23:53] Speaker 03: The answer is it doesn't affect that case. [00:23:56] Speaker 03: The commission absolutely stands by the environmental review that it engaged in that case and stands by the orders issued as well. [00:24:07] Speaker 01: Are you aware of any similar possibility with respect to either Texas or Rio Grande in terms of withdrawal? [00:24:15] Speaker 03: I am not, and I was not aware of the other one as well, but I'm aware that as far as I know from this record, these projects are moving forward. [00:24:39] Speaker 03: Unless there are any other questions, [00:24:46] Speaker 05: Well, is this an appropriate time? [00:24:48] Speaker 05: Do you have some time left, I think? [00:24:50] Speaker 05: I do. [00:24:51] Speaker 05: So this is an appropriate time to talk about the social cost of... Yes. [00:24:59] Speaker 05: What do I mean? [00:25:02] Speaker 01: Social cost. [00:25:03] Speaker 01: Yeah, I have another question on that too, but yeah. [00:25:05] Speaker 01: Yes, please, Doug, yeah. [00:25:07] Speaker 05: So let's begin with this. [00:25:09] Speaker 05: I understand that the regulation that triggers Sierra Club's argument [00:25:16] Speaker 05: about this subject has been, I'm not sure if it was rescinded or amended as of September 14th. [00:25:29] Speaker 05: Do you know the answer to that? [00:25:32] Speaker 05: Was it rescinded or amended? [00:25:37] Speaker 03: I'm not sure which regulation. [00:25:39] Speaker 05: Oh, I'm sorry. [00:25:40] Speaker 05: It's 1502.22. [00:25:43] Speaker 05: 1502.22. [00:25:46] Speaker 03: It's in the CEQ regs 1502.22. [00:25:54] Speaker 05: What is the status of that? [00:25:58] Speaker 03: That has been amended. [00:26:02] Speaker 03: The commission doesn't contest that we're dealing with the regulation as it existed at the time. [00:26:09] Speaker 05: What happens if we remand this case? [00:26:11] Speaker 05: You apply a regulation that's been amended or rescinded instead of the one that's now in place? [00:26:17] Speaker 05: It doesn't make sense to me. [00:26:21] Speaker 03: I think that's probably correct. [00:26:24] Speaker 03: If the case is remanded, that would be up to the commission side upon remand. [00:26:30] Speaker 05: Do you know in what respect it was amended? [00:26:34] Speaker 03: I don't know the substance. [00:26:38] Speaker 03: I believe the number is different. [00:26:44] Speaker 03: I believe 150221. [00:26:51] Speaker 03: The Commission didn't address this regulation in its orders here and the Commission has held in previous cases that it doesn't apply in this context. [00:27:04] Speaker 03: And I would point your honors to Dominion Energy Cove Point LNG and this is volume 164 FERC paragraph 61102 and [00:27:20] Speaker 03: The commission explained that this regulation does not apply in the greenhouse gas significance context, where the question is ascribing significance to an impact on a particular environmental resource. [00:27:34] Speaker 05: Well, the commission said that in these cases as well. [00:27:38] Speaker 03: And I would stand on it. [00:27:40] Speaker 05: What is the fact that it said it before? [00:27:41] Speaker 03: Tell us. [00:27:45] Speaker 03: Well, the commission has also stated that the information in that regulation exists here. [00:27:52] Speaker 03: The commission explained that there isn't a model to meaningfully help the commission decide the question of significance, but that does not mean that the commission ignored or overlooked the impacts that result from greenhouse gas [00:28:15] Speaker 03: emissions. [00:28:16] Speaker 01: Did you discuss the regulation at all in your brief? [00:28:19] Speaker 01: No. [00:28:21] Speaker 01: I found that to be curious. [00:28:22] Speaker 01: I mean, the petitioner's argument is premised on this regulation in large measure. [00:28:27] Speaker 01: And I guess I was anticipating seeing something from the commission on the regulation. [00:28:31] Speaker 01: Is there a reason that it's not in the brief at all? [00:28:35] Speaker 03: No, I think all I can say now is that the commission has said that this doesn't apply. [00:28:42] Speaker 03: that this regulation doesn't apply, one, two, that the information is provided. [00:28:48] Speaker 03: And the commission did explain that it doesn't have a model, and this includes the social cost of carbon that is useful for determining significance. [00:29:00] Speaker 01: Did the decision in which the commission said the regulation doesn't apply post-date this case, or is it in a previous? [00:29:06] Speaker 01: It predates. [00:29:07] Speaker 01: It's 2018. [00:29:10] Speaker 01: But it's not in the... [00:29:12] Speaker 01: But we wouldn't have known that from your brief. [00:29:15] Speaker 01: And what is it about the regulation that makes it inapplicable? [00:29:22] Speaker 03: I believe what the commission was saying was the information [00:29:30] Speaker 03: lacking doesn't go to the environmental impacts, but goes to a model or a standard that the commission could rely on to make a meaningful determination as to significance. [00:29:49] Speaker 03: I do want to emphasize, Your Honors, that the Commission engaged in a robust discussion here of greenhouse gases, including the relationship