[00:00:01] Speaker 00: Case number 20-1045, Besinos para el Bienestar de la Comunidad Custera et al, petitioners, versus Federal Energy Regulatory Commission. [00:00:11] Speaker 00: Mr. Matthews for the petitioners, Mr. Kennedy for the respondent, Mr. Longstrat for the interveners. [00:00:19] Speaker 03: Mr. Matthews, please feel free to continue. [00:00:23] Speaker 04: Thank you, Your Honor. [00:00:25] Speaker 04: So case 1045 concerns the Rio Grande LNG Export Terminal and the Associated Rio Bravo Pipeline. [00:00:30] Speaker 04: Even if the approved design changes are included, the Rio Bravo terminal remains the second largest LNG terminal, and the Rio Bravo pipeline is the highest capacity pipeline project FERC has ever approved. [00:00:45] Speaker 04: And these combined projects, based on the EIS, will emit more than 9 million tons of greenhouse gases every year, making it one of the largest single sources of emissions in the country. [00:00:57] Speaker 04: Before I get into the Rio Grande specific issues, I just wanted to quickly speak to the social cost of carbon concern and the issue about 1502.22, which has been now renumbered to 1502.21. [00:01:10] Speaker 04: The key language in the amended regulation remains the same. [00:01:14] Speaker 04: It still says that if an agency is lacking information, [00:01:20] Speaker 04: regarding adverse impacts, the agency must provide an evaluation based on methods generally accepted in the scientific community. [00:01:28] Speaker 04: And that term, which used to be 1502B4, is just renumbered, but still applies in the new reg. [00:01:37] Speaker 04: So even if we do prevail here, there is a remand. [00:01:40] Speaker 04: And assuming that the new regs stay on the books, I know there's a lot of litigation challenging the CEQ amendment of the NEPA regs. [00:01:48] Speaker 04: all of our claims on this issue of social cost of carbon would be carried forward under the new regulation. [00:01:54] Speaker 03: And are you aware of and do you have a response to the commission analysis that council in the previous case referred to in the Dominion case about the ability of the reg to? [00:02:05] Speaker 04: I am not aware of any prior commission order that specifically addresses 1502.22. [00:02:10] Speaker 04: I didn't quite catch the site that council announced there, but the Dominion case, the 2018 Dominion FERC order that was cited, [00:02:17] Speaker 04: in the certificate orders here and the rehearing orders here. [00:02:19] Speaker 04: Only mentioned 1502.22 in the dissent when Commissioner Glick is saying I still think we ought to be using social cost of carbon because of 1502.22. [00:02:28] Speaker 04: I just was not expecting to go there but pulled it up now and I don't see a discussion of 1502.22 there. [00:02:35] Speaker 04: And 1502.22 was not discussed in any of the FERC certificate orders at issue in today's cases. [00:02:42] Speaker 04: It wasn't discussed in any of the hearing orders, in any of the EISs, nor was it discussed in any of this court's prior cases addressing social cost of carbon, which is, I think, one of the key factors that distinguishes this case from Earth reports and the unpublished decisions that have held that on the records in those prior cases, that FERC was not required to use the social cost of carbon. [00:03:02] Speaker 04: Here we are arguing [00:03:05] Speaker 04: that the records in these cases demonstrate that the predicates for 1502.22 are satisfied, that FERC has conceded, in the case after the remand in Earth reports, I mean after the remand in Sable Trail, which is a Sierra Club B FERC case, that the social cost of carbon is generally accepted in the scientific community. [00:03:28] Speaker 04: FERC has never disputed that, nor, and in the records in these cases in the Rio Grande [00:03:34] Speaker 04: and the Texas responses to comments on the EIS, FERC staff agreed that the social cost of carbon is built on an assessment of actual physical impacts, as we pointed out in our briefs. [00:03:43] Speaker 04: FERC even admitted that if you wanted, you could back out just the assessment of physical impacts and not do the monetization step in the social cost of carbon. [00:03:53] Speaker 04: So here we have FERC conceding that the predicates for 1502.22 are satisfied, but ignoring the regulation and failing to apply it. [00:04:05] Speaker 04: I think that that distinguishes this case from Earth reports. [00:04:10] Speaker 04: I'll also note that Appalachian Voices held that we had regulation. [00:04:13] Speaker 06: I mean, it didn't mention the regulation, but it responded to your arguments. [00:04:19] Speaker 04: We believe that it does not. [00:04:20] Speaker 04: The point of 1502.22 is that although an agency generally has discretion as to choosing the appropriate methodology, [00:04:30] Speaker 04: 1502.22 sets a floor where in the absence of any other analysis, FERC can't refuse to use a method that is generally accepted in the scientific community, even if... I think the reg says they have to do something. [00:04:45] Speaker 04: And here they did nothing. [00:04:46] Speaker 06: It doesn't have to be social cost of... We agree. [00:04:50] Speaker 04: We agree that nothing in the regs specifically requires... That they do anything. [00:04:55] Speaker 04: And here, FERC concedes that they did not evaluate the significance of climate emissions because FERC believed they did not have the tools to do so. [00:05:02] Speaker 04: Which I think the explicit concession that they did nothing is why we think 1502.22 plus the concession that social cost of carbon was generally accepted require social cost of carbon here. [00:05:15] Speaker 04: In other cases, we do not believe that social cost of carbon would always be required. [00:05:19] Speaker 06: It's generally accepted as one requirement. [00:05:25] Speaker 06: That the that it be applicable to what they're doing must also obtain right I mean it's got to be it's got to lead to something or have information relevant to the decision that they're making. [00:05:38] Speaker 06: Maybe there is something out there, other than the social cost of capital I don't know. [00:05:43] Speaker 04: And we completely agree that if FERC had done some other method, that this would be a very different case. [00:05:49] Speaker 04: Our argument hinges on the fact here that FERC explicitly states that they did not use any method to evaluate the significance of greenhouse gas emissions. [00:05:56] Speaker 06: Right. [00:05:57] Speaker 06: So if we send this back to them, their task is to do something, not necessarily do anything regarding SCC. [00:06:05] Speaker 04: Right. [00:06:06] Speaker 04: We do think that it would be appropriate to put a gloss on that that says, if you can't think of anything else to do, then you've got to do social cost of carbon. [00:06:12] Speaker 04: But certainly the door will be open. [00:06:14] Speaker 06: It's not something that just doesn't apply at a project level. [00:06:18] Speaker 06: If you've got something that is the equation to be used for evaluating the burn rate of rocket fuel, it's just irrelevant to this task. [00:06:31] Speaker 06: And if there's something about SCC that makes it irrelevant, then I don't see why just because you're urging it, that it qualifies. [00:06:40] Speaker 04: And I would rest on our briefs first. [00:06:43] Speaker 06: But this is what there's, which is to say, it was issued by the tech document for use in rulemaking. [00:06:52] Speaker 06: And it's not really adapted to project level analysis. [00:06:56] Speaker 04: And with an eye on the clock, I'll rest on our briefs for explaining, we believe that FERC hasn't provided any reason why it doesn't work here, that although it was developed in rulemaking, that FERC hasn't explained why that's the distinction with a difference. [00:07:09] Speaker 06: All right, let me go back to the ship's question just to make, because we glossed over that. [00:07:14] Speaker 06: You said you weren't aware of the FERC making the argument. [00:07:17] Speaker 06: This is 48 in 20-1045, page 48 of the red brief. [00:07:23] Speaker 06: Vecinos notes that the commission did not discuss emissions migration from vessels servicing the project. [00:07:29] Speaker 06: The commission lacks jurisdiction over such vessels, citing a statute vesting the commission with jurisdiction over LNG terminals. [00:07:37] Speaker 06: And another saying LNG terminal does not include waterborne vessels. [00:07:42] Speaker 06: The same point appears at 39 in 20-1043 and 44. [00:07:48] Speaker 06: So there's the