[00:00:00] Speaker 00: Case number 20-1379, Center for Biological Diversity and Sierra Club Petitioners versus Federal Energy Regulatory Commission. [00:00:10] Speaker 00: Ms. [00:00:10] Speaker 00: Colon for the petitioners, Mr. Glover for the respondents, Mr. Nelson for the intervener. [00:00:21] Speaker 07: Good morning. [00:00:21] Speaker 07: May it please the court? [00:00:24] Speaker 07: This case is about [00:00:25] Speaker 07: What FERC admits or acknowledges is one of the largest or the largest liquefied natural gas facility that it's ever approved, which Chairman Glick commented poses many first of their kind challenges that demand in-depth and rigorous examination. [00:00:44] Speaker 07: But unfortunately, FERC failed to meet even some of NEPA's most basic requirements in this case. [00:00:50] Speaker 07: I'd like to focus on four of those today. [00:00:53] Speaker 07: The first is the requirement that the agency consider a realistic no-action alternative. [00:00:57] Speaker 03: Can you speak a little louder, please? [00:00:58] Speaker 03: Sure. [00:01:00] Speaker 07: So as I said, the first is the no-action alternative. [00:01:03] Speaker 07: The second is the requirement to use generally accepted methods to consider the significance of the project's impacts here, the direct emissions. [00:01:14] Speaker 07: The third is the requirement to consider connected actions as part of the same environmental review. [00:01:19] Speaker 07: And the fourth is [00:01:21] Speaker 07: the requirement to take a hard look at impacts here, the impacts to Cook Inlet Belugas. [00:01:27] Speaker 07: Turning to the requirement to consider a realistic no-action alternative, I want to cover what FERC concluded here, why it matters, and why it was arbitrary. [00:01:39] Speaker 07: The EIS here says that, again, this project, which is unprecedented in scale, and which, if it was built, would be one of the largest infrastructure projects ever built in the United States, [00:01:52] Speaker 03: If FERC declines... Why is it unprecedented in scale? [00:01:57] Speaker 03: It's going to follow the oil pipeline from Prudhoe Bay down to Cook Inlet. [00:02:04] Speaker 03: It's taking the same route. [00:02:05] Speaker 03: So why is it unprecedented? [00:02:08] Speaker 03: Isn't the oil pipeline the same? [00:02:12] Speaker 07: Those are actually FERC's words, so unprecedented in the context of Section 3 approval. [00:02:19] Speaker 07: And besides the pipeline itself, which you're right, is similar in length. [00:02:25] Speaker 07: It also includes the liquefied natural gas facilities, the compression facility export terminal. [00:02:32] Speaker 07: There are many components to the project. [00:02:35] Speaker 07: And it may not be unprecedented in terms of the largest project ever, right? [00:02:41] Speaker 07: It's one of the largest infrastructure projects ever built in the United States, if it is, in fact, built. [00:02:47] Speaker 07: But again, what Ferck said here is that if the project is not built, or if it declines to approve the project, then nonetheless, something similar would be built, likely, and that the likely environmental impacts would be the same. [00:03:03] Speaker 03: I have to confess, I find this whole business about no action alternative to be, well, difficult for me to understand. [00:03:14] Speaker 03: Because if I were an environmental impact statement writer, I could satisfy that consideration of that prospect in one sentence. [00:03:25] Speaker 03: And that is, if we don't take any action, nothing's going to change, period. [00:03:30] Speaker 03: And so I don't understand what more an agency has to say in order to satisfy, it's not satisfying the statute, it's satisfying that [00:03:43] Speaker 03: CEQ regulations, which for reasons that I don't understand adopted. [00:03:51] Speaker 07: Well, to your point, it's not necessarily that they didn't say if the project isn't built, the impacts won't occur. [00:03:59] Speaker 07: In fact, they did say that. [00:04:00] Speaker 07: But the problem is that they further said, and if they don't approve the project and the impacts this project don't occur, something nonetheless similar would likely be built. [00:04:11] Speaker 07: And so the problem and the kernel of the matter is that FERC's task is to weigh the environmental impacts versus the benefits of the project and make a public interest determination here. [00:04:22] Speaker 07: And when the agency believes that impacts are likely to occur regardless of its action, it's going to conclude that its action doesn't matter very much, environmental speaking. [00:04:31] Speaker 07: And that's exactly what the environmental impact statement here says. [00:04:34] Speaker 07: Given that there would likely be similar impacts, regardless of what it takes, what action it takes, there's no significant environmental advantage to the no-action alternative. [00:04:45] Speaker 04: Ms. [00:04:45] Speaker 04: Cohen, isn't FERC's obligation here to look at reasonable alternatives and reasonable means in light of the project's purposes? [00:04:54] Speaker 04: And so here, there is a purpose of bringing natural gas down from northern Alaska down south. [00:05:01] Speaker 04: And so a true no-action situation in which no pipeline was built wouldn't serve the objectives of the project. [00:05:11] Speaker 07: That's true. [00:05:12] Speaker 07: And the issue is less, again, that Burke didn't carry the no-action alternative forward and analyze it in detail, because it's true. [00:05:19] Speaker 07: A skeptical reader could infer what the impacts of the no-action alternative would be from [00:05:24] Speaker 07: just assuming that the impacts described wouldn't occur. [00:05:27] Speaker 07: But FERC didn't say that and has never recanted the position that a similar project would likely be built regardless. [00:05:33] Speaker 07: The problem with that is that it's not just a factual conclusion which is unsupported, it's also a partially legal conclusion because FERC is essentially prejudging that it would also approve whatever similar project would have to be built. [00:05:45] Speaker 07: Because no similar project could be built with FERC also approving that project. [00:05:49] Speaker 07: You know, the court has to be convinced that FERC understood the impact of its decision here. [00:05:55] Speaker 07: And that's not what the record says right now. [00:05:58] Speaker 07: And in fact, FERC continues to defend that position. [00:06:03] Speaker 06: In order to achieve the goal of commercializing the Northern Slope liquefied natural gas, bringing it to market, the only alternatives are comparable pipelines, right? [00:06:21] Speaker 07: Well, in order to commercialize North Slope gas and export it, there are actually many different alternatives. [00:06:28] Speaker 07: But the only comparable alternative versus what constrains the alternative that FERC looked at here and the reason that the impact of the pipeline across the entire state is in part also because of the in-state interconnections. [00:06:39] Speaker 07: But the commercializing North Slope gas could be achieved in different ways, potentially. [00:06:44] Speaker 06: OK, so thank you for that clarification. [00:06:46] Speaker 06: And so then same question, though. [00:06:50] Speaker 06: Perk could not achieve that third purpose of interstate connections, unless it either does this project or a comparable project, right? [00:07:02] Speaker 07: That's absolutely right. [00:07:03] Speaker 07: And we're not arguing that Perk should have adopted the no-action alternative or needed to