[00:00:01] Speaker 00:
Case number 20-1512 et al.

[00:00:04] Speaker 00:
Sierra Club et al.

[00:00:05] Speaker 00:
petitioners versus Federal Energy Regulatory Commission.

[00:00:09] Speaker 00:
Mr. Luckett for the petitioners, Mr. Estes for the respondent, Mr. Marwell for the interveners.

[00:00:16] Speaker 01:
Good morning, Council.

[00:00:17] Speaker 01:
Mr. Luckett, please proceed when you're ready.

[00:00:27] Speaker 06:
May it please the court.

[00:00:28] Speaker 06:
My name is Benjamin Luckett, and I represent the petitioners.

[00:00:31] Speaker 06:
I reserve two minutes of my time for rebuttal, please.

[00:00:34] Speaker 06:
After my brief introduction, I'll first address the court's moodiness and abeyance questions before moving on.

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Since the 2017 issuance of the Environmental Impact Statement and Certificate of Public Convenience and Necessity for the Mountain Valley Pipeline, significant new factual developments have severely eroded several of FERC's fundamental conclusions supporting its authorizations of the pipeline.

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For example, in contrast to FERC's rosy predictions that pipeline construction would cause only minimal sedimentation impacts to streams and wetlands, in reality, the project has led to widespread erosion and sedimentation failures

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of buried water bodies in mud and otherwise led to numerous violations of state water quality standards.

[00:01:19] Speaker 02:
I'm sorry to interrupt your opening.

[00:01:21] Speaker 02:
I just need clarification on one thing.

[00:01:23] Speaker 02:
Did FERC say minimal in its certification order?

[00:01:28] Speaker 02:
I thought you just said FERC.

[00:01:30] Speaker 02:
It said it had to be effectively minimized.

[00:01:33] Speaker 02:
Okay, that's different than minimal.

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I believe that

[00:01:38] Speaker 02:
Okay, sorry, go ahead.

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I just also said they would not be.

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Significantly greater than background sedimentation runoff, sedimentation runoff, natural.

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And first refusal to supplement its EIS in light of that significant new information when issuing the challenged orders here was arbitrary and capricious and violated NEPA.

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Likewise, significant new information has undermined FERC's Natural Gas Act finding of market need for the pipeline.

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Mountain Valley originally claimed that the pipeline was needed to serve growing demand in the southeast markets and to alleviate constraints on gas production takeaway from the Appalachian Basin.

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But evidence arising since 2017, including statements from the major gas utilities in the region,

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shows that gas demand is flat or declining, and that Mountain Valley's predictions of increased demand have failed to materialize.

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Moreover, new evidence shows that instead of a need for increased takeaway capacity from the Appalachian Basin, there's in fact a three billion cubic foot per day surplus of takeaway capacity, such that the pipeline's primary anchor shipper is seeking to get out of its capacity contracts on the Mountain Valley pipeline.

[00:02:58] Speaker 06:
As this court made clear in Environmental Defense Fund v. Perk, Perk's exclusive reliance on the existence of those capacity contracts in the face of this sort of substantial evidence indicating those agreements are not reliable indicators of market need reflects unreasoned decision-making that render its orders arbitrary.

[00:03:17] Speaker 08:
That was a case though where weren't all of the precedent agreements with affiliates

[00:03:23] Speaker 06:
That is correct, your honor.

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And that's not the case here.

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That is correct.

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But the court's reasoning in that case was not limited to the affiliated nature of the agreement.

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FERC stressed the requirements of, excuse me, the court there stressed the requirements of FERC certificate policy statement that FERC consider all relevant factors.

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And it faulted FERC in that case.

[00:03:46] Speaker 02:
That wasn't an extension decision either.

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That was an original certificate order.

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That is correct.

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The extension, at least under FERC rules, only asks is there good cause for the extension.

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And so it seems to me that's where the action is on that question.

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FERC also includes certificate deadlines because it says the information supporting its public convenience and necessity findings can grow stale with the passage of time.

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And thus, when it is

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issuing these extensions that it is required to look back over and confirm that that information is still viable.

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A decision to issue an extension must meet the same legal standards as an initial decision to issue a certificate order.

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Perk must confirm that the pipeline, that the project remains required by the public convenience and necessity.

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Now it does not have to completely revisit its earlier decision, but it has to ensure that development since that decision have not rendered its findings fail such that the project is no longer in the public convenience and necessity.

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Here it failed to do that.

[00:04:57] Speaker 08:
Can you cite us a case, not necessarily from us, but even from FERC, where they have declined an extension on these grounds that basically the market need that we thought that we had previously no longer exists?

[00:05:22] Speaker 06:
Uh, not that I'm aware of your honor.

[00:05:24] Speaker 06:
I know that often in cases like this, um, where there is such strong evidence that need doesn't exist, uh, the project it's in will get canceled.

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And so such an order never comes to pass.

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And you know, these years long extensions, uh, I don't believe our routine infer project, so it's not completely surprised.

[00:05:44] Speaker 02:
It was only two years after the certificate order and it was a two year extension, correct?

[00:05:48] Speaker 02:
We're not talking about a lengthy.

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passage of time between the original decision and the extension or an abnormally long extension, right?

[00:05:57] Speaker 02:
No, it's not.

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Right.

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And the people who had executed these, or a number of the people, including the company that you referenced, I forget the initials, EQD, okay, came and said, no, we're still all in and testified before.

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Burke.

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So it's not as though they didn't have evidence.

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I understand that you had counter evidence, but again, we're only determining whether at least you haven't challenged the good cause of the standard, but their regulations, their regulations compose that their decisions have applied that and you haven't challenged that as the operative standard here.

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So why isn't

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a difference in evidence.

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You have yours, they had theirs.

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How could we write an opinion saying two years on, you come up with some contrary evidence, but they come up with evidence that was upheld by this court as sufficient to issue a certificate order in the first instance, but it's still no longer good or stale, I think, in your words.

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As to the good cause standard, petitioners view that as applying to a diligence by the app.

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And petitioners do not allege that MVP was non-diligent in pursuing completion.

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However, we see the requirement to confirm those earlier findings as a separate requirement that arises from FERC's own precedent in its own statement.

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And again, in this decision, FERC failed to grapple with evidence that tended to undermine the probative weight of the precedent agreement.

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And that's exactly what this court focused on in environmental defense on the FERC.

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They stressed that the policy statement requires FERC to consider all relevant factors reflecting on the need for a project, including demand projections,

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potential cost savings to consumers, or a comparison of projected demand with the amount of capacity currently serving the market.

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They stress that the policy statement states that the evidence necessary to establish the need for the project will usually include a market study.

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Here, it dismisses all such evidence as that as merely speculative.

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Its policy statement tells it to consider this type of evidence and also consider precedent

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But in reality what her does and what work is done here is dismiss any other evidence is purely speculative and will rely exclusively on the precedent.

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And that's what this court in environmental defense funds that for may not.

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Now in addition to the.

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Natural Gas Act merits claims, Kurt's failure to conduct supplemental NEPA analysis in light of the pipeline's widespread erosion and sedimentation impacts that far exceeded those predicted in the 2017 EIS was arbitrary and capricious.

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NEPA regulations require that an agency shall supplement an EIS if there are significant new circumstances or information relevant to environmental concerns.

[00:09:14] Speaker 02:
But they said it was caused by this historic rainfall.

[00:09:18] Speaker 02:
And if there's no reason to believe that the historic rainfall is going to recur, is that the type of thing that would be the predicate for a supplemental EIS?

[00:09:27] Speaker 02:
I do.

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Is there any case that sort of says a condition that something happened?

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And we'll decide whether you disagree with that explanation.

[00:09:37] Speaker 02:
Let's just take it as given for now for this question.

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If they say it was caused by this unexpected and unprecedented rainfall, and there's no evidence that that's going to recur in the two-year period for this extension to complete the project, is there any case that says something that isn't expected to recur can still cause a need for a supplemental EIS?

[00:10:04] Speaker 06:
Baron, I would dispute that all of the issues here were.

[00:10:07] Speaker 02:
I know, but if, right, I understand that, and you're not conceding that by answering this question, I'm just trying to ask the question if, because this is their view, it was caused by this rainfall, and that's not expected to recur in this two-year period.

[00:10:23] Speaker 02:
I wasn't aware of any evidence that was put on on that.

[00:10:28] Speaker 02:
then is that still a basis for supplemental EIS, that type of surprising circumstance?

[00:10:37] Speaker 06:
That were the only cause of these widespread failures, potentially so, Your Honor, but I do not believe that that is the case.

[00:10:47] Speaker 02:
No, I get it.

[00:10:48] Speaker 02:
I'm not asking you to agree with their vision of the facts here.

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I'm just asking if they're right as to that factual determination.

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then it wouldn't be the basis for supplemental EIS.

[00:10:57] Speaker 02:
We'd have to reject that as the sole basis for what went wrong here.

[00:11:07] Speaker 06:
Again, I do not believe that was the case here.

[00:11:10] Speaker 06:
And first, the impacts were widespread and severe and not only a result of

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historic or unprecedented rainfall events that were unlikely to occur.

