[00:00:01] Speaker 00:
Face number 21-1139 et al.

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Waterkeepers Justice et al.

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petitioners versus Federal Energy Regulatory Commission.

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Mr. Hu for the petitioners.

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Mr. Ediger for the respondents.

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Mr. May for the intervener Maryland Department of the Environment.

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Mr. De Bruyne for the intervener Constellation Energy Generation LLC.

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Mr. Bees for the respondent intervener Department of the Interior.

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Morning, Mr. Council and Mr. Pugliese.

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Proceed when you're ready.

[00:00:31] Speaker 02:
Great.

[00:00:33] Speaker 02:
James Pugliese, petitioner, is the Water Keepers Chesapeake, the Lower Susquehanna River Keepers Association, Four Rivers, and the Chesapeake Bay Foundation.

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I'd like to reserve three minutes for a bubble.

[00:00:42] Speaker 06:
Is that, did you raise the podium as high as it'll go?

[00:00:45] Speaker 06:
You did?

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Okay, got it.

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Just making sure.

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This case is about the health and future of the Chesapeake Bay and Susquehanna River.

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Federal industry regularly

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has issued a new 50-year license to the Conowingo Dam.

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And that license does not include the water quality certification that Maryland issued for the dam or any of the important requirements that Maryland established as necessary to protect the dam, excuse me, protect the bay and the river over the next 50 years.

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Perth violated the Clean Water Act by issuing the license without the certification.

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It also acts arbitrarily

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and violated the Federal Power Act and the National Environmental Policy Act by failing to give adequate consideration to the harms that this decision will cause of the license.

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I'd like to address those issues in that order.

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The Clean Water Act provides that no license shall be granted unless a water quality certification has been obtained, in which case it must be included as condition on the license, or water quality certification

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has been waived in a specific way that Section 401 of the Act applies.

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That waived is that the state must have failed or refused to act on the certification.

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Perk, the Federal Industry Regulatory Commission.

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I'll call it Perk, that's all right.

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Perk agrees that Maryland acted on the certification.

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It acted in 2018 by granting a certification.

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At that point, the submit is positive because Maryland neither failed nor refused to act on the janitor's certification request.

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It did not waive certification.

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Does that trigger at the moment that the certification is made?

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Is it a gotcha game?

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I mean, suppose you have a situation in which there was just a mistake and the state administrative body realizes it sometime later.

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several weeks later and says, oops, well, there's a mistake.

[00:02:56] Speaker 02:
There is a process that first there's an administrative process at the state level.

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So the state and often does reconsider his decision in the hearing process.

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And what about that?

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So there's a state administrative process.

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There's also state judicial review.

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So there's things that can happen in the state's own processes that result in annulling or vacating a certification that was issued.

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I think you don't dispute the proposition that those things count, even though the certification was granted.

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And how does that?

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How do you square that with the statutory tax?

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Well, once the certification has been vacated or withdrawn by the state, it doesn't exist anymore.

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But why does the state get to do that?

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The state has to decide what happens with the certification.

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The state has to issue the certification, decide what goes into the certification, and it can withdraw the certification or vacate it under its own processes.

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What Burke has to do, Burke's job is issuing the license.

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And what the statute says is Burke can issue the license unless certification has been waived in that very specific way.

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So that's the statutory context.

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So in the circumstance in which a certification is issued, but then it goes through state administrative review,

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And the decision is made by the state to what you call the withdrawing, withdrawing the survey as the state did in the case in Maine or vacate.

[00:04:23] Speaker 02:
I'm not sure that they may use different words, but essentially make it make it disappear.

[00:04:27] Speaker 02:
Yes.

[00:04:28] Speaker 06:
And that and that's okay under the statute because what are the words that say that that's okay?

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Well, the Clean Water Act simply doesn't address that.

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The Clean Water Act is talking about Burke's authority and the limitations on that authority.

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It doesn't talk about what the states can do.

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And then if that's true, then why can't the state do what it did here?

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Well, there are two reasons for that.

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One is under the Clean Water Act,

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a state that wants to change its mind and withdraw certification, assuming that's what the settlement does, get into that in a minute.

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But if that's what it wants to do, it still hasn't failed to refuse to act on the certification.

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Congress is very specific that that's the only kind of waiver that gives the current authority to issue a license.

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But why is, I'm still, I'm just missing something, so forgive me.

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Why doesn't

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Why can't everything you just say equally be said about the situation in which the state itself decides to withdraw because the certification doesn't survive administrative review?

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It's still a decision by the state to take back something that granted.

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Once the state has withdrawn an existing certification, at that point, the project owner can apply for a new certification and the state can do all the same things it could do under the statute.

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is if none of that happened, they could waive the grant or deny it.

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If it waives at that point, it is properly waived, and FERC would have authority to issue a license.

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So the difference between waiver and withdrawal?

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Right, there's a big difference between waiver and withdrawal.

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So here you think the state could have withdrawn it based on the settlement?

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Well, it would have had to go through its own process.

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And frankly, I think it would have had a very hard time explaining in that process why it suddenly decided that all the things that's unnecessary to protect

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the river and the bay were not necessary.

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But yes, it could have gone through that process.

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It could have done it.

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Yes.

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And then that wouldn't be a waiver.

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That would be a withdrawal.

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That would be a withdrawal.

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And from your standpoint, and that's a question, that's not a question of federal law.

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It's a question of state law, whether the state adheres to its own processes in effectuating the withdrawal.

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But if the state does that and that's okay, then the federal, then FERC doesn't have to issue a license at that point.

[00:06:40] Speaker 02:
If the state goes through that, right, if the state goes through the entire process, withdraws, the applicant reapplies, and the state then waives its authority,

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Just one more following.

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You think that in the circumstance in which a state as a matter of administrative or judicial review decides that the certification was erroneously issued, then that it doesn't take effect just sort of as a matter of by operation of state law, that the state has to follow some process to actually withdraw the certification apart from just vacating it as a matter of judicial review.

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Right.

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The state court can vacate it or the state and the administrative process can withdraw it.

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Both of those things are possible, but the end result of both of those situations is simply that there is no certification.

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Okay.

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And so in this case, for example, if the state had a process under which it allowed for settlements like this one, and then it allowed for vacator of the certification upon settlement,

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as a matter of state processes, that would have been fine.

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That would have been fine.

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You'd still end up with a situation where there was no certification, it would be up to the state to then either waive grant or do not.

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Right.

[00:07:51] Speaker 06:
It takes you back to square zero, but that would, okay.

[00:07:55] Speaker 01:
I'm just confused about your back to square zero.

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So say company acts applies on January 1 for certification.

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March 1, it's issued by the state.

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And it's subject to internal review, evidentiary hearing, these types of things.

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October 1, through its own internal processes, the state goes, whoops, we totally messed up.

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This is an indefensible certification.

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We've got to withdraw this.

[00:08:31] Speaker 01:
And then nothing happens, and now it's January 1 of the next year.

[00:08:35] Speaker 01:
Why can't then the company that asked for this information go to FERC and say, a year has gone by, they never issued a certification, let's proceed to get the license?

[00:08:47] Speaker 01:
They didn't act.

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Because the act that the statute talks about is issuing a certification or not.

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took some baby steps towards issuing a certification, took some tentative steps.

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Either they issued a certification or didn't.

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They didn't under my hypothetical.

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Why isn't that sufficient to go get a license from FERC?

[00:09:06] Speaker 01:
You keep saying they have to apply and start all over again.

[00:09:08] Speaker 01:
I don't get that part.

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I want to try to defend the HIPAA because in October, the state is recognizing that it messed up.

[00:09:15] Speaker 01:
Yes, it tears it up and throws it in the garbage can.

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Presumably, it doesn't just tear it up.

[00:09:20] Speaker 02:
It also issues a decision in that rehearing process that it is withdrawing.

[00:09:24] Speaker 01:
No, not in my hypothetical.

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Let's say their administrative process is like a mediation process.

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You're right, we totally messed up.

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Let's pretend it never happened.

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They aren't saying anything publicly, other than it's been withdrawn.