between greenhouse gas emissions and the environmental consequences. [00:30:07] Speaker 03: And that included quantifying the emissions for this project, which [00:30:14] Speaker 03: told the Commission and formed the Commission exactly the role played by these projects in the global greenhouse gas issue. [00:30:28] Speaker 03: I see I'm out of time. [00:30:30] Speaker 03: I'm glad to. [00:30:31] Speaker 05: Mr. Edgar, I'm looking now at the change in the [00:30:35] Speaker 05: It's not limited simply to renumbering, but it's not possible to determine on the fly like this, whether the various word changes are significant for the purposes of this case. [00:30:50] Speaker 05: So you might take a look at that while we're hearing from opposing counsel. [00:31:01] Speaker 05: I think it might be able to direct you more specifically if you give me a second here. [00:31:08] Speaker 05: Yes, it's at, it's at 40, let's see, 85 Federal Register, July 16, 2020, the page is 43.304. [00:31:28] Speaker 05: Somewhere in that, [00:31:30] Speaker 05: document. [00:31:31] Speaker 05: Thank you. [00:31:33] Speaker 03: Thank you, your honor. [00:31:35] Speaker 01: Thank you, Mr. Edgar. [00:31:36] Speaker 01: We'll hear from Mr. Matthews. [00:31:38] Speaker 01: We'll give you two minutes for rebuttal in this case. [00:31:40] Speaker 01: And I just know for for the benefit of counsel and for my colleagues that even though the second case is going to be largely a continuation of this and certain measures, we have different counsel coming for intervener and for for the commission. [00:31:55] Speaker 01: So we will do our normal changeover [00:31:58] Speaker 01: for that case, although I know that you're arguing for petitioners in both cases. [00:32:02] Speaker 01: So please proceed with the rebuttal on this one. [00:32:06] Speaker 01: Thank you, Your Honor. [00:32:08] Speaker 04: Just briefly on ozone, our ozone arguments are intertwined with our environmental justice arguments. [00:32:15] Speaker 04: So I agree that in our hearing request on the Texas ONG project, we addressed ozone in the context of environmental justice. [00:32:22] Speaker 04: But we addressed ozone and actually adequately predicting what the increase in ozone will be and who will suffer that increase is the predicate to the environmental justice argument. [00:32:31] Speaker 04: So we don't condemn that there's any sort of a jurisdictional problem there. [00:32:36] Speaker 04: We agree that the way that the Commission discussed ozone was [00:32:40] Speaker 04: not a model of clarity. [00:32:42] Speaker 04: I should also note that the NEPA requires that discussion of environmental impacts appear in the environmental impact statement. [00:32:48] Speaker 04: And no one here contends that FERC's environmental impact statement was actually adequate in these regards. [00:32:55] Speaker 04: And although this Court has previously allowed FERC to secure deficiency in environmental impact statement with initial analysis in a certificate order, here it's not even coming at the certificate order. [00:33:04] Speaker 04: The analysis on ozone didn't appear until we got to the actual orders denying rehearing. [00:33:09] Speaker 04: Petitioners have focused on the substance of the analysis rather than how it was packaged, but I agree that what the Commission did here was not according to the normal procedures. [00:33:20] Speaker 04: On social cost of carbon... Excuse me one second. [00:33:23] Speaker 05: If we back the ships out of this, what's left to the argument you're just describing or making? [00:33:30] Speaker 05: If we back the ships out of the ozone... Right, the contribution of the ships to the ozone. [00:33:37] Speaker 04: I do not know offhand where we would be on ozone if we just back the ships out and just looked at. [00:33:45] Speaker 05: It seems to me pretty clear from two cases in this court that we don't take into account mobile, we don't require work to take into account mobile sources that are within the purview of the DOE and for which it has no control and could not prevent them. [00:34:03] Speaker 04: I don't believe that [00:34:05] Speaker 04: FERC or any party in this case has argued that the other emissions from the ships are outside of FERC's authority or obligation to consider. [00:34:14] Speaker 01: Really? [00:34:16] Speaker 01: Does the 76.5 figure that FERC used in the rehearing orders, does that encompass vessels? [00:34:23] Speaker 04: It does encompass vessels and vessels are about a third of the precursor missions that get you to that. [00:34:29] Speaker 01: So it looks like the commission itself factor that in, at least in the [00:34:34] Speaker 01: and the figure that it came up with in the rehearing orders. [00:34:37] Speaker 04: And in the non-osent analyses in the environmental impact statement, the commission had also considered vessel emissions. [00:34:48] Speaker 01: OK. [00:34:48] Speaker 01: Well, why don't we switch to the second intimately related case at this point? [00:34:54] Speaker 01: Unless my colleagues have further questions for you on rebuttal, you're about to stand right back up. [00:35:00] Speaker 01: Thank you. [00:35:01] Speaker 01: We'll take this case under submission.