consider it. [00:07:08] Speaker 06: So, but then there is a line in your reply brief that made me think that you were, so that this is, please, please clarify the lines on page four of the reply and it says, [00:07:19] Speaker 06: if avoiding environmental impacts warrants denial of this project, it will likely warrant denial of the comparable replacement. [00:07:29] Speaker 07: That's that. [00:07:30] Speaker 07: That is not intending to make the argument that it should be denied. [00:07:34] Speaker 07: But the point is that if you think it should be denied. [00:07:39] Speaker 07: Well, personally I do, but that's irrelevant to our petitioners arguments. [00:07:43] Speaker 05: Well, does the petitioner think it should be denied? [00:07:46] Speaker 07: Again, petitioners arguments are that FERC needed to understand the environmental impacts of the decision it was making. [00:07:52] Speaker 07: And the record here doesn't show that it does. [00:07:55] Speaker 06: So the Center for Biological Diversity takes no position today on whether environmental impacts warrant denial of this project? [00:08:05] Speaker 07: Well, the entire thrust of our brief is in part that FERC didn't adequately consider the environmental impact. [00:08:10] Speaker 07: So it would be difficult to come to a final conclusion about whether the project should be approved or not based on [00:08:16] Speaker 07: an analysis that's lacking. [00:08:17] Speaker 07: And that's part of the problem with works proceeding on this inadequate record. [00:08:22] Speaker 04: I mean, you say that there's a legal conclusion kind of tied up with that. [00:08:27] Speaker 04: I understand your point. [00:08:29] Speaker 04: But I mean, in the context of the Natural Gas Act, I mean, you know, we've said before that the Gas Act sets out a presumption favoring authorization, right? [00:08:38] Speaker 04: And, you know, that part of the purpose [00:08:41] Speaker 04: of the Natural Gas Act is to promote the orderly use of natural gas and bring it to market. [00:08:48] Speaker 04: So in light of those policies, is it really a legal conclusion to assume that some other pipeline would be built when there is a plentiful store of natural gas and a need for natural gas to be brought down from the North Slope? [00:09:05] Speaker 07: Well, it is to the extent that the conclusion is that something similar would be built. [00:09:10] Speaker 07: In other words, one that transports the same volume involves the same environmental impacts of exports, which is what we're found here. [00:09:17] Speaker 07: Because other projects could be considered and have been considered for decades about commercializing or slow gas in other ways. [00:09:25] Speaker 07: And Burke itself considered and dismissed several alternatives that would not have the same environmental impacts with completely different sets [00:09:33] Speaker 07: So that's the legal conclusion, but again, founded on a basis of a lack of factual support for there being any likelihood that a project that is especially one that's on all fours with this project, environmentally speaking, would go forward. [00:09:49] Speaker 07: Because what we have is a history of failed proposals for commercialized no-slope gas in different ways, featuring different environmental impacts entirely. [00:10:00] Speaker 07: I'd like to turn to [00:10:03] Speaker 07: the requirement to use generally accepted methods to consider the significance of the project's direct emissions. [00:10:11] Speaker 07: This court's decision in Buccino's controls here, and FERC hasn't offered a basis to distinguish that case on the merits, aside from their exhaustion argument. [00:10:20] Speaker 07: I want to talk again briefly about what FERC concluded and why it matters. [00:10:25] Speaker 04: Can you first address the exhaustion argument that they made? [00:10:28] Speaker 04: I mean, where did CVD exhaust the argument that the regulation [00:10:33] Speaker 04: is, you know, you obviously raised the social cost of carbon argument, but it seems that the regulation was only mentioned, you know, in passing. [00:10:45] Speaker 07: So the petitioners addressed that on the Joint Appendix, page 1555 to 58. [00:10:49] Speaker 07: It's three pages. [00:10:54] Speaker 07: And what we argued, what petitioners argued is that [00:10:57] Speaker 07: sort of the substance of the argument, that FERC couldn't, responding to its comment in the order, that social cost of carbon is not a universally accepted method, that FERC can't hold out for a universally accepted method, and there are other potential methods as well, and that the agency has to, in light of its environmental review obligations, consider a generally accepted method, can't throw up its hands, and must use best efforts. [00:11:23] Speaker 07: And we cited that regulation [00:11:26] Speaker 07: for that argument in the body of our rehearing room. [00:11:30] Speaker 06: You just cited three or four pages. [00:11:33] Speaker 06: But that kind of makes it sound like the statute was alluded to, referenced, quoted even over the course of three or four pages. [00:11:44] Speaker 06: But the statute's never even mentioned in the text of a single sentence. [00:11:50] Speaker 06: It is only mentioned once as a CED site. [00:11:55] Speaker 06: Is that correct? [00:11:57] Speaker 07: The overall context is in an argument about the statute, and the rehearing request is about Burke's failure. [00:12:06] Speaker 06: Would those three or four pages have read any differently if the statute didn't exist? [00:12:16] Speaker 06: Yes. [00:12:16] Speaker 06: Also? [00:12:18] Speaker 07: I mean, petitioners might have reached the same conclusion that Burke should choose a generally accepted method, but that's also the requirement in the statute. [00:12:26] Speaker 06: And it's, I think I may have misspoken. [00:12:31] Speaker 06: Is it a statute or a reg? [00:12:32] Speaker 06: It's a reg. [00:12:34] Speaker 06: It's 1502-21C. [00:12:37] Speaker 06: So I'm not clear on the answer to my last question. [00:12:43] Speaker 06: If 21C did not exist as a reg, what substance of those three or four pages you mentioned would have read any different? [00:12:54] Speaker 07: that FERC should not avoid making any determination about the significance of these massive missions, that it has to consider at least the methods that are available there. [00:13:03] Speaker 06: You don't think FERC would have needed to do that absent the reg? [00:13:07] Speaker 07: I mean, the regulation implements the statute, and that's the source of the requirement. [00:13:13] Speaker 07: So, I mean, needed, I guess it depends on what source it would be. [00:13:18] Speaker 06: Well, I guess if FERC were to appeal the reg tomorrow, [00:13:22] Speaker 06: and then all of this were to replay down the road in a different case. [00:13:27] Speaker 06: Is there any part of those three or four pages that would read any different other than the absence of the CEG site? [00:13:36] Speaker 07: Your Honor, I honestly don't know. [00:13:38] Speaker 07: I think it's difficult to speculate. [00:13:41] Speaker 07: That's a pretty fundamental change. [00:13:43] Speaker 06: That is my point. [00:13:46] Speaker 06: It's not at all clear. [00:13:47] Speaker 06: We don't know if [00:13:50] Speaker 06: Any of the substance of your argument, those three or four pages, would have read any differently absent the reg. [00:13:56] Speaker 06: Because the argument you're making doesn't depend on the reg and is not expressly tied to the reg. [00:14:04] Speaker 07: Well, I have to respectfully disagree. [00:14:06] Speaker 