[00:00:00] Speaker 01:
Case number 20-1427, Sierra Club et al petitioners versus Federal Energy Regulatory Commission.

[00:00:07] Speaker 01:
Mr. Luckett for the petitioners, Mr. Estes for the respondents, Mr. Marwell for the intervener, Mountain Valley ByteLine LLC.

[00:00:16] Speaker 00:
Morning, Council.

[00:00:18] Speaker 00:
Mr. Luckett, please proceed when you're ready.

[00:00:22] Speaker 04:
May it please the court.

[00:00:23] Speaker 04:
My name is Benjamin Luckett and I represent the petitioners.

[00:00:27] Speaker 04:
I'd like to reserve two minutes of my time for rebuttal, please.

[00:00:31] Speaker 04:
A respondent mountain valley pipeline has proved itself incapable of constructing a gas pipeline without causing significant harm to the streams and rivers flowing through the land that it traverses.

[00:00:44] Speaker 04:
Its sole attempt on the yet to be completed mountain valley pipeline mainline has so far resulted in hundreds of violations of erosion and sediment control requirements, some of which deposited inches of sediment throughout miles of stream beds.

[00:00:59] Speaker 04:
nearly a foot deep in places.

[00:01:02] Speaker 04:
Those failures have continued throughout construction on the main line in the face of repeated state enforcement actions, levying multi-million dollar penalties and despite commitments by Mountain Valley to clean up its act.

[00:01:17] Speaker 04:
Now in the face of Mountain Valley's track record on the main line and numerous other examples of severe erosion and sedimentation impacts on other pipeline projects,

[00:01:27] Speaker 04:
FERC concluded that the very same erosion and sediment mitigation measures that failed so consistently and so spectacularly will nonetheless prevent any significant aquatic impacts when implemented on Mountain Valley's South Gate extension of the main line.

[00:01:44] Speaker 04:
FERC's finding of insignificant direct and cumulative impacts ran contrary to the evidence in the record, violated NEPA, and rendered its EIS arbitrary and capricious.

[00:01:56] Speaker 04:
Now, if FERC is to rely on the imposition of certain mitigation measures to conclude that aquatic impacts will be minimal, that reliance must be reasonably supported by evidence in the record.

[00:02:08] Speaker 04:
As the Ninth Circuit explained in the South Fork Band Council case, an essential component of a reasonably complete mitigation discussion is an assessment of whether the proposed mitigation measures can be effective.

[00:02:21] Speaker 04:
Here, FERC failed to conduct any rational assessment.

[00:02:26] Speaker 04:
In responding to comments on the environmental impact statement, FERC explicitly stated that it would not meaningfully consider Mountain Valley's track record of erosion and sedimentation failures in determining the impacts of the Southgate project.

[00:02:41] Speaker 04:
FERC explained that each proposal reviewed is considered on its own merits, irrespective of other projects.

[00:02:49] Speaker 04:
Instead of considering the potential effectiveness of Mountain Valley's specific mitigation measures on this specific pipeline in light of the company's past failures, FERC stated that it would rely more broadly on its professional judgment based on decades of experience on hundreds of projects.

[00:03:09] Speaker 04:
But FERC essentially ignored the negative experience with this applicant when reviewing this project, rendering its EIS arbitrary and capricious.

[00:03:20] Speaker 04:
FERC relied on this vague assertion of expertise to dismiss not only Mountain Valley's track record of failure employing these specific mitigation measures, but also the comments of an expert hydrogeologist who explained that Mountain Valley had selected only the least effective erosion and sedimentation controls and that Mountain Valley's measures were inappropriate for use on the steep slopes that would be traversed by the Southgate Project.

[00:03:46] Speaker 04:
The minimal erosion and sediment control measures listed by Mountain Valley, the expert explained, will not adequately detain stormwater runoff to trap sediment prior to release into the receiving streams.

[00:04:00] Speaker 04:
And this expert explained that more robust measures needed to be employed.

[00:04:06] Speaker 04:
Now FERC offered no direct rebuttal to these findings beyond its bare gesture towards its decades of experience.

[00:04:15] Speaker 04:
Now, FERC's failure to meaningfully consider the effectiveness of those erosion and sedimentation controls is not lessened by its attempts to distinguish the Southgate project from the main line.

[00:04:30] Speaker 04:
FERC claims that Mountain Valley on the Southgate project agreed to implement supplemental control measures, which exceed the minimum standards.