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In contrast to first predictions, miles of streams were buried in inches, sometimes up to a foot of sediment.

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There have been hundreds of notices of violations from state regulators, many more documented by citizen monitors.

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But these sorts of violations have continued as long as active construction has been going on at all times.

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And that's not just petitioners' opinion.

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Petitioners cited to a letter by an expert from Virginia Tech, who consults with the Virginia Department of Fish and Wildlife Service, who stated that FERC's original sedimentation analysis was intuitively unrealistic, and that sedimentation from the project threatened the endangered Roanoke log perch.

[00:12:13] Speaker 06:
and and cited as evidence those recent violations by the mountain valley pipe.

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Indeed both the Fish and Wildlife Service and the Forest Service have revised their sedimentation since Perk's 2017 EIS.

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Perk has not done so.

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FERC's dismissal of those significant impacts is only slightly different than originally predicted, runs counter to the record, and is so implausible.

[00:12:39] Speaker 02:
Did you argue to FERC that because these other agencies had found it necessary to revise sedimentation analysis, they should as well?

[00:12:48] Speaker 06:
I believe that it certainly counts in favor of doing so.

[00:12:50] Speaker 02:
Did you argue?

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FERC?

[00:12:54] Speaker 06:
Not directly.

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Did you argue it indirectly?

[00:12:58] Speaker 06:
We decided to the Forest Circuit's vacation of the original of the Forest Service's reliance on FERC sedimentation analysis in their EIS and the fact that the Forest Service was re- undertaking that analysis as evidence that that analysis was faulty.

[00:13:21] Speaker 06:
You know, as further evidence of that these were not only slightly different outcomes than predicted by FERC in the 2017 AIS, FERC originally stated that it expected strict compliance with the sort of state

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law requirements that Mountain Valley has routinely violated.

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Yet, when those violations occurred, FERC merely hand waved them away and said, well, they've reached consent decrees with the state regulators and no further action by us is needed.

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That's simply not the sort of reasoned decision making to which this court owes definitely.

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I'll briefly address

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In fact, the petitioner's challenge is not moot nor should it be held in a ban.

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The case is not moot because the challenge orders presently affect petitioners' rights and injury and have more than a speculative chance of affecting them in the future.

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Despite the Fourth Circuit's decision, the certificate remains in effect.

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Mountain Valley has stated that it is committed to completing the process.

[00:14:28] Speaker 08:
Mountain Valley is- Is construction underway, construction activities underway present?

[00:14:34] Speaker 06:
No new construction activities are underway.

[00:14:36] Speaker 06:
There is maintenance of the project right of way.

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And, you know, according to FERC and Mountain Valley, that maintenance causes harm to the environment.

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That could be alleviated by a final restoration.

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If this court were to order that the certificate was no longer valid and such restoration was required, that would supply meaningful relief to plaintiff's members.

[00:15:01] Speaker 02:
But Howard, with the fact that- I'm just far more expert than me.

[00:15:07] Speaker 02:
I assume even if things get stopped and put on hold for a while, that maintenance does still have to be done.

[00:15:16] Speaker 02:
I mean, you're not happy with what's there now anyhow with the temporary measures.

[00:15:22] Speaker 02:
So how would you be harmed by them having to do maintenance and then maybe install better measures?

[00:15:30] Speaker 06:
Well, the court could order final restoration of all of the vacate certificate, which would require final restoration this moment of the entire pipeline quarter.

[00:15:42] Speaker 02:
Would that final restoration process not increase sedimentation as it happens?

[00:15:47] Speaker 06:
Maybe to some degree, but nothing like new construction would.

[00:15:52] Speaker 06:
New construction here cannot be ruled out.

[00:15:55] Speaker 02:
I'm not talking about new construction.

[00:15:56] Speaker 02:
I'm talking about, I thought you said, maybe I misunderstood you.

[00:16:00] Speaker 02:
I thought you said you were still injured by any sort of maintenance measures taken while things are on hold because of these other permit issues.

[00:16:13] Speaker 02:
And as to that type of maintenance, I'm not talking about complete restoration, I'm not talking about final restoration, if they build a pipeline or if they get rid of the whole pipeline.

[00:16:22] Speaker 02:
But that maintenance stuff, how does that injure your clients when you've made quite clear you're not happy with what's in place now anyhow?

[00:16:29] Speaker 02:
Why would maintenance be something that injures your clients still?

[00:16:35] Speaker 02:
But I might not understand what maintenance includes.

[00:16:38] Speaker 06:
That includes company trucks on their property and people coming to maintain erosion and sediment control devices.

[00:16:49] Speaker 02:
That's one of the reasons.

[00:16:50] Speaker 02:
I mean, the presence of trucks and equipment was one of the reasons FERC gave for allowing restoration work to continue.

[00:17:00] Speaker 06:
I would note that that was FERC's for allowing full construction, not just restoration.

[00:17:09] Speaker 06:
And indeed, FERC's allowance of full construction, despite the absence of necessary authorizations like those that have been vacated by the 4th Circuit, is one of the issues in this case.

[00:17:23] Speaker 06:
So petitioners cannot rely on Mountain Valley and FERC to prevent any further active construction, not just maintenance, based on the vacation of these

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authorization.

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Petitioners certainly don't believe that it would be appropriate.

[00:17:39] Speaker 06:
But FERC has said that it basically will allow whatever it believes to be most environmentally protected.

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And so if Mountain Valley and FERC were to determine that construction could take place outside of the National Forest, outside of Endangered Species Act habitat, which is very similar to what they've done in the past,

[00:18:04] Speaker 06:
their construction of condition nine allows them to do that.

[00:18:10] Speaker 06:
So that harm is also faced by a petition that both FERC and Mountain Valley would resume construction.

[00:18:19] Speaker 06:
So we think that renders this case fit for resolution by the court.

[00:18:24] Speaker 01:
We would ask that if the court does decide to- Even if FERC were to stop construction by virtue of what's happened in the Fourth Circuit,

[00:18:34] Speaker 06:
If FERC were to do that, I believe that the prospects of such harm would be greatly reduced.

[00:18:39] Speaker 06:
Petitioners on February 7th submitted a motion to FERC requesting that they do exactly that.

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So far, petitioners have received no response to that motion.

[00:18:49] Speaker 06:
FERC has not issued a stop for it.

[00:18:52] Speaker 06:
Mountain Valley, in response to that motion, or at least immediately- And that motion was based on what happened in the Fourth Circuit?

[00:18:58] Speaker 01:
Correct.

[00:18:58] Speaker 01:
Yeah.

[00:18:59] Speaker 06:
immediately after the filing of that motion, Mountain Valley submitted a statement that it at present is only engaged in maintenance activities, but it conspicuously made no commitments as to its further activities or commitments not to engage in construction prior to, while these necessary authorizations are not

[00:19:22] Speaker 02:
Just to follow up, if FERC were to issue a stop work order, I understand they haven't, and Mountain Valley hasn't self-imposed a stop work order, then would that at least move the challenges to the resume work order and the exclusion zone, or maybe not move, but at least

[00:19:42] Speaker 02:
put them in question for the time being.

[00:19:44] Speaker 06:
I do not believe they would be moot.

[00:19:46] Speaker 06:
It would certainly lower the prospect of additional harm from new construction.

[00:19:54] Speaker 06:
Although, again, I'll say compared to an order from this court requiring pool restoration now because of an invalid FERC certificate, the ongoing presence of Mountain Valley Python and its members' properties represents an ongoing

[00:20:12] Speaker 01:
even even during the time that the hypothetical stop construction order were in effect, there would be an ongoing harm.

[00:20:20] Speaker 01:
Or is it because if that goes away, then there would be there could be an additional ground that would not have yet been adjudicated.

[00:20:30] Speaker 01:
So in the future, there could be an additional harm.

[00:20:32] Speaker 01:
Are you saying even during the time?

[00:20:34] Speaker 06:
Yes.

[00:20:35] Speaker 06:
Um, yes, as compared to an order which would require Mountain Valley to go in right now and

[00:20:41] Speaker 06:
pull up states, replan everything, finish what they're doing instead of in this whole pattern.

[00:20:49] Speaker 06:
That would constitute a harm.

[00:20:51] Speaker 06:
Now, we don't think it's a significant harm.

[00:20:53] Speaker 06:
We don't think it is a harm that is in any way on the level of the harm that results from active construction, such as trenching, grading, and all the other things that FERC has allowed in the absence of these mandatory.

[00:21:06] Speaker 06:
authorizations, but I think it is a harm that would maintain this district.

[00:21:16] Speaker 02:
When you say not significant, I'm just trying to understand if there's a stop work order, I think the certificate order still affects their legal interests in their own land, of course, deeds or property values and those types of things.

[00:21:31] Speaker 02:
as well.

[00:21:32] Speaker 02:
And I guess it breezes in place, whatever disruption to their land has happened.

[00:21:38] Speaker 02:
Correct.

[00:21:39] Speaker 02:
And the property owner couldn't say there's a stop order.

[00:21:41] Speaker 02:
So I'm going to go fill in this hole over here myself.

[00:21:47] Speaker ?:
Right.

[00:21:47] Speaker 06:
Okay.