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And they can say that publicly, it's been withdrawn.

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If they want to say it's withdrawn in that administrative process, then they're withdrawing it.

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Whether they've withdrawn it adequately.

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So they've said to the public, it's been withdrawn.

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I'm not going to say they give the reasons, that's a matter of state law.

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And then I understood you to say is then the company still has to apply again for a certification.

[00:10:00] Speaker 01:
I don't know why they can't on January 1 or 2 of the next year ago.

[00:10:04] Speaker 01:
We asked for a certification on January 1.

[00:10:07] Speaker 01:
A year has elapsed and we have nothing from the state.

[00:10:12] Speaker 01:
Go ahead, Ferg, issue the license.

[00:10:14] Speaker 02:
I think I understand the hypo better now, and I think that would be that there isn't that point of withdrawal.

[00:10:19] Speaker 01:
The state has withdrawn this... Well, the federal statute doesn't talk about withdrawals.

[00:10:24] Speaker 02:
I just meant that what I thought was happening in your hypo is that the state is withdrawing the certification plate.

[00:10:30] Speaker 01:
Yes, the awkward fact, I guess, as I understand the hypothetical, and you're much more expert than me, is that a year has elapsed and there's no piece of paper from the state

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If they're right, if the state does nothing, I suppose there might be- Does that process I've described count as the state doing nothing?

[00:10:48] Speaker 02:
Well, I'm not entirely sure what, I mean, it sounds to me that that process sounds like the state withdrawing the application.

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I'm sorry, withdrawing the certification.

[00:10:56] Speaker 01:
But if I'm wrong about that, if this- I'm not understanding the magic word state withdrawing the application.

[00:11:04] Speaker 01:
That seems to be what you find magical.

[00:11:06] Speaker 01:
Is that, did I, is withdrawal of the application something in the federal statute?

[00:11:11] Speaker 01:
So that doesn't matter.

[00:11:13] Speaker 01:
Okay.

[00:11:13] Speaker 01:
So then it, so why does that matter?

[00:11:15] Speaker 01:
Maybe it matters under state law and they can have a state law litigation.

[00:11:20] Speaker 01:
But from FERC's purposes, the company says I applied January 1, 2021.

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It is now January 2, 2022.

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and I've got nothing from the state, issue your license.

[00:11:34] Speaker 01:
What is wrong with that?

[00:11:36] Speaker 01:
Under the federal statute, not state law.

[00:11:38] Speaker 02:
Right.

[00:11:38] Speaker 02:
When you say that you've got nothing from the state and there was truly not truly nothing from the state.

[00:11:43] Speaker 01:
Under my hypothetical, you've got no certification from the state.

[00:11:47] Speaker 02:
Well, there's a difference between no certification and a waiver.

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If there's no certification, there's simply no certification.

[00:11:55] Speaker 02:
That means that the parties are back to zero.

[00:12:00] Speaker 01:
What do you mean the parties are back to zero?

[00:12:02] Speaker 01:
If there's no certification, why is that not a failure of the state to act, that is to certify or make a decision not to certify for purposes of FERC?

[00:12:13] Speaker 01:
I don't know why FERC can't say a year has gone by and the state has declined to issue, has refused or failed to issue a certification.

[00:12:22] Speaker 02:
The options that are available to the state in that review process,

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includes withdrawing certification.

[00:12:32] Speaker 01:
What do you think FERC is supposed to do when that company comes to them on January 2nd and says, the state has either refused to act or failed to act because I've got no certification, please issue the license.

[00:12:42] Speaker 01:
What is FERC supposed to do?

[00:12:44] Speaker 02:
Well, if the state has withdrawn the certification, as it did, for example, in the FPL case, remain through the administrative process and said, we're vacating.

[00:12:53] Speaker 01:
Just please answer my question.

[00:12:54] Speaker 01:
What is FERC supposed to do?

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FERC is supposed to say there is no certification.

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We can't issue a license.

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If you want a license, ask the state for certification.

[00:13:02] Speaker 02:
You don't have a certification, but you also don't have a waiver.

[00:13:05] Speaker 02:
The state withdrawing a certification is not the same as a state waiving certification.

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And the big difference is- Why isn't it?

[00:13:13] Speaker 01:
In their withdrawal, they said, oops, this never should have happened.

[00:13:21] Speaker 01:
Big mistake on our part.

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We were thinking of a different case.

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We had the wrong case number.

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And we're withdrawing it.

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That's right.

[00:13:28] Speaker 02:
So that certification is gone, and the applicant then has two choices.

[00:13:32] Speaker 02:
It can apply or not apply, and the state then has all of its choices.

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It can grant, deny, or waive.

[00:13:38] Speaker 01:
What in the federal statute says they have to apply again, as opposed to saying the state has failed to act on our certification request?

[00:13:46] Speaker 01:
It's gone nowhere for a year.

[00:13:47] Speaker 02:
The federal statute just says Burt lacks authority to issue a license unless the state has waived in a very specific way, which is

[00:13:57] Speaker 02:
Failed to act.

[00:13:59] Speaker 02:
And withdrawing a certification is not the same as failing to act on a certification.

[00:14:03] Speaker 02:
Why?

[00:14:03] Speaker 02:
Because the state has necessarily acted on the certification by granting it in the first place.

[00:14:08] Speaker 01:
But wait, a refusal to act, a piece of paper that says, we refuse to do this, is an action.

[00:14:15] Speaker 02:
Correct.

[00:14:15] Speaker 02:
No, actually, no.

[00:14:16] Speaker 02:
That would be what EPA calls an express waiver.

[00:14:21] Speaker 02:
But what the environmental protection agency... Which is an action.

[00:14:24] Speaker 02:
If the state writes a letter, say the state doesn't want to just wait for a year and let the waiver happen automatically.

[00:14:31] Speaker 02:
It wants to let the project move forward on the second day.

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It can write the applicant a letter and say, we are waiving certification right now.

[00:14:41] Speaker 02:
But what EPA explains in its regulations, in the preamble to its regulations implementing Section 401, is what that means is the state is saying, we are choosing not to act.

[00:14:50] Speaker 06:
which is a refusal because the statute says fails or refuses to act.

[00:14:55] Speaker 06:
Yes.

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And there's got to be something that's a refusal.

[00:14:57] Speaker 06:
That's not just a failure and an affirmative indication by the state that we actually are not going to go forward with the certification is a refusal.

[00:15:07] Speaker 06:
You can call it an express waiver, but it's a, it's where it fits in textually.

[00:15:12] Speaker 05:
Could you rewind five minutes and finish explaining what happened in the main case?

[00:15:18] Speaker 02:
In the main case, the only point I wanted to make is, and this is the FDL case, I think it's cited in Constellations brief and also mentioned in the article, the certification was issued and Maine then withdrew it or vacated it in the administration process.

[00:15:34] Speaker 05:
I simply wanted to provide- Then what happened after that?

[00:15:38] Speaker 05:
Do we know?

[00:15:41] Speaker 05:
So at that point, when Maine withdrew the certification,

[00:15:47] Speaker 05:
Could the applicant, what would have happened next?

[00:15:56] Speaker 02:
Actually, I'm not exactly sure what happened next in the case.

[00:16:00] Speaker 02:
What I would say is what the applicant could do is simply reapply.

[00:16:05] Speaker 02:
Reapply.

[00:16:06] Speaker 02:
At that point, it had no certification.

[00:16:08] Speaker 05:
So the withdrawal, the vacating of the certificate also

[00:16:15] Speaker 05:
essentially vacated the application.

[00:16:17] Speaker 02:
So the clock's no longer running, right?

[00:16:20] Speaker 05:
So the clock starts over again if the applicant files another application or certificate, right?

[00:16:30] Speaker 06:
Great.

[00:16:30] Speaker 06:
Thanks.

[00:16:30] Speaker 06:
So it counts as it's, I mean, I understand a little bit odd to say that what we're calling an action and then a retraction of that action, which means there was no action actually was an action.

[00:16:43] Speaker 06:
That's where we are, right?