argument. [00:07:51] Speaker 06: So we would draw a distinction between- Which we've said that, Judge Rogers was quite clear on that. [00:07:58] Speaker 04: We believe that there's a distinction between FERC's authority to regulate. [00:08:04] Speaker 04: That argument was made in the context of saying that weather FERC could impose additional mitigation measures on vessels. [00:08:10] Speaker 04: Regardless of whether FERC can, it's clear that authorizing these projects and operation of these terminals in these locations will cause vessel traffic to this terminal and that that vessel traffic will affect the surrounding communities. [00:08:22] Speaker 04: And the Department of Energy does not perform any analysis about the surrounding communities or about the infrastructure. [00:08:27] Speaker 04: So we believe that FERC does have the obligation to consider. [00:08:31] Speaker 06: Did they do any EIS? [00:08:33] Speaker 04: Yes. [00:08:34] Speaker 04: And in the EIS, they did consider the air emissions from vessels, but they didn't consider the contribution of those air pollutions to ozone formation. [00:08:41] Speaker 06: So why didn't you complain to DOE? [00:08:44] Speaker 04: Oh, no, DOE has not done that. [00:08:46] Speaker 04: FERC did that in FERC EIS. [00:08:47] Speaker 06: That was my question. [00:08:48] Speaker 06: I was not clear whether DOE had issued any EIS with regard to the traffic. [00:08:55] Speaker 04: DOE has adopted FERC EIS. [00:08:57] Speaker 04: DOE's discussion of the project did not conclude any analysis of local non-greenhouse gas air pollution. [00:09:07] Speaker 06: So they didn't do any independent document. [00:09:09] Speaker 04: That's correct. [00:09:11] Speaker 04: DOE does not assert jurisdiction over the ozone forming pollution coming from vessels. [00:09:18] Speaker 06: Thank you. [00:09:27] Speaker 04: One closing note on social cost of carbon is the Appalachian Voices case held that petitioners had waived those arguments about social cost of carbon by failing to challenge FERC's arguments in the opening brief. [00:09:39] Speaker 04: So not only is Appalachian Voices an unpublished decision, it involves a waiver argument that doesn't apply here. [00:09:45] Speaker 04: We'll save my last 30 seconds for rebuttal. [00:09:48] Speaker 06: Oh, sorry. [00:09:50] Speaker 06: Just going back a moment to the vessels. [00:09:55] Speaker 06: How does Earth Reports bear on this, that case? [00:09:59] Speaker 06: How is that distinguished? [00:10:03] Speaker 04: Earth reports considered arguments about whether FERC adequately addressed ballast water impacts and other impacts of vessels. [00:10:10] Speaker 04: Earth reports solely said that FERC didn't have jurisdiction to look at where the gas was coming from or the use of the gas after it had been exported by vessels overseas. [00:10:19] Speaker 04: But we had claims about the substance of FERC's analysis of vessel traffic, including ballast water discharge, et cetera, there. [00:10:27] Speaker 04: And I don't believe that there was [00:10:28] Speaker 04: any argument in that case, or any aspect of the decision that held that FERC didn't have to consider ballast water impact or anything. [00:10:37] Speaker 06: Well, here's the sentence. [00:10:38] Speaker 06: And so maybe you can explain this in context. [00:10:40] Speaker 06: It says, because DOE alone has the legal authority to authorize Dominion to increase commodity exports of LNG, the challenge orders here too are, quote, not legally relevant, the legally relevant cause of these indirect effects, close quote. [00:10:58] Speaker 06: And the Commission did not need to consider them in its NEPA review. [00:11:02] Speaker 04: I believe that that statement in Earth Reports was solely about combustion of gas overseas and about the production of where the gas was coming from. [00:11:10] Speaker 04: I apologize that I don't have the case language against the sentence before. [00:11:14] Speaker 06: Petitioners' contentions regarding the indirect effect of increased exports on upstream natural gas production resemble those rejected in the Freeport case. [00:11:24] Speaker 06: And while these cases do not address whether NEPA reaches the effects of emissions arising from the transport and consumption of exported natural gas, its focus on the transport, this indirect effect, similarly, quote, cannot occur unless the greater volume of LNG is shipped from the terminal and enters the international marketplace. [00:11:43] Speaker 06: And that goes on to say, [00:11:45] Speaker 06: because DOE doesn't have legal authority over that. [00:11:47] Speaker 06: It doesn't enter into their NEPA analysis. [00:11:51] Speaker 04: So in practice, FERC and DOE maintain a split in jurisdiction where DOE considers the greenhouse gas emissions of ocean-going vessels during the majority of their journey. [00:12:06] Speaker 04: But the non-greenhouse gas pollutant emissions [00:12:10] Speaker 04: close to port in the United States are not something that DOE considers, and they're something that FERC has always considered. [00:12:17] Speaker 06: So when they deal with the remote remissions? [00:12:21] Speaker 04: That's correct. [00:12:21] Speaker 06: They do an EIS then? [00:12:23] Speaker 04: No, DOE has never done its own EIS. [00:12:25] Speaker 04: DOE always tears off of FERC CIS. [00:12:28] Speaker 04: And I realized we were getting a little bit afield of some of the issues here. [00:12:32] Speaker 04: DOE has sometimes supplemented FERC CIS with some non-NEPA documents, but DOE has never done its own EIS. [00:12:37] Speaker 03: Thank you. [00:12:42] Speaker 03: Judge Wilkins, did you have a question? [00:12:43] Speaker 02: With respect to environmental justice, the challenge you have that they failed to take a hard look at environmental justice impacts. [00:12:55] Speaker 02: You opened in your opening brief by essentially arguing that FERC proceeded under a false premise that because the [00:13:09] Speaker 02: communities in the vicinity of the projects were exclusively minority and low income. [00:13:17] Speaker 02: They couldn't be disproportionately impacted by these projects unless there were factors unique to their populations that rendered the projects effects particularly harmful. [00:13:34] Speaker 02: But, um, [00:13:37] Speaker 02: It seemed that you dropped that argument in your reply brief. [00:13:42] Speaker 02: Am I missing something or can you articulate where you've landed with your challenge here? [00:13:49] Speaker 04: Yeah. [00:13:57] Speaker 04: We did not intend to abandon that claim in our reply brief. [00:13:59] Speaker 04: Instead, I think that our arguments about FERC's failure to define the affected community are how we discussed that claim in our reply brief. [00:14:06] Speaker 04: that FERC defined the affected community using a two mile radius to identify the impacted census tracts. [00:14:16] Speaker 04: And then said, since both within the communities identified by that two mile radius, plus everybody outside of that is all an environmental justice community, there's no disproportion here. [00:14:29] Speaker 04: And our claim is that the, when, [00:14:33] Speaker 04: addressing whether or not impacts on environmental justice communities are disproportionate or not, you need to juxtapose the actually effective community with some broader reference community, and that by defining the effective community arbitrarily narrowly, that also skewed what FERC used as a reference community. [00:14:51] Speaker 04: FERC has acknowledged that the actual effects of these projects related to air pollution [00:14:55] Speaker 04: will extend far beyond two miles for cumulative impact analysis as air actually fell out to 31 miles away. [00:15:02] Speaker 04: And the calculations FERC used in its belated ozone analysis rests on the calculation of ozone impact six miles away. [00:15:10] Speaker 04: So our claim is that if you define the affected community appropriately with using a broader standard, then you would need to look farther away for a reference community, perhaps looking at all of Texas or at least some sort of broader region [00:15:23] Speaker 04: And then once you use that broader reference community, you will see that we expect, FERC hasn't done this analysis, that the broader reference community would have lower environmental justice populations as a proportion than the community affected here. [00:15:38] Speaker 04: And that's consistent with the EPA guidance that the FERC purports to rely on, where EPA has cautioned that when you're evaluating impacts along the US-Mexico border in