[00:21:47] Speaker 06:
To have full use of it.

[00:21:50] Speaker 01:
Okay.

[00:21:50] Speaker 01:
Make sure my colleagues don't have additional questions.

[00:21:52] Speaker 01:
Okay.

[00:21:52] Speaker 01:
We'll give you a little time for rebuttal.

[00:21:55] Speaker 01:
Mr. Estes, we'll hear from you.

[00:22:02] Speaker 03:
Thank you, Your Honor.

[00:22:10] Speaker 03:
I'm here on behalf of the Federal Energy Regulatory Commission.

[00:22:17] Speaker 03:
Your Honor, this case represents the Commission's responsible actions in trying to protect both the environment and landowner interests in the unusual circumstance

[00:22:31] Speaker 03:
where after Mountain Valley had constructed significant parts of its pipeline, some of its permits were lost.

[00:22:43] Speaker 03:
I think it's significant that when the commission

[00:22:47] Speaker 03:
allowed construction to recommence.

[00:22:50] Speaker 03:
The initial order allowed construction to commence only outside of the 25-mile exclusion zone that surrounds the Jefferson National Forest.

[00:23:02] Speaker 03:
And that's significant because the exclusion zone was the last major part of the pipeline route where land had not yet been disturbed.

[00:23:13] Speaker 03:
Trees had been felled, but that was the extent of the work in the exclusion zone.

[00:23:19] Speaker 03:
Outside, where the land had been disturbed, the chief effect of the Reconvencing Work Order was to allow

[00:23:29] Speaker 03:
to be completed and filled in and final restoration and remediation.

[00:23:34] Speaker 03:
And the commission reasonably found that replacing the temporary erosion controls, these permanent measures would benefit the environment.

[00:23:47] Speaker 03:
It also would be beneficial to landowners who had partially constructed pipelines running across their property.

[00:23:56] Speaker 03:
And in fact, a number of landowners had asked the commission to allow construction to recommit for exactly that reason.

[00:24:05] Speaker 02:
Can I ask something just about this application for a stop work order?

[00:24:09] Speaker 02:
I think it's been pending for quite some time now.

[00:24:15] Speaker 02:
I take it the commission still has not acted on it?

[00:24:18] Speaker 03:
That's correct, Your Honor.

[00:24:20] Speaker 03:
I can't speak as to why.

[00:24:22] Speaker 02:
Is that abnormally long for a stop work order in response to court decisions?

[00:24:28] Speaker 03:
Honestly, I really don't know.

[00:24:32] Speaker 02:
It just seems troubling that they haven't responded to decisions.

[00:24:36] Speaker 03:
I can understand you saying that.

[00:24:39] Speaker 03:
I wish I had something useful to tell you.

[00:24:41] Speaker 01:
It also seems out of step with what the commission itself has done in this case and the issues bound up in this case, because at least in the past, in this case,

[00:24:51] Speaker 01:
I think it was a force circuit issue at one point and a stop work order came down within days.

[00:24:56] Speaker 01:
Four days.

[00:24:59] Speaker 03:
Yes, Your Honor, that was the Endangered Species Act permit and the commission did immediately issue a stop work order.

[00:25:10] Speaker 03:
The permits for crossing the Jefferson National Forest were

[00:25:18] Speaker 03:
I can't remember if they were stayed or vacated or what, but that had happened earlier.

[00:25:24] Speaker 03:
And after confirming that it seems that the route to the Jefferson Forest would not change, the commission had allowed work to restart, I believe, in 2018.

[00:25:43] Speaker 03:
And no one objected to that at the time.

[00:25:47] Speaker 03:
So the fact that these same permits are now stayed again didn't, I guess the commission is considering, but it's not yet decided whether to issue a software.

[00:26:08] Speaker 02:
If they do, what would the jurisdictional consequences be?

[00:26:14] Speaker 02:
I mean, in terms of whether the case is moot or not.

[00:26:16] Speaker 02:
Moot, or would the commission think we should hold it in abeyance, or would the commission think we should go forward and decide?

[00:26:22] Speaker 03:
I think in terms of mootness, I agree with the petitioners.

[00:26:28] Speaker 03:
I don't think it would be moot because the orders at issue here.

[00:26:34] Speaker 01:
Can you speak up just a little bit into the mic?

[00:26:36] Speaker 01:
Thank you, Beth.

[00:26:37] Speaker 03:
So I'm not wearing my mask.

[00:26:39] Speaker 01:
That's good.

[00:26:40] Speaker 03:
I think that the

[00:26:43] Speaker 03:
The orders would still be potentially effective in the future if the permits are reissued by the relative agencies.

[00:27:01] Speaker 03:
And I'm going to leave it to counsel for the pipeline to explain

[00:27:07] Speaker 03:
what they intend to do about those permits, but their public statements have been that they've not yet given up on the pipeline.

[00:27:16] Speaker 03:
Now, in terms of abeyance, although we think that there's nothing to prevent this court from ruling, we do understand there's questions of judicial economy that the court has to take into consideration.

[00:27:31] Speaker 03:
And in our view, if the court decides that it's not appropriate to act at this time, we believe that a proper step would be to hold the case in abeyance

[00:27:46] Speaker 03:
moot for two reasons.

[00:27:48] Speaker 03:
One, we don't think that the case is moot.

[00:27:52] Speaker 03:
Also, if you do find that it's moot, arguably you would then have to vacate the commission's orders under the Munseen Ware Doctrine.

[00:28:01] Speaker 03:
And we think those orders provide important environmental protections because they do allow

[00:28:10] Speaker 03:
a mountain valley to continue with restoration and remediation, which arguably they would not be allowed to do if our orders are vacated as a result of the mutants.

[00:28:26] Speaker 03:
Can I ask you just a... Oh, sorry.

[00:28:28] Speaker 03:
Were you done?

[00:28:29] Speaker 03:
Yes, I am.

[00:28:29] Speaker 03:
I'm sorry.

[00:28:30] Speaker 02:
I just have a process question that I'm a little confused about.

[00:28:32] Speaker 02:
So when a court order issues invalidating some important permit in this process,

[00:28:40] Speaker 02:
But it's not a FERC decision.

[00:28:43] Speaker 02:
It's a different agency.

[00:28:44] Speaker 02:
So you're not a direct party to the litigation.

[00:28:46] Speaker 02:
Is there an established process for what happens next?

[00:28:52] Speaker 02:
Is the company obligated to inform the commission immediately about this development?

[00:29:01] Speaker 02:
And who gets to decide whether

[00:29:05] Speaker 02:
With that development, construction goes forward.

[00:29:08] Speaker 02:
Do they have to stop and wait?

[00:29:10] Speaker 02:
Does FERC get to make the first call on that?

[00:29:12] Speaker 02:
Or does the company get to keep doing whatever it wants to do, obviously, presumably complying with the court order?

[00:29:21] Speaker 02:
That's on it, if I guess it doesn't, unless FERC says otherwise.

[00:29:25] Speaker 02:
Who has to speak first before anything can go forward once an order like that comes down?

[00:29:30] Speaker 03:
Well, the process is that the company has to inform the commission

[00:29:34] Speaker 03:
of the order, which they did, and then it's up to the commission to decide the effect of that order.

[00:29:41] Speaker 02:
Right, so that's what I, and I'd gotten that, there's a description in the resume work order decision itself here, what FERC's process was, it is FERC that decides what happens next.

[00:29:55] Speaker 02:
Once that order is reported, then FERC says whether things go forward or not.

[00:29:59] Speaker 02:
But that doesn't seem to be what's happened in this situation, where you say they promptly reported, FERC has stood silent and the company has said, well, we're gonna,

[00:30:11] Speaker 02:
do this maintenance stuff.

[00:30:13] Speaker 02:
But it hasn't said we have to stop construction.

[00:30:17] Speaker 02:
And so I was confused as to your description, which sounded like they have to wait for FERC to tell them what to do based on that development.

[00:30:24] Speaker 02:
And then what seemed to be happening at this stage.

[00:30:26] Speaker 02:
I'm sorry, Your Honor, no.

[00:30:27] Speaker 03:
The commission would decide whether to issue a stop work order.

[00:30:33] Speaker 03:
But unless they issue a stop work order, then the company is entitled to keep working again.

[00:30:40] Speaker 03:
You're right.

[00:30:40] Speaker 03:
The additional work could not violate the permit.

[00:30:49] Speaker 03:
It could not do work that the permit be required to have a permit to do.

[00:30:56] Speaker 03:
But otherwise, unless the commission issues a stop work order, then the company is entitled to keep on with the construction.

[00:31:08] Speaker 01:
So can you talk about sedimentation and just address why it is that there doesn't need to be a supplemental E. I. S. In light of what I think is apparent from the record, which is that there have been some issues, some significant issues.

[00:31:23] Speaker 03:
Yes, I think there's a few points to be made with respect to that.

[00:31:27] Speaker 03:
First, as Judge Millett pointed out, the condition found that the sedimentation events were largely due to the rainfalls

[00:31:38] Speaker 03:
in 2018 and the evidence bears that out.

[00:31:44] Speaker 03:
All of the sedimentation about which they complain?