[00:16:44] Speaker 02:
Well, I agree with that.

[00:16:46] Speaker 02:
And I would add that the original action is action enough to preclude from issuing a waiver based on failure.

[00:16:55] Speaker 02:
So once that certification has been issued, there cannot be a failure or refusal to act.

[00:17:04] Speaker 02:
There has been action that history cannot be changed.

[00:17:07] Speaker 02:
It doesn't mean that states are handcuffed.

[00:17:09] Speaker 02:
They can't fix the problems.

[00:17:10] Speaker 02:
It just means they have to go through their own process

[00:17:13] Speaker 06:
and vacate the certification if that's what they want to do.

[00:17:16] Speaker 06:
And then the process... Even our cases say at some point it can't be that the action, withdrawal of action ends up being gamesmanship that just extends... That gets into the... That's right.

[00:17:27] Speaker 02:
If it strays into gamesmanship, then the Hupa case would come into play.

[00:17:33] Speaker 01:
So when they withdrew, they said, we're withdrawing this and we are now waiving our right.

[00:17:39] Speaker 01:
I'm just saying if they said we're withdrawing this for whatever reason or no reason, and we are waiving our right to issue a certification in this matter, what would that be?

[00:17:55] Speaker 02:
They couldn't do that.

[00:17:56] Speaker 02:
A waiver is something very specific.

[00:18:02] Speaker 02:
They could withdraw, for sure.

[00:18:05] Speaker 01:
Why isn't it a refusal to act when they then add the next sentence it says and we're here by waving?

[00:18:10] Speaker 02:
Because we refuse to act on this matter.

[00:18:13] Speaker 02:
The refusal to act has to be on the certification.

[00:18:15] Speaker 02:
Just by adding that sentence in a withdrawal, it doesn't mean they refuse to act on the certification in the first place.

[00:18:21] Speaker 02:
They did that.

[00:18:21] Speaker 02:
They had to act because they issued it.

[00:18:23] Speaker 01:
They can't change their mind is what you're saying.

[00:18:25] Speaker 01:
There's no way they can change their mind on the initial certification.

[00:18:28] Speaker 01:
They have to wait for a whole new arm for initial application.

[00:18:31] Speaker 01:
They have to wait for a new application.

[00:18:33] Speaker 02:
They have to wait for a new application.

[00:18:34] Speaker 02:
It doesn't mean they can't change their mind.

[00:18:36] Speaker 02:
It means there's a process that they have to go through.

[00:18:38] Speaker 01:
But that's entirely... Where does the federal statute say... What language in the federal statute says they couldn't say or withdrawing it and we are hereby affirmatively and expressly telling you that we refuse to act on this matter, on this application?

[00:18:54] Speaker 02:
Because that would draw... Once the state has acted on the certification

[00:19:00] Speaker 02:
the action on a certification request that matters, not just any action, an action on a certification request.

[00:19:06] Speaker 02:
And if a certification exists, it can only exist because the state has in fact acted on the certification request.

[00:19:13] Speaker 06:
Now, I suppose the state could build in contingencies so that the state could say, we're issuing a certification, but every certification is subject to a period of 30 days to make sure that it was actually appropriately issued.

[00:19:26] Speaker 06:
And if that contingency is built into the state certification process, then you wouldn't say it's a one-way ratchet, such that once they issue the document, it can never be retracted in a way that gets us back to square zero, as opposed to getting us to the point that you say, which is, that's actually still in action, the withdrawal is still in action, and so you need a new application for certification.

[00:19:44] Speaker 06:
I think that's right.

[00:19:45] Speaker 06:
Okay.

[00:19:46] Speaker 06:
Can I ask you, can I ask you, uh, sorry, Mr. Stadel.

[00:19:49] Speaker 05:
No, no, no, you go ahead.

[00:19:51] Speaker 06:
Are you sure?

[00:19:52] Speaker 06:
Yeah, I was going to switch gears a little bit and which is suppose that suppose just for argument purposes.

[00:19:59] Speaker 06:
I know we're going to hear an entire slew of arguments about why this premise is wrong, but suppose that we were to agree with you on your this argument under 401.

[00:20:08] Speaker 06:
Why is the consequence of that?

[00:20:11] Speaker 06:
Not simply vacator of the license as opposed to what you're asking for, which is not just vacator of the license, but actually imposition of the conditions

[00:20:21] Speaker 06:
that were in the initial certification.

[00:20:23] Speaker 06:
That's just not something that's standard administrative law for us to do something beyond the standard vacator.

[00:20:30] Speaker 02:
I agree, Your Honor.

[00:20:30] Speaker 02:
And the waiver argument itself wouldn't lead to an order directing EPA to issue a license with the certification.

[00:20:38] Speaker 02:
The reason we make that argument is that the settlement, whatever it would of course do, doesn't withdraw the certification.

[00:20:46] Speaker 02:
It says Maryland is waiving its rights to issue certification.

[00:20:51] Speaker 02:
That doesn't change the fact that there is an existing certification out there.

[00:20:56] Speaker 02:
And Section 401B of the Act says that any certification has to be incorporated into any license.

[00:21:02] Speaker 02:
So it's a separate argument.

[00:21:04] Speaker 02:
We would be happy if the court vacates the license.

[00:21:08] Speaker 02:
But we think that because the certification was never properly withdrawn, the law requires it to be added to the certificate of license.

[00:21:18] Speaker 06:
So you think the consequence of vacating the license

[00:21:21] Speaker 06:
is that the certification that both parties assumed was no longer in effect, actually by operation of federal law, or for purposes of federal law, remains in effect such that FERC has no choice but to issue the license based on the conditions in that original certification.

[00:21:39] Speaker 02:
It is possible that the state could continue its review process.

[00:21:45] Speaker 02:
It's important to remember that Maryland and the power hub and the dam company

[00:21:50] Speaker 02:
abandoned the state review process before it ever got anywhere.

[00:21:54] Speaker 02:
And so it is possible that they could continue that process.

[00:21:58] Speaker 02:
But we think that, yes, as of now, there is an existing certification, and it should be included.

[00:22:07] Speaker 05:
Well, see, that's interesting just to pursue the chief judge's question.

[00:22:15] Speaker 05:
If, as you request, we not only vacate

[00:22:20] Speaker 05:
the license but direct for to issue a license consistent with the 2018 certification.

[00:22:26] Speaker 05:
If we do that, then what process is left for Maryland?

[00:22:33] Speaker 05:
The license has now been issued.

[00:22:34] Speaker 05:
Can they still do their normal procedures, whatever they are, reconsider the underlying certificate?

[00:22:44] Speaker 05:
I wouldn't think so, right?

[00:22:46] Speaker 02:
If the court orders them, if the court orders FERC to add the license, no, I think that would be the end of the process.

[00:22:51] Speaker 05:
Right, so the only way FERC would, the only way Maryland would be able to invoke its own procedures to reconsider the 2018 certificate properly would be if we limit our relief to vacating license, right?

[00:23:08] Speaker 02:
Yes, that's correct.

[00:23:09] Speaker 05:
And I see, yeah.

[00:23:16] Speaker 05:
And would that, why wouldn't that satisfy, I understand that doesn't give you everything you want, right?

[00:23:26] Speaker 05:
You want a license with the 2018 conditions in it, right?

[00:23:35] Speaker 02:
Yeah.

[00:23:36] Speaker 02:
It would be very, you know, it would be very good relief to the petitioners.

[00:23:42] Speaker 02:
It would be even better to have those effective measures in place.

[00:23:45] Speaker 05:
But I guess what I'm asking is, since we know Maryland, the whole purpose of this statute was to give the state, put the state in the driver's seat, right, on these kinds of cases, right?

[00:24:01] Speaker 05:
I mean, that's what the purpose of this was.

[00:24:03] Speaker 02:
I don't really agree with that, Your Honor, but I think it's not the whole purpose.

[00:24:07] Speaker 05:
The purpose is also to protect.

[00:24:08] Speaker 05:
The primary purpose was to protect the water.

[00:24:12] Speaker 05:
Quite well taken.