Texas, [00:15:50] Speaker 04: So much of the nearby communities are likely to be minority communities that the appropriate comparison for your environmental justice analysis should look broader. [00:15:58] Speaker 04: And EPA suggests that that should often be a comparison with all of Texas. [00:16:05] Speaker 02: Okay, thank you for that clarification. [00:16:09] Speaker 03: Okay, thank you, Mr. Matthews. [00:16:11] Speaker 03: We'll give you a little bit of rebuttal time. [00:16:12] Speaker 03: We'll hear from the commission now. [00:16:14] Speaker 03: Mr. Kennedy. [00:16:16] Speaker 05: Good morning, Your Honors. [00:16:16] Speaker 05: Robert Kennedy on behalf of the commission. [00:16:19] Speaker 05: I'll just pick up on the environment. [00:16:21] Speaker 05: The commission's analysis here was consistent with the EPA guidelines. [00:16:25] Speaker 05: It looked at a two mile radius around the project, determined that all those communities were environmental justice communities. [00:16:33] Speaker 05: And that is consistent with the EPA guideline that says, the further away you look, the more the impacts dissipate. [00:16:41] Speaker 05: So you should really concentrate on where the bulk of the impacts are gonna be. [00:16:45] Speaker 05: The commission found that because all these communities were environmental justice communities, [00:16:50] Speaker 05: the impacts are spread uniformly. [00:16:52] Speaker 05: So then the task was to look at these communities, look at their demographic makeup and see whether there's any characteristics of those communities that would amplify an impact in a manner that hadn't already been considered by the commission in its environmental analysis. [00:17:07] Speaker 05: And it went through that step with respect to ozone, which was the primary concern with respect to health impacts. [00:17:13] Speaker 05: And it found that given the demographics of the population, [00:17:18] Speaker 05: we would not expect any greater impact than would normally be expected. [00:17:24] Speaker 05: On the socioeconomic side, tourism was the main thing that was identified during scoping and it's one of the things discussed in petitioners brief. [00:17:32] Speaker 05: The commission acknowledged that these are low income communities with a high unemployment percentage. [00:17:37] Speaker 05: It acknowledged that tourism is an important industry to these specific communities that are gonna be impacted. [00:17:42] Speaker 05: It went through [00:17:43] Speaker 05: looked at all the different types of tourism, ecotourism, bird watching, beach going, and found that while with respect to the project in general, while the [00:17:55] Speaker 05: timing of tourism impact, tourism visits come, the overall number shouldn't change. [00:18:01] Speaker 05: It did acknowledge that if we look cumulatively at all three projects, then maybe there might be a moderate impact to tourism. [00:18:08] Speaker 05: But it did consider this issue and looked specifically at whether it would, how it would impact this community, these affected communities given their demographic make-ups. [00:18:18] Speaker 05: And we would submit that that satisfies the purpose of the environmental justice analysis. [00:18:24] Speaker 06: Where did the two miles come from? [00:18:27] Speaker 06: I'm sorry? [00:18:27] Speaker 06: Where did the two miles come from? [00:18:30] Speaker 05: I think that was just the commission's assessment that that's where the bulk of the impacts were going to be felt. [00:18:38] Speaker 05: and therefore focused on those particular communities. [00:18:42] Speaker 05: I think there's a particular standard that's laid out in any of the CEQ or EPA guidance documents sort of left to the discretion of the agency, and that was the choice of impacted population. [00:18:56] Speaker 05: And Mr. Matthews is correct that the commission did acknowledge that ozone is a regional issue, and it did look at it regionally, but the [00:19:04] Speaker 05: demographic makeup of the county as a whole mirrors the demographics of the communities within this two mile radius. [00:19:13] Speaker 05: So we don't believe this is the case where there's some environmental justice community out there that the commission missed, or there's some specific set of information that the commission didn't consider that would demonstrate in some way that the otherwise disclosed impacts are amplified on these communities. [00:19:33] Speaker 05: With respect to the social cost of carbon and regulation 1502.22, now 201, I think we're in agreement with petitioners that the operative language is generally the same. [00:19:48] Speaker 05: And yes, it is not cited in our brief or these orders, but the fundamental point of the- Why not? [00:19:55] Speaker 03: Why isn't it cited in the brief at all? [00:19:58] Speaker 03: Because especially in the Rio Grande case, it's the entire argument is rested on the regulation. [00:20:03] Speaker 05: Well, I think because the fundamental point of the commission's discussion is that this is not [00:20:10] Speaker 05: accepted tool for use in project-specific analyses. [00:20:15] Speaker 05: Again, while it may be possible to use it to look at broad global and regional impacts under certain socioeconomic conditions, it doesn't look at just the impact of a particular project, and there is no scientifically acceptable [00:20:34] Speaker 05: scientific agreement as to the appropriate discount rate to use, nor is there a standard by which the commission could, a scientifically accepted standard by which the commission could judge that a specific dollar amount that may come out of the tool reflects a significant climate change impact. [00:20:55] Speaker 05: As the commission said, [00:20:57] Speaker 05: So the commission in this order, in the Rio Grande rehearing order. [00:21:03] Speaker 03: No, I mean tying it to the regulation. [00:21:05] Speaker 03: Has the commission said any of this tying it to a regulation anywhere in this order? [00:21:09] Speaker 05: So yes, in the Rio Grande rehearing order, in discussing the social cost of carbon issue, [00:21:22] Speaker 05: essentially says, you know, we've discussed this a number of times before, and it cites to the Mountain Valley Order, which is, that's footnote 308 of the Rio Grande hearing order, which is J 157. [00:21:37] Speaker 05: This was the order that was under review and affirmed in the Appalachian Voices case. [00:21:42] Speaker 05: And that order at footnote 769, the commission explains that [00:21:53] Speaker 05: That case involved downstream greenhouse gas emissions. [00:21:59] Speaker 05: And the commission noted that we've discussed in here how there's no meaningful threshold for determining significance of GHG emissions using the social cost of carbon. [00:22:07] Speaker 05: We believe that the discussion herein is consistent with the procedures for addressing incomplete or unavailable information. [00:22:14] Speaker 05: And it cites what was 502.22. [00:22:18] Speaker 05: So the commission has disclosed that the EIS makes clear that there's [00:22:23] Speaker 05: There's some uncertainty as to the scope of these climate change impacts. [00:22:28] Speaker 05: It acknowledges that it will have greenhouse gas emissions, that that will affect global warming. [00:22:36] Speaker 03: In other words, I think I understand what you're saying. [00:22:39] Speaker 03: If I wanted to figure out [00:22:41] Speaker 03: what the commission thinks about this regulation's applicability in the greenhouse gas context. [00:22:46] Speaker 03: What I would do about this regulation, not generally about whether it's scientifically accepted, but how this regulation interrelates with the question or a precursor regulation that may be a different number or something, but in substance, the same regulation. [00:22:59] Speaker 03: What I would do is go to the decision that's cited in footnote 308 of the rehearing order. [00:23:06] Speaker 03: And then if I look at that decision, [00:23:09] Speaker 03: I'll see a reference to the regulation. [00:23:11] Speaker 03: Correct. [00:23:12] Speaker 05: The rehearing order in that footnote. [00:23:17] Speaker 05: Yes, you're right. [00:23:18] Speaker 05: It is the rehearing order from the Mountain Valley proceeding and it's footnote 769 in that Mountain Valley order. [00:23:29] Speaker 05: You point me to that instead of the dominion order. [00:23:33] Speaker 05: only because I know that the Mountain Valley order was referenced and sort of incorporated, I would say, almost in the Rio rehearing order. [00:23:41] Speaker 05: And then, and