[00:04:40] Speaker 04:
But it's cited to no specific upgrades or measures

[00:04:43] Speaker 04:
and certainly none that have been proven effective, and much less a binding commitment by Mountain Valley to utilize those measures.

[00:04:52] Speaker 04:
And Mountain Valley, in several instances, in fact, refused requests by state regulators to implement certain heightened mitigation measures.

[00:05:01] Speaker 04:
And now, nor can Mountain Valley's failures on the main line be dismissed by pointing to record-breaking precipitation in 2018, as FERC attempts to do.

[00:05:12] Speaker 04:
To support that assertion FERC relied on citation to rainfall data from a single county and referenced rainfall events in September and October 2018.

[00:05:23] Speaker 04:
But the agency offered no explanation for why similar rainfall events should not be expected to be repeated, given that one of the main effects of climate change is more severe storms.

[00:05:37] Speaker 00:
Just a kind of overarching question about what we're looking at here, because

[00:05:42] Speaker 00:
even if there's force to some of what you're saying at the end of the day, and someone might conclude that, yeah, the commission could have made a different decision.

[00:05:52] Speaker 00:
That's not what we're looking at here, right?

[00:05:55] Speaker 00:
For our purposes, the question under NEPA is whether FERC, the commission gave it a hard look and engaged in the record analysis, not whether the conclusion had reached was correct.

[00:06:06] Speaker 00:
And at least FERC paid attention to this very,

[00:06:10] Speaker 00:
set of concerns, the ones you're pointing at right now in the EIS at JA 332-ish, I can't remember exactly where, but somewhere in that vicinity.

[00:06:20] Speaker 00:
And so to the extent that we might disagree with the conclusion, that's just not a basis for us to set aside what the commission did.

[00:06:28] Speaker 00:
It's just whether they gave it the requisite look.

[00:06:31] Speaker 04:
Your Honor, that look must be rational.

[00:06:33] Speaker 04:
There must be a rational connection between the facts found and the decisions reached.

[00:06:38] Speaker 04:
And here, that's just not the case.

[00:06:40] Speaker 04:
Again, FERC dismissed any failures on the main line by citing two differences between the two pipelines that simply aren't reflected in reality.

[00:06:51] Speaker 04:
Again, FERC pointed to record-breaking precipitation without any recognition of petitioners' comments that those

[00:07:00] Speaker 04:
very same precipitation events were likely to be repeated.

[00:07:04] Speaker 04:
And also FERC relied on those precipitation events in September and October 2018, despite the fact that a significant amount of those violations occurred outside of those windows.

[00:07:17] Speaker 00:
On this issue, they also made reference to the character of the terrain and talked about whether it was flat.

[00:07:25] Speaker 04:
There was one clause in one sentence in the EIS where FERC said that the terrain was flatter.

[00:07:33] Speaker 04:
Excuse me, but FERC did not provide data showing that the failures on the mainline only occurred on that sort of terrain.

[00:07:43] Speaker 04:
And as petitioners pointed out, although the South Gate does not contain as extensive of steep and highly erodible terrain as the mainline, there are nonetheless

[00:07:53] Speaker 04:
significant areas of steep and highly erodible terrain and FERC's dismissal of those impacts by citation to bear experience and a simple statement that the terrain was flatter as simply not a reasoned determination of the impacts of the project.

[00:08:13] Speaker 04:
And not only were the direct impacts not rationally assessed, nor were the cumulative impacts when combined with the impacts of the main line.

[00:08:26] Speaker 04:
I see that I'm out of time.

[00:08:28] Speaker 04:
For the foregoing reasons, petitioners respectfully request that the court vacate and remand FERC certificate order and the deficient EIS on which the certificate relies.

[00:08:39] Speaker 00:
Thank you, Mr. Luckett.

[00:08:40] Speaker 00:
Unless my colleagues have questions for you at this time, we'll give you your time for rebuttal.

[00:08:45] Speaker 00:
Mr. Estes.

[00:08:48] Speaker 02:
Yes, good morning, your honors.

[00:08:51] Speaker 02:
I'm Matt Estes-Aperi on behalf of the Federal Energy Regulatory Commission.

[00:08:57] Speaker 02:
I have to disagree with Mr. Luckett's contention that the commission gave no consideration to what happened on the main line.

[00:09:07] Speaker 02:
I think as your honor pointed out,

[00:09:09] Speaker 02:
And this is in page 1-12 of the environmental impact statement joint appendix 332.

[00:09:20] Speaker 02:
The commission acknowledged those claims of failure and gave several reasons why they thought that it wouldn't be repeated.