07: We did cite to the regulation and we're making the argument that the regulation imposes. [00:14:12] Speaker 07: And I believe that means that we raised the issue with specificity before the commission. [00:14:17] Speaker 04: I mean, I've looked carefully at those pages that you've cited at this exhaustion question, because of course, you know, exhaustion is jurisdictional here. [00:14:25] Speaker 04: And it seems that the arguments here are pretty similar to the arguments that have been raised previously about FERCs declining to use social cost of carbon, and which we have upheld in Earth reports and then cases [00:14:39] Speaker 04: following that. [00:14:40] Speaker 04: And I guess I don't see, I guess maybe, I don't know if there's specific language you can point to that shows how your argument is tied to the regulation and not to the other arguments, you know, the sort of the usual arguments that are made against their failure to use the social cost of government. [00:14:59] Speaker 07: Well, as Bert mentioned in its brief, we preserve the argument in a similar way to the way that the petitioners and vicinos preserve the argument. [00:15:07] Speaker 07: And we did cite to the regulation in the body of the case. [00:15:11] Speaker 07: And Anne made the substance of the argument, putting FERC on notice of what the legal issue was that we were raising. [00:15:20] Speaker 04: Do you think Visinos is binding on this panel with respect to the exhaustion question, which it doesn't seem as though it was briefed or explicitly considered? [00:15:31] Speaker 07: No, not necessarily. [00:15:33] Speaker 07: But in this case, I believe we preserved [00:15:39] Speaker 06: Let me ask one more question along these lines in terms of similarities to whether it was preserved here relative to the casinos. [00:15:52] Speaker 06: This is going to sound like I'm saying it just matters how many times you cite the red. [00:15:56] Speaker 06: That's a lot more matters than that. [00:15:58] Speaker 06: But in the comments to the draft of the environmental impact statement in the casinos, the equivalent of 21C, 22B4, [00:16:10] Speaker 06: was mentioned two separate times. [00:16:15] Speaker 06: And then, again, it was mentioned in the petition for rehearing three times. [00:16:22] Speaker 06: It's being brought to FERC's attention. [00:16:25] Speaker 06: And only one of those three is the sort of CEG, like, throwaway site. [00:16:33] Speaker 06: Here, all we have is one, not three. [00:16:36] Speaker 06: And the one is the CEG site. [00:16:39] Speaker 06: So why isn't this different for that? [00:16:42] Speaker 06: Why does that difference not matter? [00:16:44] Speaker 07: Well, I don't want to tell your honor something that you know, but CEG site does mean that the authority stands for, you know, EEG part honestly is a mistake, but the CE part is still accurate, right? [00:16:57] Speaker 07: It's an argument that the regulation supports our argument, which is that FERC needed to use best efforts to analyze the significance of these. [00:17:06] Speaker 07: Again, the largest direct emissions [00:17:10] Speaker 07: impact, basically profile for a project that FERC has ever considered. [00:17:16] Speaker 06: Was it mentioned in, was 21C or the, was 21C or 22 before mentioned in the comments to the draft of the environmental impact statement in this case? [00:17:31] Speaker 06: Yes. [00:17:33] Speaker 07: I don't have information handy, I'm sorry. [00:17:35] Speaker 06: Maybe on, what's that? [00:17:39] Speaker 06: Maybe on rebuttal, if you could let us know. [00:17:44] Speaker 04: Thank you. [00:18:08] Speaker 02: Morning may it please the court and Matthew over and I represent responded federal energy regulatory commission. [00:18:14] Speaker 02: I guess I'll start with what the court was just discussing. [00:18:18] Speaker 02: I'm contrary to fishers argument. [00:18:19] Speaker 02: We did distinguish the seniors for a couple reasons. [00:18:22] Speaker 02: I'm happy to talk about the jurisdiction because that's where you left off with this news, but I'm also happy to talk about why this is distinguishable on the merits. [00:18:29] Speaker 02: On the jurisdiction, as we said in our brief, we think a C.E.G. [00:18:32] Speaker 02: citation to this regulation was not sufficient to put us on notice, particularly when they had a different part of their rehearing order talking about this regulation. [00:18:41] Speaker 02: As to distinguishing Vecinos, the court in Vecinos qualifies the commission. [00:18:45] Speaker 04: Can I just ask you one question? [00:18:47] Speaker 04: What is happening at the commission after the Vecinos remand? [00:18:53] Speaker 04: I mean, has FERC, we couldn't find anything that FERC has said in response to that remand. [00:18:58] Speaker 04: And I was interested to know if you could possibly tell us what the status of that is. [00:19:04] Speaker 02: So it's been remanded to the commission and it's still under consideration. [00:19:08] Speaker 02: So I think my understanding, the eLibrary docket, there has been no further commission order post remand. [00:19:15] Speaker 02: I can look at that and provide the court with a follow up answer. [00:19:19] Speaker 04: Has FERC elsewhere indicated [00:19:24] Speaker 04: you know, in another order or decision how it, um, it thinks that the regulation it's with its, you know, refusal to use the social cost of carbon, because that's sort of the question that the CNS asked. [00:19:38] Speaker 04: I'm wondering if it was addressed in any other order of FERC, you know, that broader question. [00:19:44] Speaker 02: Yes, um, it was. [00:19:45] Speaker 02: And before I get to that, I would just note judge Raul, I'm a little hard of hearing and having a little bit of trouble hearing you. [00:19:50] Speaker 02: And I apologize that just my own, [00:19:52] Speaker 02: physical shortcomings the mountain valley pipeline, uh, rehearing order, which we mentioned, I have it with me if you want me to grab it. [00:20:01] Speaker 02: Um, but you know, in their reply brief, they do note that, you know, in mountain valley pipeline, uh, the rehearing order is one 61 FERC 61 comma one 97. [00:20:12] Speaker 02: And then the paragraph numbers are the internal paragraphs, not the citation, but they point to paragraph to 81. [00:20:20] Speaker 02: But if you look at paragraph to 80 to 81, where we said other agencies have used social cost of carbon, we were providing and we incorporated it here citing it by reference. [00:20:28] Speaker 02: our merits sort of determination that we don't think social cost of carbon is relevant. [00:20:32] Speaker 02: But, you know, we noted in a footnote to that paragraph, footnote 769, we said, you know, that the regulation exists, we understand the regulations there. [00:20:42] Speaker 02: And we think that our method of quantifying and, you know, stating that we don't have a way of telling based on these comparisons, if it's significant meets the requirements of the regulation. [00:20:53] Speaker 04: So you haven't said that. [00:20:54] Speaker 02: We have said that. [00:20:55] Speaker 02: And then here, I would also note here, again, not as to the senior's argument about the social cost department, but we did discuss in our orders, I think it's paragraphs. [00:21:04] Speaker 02: We described their arguments about what was then 1502.22 in paragraphs, I think 17 to 19 of the rehearing order. [00:21:11] Speaker 02: And then in paragraphs 20 to 22 or 23, we give our reading of the regulation and why we don't think the regulation applies