[00:31:47] Speaker 03:
No, it's not, but the specific events that they mentioned all took place in 2018, which was the year that the

[00:31:57] Speaker 03:
year that the historic rainfall occurred.

[00:32:00] Speaker 02:
OK, but the historic rainfall wasn't a full year, right?

[00:32:02] Speaker 02:
This wasn't like the times of Noah.

[00:32:05] Speaker 02:
And so the question is whether the sedimentation was, is the sedimentation that they complained about most specifically, sedimentation occurred in the immediate wake of such a rainfall?

[00:32:20] Speaker 02:
Because just saying there was a lot of rain in 2018 doesn't seem responsive to me.

[00:32:25] Speaker 03:
Well, I think I'm not positive about the exact cause and effect in terms of the rain, but the record does show no specific claims of sedimentation in 2019 or 2020.

[00:32:40] Speaker 02:
But the Commission used that rainfall as the reason for the sedimentation, but I didn't see this particularized causation that the sedimentation happened in

[00:32:54] Speaker 02:
this week or this month, whichever it was, it had the excessive rainfall and it didn't happen when you didn't have excessive rainfall.

[00:33:04] Speaker 02:
So what was the basis

[00:33:06] Speaker 02:
for them concluding that, at least as to some of these sedimentation incidents, they were caused by the rainfall.

[00:33:13] Speaker 02:
You can't just go 2018.

[00:33:15] Speaker 02:
Some point in 2018, there was a lot of rain.

[00:33:17] Speaker 02:
That must explain all the sedimentation problems in 2018.

[00:33:21] Speaker 03:
The commission didn't say more than that in its orders.

[00:33:24] Speaker 03:
But remember, it has compliance monitors who are consistently reporting to the commission on these kinds of events.

[00:33:34] Speaker 03:
And in addition,

[00:33:35] Speaker 02:
I know, but that's, they have an, we're reviewing their decision.

[00:33:38] Speaker 02:
We're not reviewing their process.

[00:33:41] Speaker 02:
We're having people report to them.

[00:33:43] Speaker 02:
So if they, it actually makes it worse, right?

[00:33:45] Speaker 02:
If they have this constant stream of information coming in and yet they couldn't connect the dots in their decision, then it seems to me it's just, at least to me, it doesn't make sense to say for an entire, if you look across the course of an entire year, there was a historic amount of rain.

[00:34:04] Speaker 02:
But without pinning that down to the sedimentation events and these sedimentation events are these major sediment five major sedimentation events occurred in the wake immediate wake of that rainfall.

[00:34:18] Speaker 02:
Didn't they have to do that for it to even be a reason.

[00:34:21] Speaker 03:
I don't think so, Your Honor, not when there were no events in the subsequent two years.

[00:34:27] Speaker 03:
And remember, this case is not about Mountain Valley's compliance in the past with its mitigation requirements.

[00:34:36] Speaker 03:
The case is about whether this information would affect the decision making the commission had to make going into the future.

[00:34:46] Speaker 03:
And the fact that the specific sedimentation events

[00:34:51] Speaker 03:
took place in 2018 and not after that suggests that the commission was correct that it was due to the unpredictable weather.

[00:35:01] Speaker 03:
Similarly, the petitioners also cited to a number of notices of violation.

[00:35:09] Speaker 03:
I just want to follow up.

[00:35:12] Speaker 02:
When the commission says that this terrible environmental problem was a result of something,

[00:35:24] Speaker 02:
Does it have an obligation before it makes that statement to undertake the causal analysis?

[00:35:30] Speaker 02:
Or does it just get to say those things, and if someone doesn't come disprove them, then we'll take it as true?

[00:35:39] Speaker 03:
It has to provide some explanation, which it did hear that there was significant brain event

[00:35:53] Speaker 02:
No, but they have to, they have to, they made a causal conclusion.

[00:35:57] Speaker 02:
They didn't just report the fact of a lot of rain that year.

[00:36:02] Speaker 02:
They made a causal connection.

[00:36:03] Speaker 02:
And so I'm assuming when the commission makes a causal connection, it has an evidentiary empirical basis for that causal connection.

[00:36:14] Speaker 02:
And if the evidentiary basis was there was a lot of rain that year,

[00:36:20] Speaker 02:
then we can review that and decide if that's a reasonable causal finding.

[00:36:25] Speaker 02:
If they say it was at the time of these events or close, you know, close in time to these events, preceded closely in time these events, that would be another type of causal finding we could review.

[00:36:38] Speaker 03:
Well, as you've noted, the commission did not say that it was, did not do the kind of time and timing analysis we've mentioned.

[00:36:47] Speaker 01:
And is it paragraph 39 on 1099 and 1100 that's the relevant place?

[00:36:53] Speaker 01:
There's nowhere else we should be looking, right?

[00:36:55] Speaker 03:
That's correct.

[00:36:57] Speaker 03:
That was the statement.

[00:36:58] Speaker 03:
But they explained that this was based on the reporting that they got from their monitors.

[00:37:07] Speaker 03:
I think it's also important to note that the commission also said that the sedimentation events

[00:37:13] Speaker 03:
were only slightly greater than they anticipated.

[00:37:16] Speaker 03:
They didn't say this was a horrible result, but don't worry.

[00:37:22] Speaker 03:
It was due to the unpredictable rain.

[00:37:26] Speaker 03:
They said it was only slightly greater than anticipated.

[00:37:30] Speaker 02:
Well, the environmental impact studies said it anticipated that dry open-cut water body crossings would increase

[00:37:42] Speaker 02:
downstream turbidity, but the magnitude of the increase is minimal compared to increased turbidity associated with natural runoff events.

[00:37:51] Speaker 02:
So what the EIS said is it's going to be minimal compared to what you would get from nature anyhow.

[00:38:00] Speaker 02:
And so the question is,

[00:38:05] Speaker 02:
if as a result of the evidence that you've discovered and what, what, what, what's been presented to you, excuse me, evidence presented to you, and I guess your monitors are giving you information as well.

[00:38:17] Speaker 02:
And the evidence of all these investigations and violations by two, the two States that this pipeline is crossing your position, your position, I mean, the commission's position is that

[00:38:34] Speaker 02:
There was not evidence that the amount of sedimentation here was minimal compared to what you would have if there were no construction at all, just as a matter of nature.

[00:38:44] Speaker 03:
Your Honor, that finding about minimal compared to natural runoff

[00:38:50] Speaker 03:
related only to dry stream crossings.

[00:38:53] Speaker 03:
This sedimentation wasn't from dry stream crossings.

[00:38:57] Speaker 03:
This was sedimentation from the construction along the route of the pipeline.

[00:39:02] Speaker 03:
And with respect to that.

[00:39:04] Speaker 02:
What did the EIS say about how much sedimentation damage would come from that?

[00:39:09] Speaker 03:
What it said in paragraph 176 of the certificate order was that there would

[00:39:19] Speaker 03:
commission found that there would be a certain amount of sedimentation.

[00:39:23] Speaker 03:
All it said was that the mitigation measures would reduce that sedimentation.

[00:39:29] Speaker 02:
That's rather improvised.

[00:39:31] Speaker 02:
What I said is what did the environmental impact statement on which mission predicated its decisions say about sedimentation risks from all the other construction?

[00:39:44] Speaker 03:
I can't remember exactly what it said, your honor, but it was, uh,

[00:39:48] Speaker 03:
language was similar to what the commission concluded in the certificate order that there would continue to be some sedimentation that I believe that environmental impact statements said there would not.

[00:40:01] Speaker 02:
I don't know what some sedimentation means.

[00:40:04] Speaker 02:
I don't understand how that gives anybody fair notice or understanding of what the risk is.

[00:40:11] Speaker 02:
The commission did not

[00:40:17] Speaker 02:
A volcano can erupt and someone will say, there's going to be some ash.

[00:40:21] Speaker 02:
And that could be covering your house and no one can breathe.

[00:40:26] Speaker 02:
And that could be a few flakes coming down.

[00:40:28] Speaker 02:
I just don't think that's a type of... The problem with the commission using language like that in a certificate order is it means nothing.

[00:40:37] Speaker 02:
It means everything and it means nothing.

[00:40:40] Speaker 03:
said that the amount of mitigation would reduce the sedimentation to amounts that would not lead to significant impact.

[00:40:51] Speaker 02:
Right.

[00:40:51] Speaker 02:
And that's the problem is that the measures that were taken, as it turned out, didn't have that effect.

[00:40:58] Speaker 02:
At least the two states involved

[00:41:00] Speaker 02:
were deeply troubled by this.

[00:41:03] Speaker 03:
I'd like to speak to the violations, because I think there's an important point to be made there as well.

[00:41:10] Speaker 03:
The violations, likewise, most of them were in 2018.

[00:41:16] Speaker 03:
There were more in 2019, most in the first half.

[00:41:21] Speaker 03:
But the last one was in December of 2019, 10 months before this order.

[00:41:29] Speaker 03:
As the commission noted, that Mountain Valley had entered into consent decrees with both states that were intended to resolve their concerns.