[00:09:31] Speaker 02:
For one thing, they're not relying on the exact same mitigation that failed

[00:09:38] Speaker 02:
that supposedly failed on the mainline.

[00:09:40] Speaker 02:
As the commission pointed out, the Mountain Valley continuously upgraded and improved its mitigation throughout the process of the mainline as problems were identified.

[00:09:56] Speaker 02:
The commission also pointed out that Mountain Valley had agreed to go beyond the minimum requirements

[00:10:07] Speaker 02:
imposed by state regulation.

[00:10:10] Speaker 02:
And the petitioner's very own reply brief reinforces this.

[00:10:16] Speaker 02:
At page 15, they quote a press release from the Virginia attorney general who trumpets that they had in a consent agreement gotten Mountain Valley to improve mitigation that the attorney general claimed would provide

[00:10:35] Speaker 02:
valuable protections against environmental degradation.

[00:10:39] Speaker 02:
So the mitigation is not exactly the same.

[00:10:43] Speaker 02:
The commission also noted, as you pointed out, that there are differences that the, it's not expected to be as wet, or there's no reason to believe it'll be as wet in the future because

[00:11:03] Speaker 02:
the precipitation that caused most of the events for the main line took place in the year that was the wettest year in 125 years of recorded history.

[00:11:17] Speaker 02:
Now it may be that we can expect more wet years in the future.

[00:11:25] Speaker 02:
And perhaps if what we were talking about was the life of the pipeline project

[00:11:33] Speaker 02:
the likelihood of water years would be important, but here it's important to remember we're talking only about a relatively short construction period.

[00:11:46] Speaker 02:
We know that this is a 90 mile pipeline.

[00:11:51] Speaker 02:
The main line was constructed was 85% complete after

[00:11:58] Speaker 02:
a year and a half and that's a 300 mile pipeline.

[00:12:01] Speaker 02:
So we know this is a relatively short period and it's reasonable for the commission to conclude that it's unlikely that there would be as much precipitation and rain during the relatively short construction period.

[00:12:17] Speaker 02:
The commission also noted that the terrain is less flat.

[00:12:22] Speaker 02:
There is some steep slopes, but if you look at the

[00:12:28] Speaker 02:
I'm sorry, this phone is, I'm not really sure what to do about this phone.

[00:12:33] Speaker 02:
I should have taken care of it sooner.

[00:12:35] Speaker 02:
It's my landline.

[00:12:38] Speaker 02:
I apologize, your honor.

[00:12:42] Speaker 02:
If you look at appendix C to the environmental impact statement, joint appendix 500 to 511, you'll see that the steep slopes, the identification of steep slopes on this route

[00:12:58] Speaker 02:
a relatively minor, they're almost all less than a hundred feet in total.

[00:13:03] Speaker 02:
They represent, I didn't do an exact calculation, but around two miles out of the 90 mile route, which is considerably less than Mountain Valley.

[00:13:15] Speaker 02:
And the, I guess the last thing I wanted to point out is that while yes, there were some sedimentation events on the main line, the commission had,

[00:13:29] Speaker 02:
stated that it expected there to be some amount of sedimentation.

[00:13:33] Speaker 02:
The commission found later that the amount on the main line was only slightly more than expected.

[00:13:40] Speaker 02:
So I don't know that it's accurate or based on the record to say that this was a massive failure.

[00:13:49] Speaker 02:
With respect to the cumulative impacts, Your Honor, the petitioners claim that

[00:13:57] Speaker 02:
The impacts were not considered and based on time and distance are not correct.

[00:14:06] Speaker 02:
The commission did evaluate the cumulative impacts of the South gate pipeline.

[00:14:13] Speaker 02:
The petitioners just do not agree with the conclusions the commission reached.

[00:14:19] Speaker 02:
I see them out of time.

[00:14:20] Speaker 02:
If there are any other questions on any of these issues, I'd be happy to answer them.

[00:14:28] Speaker 00:
No questions.

[00:14:29] Speaker 00:
I think we'll let you rest Mr Estes and we'll hear from intervenors council Mr Marvel.

[00:14:34] Speaker 00:
Thank you, Mr Estes.

[00:14:38] Speaker 03:
Thank you, your honor.

[00:14:39] Speaker 03:
Good morning, Jeremy Marvel for intervenor Mountain Valley pipeline.

[00:14:43] Speaker 03:
Just a few points responsive to the argument by

[00:14:47] Speaker 03:
First, I think the standard of review here does decide the case.