[00:24:13] Speaker 05:
But it was to give the state a primary role.

[00:24:15] Speaker 05:
So given that, wouldn't we, and given that we know that Maryland now has some concerns about the 2018 license, wouldn't it be to balance all these together, wouldn't it be better for us, assuming we agree with you about the statute, to vacate the license, which leaves Maryland in a position, if it wants to, to invoke whatever administrative procedures it has to reconsider the certificate

[00:24:45] Speaker 05:
and which you agree it could do in another case and ultimately decide that to withdraw the certification and start over again, right?

[00:24:56] Speaker 05:
That would leave the state, that would still leave the state with a semblance of authority under this statute, which clearly has, right?

[00:25:07] Speaker 05:
Otherwise, if we don't, if we do it your way, we cut that off, right?

[00:25:10] Speaker 05:
If we do it your way and vacate an order for it to issue a license based on the 2018 certificate, we cut off Maryland's authority under the statute to reconsider the 2018.

[00:25:24] Speaker 05:
If I could add one more point on remedy.

[00:25:27] Speaker 02:
The Department of Interior has asked that if the license is vacated, like the official prescription sever and remand, I believe sever and remand the prescription,

[00:25:40] Speaker 02:
How would we do that?

[00:25:42] Speaker 02:
I don't know.

[00:25:43] Speaker 02:
All right.

[00:25:47] Speaker 05:
Well, maybe they can tell us how they think we can do that.

[00:25:50] Speaker 06:
Give me some time for rebuttal.

[00:25:51] Speaker 06:
Thank you, Mr. Pugh.

[00:25:55] Speaker 06:
We'll hear from Commission Council now, Mr. Edgar.

[00:26:04] Speaker 00:
Your Honor.

[00:26:06] Speaker 08:
May it please the Court.

[00:26:07] Speaker 08:
I'm Scott Edgar from the Federal Energy Regulatory Commission.

[00:26:10] Speaker 08:
I thank you for hearing the case today.

[00:26:13] Speaker 08:
Um, I want to make some broad points initially about the going exactly to judge, title your point.

[00:26:20] Speaker 06:
Could you, could I just trouble you to just lower the podium a little bit just to make sure your voice comes through or just the mics just a little bit.

[00:26:28] Speaker 08:
It's indeed, we do agree that the purpose of the Clean Water Act, a big, um,

[00:26:34] Speaker 08:
characteristic of the Clean Water Act is to put the states in the driver's seat when it comes to enforcement of water quality standards in the country.

[00:26:43] Speaker 08:
To that end, the most obvious explicit expression of that is 401 itself, which gives the state this incredible power to veto a project.

[00:26:54] Speaker 08:
We think the commission's interpretation of 401 has honored that.

[00:27:01] Speaker 08:
The petitioners here

[00:27:03] Speaker 08:
are relying on language in 41A, which discusses one type of waiver, which is waiver in the instance where the state doesn't act.

[00:27:14] Speaker 05:
It doesn't say state waives its authority, including through waiver or failure to act.

[00:27:24] Speaker 05:
These are the two kinds of waivers.

[00:27:26] Speaker 05:
I know that the argument in your brief is it doesn't preclude

[00:27:31] Speaker 05:
Maryland from doing what it did, right?

[00:27:33] Speaker 05:
Because it isn't excluded.

[00:27:35] Speaker 05:
But that isn't the way we read statutes like this.

[00:27:38] Speaker 05:
I mean, if a statute said, you know, an agency can issue three kinds of licenses, A, B and C. We wouldn't say that, well, it doesn't preclude D and therefore that's OK.

[00:27:50] Speaker 05:
It isn't that in this case.

[00:27:52] Speaker 05:
It says very clearly.

[00:27:53] Speaker 05:
It says.

[00:27:56] Speaker 05:
It says.

[00:27:58] Speaker 05:
It says.

[00:28:00] Speaker 05:
no license or permit shall be granted until the certification has been obtained or has been waived as provided, as provided by the previous sentence.

[00:28:14] Speaker 05:
I mean, that's pretty specific that Congress is saying the waiver has to be as provided in the previous sentence.

[00:28:22] Speaker 05:
And there's only two ways to waive it.

[00:28:24] Speaker 05:
So I don't see where we

[00:28:26] Speaker 05:
we get the flexibility to say, well, there's a third one because it isn't excluded.

[00:28:32] Speaker 08:
Let me try it.

[00:28:33] Speaker 08:
I think you've presented me with a hypothetical that it's a negative implication because certain things are provided and you can't do the other.

[00:28:45] Speaker 08:
As the Supreme Court pointed out in the Marx case, that argument can make sense, but it doesn't make sense if

[00:28:53] Speaker 08:
We can't conclude that Congress thought of the unnamed thing, that is, the general rule that any person can waive their statutory rights.

[00:29:04] Speaker 08:
We have to conclude that Congress thought of that general point and intended to prohibit it.

[00:29:10] Speaker 05:
I'm sorry.

[00:29:12] Speaker 05:
So what would we do?

[00:29:13] Speaker 05:
We would look at legislative congressional reports to find out.

[00:29:17] Speaker 08:
Yes, Your Honor.

[00:29:18] Speaker 05:
That's not the way we interpret statutes anymore.

[00:29:21] Speaker 05:
I mean, we're looking at the language of the statute.

[00:29:24] Speaker 05:
And, you know, we don't have very many, we don't have very, we don't deal with a lot of clear statutes, but I honestly, I'll just tell you where, so you'll know where I'm coming from.

[00:29:36] Speaker 05:
I just don't see where with the language in this particular statute where it says, where it says, it says, it says, no license shall be granted.

[00:29:47] Speaker 05:
until the certification requirement by this section has been obtained or has been waived as provided in the previous sentence.

[00:29:55] Speaker 05:
I don't know where we would get the authority to say, well, going back to my hypothetical, there's no evidence in the legislative record that Congress thought the agency might do option D, so now we can do it.

[00:30:11] Speaker 08:
I think we could look at legislative history and conclude that that language was intended to prevent a state from dilatoria.

[00:30:23] Speaker 08:
And so that's the kind of waiver that's discussed.

[00:30:27] Speaker 05:
I'm sorry.

[00:30:28] Speaker 05:
I just want to keep this thread going.

[00:30:29] Speaker 05:
So if we found a Senate report here, or say someone stood up on the floor of the House who voted for this thing,

[00:30:36] Speaker 05:
and said, okay, well, let's stick with the report.

[00:30:39] Speaker 05:
Is that stronger legislative history?

[00:30:41] Speaker 05:
And the report says, yes, there's these two ways to waive.

[00:30:44] Speaker 05:
But the Congress in enacting this does not intend to preclude the state from working with the operator to come up with an alternative certification.

[00:31:01] Speaker 05:
That would be enough.

[00:31:07] Speaker 03:
I'm not sure I follow the hypothetical.

[00:31:10] Speaker 08:
I think the two types of waivers are completely different things.

[00:31:14] Speaker 08:
The waiver that we're talking about expressed in 401A is waiver intended to force the state to act.

[00:31:23] Speaker 08:
And by not allowing the general form of waiver, you would actually have a contrary outcome.

[00:31:32] Speaker 08:
You would be thwarting the congressional

[00:31:36] Speaker 08:
purpose here.

[00:31:38] Speaker 06:
Could you have a waiver after the state review already happens and actually ratifies the certification?

[00:31:45] Speaker 06:
Suppose the review gets completed and all the challenges to the certification fail.

[00:31:52] Speaker 06:
And then the state says after that, actually, you know what?

[00:31:56] Speaker 06:
We're waiving.

[00:31:58] Speaker 06:
I think that's a harder case.

[00:32:00] Speaker 06:
I think, um,

[00:32:01] Speaker 06:
But if the statute doesn't, as I understand your textual argument, the statute doesn't preclude other kinds of waivers, including, this is a waiver after certification.

[00:32:13] Speaker 06:
That's what kind of makes this one.

[00:32:14] Speaker 06:
I think it's the linchpin of their argument.