[00:41:40] Speaker 03:
And in fact, the Virginia attorney general in a press release quoted by the petitioners at age 43 of their brief trumpeted that the agreement with Virginia led to important new measures that protected the environment, safety, and health

[00:41:59] Speaker 03:
And I think the fact that the violations petered out and appear to have stopped in 2020

[00:42:08] Speaker 03:
bears out the commission's conclusion that those resolutions and the consent decrees were effective.

[00:42:14] Speaker 02:
No, but I think the question here, and I take your point, but I think it, I'm not sure it helps because the certificate order was predicated on Mountain Valley said they're going to do X, Y, and Z. And when they do that, it won't be significant sedimentation.

[00:42:30] Speaker 02:
Well, then things went south for a lot of reasons.

[00:42:32] Speaker 02:
There's debates about the causation for some of them at least, but things went south.

[00:42:38] Speaker 02:
And there were a lot of damaging sedimentation.

[00:42:42] Speaker 02:
That's the evidence before the commission.

[00:42:44] Speaker 02:
So much so that two states are filing a long series of complaints and into a settlement agreement.

[00:42:52] Speaker 02:
that requires the adoption of, I think your quote was, you know, important new measures.

[00:42:58] Speaker 02:
Now, doesn't that show that the certificate orders determine original determination wasn't sufficient, either because what Mountain Valley thought didn't work or

[00:43:11] Speaker 02:
Mountain Valley's compliance measures weren't complying with the requirements of state law.

[00:43:16] Speaker 02:
They had technical violations and they had substantive violations, all of which are profoundly changed circumstances.

[00:43:22] Speaker 02:
And the fact that the states thought we had to have important new measures suggests that, in fact, the measures that the certificate order rested on were not sufficient or conditions were way worse than weren't sufficient for

[00:43:35] Speaker 02:
conditions as it turned out in reality.

[00:43:38] Speaker 02:
Why isn't that the basis for needing a new supplemental environmental impact study?

[00:43:43] Speaker 03:
Because again, your honor, the question wasn't whether in the past mitigation measures worked or not.

[00:43:49] Speaker 03:
The question was, were the mitigation measures working

[00:43:54] Speaker 02:
Which mitigation measures, the ones required by the certificate order or the ones required by somebody else?

[00:44:00] Speaker 03:
The ones required by the certificate order and the ones Mountain Valley put in place as a result of the consent degrees.

[00:44:09] Speaker 02:
Where do we have the commission looking at that, at what was required and saying

[00:44:15] Speaker 02:
Oh, yeah, that was a problem, but we're confident these are good enough.

[00:44:19] Speaker 02:
Because as I read the commission's decision, they said they did a settlement, nothing for us to do.

[00:44:24] Speaker 02:
That seems to me an arbitrary.

[00:44:28] Speaker 02:
type of reason.

[00:44:29] Speaker 02:
It's supposed to go, hang on, there's multi-million dollar settlements.

[00:44:33] Speaker 02:
We need to look at what's going on here, and we need to assure ourselves.

[00:44:36] Speaker 02:
But that's not what happened.

[00:44:37] Speaker 03:
Well, but the record showed no more violations.

[00:44:40] Speaker 02:
That's not my point.

[00:44:41] Speaker 02:
My point is that the question for the Supplemental Environmental Impact Study is whether FERC's Environmental Impact Study and FERC's certificate order relying on that could continue to rely on that.

[00:44:55] Speaker 02:
Maybe I'm wrong.

[00:44:57] Speaker 02:
Is there a principle that if other entities find problems and impose new measures, find significantly changed circumstances, and they impose their own means of addressing them, that that absolves the commission or any agency from having to do a supplemental EIS?

[00:45:17] Speaker 02:
That might be my mistake.

[00:45:20] Speaker 03:
I don't know if there's that principle, but there is a principle, again, that the commission had to decide what would happen in the future.

[00:45:29] Speaker 03:
And the fact that there were no sedimentation events cited for 2020, and there were no notices of violations cited for 2020.

[00:45:38] Speaker 01:
But the commission didn't.

[00:45:39] Speaker 01:
I mean, unfortunately, for this strand of the argument, we need to review what the commission, in fact, said.

[00:45:47] Speaker 01:
and not what the commission could have said.

[00:45:49] Speaker 01:
And just engage with me on this hypothetical.

[00:45:53] Speaker 01:
Suppose the commission didn't say anything about unpredictability of rainfall.

[00:45:59] Speaker 01:
And we just assume that the events that had happened before are going to continue.

[00:46:04] Speaker 01:
Let's just assume that.

[00:46:06] Speaker 01:
And then there's this question about the state violations.

[00:46:10] Speaker 01:
And the commission says exactly what it says on 1077 and 1078.

[00:46:16] Speaker 01:
mountain valley beach consent decrees to resolve violations of state environmental standards and regulations and no additional action by the commission is necessary at this time.

[00:46:25] Speaker 01:
So one way to do it would be to say, well, even though these amazing rainfalls are going to continue into the future, the state's got it.

[00:46:33] Speaker 01:
We showed that the state reacted the first time, the state's got it going on to the future.

[00:46:39] Speaker 01:
even if we assume that they're predictable and therefore the commission doesn't need to do anything by virtue of a supplemental EIS.

[00:46:45] Speaker 01:
I take it that you don't think that that would be okay.

[00:46:48] Speaker 03:
It certainly would be a closer case.

[00:46:51] Speaker 01:
Well how would it even be close?

[00:46:52] Speaker 01:
I mean if all that the commission said was if we take as a given that the rainfall is going to continue at the same pace as before it's not unpredictable because I'm assuming that away for present purposes and then the commission's rationale is

[00:47:06] Speaker 01:
Um, and I'm sorry, let me just layer into that this that the challengers say and look, look how bad it's been that even the states have even said that there's been violations.

[00:47:15] Speaker 01:
And then the commission's response is right.

[00:47:17] Speaker 01:
The state said there were violations and there was a consent decree and therefore it's taken care of.

[00:47:22] Speaker 01:
So even though the rainfall is going to continue into the future, we can trust the state to make sure that this is all going to be dealt with.

[00:47:29] Speaker 01:
I think that would be hard to see how the commission could say.

[00:47:32] Speaker 01:
And therefore there's no need for a supplemental E. I. S.

[00:47:35] Speaker 03:
Well, in your hypothetical, was there no evidence of sedimentation events?

[00:47:44] Speaker 03:
for violations in the year 2020?

[00:47:46] Speaker 01:
Well, I guess I don't know because the commission didn't say anything about that.

[00:47:50] Speaker 01:
So I don't know that the commission would have relied on that basis.

[00:47:55] Speaker 01:
I don't know whether that was a basis of the challenge.

[00:47:58] Speaker 01:
I'm just looking at what the commission said.

[00:47:59] Speaker 01:
And what the commission said about the states is that Mountain Valley entered a consent decrease and no additional action by the commission is necessary at this time.

[00:48:07] Speaker 01:
And I guess I'm just puzzled as to why the fact

[00:48:10] Speaker 01:
that states took actions necessarily means no commission, no further action by the commission is necessary vis-a-vis a supplemental EIS, regardless of what we may think in terms of the reliability and predictability of the same events occurring in the future.

[00:48:31] Speaker 03:
I have to concede that would be a much harder case for me if I had to argue that.

[00:48:36] Speaker 01:
So, right.

[00:48:37] Speaker 01:
And then you're bringing into play some other considerations.

[00:48:41] Speaker 01:
And I guess what's tricky about that for our purposes is that's not what the commission rested on in its decision that we're reviewing.

[00:48:50] Speaker 01:
It said, I think the relevant sentence is only the one that I quoted.

[00:48:54] Speaker 01:
If there's something else that I'm missing, tell me.

[00:48:55] Speaker 01:
But I think that's it.

[00:48:57] Speaker 03:
That is it, Your Honor.

[00:48:59] Speaker 03:
I think another important point again is that in the order in which the commission addressed these arguments, it only allowed construction to take place outside of the exclusion zone.

[00:49:15] Speaker 01:
That's true.

[00:49:16] Speaker 03:
And it said that the construction it was allowing would actually reduce sedimentation.

[00:49:25] Speaker 03:
So evidence of sedimentation that occurred

[00:49:29] Speaker 03:
while the ground was being disturbed isn't necessarily relevant to the decision to allow the restoration and remediation to take place.

[00:49:41] Speaker 01:
And in fact, by... So, I mean, what that seems to say to me, and it's an important point for us to consider, is that it's possible that restoration would improve things.

[00:49:51] Speaker 01:
But then there's still the question of whether there still should be a supplemental EIS because there's...

[00:49:57] Speaker 01:
more improvement that needs to be taken into account and factored into the certificate analysis.

[00:50:03] Speaker 03:
Well, but at that point, taking the time to do an additional EIS potentially, and I think this is what the commission was concerned about, would result in more of the very problem that the petitioners were complaining about because the temporary erosion controls would stay in place during the time that they

[00:50:27] Speaker 03:
for doing the study when, by allowing the construction to commence, the commission allowed those temporary controls to be removed and the ground finally restored and remediation put in place.

[00:50:44] Speaker 02:
Now- But that answer also wouldn't address whether, if there is construction authorized going forward, as opposed, sorry.