[00:14:52] Speaker 03:
FERC reasonably engaged with the arguments, took a hard look at sedimentation, acknowledged what had happened on the main line, the lessons learned and gave reasons why the mitigation measures selected here were expected to

[00:15:07] Speaker 03:
be adequate.

[00:15:09] Speaker 03:
And that is a hard look.

[00:15:11] Speaker 03:
It's all that APER requires.

[00:15:13] Speaker 03:
We do disagree with the petitioner's characterization of what happened on the main line.

[00:15:18] Speaker 03:
As Mr. Estes explained, the commission did specifically engage with that in an order and found the effects only slightly different.

[00:15:26] Speaker 03:
But I think the important point for this court is there were a number of lessons learned during construction.

[00:15:31] Speaker 03:
The main line FERC was closely monitoring and the Southgate set of

[00:15:36] Speaker 03:
of sediment controls sort of starts where the main line left off.

[00:15:39] Speaker 03:
So we were improving throughout construction.

[00:15:42] Speaker 03:
Petitioners complain that we don't specify or the commission didn't have afforded specific enhanced measures.

[00:15:49] Speaker 03:
That's not correct.

[00:15:50] Speaker 03:
If you look among other places at JA164, that was a response that Mountain Valley provided to a data request from FERC and explained specific measures that were going

[00:16:00] Speaker 03:
above what's required by state law.

[00:16:03] Speaker 03:
And some of those measures also go beyond what was required for the main line.

[00:16:07] Speaker 03:
There's this technology that's used called FlexTerra to help stabilize open when you have a construction site, there were enhanced protocols put in place.

[00:16:18] Speaker 03:
So that was all reasonably before the commission.

[00:16:21] Speaker 03:
With regard to rainfall and the adequacy of the data that the commission relied on, there was no argument on rehearing taking issue with the sort of granularity of the data, whether it was 2018 or 2019.

[00:16:33] Speaker 03:
What's in the EIS is that for an annual data that was available, there's no competing data in the record.

[00:16:40] Speaker 03:
And I think there's no serious contention that 2018 was a record breaking year.

[00:16:44] Speaker 03:
And that's part of what Mountain Valley was responding to.

[00:16:47] Speaker 03:
With regard to the other basis that the commission gave that Southgate has flatter terrain, as FERC explained, there's an appendix to the EIS here that lists every crossing and provides the percentage steepness of the slope.

[00:17:02] Speaker 03:
There's a similar appendix in the main line, which is many times longer.

[00:17:07] Speaker 03:
In other words, that's data supporting FERC's conclusion that Southgate is flatter.

[00:17:12] Speaker 03:
You can also just look at a map of Virginia, you know, mainline is coming through the mountains.

[00:17:16] Speaker 03:
You can look at where the Southgate project is.

[00:17:19] Speaker 03:
And petitioners own expert at JA 235 talks about the concern that sedimentation measures or erosion control measures are harder in steeper terrain.

[00:17:30] Speaker 03:
That's an intuitive point.

[00:17:38] Speaker 03:
considered.

[00:17:39] Speaker 03:
And with regard to the effectiveness of the measures in general, petitioners have an expert who has a view, but here the commission said explicitly that the measures were based on and in fact go beyond what state law requires refers to this handbook of measures that Virginia has that we were basing them on.

[00:17:59] Speaker 03:
That handbook has an extensive bibliography with scientific literature talking about the effectiveness of these measures.

[00:18:05] Speaker 03:
So that was all in the mix.

[00:18:06] Speaker 03:
before FERC and if it's a battle of experts about the choice of one measure versus the other, I think this court's role is not to second guess the commission's reasonable resolution.

[00:18:17] Speaker 03:
I'm happy to answer any questions the court may have beyond these points, but otherwise we would respectfully request that the court deny the petition's review.

[00:18:27] Speaker 00:
I just have one question just as a background contextual matter, which is given all the backs and forths between the various courts and the various services and the Fourth Circuit and whatnot, what's the status of the mainline project?

[00:18:38] Speaker 03:
Yeah, so we're making progress.

[00:18:40] Speaker 03:
It's moved forward since the description in the briefs.

[00:18:46] Speaker 03:
Just to quickly tick through, as you know, these are big projects that require a lot of permits from different agencies.

[00:18:52] Speaker 03:
There were some remands from the Fourth Circuit.

[00:18:54] Speaker 03:
one of the Forest Service and Bureau of Land Management right-of-way that was reissued in January of 2021.