again, I would also add this specific argument was raised 1502.22 was one of the principal [00:23:55] Speaker 05: provisions relied upon by Sierra Club in the 2016 case, which found that the commission reasonably declined to use the social cost of carbon. [00:24:04] Speaker 05: So this issue has been before the court. [00:24:07] Speaker 06: Was the regulation urged in that case? [00:24:10] Speaker 05: It was, yes, that was one of Sierra Club's principal arguments. [00:24:15] Speaker 06: And which case is it you're referring to? [00:24:17] Speaker 05: It's the 2016 Sierra Club case. [00:24:20] Speaker 05: Is that the Sable Trail one? [00:24:22] Speaker 05: No, it's a separate one. [00:24:24] Speaker 05: It's also an LNG case involving, I believe, the Corpus Christi case. [00:24:30] Speaker 05: Is it Freeport? [00:24:32] Speaker 05: Let me find you the site, Your Honor. [00:24:39] Speaker 05: It is 672, federal appendix 38. [00:24:51] Speaker 05: raised in the briefing on that by Sierra Club. [00:24:54] Speaker 05: And then the court just held that petitioners have no merit, mainly relying on the Earth Reports case. [00:25:06] Speaker 05: Starting getting back, I see my time is up. [00:25:08] Speaker 05: So if I just have a moment getting back to where we started this morning with respect to what's going on with these cases. [00:25:15] Speaker 06: Well, let's just stay where we are for a moment. [00:25:17] Speaker 06: On the discount rate. [00:25:18] Speaker 06: The EPA has given guidance on that. [00:25:20] Speaker 06: Right. [00:25:21] Speaker 06: I think it's EPA just run these three, you know, three different three different discount rates. [00:25:26] Speaker 05: I believe it's OMB that has given that discount rate. [00:25:30] Speaker 05: EPA has advised the commission in another proceeding, which is cited in our brief, that the tool may not be appropriate for use in project-specific reviews. [00:25:38] Speaker 05: And it has advised the commission that there is a dispute as to the disagreement, I should say, as to the appropriate discount rate. [00:25:45] Speaker 05: OMB, yes, in the circular that petitions point to, it does say, [00:25:51] Speaker 05: here's a couple of discount rates, use them all, put the numbers out there. [00:25:54] Speaker 05: And the commission, the earth reports court said the idea that the tool can spit out wildly divergent numbers based on the discount rate that you use only supports the commission's point that it's not reasonable to use the commission's position that it's not reasonable to use in a project specific analysis. [00:26:14] Speaker 06: Where's the EPA communication to FERC saying so it is cited in [00:26:21] Speaker 05: It's quoted in foot, excuse me, in paragraph 104 of the Rio rehearing order. [00:26:28] Speaker 05: And then, yeah, that's where, and this is stated in a number of orders. [00:26:34] Speaker 05: I don't know that I can trace it back to the first indication, but that's where it is in this case. [00:26:41] Speaker 06: In paragraph, I'm sorry, paragraph 104 of the rehearing order. [00:26:48] Speaker 06: The rehearing order with respect to greenhouse gas, right? [00:26:53] Speaker 05: Yes, yes. [00:26:56] Speaker 05: Sort of with respect to the original question of where we are in this case, given the giving the moving pieces. [00:27:04] Speaker 05: I agree that that so my understanding. [00:27:09] Speaker 06: Can you give me a second? [00:27:10] Speaker 06: I'm looking at paragraph 104 for it. [00:27:12] Speaker 06: Here it is short. [00:27:14] Speaker 06: EPA EPA states and that's OK. [00:27:19] Speaker 06: No consensus on the appropriate discount rate. [00:27:23] Speaker 06: That's one point. [00:27:25] Speaker 06: The tool does not measure, the EPA states does not apply to points two and three. [00:27:30] Speaker 05: No, correct. [00:27:31] Speaker 05: Just that there's a disagreement as to the appropriate discount rate to use with respect to the tool. [00:27:39] Speaker 05: And there it cites to the footnote 309, the EPA fact sheet. [00:27:46] Speaker 06: Okay, so how do we reconcile what EPA has said about no consensus on the appropriate discount rate [00:27:54] Speaker 06: and OMB's instruction to run it with three rates? [00:27:58] Speaker 05: Well, I'm not sure. [00:28:00] Speaker 05: I mean, the commission has followed, has agreed with the EPA's position that there is no agreement. [00:28:07] Speaker 05: I mean, particularly with respect to greenhouse gas emissions and how they should be factored in and regulated. [00:28:14] Speaker 05: I mean, that's generally EPA's bailiwick and the commission has, [00:28:20] Speaker 05: has agreed with their position that the disagreement as to the appropriate discount rate really devalues the usefulness of the tool in a project-specific analysis. [00:28:39] Speaker 06: OK. [00:28:44] Speaker 03: I don't want to stop this line of questioning. [00:28:46] Speaker 06: No, no. [00:28:46] Speaker 06: That's fine. [00:28:47] Speaker 06: Thank you. [00:28:47] Speaker 03: Sure. [00:28:48] Speaker 03: You were going to talk about the effect of the project. [00:28:52] Speaker 05: Yes. [00:28:53] Speaker 05: Yeah. [00:28:54] Speaker 05: So the fact that the ANOVA project, assuming the surrender is accepted, obviously that will lessen some of the cumulative impacts. [00:29:05] Speaker 05: I am not aware that the commission intends to update its environmental impacts to [00:29:15] Speaker 05: The Rio project in light of the cancellation with the proviso this just happened yesterday but but that's that's my understanding. [00:29:24] Speaker 05: So we believe that the claims. [00:29:27] Speaker 05: The overall claims relating to the reasonableness of the commission's decision to use social cost carbon, environmental justice, ozone analysis can be decided now by the court. [00:29:39] Speaker 05: We do believe the redesign moots certain claims that have been raised by petitioners. [00:29:45] Speaker 05: All those claims relating to whether the commission should have looked at a five train design [00:29:51] Speaker 05: it's our position, they are moot. [00:29:52] Speaker 05: We appreciate that Sierra Club and other petitioners have an issue with how we did that analysis, but that's a separate case. [00:29:59] Speaker 05: Whether we should have looked at a five train design, we submit is moot, as are those claims relating to the purported excess capacity associated with a six train design, because there is no longer under the current design any purported excess capacity to the five trains, [00:30:17] Speaker 05: that the commission has approved in the redesign, their collective capacity is 27 million tons per year, and that is the authorized export limit. [00:30:28] Speaker 03: With the redesigned project, is the limit on the five trains less than the limit on the six trains before the project was redesigned? [00:30:38] Speaker 05: The authorized export limit is identical. [00:30:41] Speaker 05: That has not changed. [00:30:43] Speaker 05: The authorized export limit and the capability of the project. [00:30:45] Speaker 05: The DOE authorized the export of 27 million tons per year, and that is the max capacity, if you will, of the current five-train design. [00:30:55] Speaker 03: So nothing changed. [00:30:56] Speaker 03: That's no more and less smooth than it was before. [00:30:58] Speaker 03: Correct. [00:31:00] Speaker 05: Okay, so then I didn't understand your second point as to moon is because the first one I get, which is that, well, there were a number, there were a number of petitioners have raised the claim that given the sort of the updated technology. [00:31:12] Speaker 05: So the genesis of the claim is that the, the. [00:31:16] Speaker 05: technology that would have allowed the developers to transform gas into LNG has improved such that each train, instead of being able to do, I think it was 4.5 tons per year, can now do 5.4. [00:31:29] Speaker 05: So Sierra Club's claim was that, well, you should look at that excess [00:31:34] Speaker 05: If there were six trains here, there's more capacity there than has been authorized for export. [00:31:39] Speaker 05: You should look at the potential of that future increment being produced and exported now. [00:31:46] Speaker 05: And that's my point. [00:31:49] Speaker 05: There is no more variance between the capabilities of the equipment that's been approved for use and the authorized export limit. [00:31:57] Speaker 03: because of the reduction from six to five? [00:32:00] Speaker 03: Correct. [00:32:01] Speaker 03: Okay. [00:32:02] Speaker 03: I have one unrelated