[00:32:16] Speaker 06:
So what's to stop that from happening?

[00:32:20] Speaker 08:
I think this gets harder as we go along.

[00:32:23] Speaker 08:
I think one important

[00:32:27] Speaker 08:
robot would be the issuance of the license.

[00:32:29] Speaker 06:
I think if as long as the way, but here, but first just waits.

[00:32:32] Speaker 06:
So here they're going to wait out, the commission is going to wait out the state review process.

[00:32:37] Speaker 06:
That's what was going on here anyway.

[00:32:40] Speaker 06:
And so the commission just waits and then the state review process ends.

[00:32:44] Speaker 06:
The state review process ends in a ratification of the certification.

[00:32:48] Speaker 06:
In other words, a rejection of the challenges.

[00:32:49] Speaker 06:
And let's just suppose just that there's just new composition of the state

[00:32:54] Speaker 06:
comes in and says, you know, should never, should never granted that certification.

[00:32:57] Speaker 06:
We made it.

[00:32:58] Speaker 08:
I think it would be available.

[00:33:00] Speaker 08:
And I think that the proper recourse and the recourse that should have happened here would have been to challenge that action in the state court and argue that it's arbitrary and capricious or something to that effect.

[00:33:14] Speaker 08:
And then the experts on the state water quality standards could take a look at the action and whether or not

[00:33:24] Speaker 08:
waiver is, waiver violated state laws.

[00:33:28] Speaker 05:
Well, if we vacate the license, that process can go forward, right?

[00:33:38] Speaker 05:
As long as we don't do what Waterkeeper wants, which is to order BERT to issue a license based on the 2018 certificate.

[00:33:45] Speaker 05:
If we just vacate the license, Waterkeeper has conceded that

[00:33:54] Speaker 05:
The state can still reconsider all of this, right?

[00:34:00] Speaker 08:
That should have happened already.

[00:34:02] Speaker 08:
And it didn't.

[00:34:04] Speaker 05:
And the Waterkeeper had an opportunity to... But Waterkeeper was relying on the statute that said there were two ways to waive it.

[00:34:11] Speaker 05:
Why did it have an obligation to do anything else?

[00:34:14] Speaker 05:
Let me ask you a second question about your theory.

[00:34:20] Speaker 05:
What language in the joint settlement

[00:34:22] Speaker 05:
do you think actually waves, actually acts as a waiver?

[00:34:27] Speaker 05:
What is the language that does that?

[00:34:29] Speaker 05:
I believe it's section 3.2A1.

[00:34:33] Speaker 05:
Why don't you read me what you think is the best language?

[00:34:35] Speaker 08:
And that's the language that's... Sorry, what?

[00:34:40] Speaker 08:
That's the language where the state says that it waives its right to issue a water quality certificate.

[00:34:50] Speaker 06:
You know where that is in the J.A.?

[00:34:53] Speaker 05:
Let's just read it, would you?

[00:34:57] Speaker 03:
Find it and read it, please.

[00:35:19] Speaker 03:
Yes.

[00:35:20] Speaker 03:
3.2A1.

[00:35:21] Speaker 08:
JA what?

[00:35:24] Speaker 08:
Sorry, JA626.

[00:35:34] Speaker 08:
He has set forth on the offer of settlement, the state of Maryland shall waive its rights to issue King Water Act section 401 certification in connection with the new license.

[00:35:48] Speaker 05:
Is that the end of the sentence?

[00:35:51] Speaker 08:
goes on to define that action as the conditional waiver.

[00:35:55] Speaker 05:
Well, that was my point.

[00:35:58] Speaker 05:
What's a conditional waiver?

[00:36:00] Speaker 05:
Here it says this is a conditional waiver.

[00:36:02] Speaker 05:
Again, we're back to the statute.

[00:36:04] Speaker 05:
If the state itself, the statute says waiver and what the state has done is issued a conditional waiver.

[00:36:10] Speaker 05:
So even if your theory is correct, has it really waived in accordance with the statute?

[00:36:20] Speaker 08:
I believe that the waiver became complete upon action on this document, the settlement that was filed with the commission.

[00:36:28] Speaker 08:
This is conditioned on approval of the proposed license measures.

[00:36:33] Speaker 05:
But that's not a waiver.

[00:36:36] Speaker 05:
It's not waiving its authority under the statute.

[00:36:38] Speaker 05:
It's saying we'll waive it so long as you accept our conditions.

[00:36:43] Speaker 05:
Again, see, it's another example of where you're departing from the plain language of the statute.

[00:36:52] Speaker 05:
Aren't you?

[00:36:53] Speaker 05:
I don't need to state it as affirmed.

[00:36:57] Speaker 05:
That was a question.

[00:36:59] Speaker 08:
We don't believe that this language is.

[00:37:01] Speaker 08:
Congress hasn't addressed the issue of whether a state can affirmatively waive.

[00:37:08] Speaker 08:
And EPA has interpreted this language as providing an affirmative waiver.

[00:37:15] Speaker 01:
The statute says you can refuse to waive, which is what an affirmative waiver is.

[00:37:23] Speaker 01:
I don't think the statute is silent.

[00:37:24] Speaker 01:
You can waive by failing to act or you can refuse to act.

[00:37:28] Speaker 01:
I don't, wouldn't refuse to act include an affirmative waiver?

[00:37:34] Speaker 01:
What's the matter?

[00:37:34] Speaker 08:
I don't think so.

[00:37:35] Speaker 08:
Your honor, I don't know.

[00:37:37] Speaker 01:
You hereby announce that we refuse to act on this?

[00:37:40] Speaker 08:
That's not a waiver?

[00:37:41] Speaker 08:
I think it's a rigid interpretation that's being advanced here by petitioners.

[00:37:46] Speaker 01:
I'm just asking in response to this, you were relying on the ability to do an express waiver.

[00:37:52] Speaker 01:
in response to Judge Tatel's question, but I don't think that's any gloss on the statutory language, which includes refusals.

[00:38:01] Speaker 01:
Refusals require some expression.

[00:38:05] Speaker 08:
I don't think that's the natural consequence of what commissioners are advancing here.

[00:38:13] Speaker 01:
I think the language- I was just trying to understand your answer to Judge Tatel.

[00:38:19] Speaker 01:
Or I thought you were saying that it requires a gloss on statutory language to allow affirmative waivers.

[00:38:26] Speaker 01:
Did I misunderstand you?

[00:38:29] Speaker 08:
I don't think so.

[00:38:33] Speaker 08:
I think what I'm trying to say is that the statute doesn't permit the affirmative waiver here that EPA says is possible.

[00:38:44] Speaker 08:
And as this court said in Alcoa Power, that a state wave- The statute doesn't allow the affirmative waiver that Maryland did here.

[00:38:54] Speaker 08:
I'm saying the arguments advanced by petitioners suggest that that would not be permissible.

[00:38:59] Speaker 08:
And as we can, the commission cited the EPA website, the commission cited the case from the Northern District of Mississippi, 1980, and this court's expression in Alcoa Power

[00:39:13] Speaker 08:
which stated that a state wave in the, um, during the state administrative process.

[00:39:21] Speaker 06:
Can I ask you one question that, um, I just want to know whether the commission has a view on this and we can ask the parties to the agreement too.

[00:39:30] Speaker 06:
But if we were to vacate the license, is the settlement agreement still in effect because Perk did issue the license thereby satisfying the condition that was set out in the agreement?

[00:39:45] Speaker 08:
Your honor raises a good question.

[00:39:46] Speaker 08:
I don't want to get ahead of the commission on a question like that.

[00:39:50] Speaker 08:
But I think that's an important piece of this is that there was a part of the settlement was the acceptance of the licensees withdrawal of the petition for declaratory order based on Hoopa Valley.

[00:40:07] Speaker 08:
And that posed a significant risk to the state.

[00:40:13] Speaker 08:
because they stood to possibly lose any entitlement whatsoever to make any conditions whatsoever.

[00:40:21] Speaker 06:
And it's not clear to me how that would play out.