here. [00:21:22] Speaker 02: as to their sort of statements that you can't say that there's no available information. [00:21:26] Speaker 03: There's no, there's no question lurking in this and about the social cost of carbon. [00:21:32] Speaker 03: And that is whose, whose estimate the, the Obama administration is the first to introduce that, that concept. [00:21:43] Speaker 03: And they estimated that it was $43 a ton. [00:21:48] Speaker 03: Then [00:21:50] Speaker 03: The Trump administration came in and had had scientific studies done and they estimated it was $3 a ton. [00:21:58] Speaker 03: Now the Biden administration, by my calculation, has come in and said, no, it's $51 a ton. [00:22:06] Speaker 03: So whose social cost is the one that should prevail if you even use that idea? [00:22:12] Speaker 02: So Judge Randolph, I think you're getting it. [00:22:14] Speaker 02: The second reason that we have projected on the merit social cost of carbon is that there's no clear standard for what quantifiable number to have used. [00:22:23] Speaker 02: And so that's one of the reasons we've projected it. [00:22:26] Speaker 02: Again, when we projected it, we've mentioned that other agencies think it's available for other purposes. [00:22:31] Speaker 02: But we don't think, and we said this in the Mountain Valley order. [00:22:34] Speaker 02: We said this in the order that underlies the seniors. [00:22:36] Speaker 02: We said this in a number of orders. [00:22:38] Speaker 02: We don't think it can help us address the project specific [00:22:42] Speaker 02: impacts and the significance of the greenhouse gas emissions and what they would impact with respect to climate change. [00:22:49] Speaker 02: And then we usually put, I think in the order here, we put in parentheses, you know, things like global warming and sea level rises. [00:22:54] Speaker 02: So our statement is we're quantifying this. [00:22:57] Speaker 02: We don't think that the social cost of carbon is going to help us determine whether that quantity is somehow going to, at a project level, impact global warming or sea level rise. [00:23:09] Speaker 06: Is everything you just said [00:23:11] Speaker 06: works position still going forward in new proceedings on new matters. [00:23:21] Speaker 02: A couple of points on that your honor. [00:23:26] Speaker 02: We put out a. [00:23:28] Speaker 02: a new policy on pipeline certification, predominantly under section seven, but would also apply to some aspects of section three. [00:23:34] Speaker 02: We revised that to the draft. [00:23:36] Speaker 02: So the commission hasn't given a final statement on this. [00:23:40] Speaker 02: We're still considering comments. [00:23:41] Speaker 02: I think we were receiving comments, I believe August 28th or something like that. [00:23:45] Speaker 02: So the commission has not taken a formal position on what it's going to do going forward with respect to that. [00:23:50] Speaker 02: I believe there are a couple of pipeline projects under section seven where we did quantify the emissions and perhaps use the number and said, here's what the, I think I could check on this, but I believe there's one or two where we did say like, here's what social cost of carbon would be, but we never said, and that's required to determine significance or we never said like, we think it is the tool we've yet to take a final position. [00:24:10] Speaker 02: on that but we have repeatedly previously said it's not useful for project specific impacts and my understanding of the draft that we have pending is the draft states a certain amount I think it's a hundred thousand tons per year is considered significant by significant contribution to global warming the draft doesn't state that you use the social cost of carbon to determine whether it's a significant component let me try a statement and then my question is going to be [00:24:40] Speaker 06: Does FERC need to consider this? [00:24:43] Speaker 06: Does FERC have the discretion to consider it? [00:24:46] Speaker 06: Or can FERC not consider it? [00:24:48] Speaker 06: If they have to, it's up to them. [00:24:50] Speaker 06: They're not allowed to. [00:24:54] Speaker 06: If a project isn't approved in the United States, the market need may well be met by a new project outside the United States. [00:25:08] Speaker 06: same or similar or worse emission of the greenhouse gases that affect the planet equally no matter what country you live in. [00:25:21] Speaker 06: Work should consider that as the discretion or is not allowed to. [00:25:27] Speaker 02: So we're talking here about a section three determination, not a section seven determination, which section seven includes necessity and public interest. [00:25:36] Speaker 02: And so there we do have to determine whether there's a need for our project in section three. [00:25:41] Speaker 02: And particularly, I should have highlighted this a little bit more in the brief, but section three distinguishes between exports when Department of Energy is making determinations to free trade countries, which doesn't mean all free trade countries. [00:25:52] Speaker 02: It means that the national interest provision of free trade [00:25:56] Speaker 02: in natural gas but uh 3c which was altered in a 1992 amendment to the natural gas act says that department of energy shall approve export the applications to free trade countries without uh revision and promptly and so that's not subject to the input at all um and so stepping back to your question the commission first of all not knowing like another project that's going to be built somewhere else is not foreseeable to us but in the section three context we're not considering is this project [00:26:24] Speaker 02: You know, needed for the national international market of liquefied natural gas, particularly given that they already have their free trade approval. [00:26:31] Speaker 02: They can export the quantity that they've been approved. [00:26:35] Speaker 02: I think it's 2.5 BCF. [00:26:39] Speaker 02: the numbers are in the data, I apologize, but they can export that to free trade countries starting immediately. [00:26:44] Speaker 02: And so for our section three analysis, that's not something we would, you know, I think that's not foreseeable just as the kind of downstream impacts of burning the gas are not foreseeable. [00:26:55] Speaker 02: I think that would get us outside of public citizen and birth reports, et cetera. [00:27:01] Speaker 02: Does that make sense? [00:27:05] Speaker 02: I'm happy to talk more about this. [00:27:07] Speaker 02: I just will note, Vecinos was an administrative procedure act ruling. [00:27:12] Speaker 02: The court said, you know, we do not hold the commission was required to address petitioners, was required to use social cost carbon. [00:27:19] Speaker 02: We do hold that the commission was required to address petitions arguments concerning the significance of 40 CFR 150221C. [00:27:26] Speaker 02: That's at 6F4 1329. [00:27:29] Speaker 02: We think in the authorization order of paragraph 216, JA 1089 to 1090, [00:27:34] Speaker 02: We said we have neither the tools nor expertise to determine the project related emissions. [00:27:38] Speaker 02: That's a marriage determination. [00:27:40] Speaker 02: We think this looks like the Sierra club versus Maria case in the seventh circuit, where we've said we have made the determination that social cost of carbon is not a valuable tool. [00:27:48] Speaker 02: And so it wouldn't be something that we would take under the regulation is, you know, oh, we should scientifically accept. [00:27:53] Speaker 