question, which has to do with the vessels, which has come up a few times today. [00:32:07] Speaker 03: So as I understand the commission's position, there's nothing that suggests that the commission in addressing cumulative impacts is not supposed to consider [00:32:21] Speaker 03: the contribution of vessels. [00:32:23] Speaker 03: It's that if we're talking about mitigation, of course, the commission can't impose mitigation measures because the commission just doesn't have the authority. [00:32:30] Speaker 03: But in terms of taking into account the vessels for purposes of cumulative impacts, the analysis that you've done, which you say is sufficient, already takes those into account, presumably on the premise that those are appropriate to take into account. [00:32:44] Speaker 05: Correct. [00:32:44] Speaker 05: The argument in our brief was with respect to mitigation. [00:32:48] Speaker 05: As to the two cases, Judge Ginsburg referenced the commission's position with respect to those is that those holdings relate to [00:32:55] Speaker 05: take out of our obligation, the scope of review, the upstream production impacts and the sort of combustion overseas in these types of cases. [00:33:04] Speaker 05: But yes, the commission did look at considered LNG traffic in its cumulative impact analysis. [00:33:13] Speaker 05: It did not believe it was jurisdictionally barred from looking at them at the cumulative impact. [00:33:20] Speaker 06: Is that only in the rehearing order? [00:33:23] Speaker 05: Well, I think that the commission did not, the orders don't discuss the import of the two cases that you cited upon it, the scope of its. [00:33:31] Speaker 06: No, no, but the point you're just making now that they take account of the vessels with in respect of cumulative impact. [00:33:38] Speaker 05: Yes. [00:33:39] Speaker 05: So the ozone, there was a specific ozone discussion and this is page, this is in the EIS at page four dash four 78. [00:33:47] Speaker 05: There was a specific, [00:33:49] Speaker 05: of the three projects, just the projects themselves, the stationary emissions. [00:33:56] Speaker 05: And then at the end of that section, it also noted that there would be carriers coming up and down, that they would have emissions, that these mobile emissions would occur of a large area. [00:34:07] Speaker 05: It did note that they could be, that could result in long-term and elevated emissions. [00:34:11] Speaker 05: What it did on rehearing in response to Eric's rehearing request is kind of put a finer point on that. [00:34:16] Speaker 05: Say, okay, let's, you're right. [00:34:17] Speaker 05: That would, we didn't do the math with respect to that. [00:34:20] Speaker 05: Let's do it. [00:34:21] Speaker 05: And it took a conservative approach and put those numbers in the rehearing order. [00:34:25] Speaker 03: Right. [00:34:26] Speaker 03: And not in the initial order. [00:34:27] Speaker 03: And I'm not. [00:34:29] Speaker 03: Correct. [00:34:29] Speaker 03: Yes. [00:34:30] Speaker 03: In terms of where we'd look. [00:34:31] Speaker 05: Yes. [00:34:32] Speaker 05: Because the, yeah. [00:34:33] Speaker 05: And that's paragraphs 52 to 55, roughly of the rehearing order. [00:34:36] Speaker 05: Yes. [00:34:38] Speaker 03: Okay, again, let me make sure my colleagues don't have additional questions for you. [00:34:42] Speaker 02: So on environmental justice, can you just explain, I guess, how you would articulate where the commission ultimately came down on whether there's a disproportionate impact or not? [00:35:04] Speaker 05: I think the Commission, and this is paragraph 69 of the Rehearing Order, that because all the impacted communities are environmental justice communities, the impacts will not be disproportionately concentrated anywhere. [00:35:21] Speaker 05: They will be uniform. [00:35:23] Speaker 05: throughout these communities. [00:35:27] Speaker 05: But again, it didn't stop there. [00:35:30] Speaker 05: And I think that's the commission's fundamental point, that it went on and looked at how the demographic makeup of those populations would amplify any previously identified effects. [00:35:46] Speaker 02: And what about the other [00:35:50] Speaker 02: The issues that petitioners say that that the commission did not look at like age disparities lack of access to health care. [00:35:59] Speaker 05: Well, I think it did with respect to the primary health concern which is ozone the commission did look at the percentage of population. [00:36:09] Speaker 05: elderly or young and thus could be potentially susceptible. [00:36:14] Speaker 05: It looked at county and statewide death for that. [00:36:19] Speaker 05: I'm looking for the paragraph numbers. [00:36:22] Speaker 05: It did take all that into account and found that those factors wouldn't amplify the impact of potential ozone exposure any more than would otherwise be accepted. [00:36:33] Speaker 05: And that's [00:36:35] Speaker 05: That's for paragraph 74 through 77 of the rehearing order. [00:36:44] Speaker 06: So when the commission says, let's go back just a bit to health effects, that they wouldn't be amplified because of the demographic composition of the immediate vicinity, amplified compared to what? [00:37:02] Speaker 05: Well, I think that there's the commission looked at the compared to what the EPA, you know, guidelines provide that above there could be health impacts above the national ambient air quality standard 70 with respect to with respect to ozone. [00:37:22] Speaker 05: And the commission looked at whether, you know, it would sort of [00:37:29] Speaker 05: and what would otherwise be accepted. [00:37:31] Speaker 05: So there's general literature about how ozone impacts humans. [00:37:39] Speaker 05: And then it looked at whether sort of using that as a baseline, the general impact to the general population, whether it would be amplified in some manner. [00:37:49] Speaker 06: So you're saying the general population was the comparator? [00:37:53] Speaker 05: Well, I guess in a way. [00:37:55] Speaker 05: The commission didn't use a [00:37:59] Speaker 05: a reference group, and it sort of explains this again in paragraph 69, in terms of assessing where the impacts would be concentrated or determining whether they're disproportionate in terms of number, it did use, yes, use a comparison to assess how the effects would impact the affected communities. [00:38:28] Speaker 06: but not compared to anyone else. [00:38:31] Speaker 05: Well, because, yes, it didn't look, it didn't believe it could make the conclusion that the impacts were disproportionately hitting any particular, the environmental justice communities as compared to a broader community because all the impacts were there. [00:38:47] Speaker 05: But then, yes, it then looked to see whether, comparing it to the general population, whether the expected, whether the potential impacts would affect those communities in a particular manner. [00:39:01] Speaker 03: And when you say general population, you mean general population of what? [00:39:05] Speaker 05: Well, I think with respect to ozone, the commission looked at county and state data in particular to look at asthma rates and chronic lower respiratory disease, mortality impacts, percentage of the population, the prevalence of asthma. [00:39:26] Speaker 05: So I think those were the comparison groups in looking at how the impact affected the environmental justice communities. [00:39:38] Speaker 02: So I guess I'm I guess I'm still a little confused. [00:39:46] Speaker 02: Is it that there is the commission concluded that there was no disproportionate impact because [00:39:55] Speaker 02: the only people who would be affected were minority and low income. [00:40:00] Speaker 02: And therefore you couldn't say that they were disproportionately impacted because they're the only ones impacted, or they said that there was no disproportionate impact because if you compare [00:40:20] Speaker 02: Um, the impacts that will happen to that, that, that minority and low income community to what would happen if, um, I guess to, to, I guess, uh, the epidemiological or other evidence we have for the county or state as a whole, they're not going to be any worse off. [00:40:46] Speaker 02: I'm just... Correct. [00:40:49] Speaker 02: What the commission articulated or concluded here? [00:40:55] Speaker 05: It's the second formulation you posited. [00:40:57] Speaker 05: And again, this is in paragraph 69 of the rehearing order. [00:41:02] Speaker 05: The order says, again, because all the affected communities are environmental justice