[00:40:25] Speaker 06:
So from the commission's perspective, the commission is not in a position to say what the direct

[00:40:32] Speaker 06:
consequences of a vacator of the license by us would be.

[00:40:35] Speaker 08:
I think that's right.

[00:40:36] Speaker 08:
I wouldn't want to get ahead of the commission on that question.

[00:40:40] Speaker 08:
And for that reason, according to the allied signal factors, we'd strenuously urge this court to consider remand without vacator.

[00:40:51] Speaker 05:
Without vacating the license?

[00:40:53] Speaker 08:
How can we do that?

[00:40:54] Speaker 08:
On the disruptive consequences, I would distinguish this case from other cases where the court has been concerned about the idea of build something and then explain it later.

[00:41:08] Speaker 08:
And that's not the situation here.

[00:41:10] Speaker 06:
But usually it has to be a circumstance in which at least the thing that was flawed can be rectified.

[00:41:18] Speaker 06:
Whereas here, the problem, by hypothesis, assuming that we don't accept your argument, obviously, can't be rectified because it was in violation of law, it was in contravention of Section 401.

[00:41:32] Speaker 08:
I think it's a harder case than the case where, say, if the error is a NEPA-related or the balancing under the Federal Power Act, certainly.

[00:41:40] Speaker 08:
But again, this is not a case where

[00:41:42] Speaker 08:
I think we can all agree that the license here is an improvement over what existed before.

[00:41:48] Speaker 08:
The question really is, from a 30,000 feet perspective, is petitioners are asking for even more.

[00:41:57] Speaker 05:
So I would- No, all they're asking for, yeah, you're right.

[00:42:00] Speaker 05:
They're definitely asking for more.

[00:42:01] Speaker 05:
But in terms of the existing license, I just don't see how we can not make a license that's been issued in violation of law.

[00:42:11] Speaker 05:
Period.

[00:42:14] Speaker 08:
I'm just concerned about the disruptive consequences.

[00:42:16] Speaker 05:
But what's the disruptive concept?

[00:42:17] Speaker 05:
It's not like someone's proposed to take the dam down or this is a dam that's under construction and we're stopping the construction.

[00:42:25] Speaker 05:
This is an existing operation and people are just debating reasonably, apparently, over what the conditions are.

[00:42:32] Speaker 05:
And here's a license that's been issued in violation of law.

[00:42:36] Speaker 05:
I don't even understand why, what basis we would possibly have as a court not to make it.

[00:42:43] Speaker 08:
I would just add to that, Judge Settle, that under L.A.

[00:42:46] Speaker 08:
had signaled the disruptive consequences that the flow regime, the operation of that game itself, is a huge improvement over what existed before.

[00:42:55] Speaker 06:
So in the ex-ante world, there were just annual licenses that were being issued?

[00:43:00] Speaker 06:
Yes.

[00:43:01] Speaker 06:
And so presumably, whatever the disruptive consequences you're concerned about are disruptive consequences for the environment.

[00:43:07] Speaker 06:
Yes.

[00:43:07] Speaker 06:
Totally understandably.

[00:43:09] Speaker 06:
And I take it that that was also the case in a regime in which the annual licenses

[00:43:13] Speaker 06:
We also had those concerns and something was being done to adequately address those on a year-to-year basis.

[00:43:23] Speaker 08:
The annual license, correct.

[00:43:24] Speaker 08:
It would have continued basically the existing applications from the previous license.

[00:43:30] Speaker 05:
I mean, are you suggesting in response to my question, but let me make sure I understand.

[00:43:34] Speaker 05:
The 2018 certification had a set of conditions.

[00:43:41] Speaker 05:
So also does

[00:43:42] Speaker 05:
the settlement, but those are less rigorous, right, than the 2018 ones, right?

[00:43:49] Speaker 05:
That's why Waterkeepers is here.

[00:43:51] Speaker 05:
That's right.

[00:43:52] Speaker 05:
Okay.

[00:43:52] Speaker 05:
So are you suggesting that if we vacate the license, the dam operator will cease complying with the conditions in its own agreement?

[00:44:04] Speaker 08:
I think part of what the license here is is approval of the settlement, which would have a flow regime.

[00:44:12] Speaker 08:
And, and I'm concerned at a big hitter of that approval.

[00:44:17] Speaker 05:
Well, we can ask, they're going to argue here.

[00:44:18] Speaker 05:
We can ask them that question.

[00:44:20] Speaker 05:
Okay.

[00:44:20] Speaker 05:
We don't have to guess.

[00:44:21] Speaker 05:
We'll just ask.

[00:44:24] Speaker 06:
Great.

[00:44:24] Speaker 06:
My colleagues have further questions for you.

[00:44:28] Speaker 06:
Thank you.

[00:44:32] Speaker 06:
Thank you.

[00:44:34] Speaker 06:
We'll hear now from Mr. May for the state.

[00:44:38] Speaker 06:
We'll leave two minutes allocated to you.

[00:44:56] Speaker 10:
appropriate height.

[00:45:00] Speaker 10:
May it please the court.

[00:45:03] Speaker 10:
As this court and others have recognized section 401 and the certification requirement it provides serves as one of the primary tools that Congress reserve states.

[00:45:15] Speaker 01:
Reserved as states, it gave them a choice.

[00:45:18] Speaker 01:
You can impose conditions or you can waive

[00:45:23] Speaker 01:
We're not playing.

[00:45:24] Speaker 01:
We're not participating in the setting of conditions.

[00:45:26] Speaker 01:
That's correct.

[00:45:27] Speaker 01:
And what happened here is we want to impose conditions, but we're going to call it a waiver.

[00:45:35] Speaker 01:
That seems to me a door not left under the statute because you are imposing conditions.

[00:45:40] Speaker 10:
Well, the state initially issued a water quality certification in 2018.

[00:45:44] Speaker 10:
And following, I would agree with your honor's questions before that the statute in the text does provide for affirmative waivers.

[00:45:51] Speaker 10:
Refusal to act.

[00:45:54] Speaker 10:
form of waiver and the state, although it initially acted later by entering into the settlement agreement, submitted to FERC, a joint offer of settlement.

[00:46:02] Speaker 01:
But it didn't refuse to act.

[00:46:03] Speaker 01:
It said, we would like to have these conditions imposed.

[00:46:07] Speaker 01:
And if you impose these conditions, then we will waive.

[00:46:11] Speaker 01:
That's what seems to me.

[00:46:12] Speaker 01:
The one thing a waiver isn't, whether express or not, is the imposition of conditions on the license.

[00:46:24] Speaker 10:
ability to have those conditions imposed in the license through a certification issued under the Clean Water Act.

[00:46:31] Speaker 01:
What's the difference if you can get to it?

[00:46:35] Speaker 10:
because it was able to secure those conditions in a settlement agreement, which occurred all the time.

[00:46:40] Speaker 01:
If you had done it through a certification, the statute would require you, as part of that certification, to confirm that the conditions comply with applicable provisions of the Clean Water Act, 13, 11, 12, 13, 16, and 17.

[00:46:56] Speaker 01:
And your original certification did that in terms.

[00:46:59] Speaker 10:
That's correct.

[00:47:00] Speaker 01:
Of course, your settlement agreement doesn't say that the terms you now want to impose do comply with these provisions.

[00:47:07] Speaker 01:
And so isn't the concern with a waiver with conditions that it's a complete end run of Maryland's obligation to certify that the conditions it's selected comply with these federal law provisions?

[00:47:22] Speaker 01:
Or did they comply with it?

[00:47:25] Speaker 10:
But the state has the authority, as this court recognized, it alone determines whether or not to certify, whether you use the power provided by Congress in Section 401.

[00:47:36] Speaker 10:
And the state has the authority to waive that.

[00:47:41] Speaker 06:
When the state waives, just to follow up on Judge Millett's question, when the state waives but imposes conditions,

[00:47:48] Speaker 06:
And I take your point that the conditions that are being imposed are not a certification because you're waiving certification.

[00:47:54] Speaker 06:
There are conditions that are being imposed in a private settlement agreement with consolation.