02: We've rejected it for purposes of natural gas at section three, project specific analysis. [00:27:59] Speaker 02: On the no action alternative, I just want to know. [00:28:01] Speaker 06: Let me ask one question before you move off that the last question I asked to petitioner that. [00:28:07] Speaker 06: That she was going to look into rebuttal. [00:28:09] Speaker 06: Do you have an answer on that as well? [00:28:12] Speaker 06: And the question is the comments to the draft environmental impact statement, not the petition free hearing comments to the draft environmental impact statement was. [00:28:22] Speaker 06: The reg at issue 21 C mentioned. [00:28:26] Speaker 02: I believe it was mentioned with respect to [00:28:29] Speaker 02: similar to their earlier argument saying we needed to gather more information but I'm not certain of that. [00:28:35] Speaker 02: I do want to say something quick on wetlands and something quick on segmentation and I'll start with segmentation. [00:28:42] Speaker 02: On the segmentation argument, I wanted to note a case that I just didn't catch till preparing for argument and it's a case by this court called City of Boston Delegation versus FERC 897 F3rd 241. [00:28:54] Speaker 02: It's a 2018 decision [00:28:56] Speaker 02: Where we were challenged for a series of pipeline upgrades in the northeast that they were we were segmenting them and they should be considered one project and the court said that they weren't similar actions. [00:29:06] Speaker 02: However, we were required to consider all of them under the cumulative impacts because cumulative impacts is broader. [00:29:11] Speaker 02: I know I'm in the red light. [00:29:13] Speaker 02: And the point there is just, the court has said following public citizenry in Freeport and all these other cases, that for cumulative impacts analysis, we don't consider the export, the upstream and downstream emissions caused by the export, because that's not part of our statutory or delegated statutory jurisdiction. [00:29:28] Speaker 02: And so if it's not part of the larger cumulative impacts question, it wouldn't make sense to say. [00:29:32] Speaker 03: Does the Department of Energy do an environmental impact statement during the licensing proceeding? [00:29:40] Speaker 02: um of the free trade exemption absolutely not it's exempt they initially accepted ours as sufficient as they had done in um the sierra club versus department of energy the follow-on to freeport they then reopened it that was petitioned for review to this court i think i gave the dates and stuff in our brief they reopened it in a supplemental environmental impact statement the most recent status report and i reached out to department of energy the most recent status report in that [00:30:07] Speaker 02: in advance case is that they have issued, I believe the draft draft and by the supplemental environmental impact statement, they've received comments. [00:30:15] Speaker 02: I think they put out notice of the draft final supplemental environmental impact statement, but I don't think that it has certainly, I don't think has become final yet for purposes of that. [00:30:25] Speaker 03: And that is, you know, the reason I asked that is that if you go back to the statute, which is not a bad idea in this, in this area, [00:30:32] Speaker 03: And the statute says that you have to include in every recommendation, et cetera, et cetera, for major federal action affecting the environment significantly a statement about the environmental impact. [00:30:47] Speaker 03: And it has to be, I can't remember the exact language, a statement by the decision maker or something to that effect. [00:30:57] Speaker 03: But it seems to me that if the Energy Department does an environmental impact statement, [00:31:03] Speaker 03: And FERC can look at that. [00:31:06] Speaker 03: Why should FERC have to duplicate that with respect to the area that is within the jurisdiction of the Department of Energy? [00:31:15] Speaker 03: And on vice versa, I mean, why should the Department of Energy have to do a separate environmental impact statement on the building of the pipeline? [00:31:23] Speaker 03: They can use FERCs. [00:31:25] Speaker 02: absolutely your honor that's what they have done in previous proceedings what they did here as to the impacts of the siting construction and [00:31:34] Speaker 02: citing construction and operation of the pipeline. [00:31:37] Speaker 02: They said they agree with ours. [00:31:39] Speaker 02: The court has said that you can't blindly rely on another agency's activity. [00:31:43] Speaker 02: You need to establish you've looked at it, you've considered it. [00:31:47] Speaker 02: DOE did that here. [00:31:49] Speaker 02: But that goes back to the Freeport Earth reports and these other cases, which note that for our purposes, and it builds off of public citizen, Department of Transportation versus public citizen, where the Supreme Court was unequivocal that the Department of Transportation subagency [00:32:02] Speaker 02: couldn't consider the president's action allowing trucks to come in from Mexico when they were doing the environmental impact of their safety regs, the court has said following that, that for us, meaning the commission, we don't look at the impacts of the export because we have no statutory authority over there. [00:32:18] Speaker 02: And so it's been placed out of our statutory authority. [00:32:20] Speaker 02: That's part of why the segmentation reg, we don't think would overcome the statutory balance that had been drawn between Department of Energy's authorities and ours. [00:32:28] Speaker 02: And this court's sort of teachings coming down from public citizen. [00:32:32] Speaker 02: I'm over time, but I would like to just touch on a point on wetlands that's in the record that I didn't get clear enough didn't get clear at all in the brief on wetlands. [00:32:43] Speaker 02: We noted that. [00:32:47] Speaker 02: We noted that we were counting different things from the core, and then when the agencies got together, they determined that the difference was only 1%. [00:32:54] Speaker 02: And the biggest sort of explanation for why their statistic about 1,320 or 1,380 acre difference is not, it's a noise statistic, I would call it, is actually, if you look at the record JA407, [00:33:12] Speaker 02: Fork explains that we consider 4 types of impacts to wetlands. [00:33:16] Speaker 02: There's temporary impacts, which are impacts that occur during the course of construction. [00:33:20] Speaker 02: Construction is expected to be 8 years and that will be remediated shortly thereafter. [00:33:24] Speaker 02: Then there's short term impacts, which are impacts that could last from, I think, about a year to 5 years after you start remediation. [00:33:32] Speaker 02: So after construction on that piece of the project. [00:33:34] Speaker 02: Long term impacts, they would be remediated. [00:33:36] Speaker 02: It would take between 5 and 30 years after you start remediation and permanent impacts to the commission are impacts that will exist after the life of the party or the project. [00:33:45] Speaker 02: So after the construction plus 30 years. [00:33:48] Speaker 02: So we said there's 8227 wetland acres that are going to be impacted after construction plus 30 years. [00:33:55] Speaker 02: The Corps at JA 1677 explains that permanent for them means any discharge into waters of the United States that would be left in place for five years or more. [00:34:08] Speaker 02: That means something could be permanent for purposes of the Corps if it's left there for