communities. [00:41:07] Speaker 05: the impacts will not be disproportionately concentrated on those communities. [00:41:10] Speaker 05: They'll be uniform throughout. [00:41:12] Speaker 05: But then the commission goes on to say, but it is possible, regardless of the uniformity, that a project's impact to these communities arising from certain changes in the environment or the risk or rate of exposure to a pollutant would be disproportionately high and adverse if amplified by factors unique to the population. [00:41:29] Speaker 05: And then that's what it did. [00:41:31] Speaker 05: It looked whether there were factors unique to these impacted communities that would amplify [00:41:36] Speaker 05: the project effects in a way that would make them high and adverse. [00:41:47] Speaker 03: It doesn't at all. [00:41:48] Speaker 03: The key sentence is the one I think that you're pointing to, which is because here all project-affected populations are minority or low-income populations or both. [00:41:56] Speaker 03: That's the sentence that... Correct. [00:41:58] Speaker 05: And the follow-on, I think, is where the commission reiterates the [00:42:03] Speaker 03: the second sort of formulation that Judge Wilkins just spoke about. [00:42:07] Speaker 03: Am I right in believing, put aside the second sentence for a second, but just on the first sentence. [00:42:14] Speaker 03: The dispute here is that from the commission's perspective, in order to say that because here all project affected populations are minority or low-income populations are both, then it depends on how broad a swath of the population we're taking into account in making that statement. [00:42:30] Speaker 03: Because if you took into account [00:42:33] Speaker 03: the entire population of the country, something like that, then you'd have a different comparator. [00:42:39] Speaker 03: Whereas here, the way the comparison is done is such that the commission would say, well, it doesn't matter if you shift things around a little bit, because no matter where you shift things around, you're still going to have the same degree of disproportionate impact on minority and low income populations. [00:42:57] Speaker 05: That's right. [00:42:57] Speaker 05: I mean, yeah, the commission said that it did look at alternatives after identifying that all the impacted communities are environmental justice communities. [00:43:05] Speaker 05: It did look at alternative sites. [00:43:08] Speaker 05: But that really wouldn't change the balance because most if not, I believe, 13 of the 14 counties that border the channel are environmental justice communities. [00:43:18] Speaker 05: So there's no viable alternative that would have [00:43:23] Speaker 05: changed it number-wise in terms of the percentage of impact. [00:43:28] Speaker 05: So then the commission looked at, again, how the demographic features would amplify the impacts. [00:43:33] Speaker 06: 13 or 14 counties? [00:43:37] Speaker 05: I don't want to get over my skis here. [00:43:39] Speaker 05: I'm recalling something from the Texas and Inova [00:43:43] Speaker 05: order. [00:43:44] Speaker 05: So let me retract. [00:43:45] Speaker 05: What I do know is the commission looked at alternatives in this case and found that none of the alternative sites that were looked at would have any less environmental justice impacts than was proposed. [00:44:00] Speaker 03: Okay. [00:44:01] Speaker 03: Let me make sure my colleagues don't have further questions for you, Mr. Kennedy. [00:44:05] Speaker 03: Thank you. [00:44:05] Speaker 03: We'll hear from Innovators Council, Mr. Longstreth. [00:44:10] Speaker 01: Thank you, your honor. [00:44:11] Speaker 01: John Longstreth representing Respondent Interveners, Rio Grande Terminal, and Rio Bravo Pipeline. [00:44:18] Speaker 01: And I just want to address a couple of the issues from the perspective of the project developers. [00:44:23] Speaker 01: First, I think there was a statement, and I can't remember which of the arguments was in, but I think by the Petitioners' Council that we have not, that we said we'll build six trains. [00:44:36] Speaker 01: I want to make very clear, [00:44:39] Speaker 01: absolutely said that we're only going to build five trains. [00:44:41] Speaker 01: I'm not sure why there's still a speculation being put in front of the court that there might be six trains. [00:44:47] Speaker 01: We now have an authorization for five trains. [00:44:50] Speaker 01: The project, as was pointed out, was always going to be a 27 million tonne per annum project. [00:44:56] Speaker 01: It is still a 27 million tonne per annum project. [00:44:59] Speaker 01: The only difference is six trains. [00:45:01] Speaker 01: to five trains and I think this was also pointed out earlier the question is well what are the environmental impacts of that going to be. [00:45:10] Speaker 01: They will be positive and I think one of the ways you can know they're positive is it was the petitioners themselves who are arguing that a five-terrain alternative should be considered because it was environmentally preferable. [00:45:21] Speaker 01: They do have an issue, okay, now that it's five trains, you know, could they have moved the fence line somewhere or other issues that are presented in their follow-on appeal? [00:45:31] Speaker 01: We think those are going to be, you know, quite frankly, trivial. [00:45:35] Speaker 01: But in any event, it's – we are going ahead with this project now as a 27 million tonne per annum project, as was authorized by the Department of Energy, as in the public and national interest. [00:45:47] Speaker 01: And as was approved by FERC, we're just doing it with this slightly different design. [00:45:54] Speaker 01: And we do, there was some questions early on about rightness, but as has been pointed out, everybody wants this case to go forward and be decided now on these issues. [00:46:03] Speaker 01: And that's certainly where we are now. [00:46:05] Speaker 03: We think the- Well, not everybody. [00:46:07] Speaker 03: I thought the commission thinks some of the claims are moot. [00:46:10] Speaker 01: I'm sorry, we want, we want to go ahead. [00:46:12] Speaker 01: Yes, that's right. [00:46:12] Speaker 01: I'm sorry. [00:46:14] Speaker 01: We want to go and have it and have a decision on all the remaining claims, which are not moved. [00:46:19] Speaker 01: The only thing that's moved is the six to five claim. [00:46:21] Speaker 01: The rest of it is all in front of you and should be decided. [00:46:24] Speaker 06: That's correct. [00:46:27] Speaker 06: Where is the project in terms of scheduling? [00:46:30] Speaker 06: Has construction begun? [00:46:33] Speaker 01: And I know it has not begun. [00:46:35] Speaker 01: And one of the reasons is, and this is another reason I think why it's important to have a decision, financing decisions sometimes depend on the certainty of the regulatory permit. [00:46:47] Speaker 01: And there will be more certainty to the regulatory permit when the Sierra Club's challenges are denied. [00:46:53] Speaker 06: So in what sense would vacatur as opposed to remand without a vacatur have any deleterious effect? [00:47:05] Speaker 01: Because it would create, because it would vacate the permit, we would no longer have a permit in place and people looking to invest in the project, customers looking to do business with it would not, would be less likely to deal with a project if it didn't have a permit in place. [00:47:23] Speaker 06: Well, suppose it takes another year to complete the tasks on remand if there are any. [00:47:29] Speaker 06: So that would set you back a year in terms of the financing. [00:47:33] Speaker 06: but also set you back a year in terms of the construction. [00:47:36] Speaker 06: So nothing's changed. [00:47:37] Speaker 01: Well, what's changed? [00:47:39] Speaker 01: No, what's changed is that the project is now delayed for a year. [00:47:42] Speaker 01: The whole project is delayed for a year. [00:47:44] Speaker 06: Correct, but why is that particularly disruptive of the project? [00:47:48] Speaker 06: I agree, it obviously delays it. [00:47:51] Speaker 06: That's always true. [00:47:52] Speaker 06: That's a constant, right? [00:47:54] Speaker 06: If there's a vacature. [00:47:57] Speaker 06: And sometimes there's a vacature and sometimes there is not. [00:47:59] Speaker 06: And it depends on whether something other than a constant, namely that it would be in some way destructive or ill-advised to stop things for a year. [00:48:14] Speaker 01: Yes, I mean, it would it would be an incredible burden on the project