[00:50:51] Speaker 02:
I'm sorry, I'm having a- That wouldn't address, I keep forgetting, that wouldn't address

[00:50:55] Speaker 02:
If you were to rely on that rationale that all they did was authorize restoration or more permanent protections, that wouldn't help to the question of whether any future construction could be authorized without a supplemental EIS.

[00:51:10] Speaker 03:
Well, again, almost all of the ground outside the exclusion zone, which is what this order.

[00:51:17] Speaker 02:
No, I'm just I'm just asking the question.

[00:51:20] Speaker 02:
The rationale you've provided with the speak.

[00:51:22] Speaker 02:
There's still construction to be done on this pipeline, correct?

[00:51:25] Speaker 03:
You mean disturbance, new disturbance of the ground?

[00:51:28] Speaker 03:
Yes.

[00:51:29] Speaker 03:
And that was mostly in the exclusion zone.

[00:51:32] Speaker 03:
And with respect to that,

[00:51:34] Speaker 03:
The reason that the Commission did not allow that construction in its first order was that Mountain Valley hadn't provided enough information on what the effects of sedimentation would be from that construction.

[00:51:49] Speaker 03:
However, Mountain Valley then came back with evidence

[00:51:53] Speaker 03:
that showed two things.

[00:51:56] Speaker 03:
First, it showed that any sedimentation from that construction would not flow into the Jefferson forest, nor would it go into water bodies that would go into the Jefferson forest.

[00:52:11] Speaker 03:
That evidence also showed some sedimentation into water bodies outside of the forest, but that that sedimentation would be relatively minor.

[00:52:22] Speaker 03:
And it's significant that no party contested that evidence that Mountain Valley submitted.

[00:52:32] Speaker 03:
They did not contest it before the commission ruled granting the construction in the exclusion zone.

[00:52:40] Speaker 03:
They did not request a hearing for that decision.

[00:52:43] Speaker 03:
And it's not, if not raised here on appeal.

[00:52:48] Speaker 03:
So I think that handles the main concern about the additional construction that would take place.

[00:52:56] Speaker 02:
Do you know, was the consent decree filed with FERC?

[00:53:01] Speaker 03:
Were they able to see its terms?

[00:53:04] Speaker 03:
I believe it was.

[00:53:06] Speaker 03:
I believe it's in the record.

[00:53:08] Speaker 03:
I don't know off the top of my head where it is.

[00:53:11] Speaker 03:
But even if you'd like, during the rebuttal, I can look it up and tell you.

[00:53:18] Speaker 03:
It would be great.

[00:53:19] Speaker 01:
Okay, sure.

[00:53:20] Speaker 01:
And we can we can also ask maybe you're we can also ask the leaders council about that since it's their consent decrees, I think.

[00:53:27] Speaker 03:
Okay, they are there.

[00:53:28] Speaker 01:
My colleagues don't have additional questions for you.

[00:53:31] Speaker 01:
Okay, thank you.

[00:53:33] Speaker 03:
Thank you very much.

[00:53:34] Speaker 01:
Thank you, Mr. Marwell.

[00:53:36] Speaker 01:
We'll hear from you.

[00:53:57] Speaker 04:
Thank you, Your Honor.

[00:53:58] Speaker 07:
May it please support Jeremy Marwell for Intervenor Mountain Valley Pipeline.

[00:54:02] Speaker 07:
If I could start with some of the practical questions that the court had, which I think frame and are relevant to the mootness of the question.

[00:54:10] Speaker 07:
But then I would like, if I can, to also speak to merits when we get there.

[00:54:14] Speaker 07:
There were questions.

[00:54:15] Speaker 02:
Before you do either, do you happen to know the answer to this consent decree question?

[00:54:18] Speaker 07:
It's on the internet, your honor.

[00:54:20] Speaker 07:
I'm not 100% sure if it was filed with the commission.

[00:54:23] Speaker 02:
Oh, silly to find out about that.

[00:54:25] Speaker 07:
Yeah, it's certainly, but that's the consent decree with the department.

[00:54:31] Speaker 05:
Sorry?

[00:54:32] Speaker 07:
Yeah, the state one.

[00:54:33] Speaker 05:
Yeah.

[00:54:34] Speaker 07:
The state of construction is that over the past year, under the two resume work orders challenge, we did a significant part of the construction in those specific areas.

[00:54:45] Speaker 07:
17 miles, I installed 18 miles of right of way taken to permanent restoration.

[00:54:54] Speaker 07:
We're done.

[00:54:57] Speaker 07:
There is still some work to be done in those two areas covered by the two work orders.

[00:55:03] Speaker 07:
In part because we're not working in wetlands, the area covered by the Army Corps permitting, that authorization.

[00:55:10] Speaker 07:
And there is some area near the wetlands that it just doesn't make sense environmentally or otherwise to do until you can do it all at once.

[00:55:19] Speaker 07:
So there is real work left to be done.

[00:55:22] Speaker 07:
Mountain Valley is committed to this project.

[00:55:24] Speaker 07:
It is 94% done.

[00:55:25] Speaker 07:
We are working with the agencies with regard to the Army Corps.

[00:55:29] Speaker 07:
It's been over a year.

[00:55:30] Speaker 07:
We have an application pending.

[00:55:32] Speaker 07:
We are making forward progress.

[00:55:34] Speaker 07:
The company is committed to completing the project.

[00:55:38] Speaker 07:
For that reason and others, we think the suit is certainly not moot.

[00:55:41] Speaker 07:
We would resist abeyance in part because of the cost, the company, of extending the period of uncertainty associated

[00:55:50] Speaker 07:
There's a problem here we'd rather get going on it now.

[00:55:53] Speaker 07:
If not, we can put this one behind us and move forward.

[00:55:57] Speaker 07:
There's a declaration we filed in opposition to the stay motion that the petitioners filed in this court.

[00:56:04] Speaker 07:
And we pointed out, among other things, that at the time it was costing us $25 million a month to maintain the temporary erosion.

[00:56:12] Speaker 07:
And that is work that we need the certificate to do.

[00:56:15] Speaker 07:
The certificate is our authorization to be on the right of way to replace the temporary erosion controls from time to time because they are temporary, not permanent, respond to weather events, landowner issues.

[00:56:27] Speaker 07:
And that is work we anticipate doing on a prospective basis today and every day until it's permanently restored.

[00:56:35] Speaker 02:
Based on the consent decree, what changed in your temporary sedimentation controls?

[00:56:39] Speaker 07:
Right.

[00:56:40] Speaker 07:
So the best place to look at the additional protections is JA 916 and 917.

[00:56:47] Speaker 07:
And if I could just summarize that for you, there are kind of buckets of things.

[00:56:54] Speaker 07:
But there's a total of 65 additional enhancements, which I would say substantive protections, upgrades to the kinds of erosion control devices using more robust

[00:57:07] Speaker 07:
still fence from a priority one to a different priority, certain additional techniques.

[00:57:13] Speaker 07:
There was also a bucket of enhancements that involved additional inspections, more frequent inspections and improvements in the process by which Mountain Valley responds to these kinds of events.

[00:57:25] Speaker 02:
Was this information submitted to Perth?

[00:57:27] Speaker 02:
It looks like it's a letter to Interior.

[00:57:29] Speaker 07:
Uh, it's yes, I, I bet it's in the record.

[00:57:32] Speaker 02:
It's part of, it's part of that.

[00:57:33] Speaker 02:
Yeah.

[00:57:33] Speaker 07:
It's part of this record.

[00:57:34] Speaker 07:
I think, I think everything in the report school appendix was right.

[00:57:37] Speaker 07:
It's from the record in the certified index.

[00:57:40] Speaker 07:
And if I could, I don't want to.

[00:57:41] Speaker 02:
And so it was part of the record when they made this particular decision.

[00:57:45] Speaker 07:
Yes.

[00:57:46] Speaker 07:
And, and if I could, this previous point, I think the key point on the substance for the merits of sedimentation.

[00:57:54] Speaker 07:
As I understand it, the agency's obligation in preparing an environmental impact statement before a shovel has gone in the ground, obviously before the project has been approved, is to try to anticipate and disclose the potential effect.

[00:58:06] Speaker 07:
Some of that you can predict based on the kind of work that it's been doing.

[00:58:10] Speaker 07:
But part of that, and part of what's in the EIS here, is a recognition that there are multiple layers of other protections, including state law that we have to comply with and are committed to comply with.

[00:58:22] Speaker 07:
and monitors by third party monitors that the company has to pay for or on the site.

[00:58:28] Speaker 07:
And EIS anticipated and talked about the role of those monitoring and the role of that enforcement.

[00:58:36] Speaker 07:
And so I think the fact that there were events

[00:58:39] Speaker 07:
some of which were immediate response to unusual rain events, and the fact that state regulators were on the job, and the fact that we resolved those issues consensually, and that FERC did say that, I think shows why this is not a substantially different picture than what FERC anticipated.

[00:58:58] Speaker 07:
You can't ever predict two years or three years before you put a shovel in the ground exactly how things are going to go on every inch of a 300-mile pipeline,

[00:59:08] Speaker 07:
work anticipated that these things would occur.