five years in one day, but construction is expected to last longer than five years in one day. [00:34:16] Speaker 02: So their statistic is essentially the Corps said that there will be this number of acres that are going to be impacted for more than five years [00:34:26] Speaker 02: that there's 1,300 fewer acres that will be impacted for greater than 38 years. [00:34:32] Speaker 02: Those are not apples-to-apples comparison. [00:34:35] Speaker 03: Can you say a few words? [00:34:36] Speaker 03: I have a couple questions about the beluga whale. [00:34:40] Speaker 03: I don't understand that the population is estimated at 297 in Cook Inlet, and the Cook Inlet beluga whales are considered separate [00:34:57] Speaker 03: danger. [00:34:58] Speaker 03: But there are 200,000 is the estimate of beluga whales in the Arctic in the sub are 200,000 only 297 and cook inlet. [00:35:09] Speaker 03: And the cases that you cited dealing with that district court cases indicate that the there's been a population decline, but they don't know why. [00:35:20] Speaker 03: Um, there was, there was whaling by the, the click it and hide a tribe. [00:35:25] Speaker 03: I think it was that did it. [00:35:27] Speaker 03: And that stopped in 1994, but the decline continued. [00:35:32] Speaker 03: And so I guess my question is, number one is, what does it mean to say that the Cook Inlet Beluga whales are a distinct species? [00:35:48] Speaker 03: From everything I've found out, they're not. [00:35:51] Speaker 03: I mean, they're 297 out of 200,000. [00:35:55] Speaker 03: Yes, your honor. [00:35:57] Speaker 03: I don't get that. [00:35:58] Speaker 03: And that's not FERC's doing, that's the Department of Interior's doing in their designation for endangered species. [00:36:09] Speaker 03: And the second question I have is that the evaluation, as I read it, that FERC did is that it may, that the construction itself may well damage [00:36:23] Speaker 03: adversely affect Beluga whales, but it won't cause extinction. [00:36:29] Speaker 03: Is that a correct? [00:36:31] Speaker 02: As to your second question, yes. [00:36:33] Speaker 02: We found that particularly the pile driving, because it could have level A harassment, which is injury. [00:36:38] Speaker 02: And I would like to say a note about the level A and B pile driving versus vessel noise. [00:36:42] Speaker 02: But we did, yes, you're correcting your second question. [00:36:44] Speaker 02: We found that it would have a significant or an impact, a negative impact on beluga whales, but wouldn't threaten them. [00:36:49] Speaker 02: We pointed to the National Marine Fisheries Services biological opinion. [00:36:52] Speaker 03: This is a general comment. [00:36:54] Speaker 03: And I think I can fall into it and the parties can fall into it. [00:36:59] Speaker 03: And people tend to forget that the environmental impact statement is an eyes open. [00:37:05] Speaker 03: And if the impact statement said this will cause beluga whales and cook inlet to become extinct, you can still go forward with the project. [00:37:16] Speaker 02: I think we might have endangered species act. [00:37:19] Speaker 03: Well, I'm talking about under the environmental impact under NEPA. [00:37:25] Speaker 03: NEPA is not a statute that halts projects because of adverse impact. [00:37:33] Speaker 02: Yes. [00:37:33] Speaker 02: And I believe we made that point in our brief siting, Kleppe versus Sierra Club. [00:37:39] Speaker 02: Your honor knows that case much better than I do. [00:37:42] Speaker 02: And it's notable for many reasons, including perhaps the best signature block the United States has ever presented on a brief. [00:37:48] Speaker 02: But as to your and so, yes, we agree that NEPA is a procedural statute. [00:37:52] Speaker 02: It doesn't force any result. [00:37:54] Speaker 02: I think there's another case the Supreme Court has said that. [00:37:55] Speaker 02: As to your earlier question about the beluga whales, and I apologize, I had a longer description that got cut in the brief of sort of beluga whales and their bulbous head and whatnot, but I was going to note that they are least concerned, is what it's called, across the world. [00:38:08] Speaker 02: I have this footnote at page 38, the Endangered Species Act, divine species, distinct population. [00:38:16] Speaker 03: You say in the footnote that they're genetically distinct, and I don't know what that means. [00:38:21] Speaker 02: I think that they have been contained in that area and thus like sort of their genetic breeding would be just saying I'm not aware of like a physical trait that they have that others might not as compared to say like the Sumatran Rhino is genetically black. [00:38:37] Speaker 03: My understanding is they're not contained, that they're only in there for a certain period of time. [00:38:42] Speaker 03: They migrate in and they migrate out. [00:38:44] Speaker 02: So I think I relied on that case, but you know, I should have relied on the record where we do know that they probably live in there. [00:38:50] Speaker 02: It's not like the Cook Inlet is enclosed. [00:38:52] Speaker 02: And I think if you look at kind of the one of the maps, and I can tell you where of their range, it appears to sort of go. [00:39:00] Speaker 04: It's an inlet, so they can [00:39:01] Speaker 02: Yes, yes, sorry. [00:39:03] Speaker 02: It appears they might go out a little bit, but we're not suggesting that they leave. [00:39:06] Speaker 02: I think looking at that opinion that I relied on and I was amused when they criticized that because they're right. [00:39:11] Speaker 02: I should have found it in the record. [00:39:13] Speaker 02: I just didn't find a good description in the record of where they are. [00:39:15] Speaker 02: The statement is they're in the upper Cook Inlet during that time of year and they move throughout the Cook Inlet. [00:39:20] Speaker 02: They have different densities. [00:39:23] Speaker 02: But as to the stressors, you know, they criticize us for having environmental conditions 25 and 26. [00:39:29] Speaker 02: that address pile driving. [00:39:31] Speaker 02: But if you look, and it's in the record, we said pile driving can cause level A harm, which is injury versus level A harassment. [00:39:38] Speaker 02: That's injury versus level B harassment, which is just disturbance causing a species to change its behavior. [00:39:44] Speaker 02: We said vessel noise would only cause level B harassment. [00:39:47] Speaker 02: So we did put more emphasis on the activity. [00:39:50] Speaker 06: I have one question about the wetlands [00:39:55] Speaker 06: thousand acre discrepancy. [00:39:57] Speaker 06: I know maybe there's not a thousand acre discrepancy, but let's say that there is. [00:40:02] Speaker 06: Let's say that there is a thousand acre discrepancy on the wetlands issue. [00:40:07] Speaker 06: A thousand acres is a significant enough fraction of, say, Manhattan, which I think is maybe in the ballpark of 14,000 acres. [00:40:17] Speaker 06: It's a much smaller fraction of Alaska. [00:40:22] Speaker 06: What are we what are we supposed to do does it matter when we're when we're looking at these questions whether the 1000 acres is in a big state or a small state or a small city. [00:40:34] Speaker 02: So, I think that could depend on, you know, you have to look at what the area of being affected is. [00:40:39] Speaker 02: If, for example, this is another point, they haven't identified any acres the Corps considered impacted that we said, oh, they're not going to be impacted at all. [00:40:45] Speaker 02: Again, the