[00:47:59] Speaker 06:
Does the commission need to incorporate those conditions into its license?

[00:48:05] Speaker 10:
The commission is not bound by the party's settlement agreement.

[00:48:09] Speaker 10:
We presented the commission with the settlement agreement and offer of settlement and asked that they incorporate them as supported by the record before the commission.

[00:48:18] Speaker 10:
But the settlement agreement didn't directly impose any condition.

[00:48:24] Speaker 10:
It was a private settlement agreement between Constellation and Maryland.

[00:48:30] Speaker 10:
It did not become effective until FERC took the next step.

[00:48:34] Speaker 10:
And well, they agreed it was effective.

[00:48:36] Speaker 10:
But the parties, there were provisions and dispute resolution provisions in the event FERC did not take the ultimate step of incorporating the proposed license articles into the license.

[00:48:48] Speaker 10:
that not happen in the state with had a right to terminate.

[00:48:50] Speaker 06:
So the commission can issue a license without regard to these kinds of conditions in this situation.

[00:48:57] Speaker 06:
They could just issue a license without any conditions at all.

[00:49:00] Speaker 10:
I'm not saying that the commission would have to why can't they?

[00:49:04] Speaker 06:
It has to follow the Federal Power Act.

[00:49:06] Speaker 06:
Right, but what is in the Federal Power Act that requires the incorporation of conditions that are part of a private settlement?

[00:49:12] Speaker 10:
No, I'm sorry.

[00:49:13] Speaker 10:
They're not required to incorporate those conditions.

[00:49:16] Speaker 10:
That's not what I meant.

[00:49:17] Speaker 10:
Yeah.

[00:49:17] Speaker 10:
And we could have rejected our settlement.

[00:49:19] Speaker 10:
We presented to them.

[00:49:20] Speaker 06:
It was placed on public notice.

[00:49:22] Speaker 06:
There was a comment period.

[00:49:23] Speaker 06:
So what is the

[00:49:27] Speaker 06:
the commission's license.

[00:49:29] Speaker 10:
The settlement agreement is being implemented.

[00:49:32] Speaker 10:
The state did not take a position on the ultimate relief in the case, but I agree with what was stated in the Department of Interior's brief that there would be some disruptive consequences and certainly delay potential interference with implementing the environmental projects that are provided for by the settlement.

[00:49:48] Speaker 05:
Well, why is that?

[00:49:51] Speaker 05:
Okay, so maybe I should ask Constellationist, but so under

[00:49:56] Speaker 05:
Under the settlement, there are provisions to deal with flow, fish, and eel passage, invasive species, and trash and debris.

[00:50:10] Speaker 05:
So if we vacate the license, are all of those measures going to stop?

[00:50:16] Speaker 10:
It's a very good question.

[00:50:18] Speaker 10:
It depends on the reason for vacating the license.

[00:50:21] Speaker 10:
If the vacating license includes

[00:50:23] Speaker 10:
finding that Maryland lacked the authority to waive.

[00:50:27] Speaker 05:
No, no, no.

[00:50:28] Speaker 05:
That's not my question.

[00:50:29] Speaker 05:
We would vacate on the grounds that Maryland has not lawfully waived.

[00:50:35] Speaker 05:
That's it.

[00:50:37] Speaker 05:
I mean, Maryland would still be free.

[00:50:39] Speaker 05:
All we did was vacate the license as opposed to requiring a new license subject to the 2018 conditions.

[00:50:48] Speaker 05:
All we did was vacate the license.

[00:50:50] Speaker 05:
Maryland would still be free.

[00:50:52] Speaker 05:
To follow its normal procedures and and and and eventually.

[00:50:58] Speaker 05:
Presumably if it wanted to.

[00:51:01] Speaker 05:
Vacate the.

[00:51:04] Speaker 05:
Vacate the 2018.

[00:51:07] Speaker 05:
Certification and then I guess we just start over again.

[00:51:12] Speaker 05:
The 2018 certification so why why would these protective provisions be abandoned in the meantime?

[00:51:18] Speaker 05:
The operator has agreed to them with Maryland.

[00:51:21] Speaker 05:
I mean, I mean, just because this court vacates the license, they say, OK, we vacated our license.

[00:51:27] Speaker 05:
We're not going to protect eels anymore.

[00:51:29] Speaker 05:
We're not going to worry about trash.

[00:51:31] Speaker 05:
We're not going to do any of this stuff.

[00:51:32] Speaker 05:
We're not going to do that, are they?

[00:51:34] Speaker 10:
There were provisions.

[00:51:35] Speaker 10:
I'll speak for the state.

[00:51:37] Speaker 10:
I can't speak for Transylation.

[00:51:38] Speaker 10:
However, there were provisions in the settlement agreement that tried to adjust for what would happen when FERC issued the license.

[00:51:45] Speaker 10:
It did not go so far as written in the settlement agreement as to what occurs should the FERC license be challenged.

[00:51:54] Speaker 05:
Right, that's the question.

[00:51:55] Speaker 05:
That's the question to all of them.

[00:51:58] Speaker 05:
We'll ask Constellation.

[00:52:02] Speaker 06:
Do you have a view?

[00:52:03] Speaker 06:
Does the state have a view on what happens with the review?

[00:52:06] Speaker 06:
Because as I read the documents, they only talk about FERC's issuance of the license.

[00:52:13] Speaker 06:
That happened.

[00:52:13] Speaker 06:
That's correct.

[00:52:14] Speaker 06:
that it's kind of like it reads to me as if those are in effect, regardless of what happens on review.

[00:52:22] Speaker 10:
And I don't want to predetermine the state's view on what would occur in that case.

[00:52:28] Speaker 01:
What is FERC supposed to do in the meantime?

[00:52:30] Speaker 01:
This is what I don't understand about this.

[00:52:34] Speaker 01:
If the license is vacated, FERC

[00:52:42] Speaker 01:
Way more than a year has elapsed since the company applied for this license.

[00:52:46] Speaker 01:
Does FERC have to just keep waiting until the state goes through settlement process, administrative process, which could take years?

[00:52:55] Speaker 01:
What is FERC supposed to do?

[00:52:57] Speaker 01:
When can Constellation go back to FERC and go, we have nothing?

[00:53:01] Speaker 10:
I think there is a risk that Constellation would do that.

[00:53:03] Speaker 10:
From the state's perspective, this was part of the underlying litigation.

[00:53:07] Speaker 10:
We disagreed with Constellation about how

[00:53:11] Speaker 10:
a finality of administrative review.

[00:53:13] Speaker 01:
I know you think Constellation.

[00:53:15] Speaker 01:
So say it's just assume there's a vacatur and Constellation says we've waited long enough.

[00:53:22] Speaker 01:
Okay.

[00:53:23] Speaker 01:
We've, we've, we've got nothing here from the state.

[00:53:26] Speaker 10:
They already have a pending petition for declaratory order that was deemed moved because FERC issued the license.

[00:53:32] Speaker 10:
So I would expect them to make that argument.

[00:53:35] Speaker 10:
The state would argue.

[00:53:36] Speaker 10:
Do you think they would be right under federal law to say no, because we, because the state did initially act within the one year period in 2018 when it issued the license, the certification, the certification, sorry.

[00:53:52] Speaker 10:
And although there's a tendency of appeals after that time, we do not believe that that would result in a waiver.

[00:54:00] Speaker 10:
And even the most recent decision from the Fourth Circuit suggested, at least, that act within one year does not even need to include a final decision so long as substantial progress has been made.

[00:54:15] Speaker 10:
And so the state's position would be that there would not be grounds for waiver.

[00:54:21] Speaker 01:
No.

[00:54:22] Speaker 01:
and FERC would have to adopt the 2018 certification before it could issue, it couldn't issue a license without adopting the 2018 certification.

[00:54:31] Speaker 10:
Before the settlement was entered, the administrative appeal process was underway in litigation with constellation over the terms of the certification and FERC waited for that to- Does it have to keep, that's where I started the question, they have to keep- I believe it's its policy to wait

[00:54:50] Speaker 10:
But I don't know that that means they have to.