[00:19:01] Speaker 03:
Petitioners appealed it to the Forest Circuit.

[00:19:03] Speaker 03:
It was argued in October awaiting decision.

[00:19:07] Speaker 03:
There was a new biological opinion, which is how you comply with the Endangered Species Act that was released in September of 2020.

[00:19:16] Speaker 03:
Petitioners appealed, sought a stay.

[00:19:18] Speaker 03:
The Forest Circuit denied a stay in November of 2020.

[00:19:21] Speaker 03:
That case was argued also in October of 2020

[00:19:24] Speaker 03:
2021 and the Fourth Circuit Petition for Review awaiting decision.

[00:19:28] Speaker 03:
The two, we did receive in December a water quality certification from Virginia and from West Virginia, both in December of 2021.

[00:19:40] Speaker 03:
Petitioners appealed both of those.

[00:19:42] Speaker 03:
There are stay motions pending in the Fourth Circuit.

[00:19:44] Speaker 03:
I believe one of the two is fully brief.

[00:19:49] Speaker 03:
And then there are two things that we're still working on.

[00:19:52] Speaker 03:
We applied for what's

[00:19:56] Speaker 03:
some stays and remands from the Fourth Circuit relying on the nationwide permit to cross streams, essentially.

[00:20:05] Speaker 03:
We applied in March 2021, that application was pending, and then we have a pending application before FERC just to change some of the stream crossing methods, essentially reduce impacts by going under rather than through.

[00:20:18] Speaker 03:
That amendment was filed in February

[00:20:27] Speaker 03:
before FERC.

[00:20:29] Speaker 03:
And if I could just indicate, I mean, the main line is making progress forward.

[00:20:34] Speaker 03:
And we don't think there's any basis for the court to delay its review here.

[00:20:39] Speaker 03:
We have a final agency action on Southgate.

[00:20:42] Speaker 03:
The permitting is moving forward.

[00:20:44] Speaker 03:
So I hope that answers your question.

[00:20:45] Speaker 03:
It was a long set of data.

[00:20:47] Speaker 00:
It does.

[00:20:49] Speaker 00:
Thank you.

[00:20:50] Speaker 00:
Great.

[00:20:51] Speaker 00:
Thank you, Mr. Marwell.

[00:20:54] Speaker 00:
Mr. Luckett, we'll give you your minutes for rebuttal.

[00:20:58] Speaker 04:
And a respondent relies on improvements made over the measures that were implemented on the main line to show that they are unlikely, the failures there were unlikely to recur here.

[00:21:12] Speaker 04:
And they cite to the Virginia Consent Decree.

[00:21:15] Speaker 04:
But they ignored petitioners comments showing that significant failures of those same measures

[00:21:21] Speaker 04:
occurred after entry of that consent decree.

[00:21:24] Speaker 04:
And after Mountain Valley claimed that it would clean up its act.

[00:21:30] Speaker 04:
But again and again, both Mountain Valley's own reports and the notices of violations issued by regulators in Virginia and West Virginia

[00:21:38] Speaker 04:
show that even its heightened measures, as it describes them, have proven unsuccessful.

[00:21:46] Speaker 04:
As to the cumulative impacts referenced by respondents, they said that there would be no impacts because the crossing locations of the two different pipelines were three and a half miles apart.

[00:22:00] Speaker 04:
But FERC itself stated that sediment could travel a few miles downstream and evidence that petitioners supplied from Mountain Valley's own consultants showed sediment could travel much further downstream.

[00:22:13] Speaker 04:
So FERC's dismissal of the potential based on this spatial separation was irrational and not supported by the record.

[00:22:20] Speaker 04:
as was FERC's dismissal of cumulative impacts based on the temporal separation of the South Gate extension and the main line.

[00:22:30] Speaker 04:
FERC claims that there would be no significant cumulative impacts because the two projects construction schedules would not overlap.

[00:22:37] Speaker 04:
But FERC itself acknowledged that sedimentation impacts could be cumulative even if construction itself does not overlap because the sediment is deposited on the stream beds.

[00:22:48] Speaker 04:
as it flows downstream, such that the impacts to benthic and other aquatic life are likely to be cumulative.

[00:22:56] Speaker 04:
First conclusions are thus not supported by the record, rendering it's EIS arbitrary and capricious.

[00:23:03] Speaker 04:
Thank you, Your Honors.

[00:23:04] Speaker 00:
Thank you, Council.

[00:23:05] Speaker 00:
Thank you to all Council.

[00:23:06] Speaker 00:
We'll take this case under submission.