thousand acres is apples to oranges comparison, but the Corps had said, gee, we think this is going to impact wetlands in [00:40:53] Speaker 02: you know, Denali National Park, when you do the Denali alternative and we had said, we don't think it's going to impact the wetlands at all. [00:40:59] Speaker 02: And it might be a small difference, but like we would have had a disagreement with the Corps about why there would or wouldn't be any impact. [00:41:04] Speaker 02: Someone brought it to our attention. [00:41:06] Speaker 02: We should explain our reasoning. [00:41:08] Speaker 02: I don't think a distinction with the Corps is a reason that both agencies can be happy with their conclusion and can have reasonable conclusions. [00:41:14] Speaker 02: As Judge Randolph was getting at, NEPA is a process sort of driving statute [00:41:19] Speaker 02: You're right, there are, I think, intervenors highlight this in their brief, 600,000 or some number of hundreds of thousands of acres of wetland in Alaska. [00:41:27] Speaker 02: But I would again step back and emphasize, they pointed to no wetland, the core considered, and we didn't. [00:41:32] Speaker 02: We explained that when we looked at the core's data and ours, we found less than 1% distinction in total wetlands. [00:41:37] Speaker 02: The problem was, and I'll fault myself for not highlighting this, if you look at the two record definitions of permanent, they're entirely different definitions. [00:41:46] Speaker 04: Any further questions? [00:41:49] Speaker 04: Thank you. [00:41:49] Speaker 04: Thank you. [00:41:51] Speaker 04: We'll hear from the intervener. [00:42:02] Speaker 01: May I please the court? [00:42:03] Speaker 01: My name is Howard Nelson, and I represent Alaska Gasline Development Corporation, which is a public corporation of the state of Alaska. [00:42:11] Speaker 01: This project is extremely important to the state. [00:42:14] Speaker 01: And unlike most projects that come before this court, this project has the overwhelming support of the residents and businesses that will be affected by this project. [00:42:25] Speaker 01: First thing I'd like to mention is petitioners emphasize that this is the largest natural gas project ever. [00:42:31] Speaker 01: Well, this is also the largest, at least one of the largest and not the largest comprehensive environmental impact statements ever performed by FERC. [00:42:40] Speaker 01: AGD filed 55,000 pages in its application describing and evaluating impacts. [00:42:47] Speaker 01: The commission took seven years. [00:42:49] Speaker 03: Its staff took seven years from 2014 to... I think the environmental impact statement for the Powder River Basin is larger. [00:42:56] Speaker 01: Okay. [00:42:57] Speaker 01: Well, one of the most comprehensive. [00:43:00] Speaker 01: One of them, yeah. [00:43:01] Speaker 01: The commission also consulted with several other agencies with subject matter expertise, like the fisheries service on the issue of beluga whales, and ended up in a 5,000 page EIS with appendices. [00:43:16] Speaker 01: I want to talk mostly about the indirect impacts, but I just want to briefly talk about a few of the other issues very succinctly. [00:43:23] Speaker 01: On the issue of the significance of direct impacts and exhaustion, [00:43:29] Speaker 01: We filed a 28-J letter a few weeks ago informing the court of the recent Delaware River keeper case. [00:43:36] Speaker 01: And I filed it with respect to the in-state gas usage. [00:43:39] Speaker 01: But if you look at page 12 of that opinion, the court also rejected the petitioner's reliance on the Sinos and the CEQ regulation because petitioners in that case had failed to preserve the argument on re-hearing. [00:43:54] Speaker 01: On the no action alternative, [00:43:56] Speaker 01: Petitioners' argument is inconsistent. [00:43:58] Speaker 01: If you look at page six of their reply brief, and I think counsel said this now, they say they are not arguing that FERC erred by failing to select the no-action alternative, only that it failed to evaluate it. [00:44:10] Speaker 01: But the assumption that it takes issue with that another project will be built, that this one's not built, is one of the reasons that FERC provided for not selecting the no-action alternative. [00:44:21] Speaker 01: That assumption was not a reason for not evaluating the impacts, [00:44:26] Speaker 01: The FERC did evaluate the impacts. [00:44:27] Speaker 01: They did it on a resource-by-resource basis. [00:44:33] Speaker 01: With respect to wetlands, I just want to mention, if you go to JA1754, that is where the FERC talks about the different measurements that FERC Council was talking about for permanent and temporary. [00:44:47] Speaker 01: What was that, JA what? [00:44:48] Speaker 01: JA1754. [00:44:49] Speaker 01: Thank you. [00:44:52] Speaker 01: this briefing response to walker to your question. [00:44:55] Speaker 01: I think I think in our in our brief, um, we responded as a page 16 of our brief, we responded to, um, petitioners argument that they rate that somebody in response, another party in response to the draft, uh, comments raise this regulation. [00:45:13] Speaker 01: And we pointed out that you have to preserve it. [00:45:16] Speaker 01: That party did not request rehearing. [00:45:18] Speaker 01: So that comment is not relevant to the exhaustion argument because it wasn't raised in re-hearing. [00:45:24] Speaker 06: And the petitioners before re-hearing did not raise the reg with regard to social cost. [00:45:31] Speaker 01: That I don't know. [00:45:33] Speaker 01: I just know that what they put in their brief was they referenced different parties that raised it in comments. [00:45:42] Speaker 01: They raised it, as you said, in one line. [00:45:46] Speaker 01: Re-hearing. [00:45:47] Speaker 01: Yeah. [00:45:48] Speaker 03: And we're hearing. [00:45:51] Speaker 03: This may not relate directly to your argument or anybody's argument, but I'm just curious. [00:45:56] Speaker 03: Has Alaska still sent checks to individual citizens after a certain residency every year? [00:46:03] Speaker 03: I don't know the answer to that question. [00:46:05] Speaker 03: It used to because of the enormous oil revenue. [00:46:09] Speaker 03: Right. [00:46:10] Speaker 03: And it just occurred to me that no wonder the population is in favor of a gas pipeline. [00:46:15] Speaker 03: Just increase the amount of the check they get area. [00:46:18] Speaker 01: Well, whether they get direct checked or not that Alaska's economy, you know, is is very affected by whether or not they can get this gas out of the North slope. [00:46:28] Speaker 01: They've been trying to do this for some time. [00:46:30] Speaker 01: Um, I'd like to talk about the indirect impacts. [00:46:35] Speaker 01: And, you know, we raised in our brief that with respect to that issue, [00:46:39] Speaker 01: Petitions rely on the segmentation doctrine and its applications to facts in this case on that issue. [00:46:46] Speaker 01: They didn't raise that issue sufficiently in their rehearing request either. [00:46:50] Speaker 01: The reference to segmentation and the Delaware River Keeler case is included at the end of one long footnote in an otherwise 143 page rehearing request. [00:47:05] Speaker 01: I'd like to talk about the indirect impacts. [00:47:09] Speaker 01: That argument, the segmentation argument, fails for a number of reasons, in addition to the failure to preserve. [00:47:15] Speaker 01: As a legal matter, we believe that argument is foreclosed by the Freeport decision and the other decisions that talk about