[00:59:11] Speaker 02:
And so I think- For the added sedimentation measures referenced, the 0.2 in the appendix, were those technologies or measures that were available initially?

[00:59:22] Speaker 02:
Or did they suddenly appear on the scene?

[00:59:24] Speaker 02:
Well, so- Nothing new or revolutionary about them, I don't think.

[00:59:32] Speaker 07:
I think that's probably fair, Your Honor.

[00:59:34] Speaker 07:
Some of them have to do with the frequency of inspection.

[00:59:36] Speaker 07:
Certainly, I can't tell you, you know, do you inspect?

[00:59:39] Speaker 02:
I meant measures imposed by the company itself.

[00:59:42] Speaker 07:
Well, and that's right.

[00:59:43] Speaker 07:
Some of those are things we agreed to do as part of resolving that.

[00:59:48] Speaker 07:
Well, a lot of the other measures.

[00:59:51] Speaker 07:
I mean, I think it's fair to say that when we designed sedimentation control plan up front in advance,

[00:59:58] Speaker 07:
We were going under FERC's own plans.

[01:00:01] Speaker 07:
These were established protocols, and FERC has thousands or tens of thousands of miles of pipeline restrictions.

[01:00:08] Speaker 07:
These are essentially the best practices at the time, and we committed to doing that up front.

[01:00:13] Speaker 02:
But the environment... They were the best practices at the time.

[01:00:17] Speaker 02:
Sounds like these additional practices then didn't exist at the time.

[01:00:21] Speaker 07:
Well, no, I don't mean to imply that.

[01:00:23] Speaker 07:
I guess what I mean to imply is you choose the...

[01:00:28] Speaker 07:
protective measures, you scope them as appropriate for what you're doing.

[01:00:32] Speaker 07:
Here you have construction of a pipeline, which Burke has great experience with, and they balance all the relevant considerations.

[01:00:40] Speaker 07:
Some are effective with regard to some kinds of potential problems, and you would want to optimize them to the best of your judgment up front.

[01:00:48] Speaker 07:
So I don't think there's any intention that what happened up front before anybody put a shovel on the ground

[01:00:55] Speaker 07:
was inconsistent with FERC's practices at the time.

[01:00:58] Speaker 07:
But the point is they built in the possibility of being responsive to conditions on the ground as part of the original environmental review, and that's what happened.

[01:01:07] Speaker 02:
And I think it is also... There wasn't FERC monitors finding problems that caused changes in the sedimentation protections.

[01:01:15] Speaker 02:
whatever they were reporting, it wasn't causing any change where the states were getting obviously quite bothered by what was going on with a large, large number, by two states, a large number of violations.

[01:01:30] Speaker 02:
And I'm not here to piece through what you call technical or not, because that seems not really relevant to me, but it's whatever FERC was doing, it wasn't finding what the states were finding.

[01:01:42] Speaker 07:
Well, I'm not sure that- I would suggest that maybe FERC's

[01:01:45] Speaker 02:
original, maybe when it was fine at the time, but it turned out and maybe this is very difficult terrain and difficult weather circumstances that things changed.

[01:01:58] Speaker 02:
Right.

[01:01:58] Speaker 02:
Changes needed to be made.

[01:01:59] Speaker 02:
Right.

[01:02:00] Speaker 07:
That's all.

[01:02:02] Speaker 07:
Yes, but I guess my point is there were multiple

[01:02:07] Speaker 07:
monitoring mechanisms built in.

[01:02:11] Speaker 07:
It's, as I said, for monitors, but also third party monitors that we pay for who are on the route.

[01:02:16] Speaker 02:
And I think there were no, I'm not disputing that.

[01:02:18] Speaker 02:
Oh, good.

[01:02:19] Speaker 07:
I'm sorry.

[01:02:20] Speaker 07:
My point was just all of that was in the mix already at the original environment.

[01:02:24] Speaker 02:
Right.

[01:02:25] Speaker 02:
And it wasn't working.

[01:02:26] Speaker 02:
And so, right.

[01:02:27] Speaker 07:
So still have the states.

[01:02:30] Speaker 07:
Well, but I mean, the states, the role of the states was in the mix in the environmental impact statement also.

[01:02:35] Speaker 01:
Well, that's, that's always there.

[01:02:37] Speaker 01:
But if the states, it just seems to me then suppose the challenger comes in and says, look, there's now been 200 violations found by a state.

[01:02:44] Speaker 01:
It would seem like quite a response to say that's exactly the point that shows that the system's working there.

[01:02:50] Speaker 07:
Although I do think it would be a much harder case for us commission if the states had not resolved the

[01:02:59] Speaker 07:
And I do think also, just maybe technical, but what we have in the record, our notices violation, which is not a determination that we violated state law, it is sort of the first

[01:03:16] Speaker 07:
first notice of a potential enforcement and the consent decree says explicitly that Mountain Valley did not cede or admit that there were violations as part of that, you know, both sides voluntarily.

[01:03:32] Speaker 07:
And I don't mean, so I think that the fact that they were resolved consensually helps us in this question of whether anything is substantially different or substantially different enough that the commission would have had to take six months or a year

[01:03:47] Speaker 07:
during which time the very problems that they are trying to address would continue.

[01:03:52] Speaker 07:
I mean, I think it is undisputed, and I'd like to get to practicalities, that a temporary control device don't work as well as permanent restoration.

[01:04:02] Speaker 07:
And that is just a feature of having an open construction.

[01:04:06] Speaker 07:
We vegetate, bring everything to final restoration.

[01:04:09] Speaker 07:
That is the environmental benefit of the mission.

[01:04:12] Speaker 07:
And if I could respond to one point that petitioners made, I think was essentially, instead of doing what it did, the commission should have just said, cancel the pipeline, restore everything to final right now.

[01:04:25] Speaker 07:
That is not what was before the commission.

[01:04:28] Speaker 07:
And what the commission would have had to do is a NEPA analysis for that restoration plan.

[01:04:35] Speaker 07:
And that analysis and that process would have involved going back to most of these other agents who would need Endangered Species Act Council.

[01:04:43] Speaker 07:
And in fact, the Atlantic Coast Pipeline, which is another pipeline in the mix in the papers, was canceled by its project developers in July of 2020.

[01:04:54] Speaker 07:
Two weeks ago, FERC issued an order authorizing the permanent restoration.

[01:04:59] Speaker 07:
So you have to figure out what's going to happen.

[01:05:01] Speaker 07:
I think it is a false equivalence to suggest that there was a different route that FERC could have taken that would have created the same benefit, which was timing.

[01:05:14] Speaker 07:
What they said was, we have an open construction site.

[01:05:17] Speaker 07:
We have to be responsive to the reality on the ground.

[01:05:20] Speaker 07:
And the best thing here is just to close the construction site and be done.

[01:05:23] Speaker 07:
Even if the pipeline doesn't get built and they make this finding, even if the Bureau of Land Management had not authorized us to go back across the forest, we think the best thing for the environment is to do it now.

[01:05:34] Speaker 07:
I think that timing consideration is relevant because the reality of having an open construction site

[01:05:42] Speaker 02:
I don't want to keep you from getting to your point, but can I ask a fact question?

[01:05:46] Speaker 02:
Please.

[01:05:47] Speaker 02:
The FERC compliance officers, are their reports part of the record as well?

[01:05:52] Speaker 07:
I believe so, yeah.

[01:05:54] Speaker 02:
Were they reporting these same violations that the states were finding?

[01:05:58] Speaker 07:
Well, I mean, we make, the certificate holder makes regular reports about incidents.

[01:06:05] Speaker 07:
So if a landowner comes to us and says, hey, I have a problem with what's happening on my property,

[01:06:11] Speaker 07:
I'm asking about the compliance officers.

[01:06:18] Speaker 02:
Were they reporting in the same things that these state folks must have been reporting to their higher ups or did they just not see it?

[01:06:28] Speaker 07:
Well, I think part of what

[01:06:31] Speaker 07:
I don't have a record site for you to say, yes, here's your lines.

[01:06:34] Speaker 07:
I think what I think what one thing to keep in mind is that the states have particular requirements, some of which have to do with

[01:06:44] Speaker 07:
timing, you have an erosion control device to determine that there's a problem with the cortex within seven days.

[01:06:52] Speaker 07:
I see.

[01:06:52] Speaker 07:
The points that we said were only a small fraction of these notices of violation actually involved FERC coming off right away.

[01:06:59] Speaker 07:
That's what we mean.

[01:07:00] Speaker 07:
And those are state law requirements.

[01:07:02] Speaker 07:
FERC is looking at our compliance with FERC's requirements, so the plan, procedures that we committed.

[01:07:09] Speaker 07:
I mean, I think it's all in the mix.

[01:07:13] Speaker 07:
There was a practical question about what happens when the 4th Circuit vacates the permit.

[01:07:17] Speaker 07:
I'd like to be responsive to that.

[01:07:21] Speaker 07:
We did file the 4th Circuit decision notify by the way.

[01:07:25] Speaker 07:
I think it is important to recognize that one of the recent 4th Circuit decisions is the Bureau of Land Management Forest Service.