developers, if all of the plans that have been undertake everything that's going forward, all of the discussions we're having with just with these customers we're not we're not allowed to go forward I mean we're not. [00:48:35] Speaker 01: One of the ways to get contracts signed is to have the permit in place. [00:48:38] Speaker 01: If the permit is not in place, it's going to put the entire project on hold for a year. [00:48:44] Speaker 01: I can't imagine a greater disruption to a project developer than saying for a year they can't go forward with it. [00:48:54] Speaker 03: So that is why we think... Isn't there uncertainty anyway because of the other, because there's a follow-on petition with respect to the project redesign? [00:49:05] Speaker 01: I don't want to look too much like an advocate here and answering the court's question. [00:49:09] Speaker 01: We think the uncertainty from that follow on petition is pretty much negligible. [00:49:14] Speaker 01: Once, as was pointed out earlier, if this EIS is affirmed, then the minor issues that are related in that follow on I think are going to be relatively trivial. [00:49:24] Speaker 01: So I think there's no comparison. [00:49:26] Speaker 01: between the two. [00:49:27] Speaker 01: There would be no comparison, for example, between a delay or a vacatur here and the remaining uncertainty with that follow-on petition. [00:49:39] Speaker 03: And all the same, go ahead. [00:49:41] Speaker 06: So you would talk to customers and finance sources and say, yes, it's true, there's still a challenge pending, but we don't think it has merit. [00:49:53] Speaker 01: We think, and we think in light of the fact that the environmental impact statement for the entire 27 million ton Brandon project with all the issues that have been raised, including all the issues that were considered below that have been abandoned by the petitioners, all the ones that have remained. [00:50:10] Speaker 01: When you compare all of that uncertainty to the uncertainty that's left with essentially the decision on whether we should move the fence line now that we only have five trains rather than six trains. [00:50:21] Speaker 01: It's just a night and day difference. [00:50:25] Speaker 01: And I believe that our customers would see that. [00:50:28] Speaker 01: I can't speak for them, but I think just plausibly, if you're thinking about how these projects go forward, that would be the result, yes. [00:50:34] Speaker 06: Might you just move the fence line? [00:50:37] Speaker 01: We're getting into the next appeal and I really don't wanna redo that as I think, I can't remember which of the first council mentioned that I don't wanna say it wrongly, but we have decided by leaving the fence where it is, we can use that as a lay down yard for the equipment so that that's the best way to handle it to the extent that there were other alternatives, that's for the new appeal. [00:51:07] Speaker 01: Okay, and we think we can do there. [00:51:09] Speaker 01: We also think that the [00:51:11] Speaker 01: Again, we understand FERC just got the news on the ANOVA project yesterday. [00:51:19] Speaker 01: And obviously, they can't commit to this court as to whether they have or not made a decision, whether any supplemental analysis will be needed. [00:51:27] Speaker 01: But supplemental analysis needed if there are changes to this project. [00:51:31] Speaker 01: That's another project. [00:51:32] Speaker 01: At most, that's just part of the background in the cumulative impacts analysis. [00:51:37] Speaker 01: There are plenty of other things that are part of that background. [00:51:40] Speaker 01: even beyond the terminals, you know, SpaceX decides to, you know, they're, they're close by, you know, they, they put a rocket up, don't put a rocket up. [00:51:48] Speaker 01: So certainly you don't have to redo the analysis for anything. [00:51:51] Speaker 01: So our position will be certainly that there's no supplemental impact required and no further analysis needed for NOVA coming out. [00:52:00] Speaker 01: I think petitioners council said that was a relatively small amount of the emissions anyway. [00:52:04] Speaker 01: So we don't think that affects anything here too. [00:52:07] Speaker 01: I think I've already mentioned, you know, that [00:52:09] Speaker 01: The design change will reduce the impacts in this case we don't have to worry about that if you affirm this will be fine going forward. [00:52:17] Speaker 01: There was a little question about the The regulation and you know the 1502 22 and 21 and all. [00:52:28] Speaker 01: And [00:52:30] Speaker 01: you know, you beat up Perk on it a little bit. [00:52:32] Speaker 01: I don't really want to offer to be beat up myself on it because we didn't mention it, but I would point out that that regulation, it says you have to have something that's essential to a reasoned choice among alternatives or specific, you know, situation where you have to use that and not use that, if you use that essential to reasoned choice among alternatives language. [00:52:53] Speaker 01: And also, I think, and this is what the Fert Council said as well, the question in that is you're really trying to force the AHSC to consider the scientific consensus to see whether something is a useful or available tool. [00:53:07] Speaker 01: We have now a long discussion from the agency. [00:53:10] Speaker 01: It's not like they ignored the issue of whether social cost of carbon was an available tool under the scientific consensus. [00:53:17] Speaker 01: They had a significant discussion of the factors, why it's not. [00:53:21] Speaker 01: Those are factors that have been consistent in the commission's precedent on this. [00:53:27] Speaker 01: There's a little bit of a discussion about, well, do I have to look at this order or that order? [00:53:31] Speaker 01: And part of that is the reason that this came up. [00:53:35] Speaker 01: There's been a history of this issue going back to several previous court decisions on this. [00:53:42] Speaker 01: FERC has consistently made this argument as to why social cost of carbon isn't useful. [00:53:48] Speaker 01: It's been affirmed two or three times on their hearing petition. [00:53:52] Speaker 01: The petitioners didn't even address those three issues. [00:53:55] Speaker 01: But they said, well, what about this? [00:53:57] Speaker 01: Why don't you use some metric here? [00:54:00] Speaker 01: And they said, well, we've told you why we're not using social cost of carbon. [00:54:04] Speaker 03: I'm not following the argument on the essential to a reasoned choice, because I thought [00:54:12] Speaker 03: Essential to a reason choice is in 1502.22A, right? [00:54:17] Speaker 03: Yeah. [00:54:19] Speaker 03: I thought that the argument being made was under 1502.22B. [00:54:26] Speaker 01: Yeah, but I think that's what the standard is to apply to where the regulation applies. [00:54:35] Speaker 01: At least my understanding was that that applied to the entire regulation. [00:54:42] Speaker 03: OK. [00:54:43] Speaker 03: Let me make sure my colleagues don't have any additional questions for you, Mr. Longstreet. [00:54:50] Speaker 03: I was finished. [00:54:51] Speaker 06: Oh, thank you. [00:54:52] Speaker 03: Okay. [00:54:53] Speaker 03: Thank you, Mr. Longstreet. [00:54:55] Speaker 03: Mr. Matthews, we'll give you two minutes for rebuttal. [00:54:59] Speaker 04: I will race through picking up where we left off. [00:55:02] Speaker 04: Council for interveners argued that we hadn't raised issues in our hearing request. [00:55:07] Speaker 04: Our comments on the draft EISs for all of these projects argued about social cost of carbon and they addressed issues like discount rate, all of the issues work was previously given for not using social cost of carbon. [00:55:17] Speaker 04: The certificate orders here didn't say anything about discount rate. [00:55:21] Speaker 04: The orders that the certificate orders cited didn't say anything about concerns about discount rates. [00:55:25] Speaker 04: So from everything we could tell from the certificate orders, Burke had agreed that the discount rate issue was no longer an issue at this point, which is why we didn't specifically call out uncertainty about discount rates [00:55:34] Speaker 04: in our hearing requests, because we'd already addressed it. [00:55:36] Speaker 04: FERC didn't seem to have any concerns with what we said, so we moved on. [00:55:40] Speaker 04: So we did, in our hearing requests, challenge every rationale that FERC actually articulated in the certificate orders here. [00:55:46] Speaker 