a legally sufficient cause. [00:47:27] Speaker 01: Petitioners' argument is that the DOE's jurisdiction over exports is a connected action, which the FERC must evaluate together. [00:47:37] Speaker 01: But the issue is not whether it's a connected action. [00:47:44] Speaker 01: The issue is whether the connection is sufficient to establish that this project is a cause of the emissions from exports. [00:47:54] Speaker 01: And that is exactly what Freeport decided, that there's no proximate legal cause. [00:47:58] Speaker 01: It's similar to the issue of reasonable foreseeability. [00:48:02] Speaker 01: So does the Commission have a general obligation to look at connected actions? [00:48:06] Speaker 01: Yes. [00:48:07] Speaker 01: but not a connected action that for which there is no legal cause established between the project and the actions between the project and the emissions. [00:48:18] Speaker 01: Sorry. [00:48:19] Speaker 04: Do you have any questions? [00:48:21] Speaker 04: I see you're out of time. [00:48:24] Speaker 01: Okay. [00:48:25] Speaker 04: Thank you. [00:48:25] Speaker 04: Thank you very much. [00:48:32] Speaker 04: I will give you two minutes for rebuttal. [00:48:35] Speaker 07: Thank you very much. [00:48:36] Speaker 07: In the record at Joint Appendix 90 is where we raised that regulation in our comments. [00:48:43] Speaker 03: I didn't hear you. [00:48:45] Speaker 03: I want to write that down. [00:48:46] Speaker 07: Joint Appendix page 90 is where we raised 1502.22 in our comments. [00:48:51] Speaker 07: And at Joint Appendix 1034 and paragraph 42 is where FERC responded to that argument and described it. [00:48:59] Speaker 07: So they'd be hard pressed to argue that we didn't preserve the issue there. [00:49:03] Speaker 06: I want to point that out to it and you and J a 90. [00:49:06] Speaker 06: If I go there, I'm going to find that you raised the issue of the rag with regard to social cost of carbon. [00:49:12] Speaker 07: I want to clarify. [00:49:13] Speaker 07: It's not just social cost of carbon. [00:49:15] Speaker 07: It's social cost of carbon and other available tools. [00:49:18] Speaker 03: But yes, that's the, um, do you have a, uh, do you have a number? [00:49:24] Speaker 07: Yeah. [00:49:24] Speaker 07: Joint appendix page 90. [00:49:26] Speaker 03: No, but what the social costs of carbon per ton is. [00:49:31] Speaker 07: I don't have the number. [00:49:35] Speaker 07: The intervener raised that the vicino's case addressed exhaustion as well. [00:49:40] Speaker 07: And I want to mention that there where the exhaustion was improper, it was because they weren't making the argument that the agency should use the social cost of carbon specifically. [00:49:50] Speaker 07: And they cited to the regulation only in a footnote in the course of arguing that that method should be adopted on its merits, which was different than the argument we made here. [00:50:01] Speaker 07: I'd also like to briefly address upstream downstream impacts. [00:50:04] Speaker 07: I heard that Freeport and other cases foreclosed the court's ability to rule that FERC should consider this as a connected action. [00:50:12] Speaker 07: But I want to emphasize no case this court has ever considered whether export is a connected action under NEPA. [00:50:20] Speaker 07: And the agency and interveners don't address the criteria for connected action under the regulations. [00:50:25] Speaker 07: And it was important for FERC's purposes here, even within its own jurisdiction. [00:50:30] Speaker 07: The rule against segmentation exists in part because if you understand the holistic impacts of a project, then you can make changes to the part of the project that you have control over. [00:50:39] Speaker 07: So FERC could have required mitigation specifically declined to here because in part it didn't have a full picture of what the emissions were and what their significance was. [00:50:49] Speaker 04: You also just briefly address the 1,400 acres of wetland discrepancy. [00:50:56] Speaker 04: Just say specifically in what way you think FERC's explanation of that was lacking. [00:51:02] Speaker 04: FERC's explanation in the... Of explaining the discrepancy with the Coors wetland. [00:51:09] Speaker 07: I mean in the actual briefs and in the orders. [00:51:14] Speaker 07: In the orders. [00:51:16] Speaker 07: Basically there really was no explanation besides saying we looked at it and it's a small amount and besides it doesn't change the significance. [00:51:25] Speaker 07: And two problems with that. [00:51:26] Speaker 07: Number one, the point of NEPA is to inform the public and articulate the agency's rationale and understanding. [00:51:32] Speaker 07: And right now, the public is completely uninformed about which figure Burke actually believes is correct and on what basis. [00:51:43] Speaker 07: And the second is that [00:51:49] Speaker 04: my train of thought there. [00:51:50] Speaker 04: Well, FERC does say that the discrepancy is due to a methodological difference or difference in the way the Corps and FERC define wetlands. [00:51:58] Speaker 04: So do you think that's insufficient or that it wasn't adequately explained in their orders? [00:52:03] Speaker 07: It wasn't adequately explained. [00:52:05] Speaker 07: That's right. [00:52:05] Speaker 07: Because the methodology difference that was offered, as we explained in our briefs, doesn't actually explain. [00:52:12] Speaker 07: They said, first of all, [00:52:14] Speaker 07: there was a different scope of impacts. [00:52:18] Speaker 07: And we looked at that scope of impacts. [00:52:20] Speaker 07: You subtract out the extra wetlands that the Corps considers versus FERC. [00:52:25] Speaker 07: And it doesn't explain all of the discrepancy. [00:52:27] Speaker 07: That's how we arrived at the 1,300 acres left. [00:52:31] Speaker 07: And the other was the difference of methodology. [00:52:33] Speaker 07: And as we pointed out in our briefs, there are two places in the EIS that talk about the methodology. [00:52:38] Speaker 07: And they both describe the methodology in the exact same way, ultimately. [00:52:41] Speaker 07: Not on the same page, but in completely different pages of the EIS. [00:52:45] Speaker 07: So that in and of itself doesn't explain. [00:52:47] Speaker 07: And what I was going to add is that the issue is not whether the impact is significant or not. [00:52:53] Speaker 07: The question is, has FERC adequately analyzed and disclosed what the impacts actually are? [00:52:58] Speaker 07: And so it's not enough to just say, well, we went over the significance threshold. [00:53:02] Speaker 07: Therefore, we've informed the public. [00:53:05] Speaker 07: Each one of these acres matters to some people in Alaska. [00:53:09] Speaker 07: I also want to mention about belugas. [00:53:14] Speaker 07: The EIS actually specifically found that the impact from vessel noise, which is the impact that we want to focus the board on here, would be minor, not that it would be likely adverse along the lines of what Ronan was quoting from the biological assessment. [00:53:30] Speaker 07: That biological assessment finding is distinct from the EIS saying that the impact from vessel noise specifically would be minor. [00:53:37] Speaker 07: And that's the vessel noise that's [00:53:39] Speaker 07: explode when traffic from large vessels in the inlet increases by up to, I think, 42% to 74%. [00:53:48] Speaker 07: That's the figure. [00:53:51] Speaker 04: Thank you. [00:53:53] Speaker 04: Yes. [00:53:53] Speaker 04: Thank you very much. [00:53:54] Speaker 04: Case is submitted.