[01:07:32] Speaker 07:
That is only relevant in the 4th.

[01:07:34] Speaker 07:
We are not authorized to work in the 4th.

[01:07:37] Speaker 07:
None of the orders, the resume work orders here, that's sort of in the remaining institution because we need that right away.

[01:07:45] Speaker 07:
So that is certainly in the mix.

[01:07:47] Speaker 07:
But I think this whole case is about, can we do other stuff outside that area?

[01:07:54] Speaker 07:
So the biological opinion is the other one.

[01:07:56] Speaker 07:
And that obviously applies anywhere we're doing work that could affect endangered species.

[01:08:00] Speaker 07:
Obviously, we're going to comply with the Endangered Species Act.

[01:08:03] Speaker 07:
But to understand the context of the software quarter and FERC's timing, I'm going to defer to Mr. Estes on that.

[01:08:10] Speaker 07:
But we had largely seen the forward construction work by the time we shut down for the winter.

[01:08:17] Speaker 07:
We had done what we could.

[01:08:18] Speaker 07:
Winter is not an option.

[01:08:20] Speaker 07:
We had done what we could in the uplands.

[01:08:22] Speaker 07:
The rest of the area was sort of ruined.

[01:08:25] Speaker 07:
So when we say we're not doing forward construction, that's because we're sort of awaiting a new permit.

[01:08:30] Speaker 07:
It doesn't mean that these authorizations

[01:08:33] Speaker 07:
that there's a jurisdictional problem.

[01:08:36] Speaker 07:
As I said earlier, there's still work to be done.

[01:08:39] Speaker 07:
But we are working through those other permitting.

[01:08:42] Speaker 07:
So if that's helpful in terms of context, we basically said, look, we're not doing forward construction work right now.

[01:08:47] Speaker 07:
For seasonal reasons.

[01:08:49] Speaker 07:
For seasonal reasons.

[01:08:50] Speaker 02:
That's what I wanted to clarify.

[01:08:53] Speaker 02:
Is it because you can't do forward work because you don't have these permits that the stuff you would have to do now would

[01:09:01] Speaker 02:
either implicate endangered species or one of these other permits, or is there construction work you could still do that wouldn't affect, I think would not go into the forest and wouldn't affect these species?

[01:09:13] Speaker 02:
And it's just, it's April now, it's not winter.

[01:09:17] Speaker 07:
Right, that's fair.

[01:09:19] Speaker 07:
I don't believe, and I don't want to make a commitment to the part, I'm happy to file a letter or something, but I don't believe that we are intending

[01:09:29] Speaker 07:
endangered species act because of that and I think also maybe you can call it a voluntary thing but there are areas in the uplands previously when we still had our opinion could have we said that wasn't if it's too close to a stream it just doesn't make sense

[01:09:52] Speaker 07:
The only last thing I would point out it's it's it is not self-executing difference between forward instruction Right and sometimes

[01:10:14] Speaker 07:
It's clear if you have a temporary device that fails, you have to go and put a new one.

[01:10:18] Speaker 07:
But this, I mean, what FERC did here was make a determination that certain additional, even the open trench, close it up, feedback on and get out of there.

[01:10:28] Speaker 07:
But I think there's the overarching point about the case.

[01:10:33] Speaker 07:
FERC made a nuanced judgment about what was the right kind of work.

[01:10:42] Speaker 07:
decision that kind of analysis.

[01:10:45] Speaker 07:
Definitely.

[01:10:47] Speaker 07:
What exactly?

[01:10:48] Speaker 07:
I don't want to give an overly bright line.

[01:10:51] Speaker 01:
That's thank you.

[01:10:56] Speaker 01:
Make sure my colleagues don't have additional questions for you.

[01:10:58] Speaker 01:
Thank you.

[01:11:01] Speaker 01:
Thank you for your argument.

[01:11:03] Speaker 01:
Mr Lockett will give you to the two minutes that you try to reserve.

[01:11:13] Speaker 06:
Thank you.

[01:11:14] Speaker 06:
I'd first like to point out that petitioners cited to numerous examples of erosion and sedimentation events outside of the range of unpredictable rainfall in 2018 that works cited numerous notices of violation.

[01:11:29] Speaker 02:
When did that unpredictable rainfall happen?

[01:11:32] Speaker 02:
Was it a certain month?

[01:11:33] Speaker 02:
I don't remember 2018 well enough.

[01:11:36] Speaker 06:
I'll be honest, I don't believe first said in this case, I believe in the Mountain Valley Pipeline South Gate document, it cited specifically to 2018.

[01:11:46] Speaker 02:
But it didn't have a story of that rain the entire year of 2018.

[01:11:52] Speaker 06:
No, you're not excited in a couple months, I believe.

[01:11:56] Speaker 02:
And do they say what months those were?

[01:11:59] Speaker 06:
but I cannot.

[01:12:00] Speaker 02:
Do you remember whether those months overlapped with some of the serious sedimentation events?

[01:12:04] Speaker 06:
They certainly overlapped with some of the major events, but by no means all of them.

[01:12:09] Speaker 06:
We cited significant events in August,

[01:12:16] Speaker 06:
October, November, December, 2019.

[01:12:19] Speaker 06:
Now, even if all of the significant events were limited to periods of unpredictable rainfall,

[01:12:30] Speaker 06:
I'd like to clarify that petitioners do think that a supplemental AIS would still be required because FERC hasn't yet to, in its NEPA documents, assess the impact.

[01:12:41] Speaker 06:
Even if they're not likely to occur, they are impacts of this project.

[01:12:45] Speaker 06:
And FERC's decision making going forward should depend on what the magnitude of the impact of the project are.

[01:12:53] Speaker 06:
Is further construction still in the public interest?

[01:12:56] Speaker 06:
What were the impacts to aquatic life from those

[01:12:59] Speaker 06:
incident.

[01:13:01] Speaker 06:
Burke doesn't know, the public doesn't know, because they haven't been assessed in the NEPA document.

[01:13:06] Speaker 06:
Now, the government placed significant weight on its claim that there haven't been significant incidents in 2020.

[01:13:13] Speaker 06:
That's because there's been very little construction up to the issuance of these orders.

[01:13:21] Speaker 06:
In late 2019, because of the Endangered Species Act issues, all construction was stopped.

[01:13:32] Speaker 06:
And, you know, as for the government's claim that it was merely, you know, they seem to intimate that their orders were merely authorizing

[01:13:44] Speaker 06:
you know, restoration activity.

[01:13:47] Speaker 06:
But that's not true.

[01:13:48] Speaker 06:
Petitioners pointed to the fact that spread G, which includes significant steep and highly erodible slopes, was only 20% trenched at the time petitioners made their comments to FERC.

[01:14:02] Speaker 06:
And so there was still significant construction that took place as new construction with the same sorts of potential for sedimentation impacts.

[01:14:13] Speaker 06:
was authorized by these orders.

[01:14:19] Speaker 06:
And Mountain Valley's Council rested heavily on the consensual resolution with the state.

[01:14:26] Speaker 06:
And I'd just like to note that, you know, one factor that would quite possibly have influenced that consensual resolution specifically with the Virginia Department of Environmental Quality was that Mountain Valley threatened, you know, in its court briefings, took the position that Virginia had no authority to regulate and to require compliance with its erosion and sedimentation laws.

[01:14:50] Speaker 06:
and such that, you know, Virginia was not only weighing Mountain Valley's future commitments, but the litigation risk that because of Mountain Valley's claims that it had waived its Clean Water Act section 401 authority, that the state in fact had no authority.

[01:15:07] Speaker 06:
So petitioners posit that that could have likely had a

[01:15:11] Speaker 06:
significant influence on that consensual resolution.

[01:15:14] Speaker 06:
And finally, I just request that if the court does choose to hold this case in abeyance, that it issue a stay of any further construction beyond maintenance of essential environmental.

[01:15:29] Speaker 01:
Okay.

[01:15:30] Speaker 01:
Thank you, counsel.

[01:15:31] Speaker 01:
Thank you to all counsel will take this case under submission.

[01:15:40] Speaker 04:
Mm hmm.

[01:15:40] Speaker 04:
Sure.

[01:15:44] Speaker 03:
Just the point.

[01:15:47] Speaker 03:
The decree that I believe there is a link in the petitioner's brief where they cite the press release.

[01:15:54] Speaker 03:
And I believe that link will get you to the actual.

[01:15:59] Speaker 02:
I'm just wondering if FERC had it.

[01:16:01] Speaker 02:
But it sounds like, it's not whether I can personally peruse it.

[01:16:05] Speaker 02:
It's whether FERC had it.

[01:16:07] Speaker 02:
And it sounds like maybe they didn't, or you're just still not aware.

[01:16:11] Speaker 03:
I don't believe that they did, but it's not in the joint.

[01:16:14] Speaker 03:
The document I had in mind when I told you it did was not the consent decree.

[01:16:20] Speaker 01:
Okay.

[01:16:20] Speaker 01:
Okay.

[01:16:22] Speaker 01:
Thank you.

[01:16:22] Speaker 01:
Take this case under submission.