04: And on this precedent, interpreting the exhaustion requirement under the Natural Gas Act, we raised every issue that we had notice of. [00:55:53] Speaker 04: And so that's not a concern here. [00:55:55] Speaker 04: Also on social cost of carbon in the unpublished Sierra Club versus FERC case about the Corpus Christi terminal, we did brief 1502.22 in that case, but the court's unpublished decision didn't address 1502.22. [00:56:07] Speaker 04: And subsequent to that case, we have concessions from FERC that implicate the predicates for 1502.22. [00:56:13] Speaker 04: We have FERC having acknowledged on its remand in the Sable Trail case that the social cost of carbon remains generally accepted in the scientific community, which was not a FERC position that we had in the Corpus Christi case. [00:56:26] Speaker 04: And we have FERC responding at other FERC orders and in the responses to comments on the draft EIS is here, that the social cost of carbon really is built on an assessment of physical effects. [00:56:39] Speaker 04: Just jumping through a couple of other issues, [00:56:42] Speaker 04: On the redesign, they still plan to build a fence line that leaves space for, lays a foundation for a sixth train. [00:56:49] Speaker 04: And Rio Grande has still told its investors, it's given revenue forecasts about the income that would come from future operation of a sixth train. [00:57:00] Speaker 06: Mr. Matthews, how big is the footprint for that sixth train? [00:57:06] Speaker 04: Nobody gets broken out exactly the number of acres specific to the sixth terrain. [00:57:10] Speaker 04: The overall project footprint, I believe, is about 900 acres. [00:57:13] Speaker 04: We're principally concerned with the 200 acres of wetlands that would be filled there. [00:57:17] Speaker 06: Right, but the terminals, I mean, it's a tiny fraction of the 900 acres, right? [00:57:22] Speaker 04: Eyeballing the map, I'm guessing that it's about 50 acres, but I want to confess that that's me eyeballing a map. [00:57:30] Speaker 04: You know, even if it's just avoiding 20 or 30 acres of wetland impact, [00:57:34] Speaker 04: We'd contend that that's a significant issue that that impacts about cases about impacts to wetland and whether wetland fills appropriate get litigated for that scale of impact all the time. [00:57:44] Speaker 06: Be useful, I think. [00:57:45] Speaker 06: I don't know, maybe not for the other part of other judges, but it seems to me the court would find it useful to know what we're talking about. [00:57:52] Speaker 04: We agree, which is why we asked Kurt Ferck to prepare an analysis. [00:57:56] Speaker 06: And all this record and I don't see anything certainly not highlighted with regard to what space, how much space is made available by going from six to five. [00:58:06] Speaker 04: We absolutely agree, which is why we have called on for, you know, sensor supplemental EIS requests. [00:58:10] Speaker 06: We don't know either how big a train is or whatever. [00:58:13] Speaker 04: I have a map, but I don't have a map that is to scale that tells me exactly. [00:58:19] Speaker 04: And I don't know. [00:58:19] Speaker 04: I mean, I could tell you with a ruler and the map what I guess the train would be, but I don't know whether or not you actually reclaim all of that space and whether all of the reclaimed space could be avoided wetland. [00:58:31] Speaker 06: Maybe we can hear from Mr. Longstreet before we're through again on that. [00:58:38] Speaker 04: I just mentioned that there's nothing in the record that tells us how much space could be saved and specifically how much wetland impact could be avoided by shrinking the overall fence line and footprint. [00:58:49] Speaker 04: Also on the redesign, all of our claims about the pipeline design are not implicated by the redesign here at all. [00:58:56] Speaker 04: The pipeline claim where we argue that 4.5 billion cubic feet per day of pipeline capacity [00:59:01] Speaker 04: is vastly higher in proportion to the proposed terminal output than for any other pipeline and LNG terminal, and that FERC has not offered any specific facts explaining why that ratio is so skewed here, given that the output of the terminal is not changing. [00:59:15] Speaker 06: I think they did cite other instances with a similar radius. [00:59:19] Speaker 04: Oh, they cited other instances about how much gas you could put through a certain diameter pipe, but the overall question of four and a half billion cubic feet per day of supply, however you get it there, [00:59:30] Speaker 04: to terminal output of 3.6 billion cubic feet per day. [00:59:33] Speaker 04: FERC speculated that there are different factors like terrain or temperature that might influence what that ratio needs to be. [00:59:40] Speaker 04: But FERC didn't apply any of those factors here. [00:59:42] Speaker 04: They didn't say, here it's 10 degrees warmer than it is somewhere else, and that changes the ratio. [00:59:46] Speaker 04: But there's just no facts about the pipeline. [00:59:49] Speaker 04: So that claim is certainly not moved by the design changes. [00:59:53] Speaker 04: On vessels, I'd just point out. [00:59:55] Speaker 06: I think they relied on the companies for that, right? [00:59:59] Speaker 06: They made a calculation of what the pipeline should be, and we're not going to second guess it. [01:00:05] Speaker 04: That's FERC's assertion, but there's no citation to that calculation anywhere in the record. [01:00:09] Speaker 06: I understand, but what you're suggesting is maybe they foolishly overbuilt the capacity of the pipeline. [01:00:16] Speaker 04: That's one possibility, and our claim is that FERC needs to actually scrutinize whether the line is warranted here, especially where the capacity of the pipeline [01:00:24] Speaker 04: is being used as a reason to rule out less impactful alternatives. [01:00:27] Speaker 04: They're saying that the reason they can't build one pipeline instead of two is because they need the full forecast and give it feet per day. [01:00:32] Speaker 04: And so that's an important question to get right. [01:00:36] Speaker 04: And FERC didn't demonstrate that FERC applied any sprues there. [01:00:38] Speaker 04: I see that I'm over my time. [01:00:41] Speaker 04: Just on the vessels point, [01:00:44] Speaker 04: regardless of whether or not FERC was required to consider the cumulative impacts of SL missions, and we contend that it was, but FERC chose to do so. [01:00:52] Speaker 04: And once FERC decided to do that, FERC was required to do that in a non-arbitrary way. [01:00:56] Speaker 04: This court's decision in communities against runway expansion lays that out in the environmental justice context, but it applies here as well. [01:01:03] Speaker 04: If there are further questions, I'm happy to elaborate. [01:01:08] Speaker 03: I think so. [01:01:09] Speaker 03: Thank you, Mr. Matthews, and then with Mr. Longstreet, since you've been specifically invited to address this question about the footprint on the sixth train. [01:01:19] Speaker 03: Why don't you just take a second to do that. [01:01:21] Speaker 01: Thank you. [01:01:21] Speaker 01: I was trying to say that probably good. [01:01:23] Speaker 01: If you look at, I guess there are two places you can look at for it. [01:01:28] Speaker 01: In JA 241, the original application, [01:01:31] Speaker 01: says that each liquefaction train will have an approximate footprint of 830 feet times 1020 feet or roughly 846,000 square feet. [01:01:41] Speaker 01: That's on 241. [01:01:43] Speaker 01: And then if you look at the redesign rehearing order, [01:01:46] Speaker 01: That was the one that was submitted in the 28-J. [01:01:49] Speaker 01: It says 20 acres. [01:01:50] Speaker 01: This affects 20 acres. [01:01:52] Speaker 01: And I think the overall is at 984 acres, I think. [01:01:55] Speaker 01: So yeah, I think Justice Ginsburg said this was probably going to be a tiny fraction. [01:02:00] Speaker 01: And I'm sorry. [01:02:02] Speaker 06: What is the site for 20 acres? [01:02:04] Speaker 01: The 20 acres is the paragraph 14 of the rehearing design order. [01:02:12] Speaker 01: So you're just under 2%. [01:02:13] Speaker 01: So I think Judge Ginsburg speculation that this issue they're talking about in the follow on appeal affects a very, very small portion of the area is correct. [01:02:25] Speaker 01: And I don't want to overstay my invitation. [01:02:30] Speaker 03: Thank you, counsel. [01:02:31] Speaker 03: Thank you to all counsel. [01:02:32] Speaker 03: We'll take this case and the other related cases under submission.