[00:54:53] Speaker 01:
Do they wait for just the administrative process or they have to wait for all the litigation?

[00:54:57] Speaker 10:
That would be up to the commission, but I believe their general preferences for settlements and to allow that process.

[00:55:04] Speaker 06:
But your view is that at least that they could continue to wait?

[00:55:06] Speaker 06:
Yes.

[00:55:07] Speaker 01:
Certainly they could continue to wait.

[00:55:10] Speaker 01:
If they didn't want to wait, then they would have to issue a license that includes the 2018 terms?

[00:55:16] Speaker 10:
MDE's waiver has been deemed ineffective, and the 2018 certification is in place, and that is the only certification that they would have to rely on in issuing the license.

[00:55:27] Speaker 10:
Or they could just not.

[00:55:28] Speaker 10:
Or they could wait until it plays out.

[00:55:31] Speaker 10:
Correct.

[00:55:32] Speaker 10:
And the question of whether the state has waived, well, there's a federal question as to whether the statute provides for affirmative waivers, and it's our position that it does.

[00:55:43] Speaker 10:
But it's a question of state law as to whether the state acted properly and followed its procedures in issuing the waiver.

[00:55:50] Speaker 10:
The Sixth Circuit said that very clearly in the City of Homestead Falls case with the City of Tacoma case addresses that issue as well, is that the federal agency and the reviewing court don't look into that process to determine whether the waiver was proper.

[00:56:08] Speaker 10:
They rely on the affirmation from the state that have followed its own processes.

[00:56:13] Speaker 05:
It's a separate question.

[00:56:15] Speaker 05:
But it has to waive.

[00:56:18] Speaker 05:
It has to either not act or issue a waiver.

[00:56:24] Speaker 05:
It doesn't have a third option.

[00:56:28] Speaker 05:
That's not up to the state, right?

[00:56:30] Speaker 10:
No, I think it is.

[00:56:32] Speaker 10:
It is?

[00:56:32] Speaker 10:
The affirmative waiver is supported by case law cases.

[00:56:35] Speaker 10:
The courts that have examined the text of the act have not had a problem in finding that states have the ability to affirmatively waive.

[00:56:44] Speaker 10:
And yes, I agree with that.

[00:56:46] Speaker 05:
Under the statute, the state can waive its rights under 401.

[00:56:50] Speaker 05:
Right.

[00:56:50] Speaker 05:
Yes.

[00:56:51] Speaker 05:
But the question of whether it has or hasn't is, is, is a federal question.

[00:56:56] Speaker 05:
We interpret the statute, not the state.

[00:57:01] Speaker 05:
In other words, we don't have to defer to the state's judgment that what it did here in the settlement was a waiver, do we?

[00:57:06] Speaker 10:
I think the case law suggests that the court does.

[00:57:09] Speaker 10:
Really?

[00:57:09] Speaker 10:
That you don't conduct an in-depth review of the state's procedures.

[00:57:13] Speaker 05:
What in-depth review is required for us to conclude that a conditional waiver is not a waiver?

[00:57:21] Speaker 10:
I think it's a question of whether the state has the power to issue that.

[00:57:25] Speaker 01:
In addition to the settlement agreement, I also want to point out... If you have the power under state law, all we would decide is whether it's a waiver within the meaning of federal law.

[00:57:33] Speaker 01:
Yeah, that's correct.

[00:57:35] Speaker 06:
We don't defer to you on that.

[00:57:37] Speaker 05:
You and I were talking... I take back what I said.

[00:57:40] Speaker 05:
You and I agree.

[00:57:42] Speaker 01:
Can you just tell me one thing?

[00:57:43] Speaker 01:
The conditions that are in the settlement agreement, do they comply with the affluent limitations of the Clean Water Act?

[00:57:50] Speaker 01:
listed in section 1341 or not, because there was no such representation that I could find in the settlement agreement.

[00:57:55] Speaker 10:
Yeah, the settlement agreement does not contain any such statement.

[00:57:59] Speaker 10:
It's a settlement.

[00:58:00] Speaker 01:
Yes, but do they comply with the, do the terms comply with the affluent limitations or not?

[00:58:06] Speaker 10:
There's no finding in the record that Maryland.

[00:58:08] Speaker 01:
Does Maryland believe that the settlement agreement was consistent with federal law or did it violate the terms of the federal water act?

[00:58:15] Speaker 10:
Maryland does not believe that the settlement agreement violates federal law.

[00:58:18] Speaker 01:
So you believe it consists of the terms that are in there, put aside this issue, we're talking about a waiver, that the terms and conditions that are included in the settlement agreement meet the affluent limitations of the provisions of Clean Water Act listed in section 3041.

[00:58:37] Speaker 10:
Maryland has not made that finding in the record.

[00:58:40] Speaker 10:
what Maryland has done.

[00:58:42] Speaker 01:
I'm not asking whether you made the finding in the record.

[00:58:43] Speaker 01:
I didn't see it in the settlement agreement either.

[00:58:45] Speaker 01:
I'm asking whether the settlement agreement did or didn't.

[00:58:49] Speaker 01:
That's just a question.

[00:58:50] Speaker 01:
Did your settlement agreement comply with the requirements of the federal water act or not?

[00:58:55] Speaker 10:
It did not need to comply with the federal act.

[00:58:58] Speaker 01:
And so we don't know actually then whether the conditions comply with these affluent limitations, which the statute makes a condition

[00:59:07] Speaker 01:
requires that any state conditions imposed under 1341 meet these limitations.

[00:59:15] Speaker 10:
State is using its authority under section 401 to impose those required, those conditions in a federal license.

[00:59:23] Speaker 10:
It would have, the record would have to include those.

[00:59:29] Speaker 01:
So, but if you want to impose conditions, the state hypothetically wants to impose conditions, but

[00:59:34] Speaker 01:
It doesn't want to have to meet the affluent limitations of the statute.

[00:59:38] Speaker 01:
The way you do it is to do a settlement agreement.

[00:59:41] Speaker 01:
and get around this requirement if you were to be upfront about a condition and position.

[00:59:46] Speaker 10:
The state has an ability to waive Section 401 authority.

[00:59:50] Speaker 01:
Yes, but waivers, under the statute, a waiver is a decision not to impose conditions, but you have now come up with a settlement with a way to impose conditions, assuming FERC goes along, a way to impose conditions without needing the statutory prerequisite for conditions.

[01:00:05] Speaker 06:
because we're not using the section 401 authority to impose those conditions.

[01:00:08] Speaker 06:
Right, and that's why FERC doesn't actually have to incorporate the conditions into its federal license at all in this circumstance.

[01:00:13] Speaker 01:
Does FERC have to find that the conditions comply with these fluid limitations of the Clean Water Act before it can incorporate them?

[01:00:20] Speaker 10:
FERC did not need to make that finding.

[01:00:22] Speaker 01:
FERC had to make a finding that the... Is that finding supposed to be asserted by the state when conditions are imposed?

[01:00:27] Speaker 10:
Through water quality certification, that's correct.

[01:00:30] Speaker 06:
But you don't have to make that affirmation when it's not a certification.

[01:00:34] Speaker 06:
correct yeah because you could in other words what you're saying is we could have waved all along we could have just refused and we could also entered into a side agreement yes we just did that just collapsed it into one and we said we're waving and we're entering into this agreement yes that's correct on receipt of an application the state that issued an affirmative waiver

[01:00:52] Speaker 10:
I know my time is way over, but I just did want to point out the Joint Appendix 588 is the joint offer of settlement explanatory statement that was presented to FERC, and that contains the conditional waiver by NDE in addition to what was pointed out in the settlement agreement.

[01:01:09] Speaker 06:
Thank you.

[01:01:10] Speaker 06:
Thank you.

[01:01:12] Speaker 06:
Mr. May, Mr. DeVroon, we're helpful to you now for, we have three minutes.

[01:01:26] Speaker 07:
Thank you, your honor.

[01:01:26] Speaker 07:
May it please the court, David De Bruyne for Constellation.

[01:01:29] Speaker 07:
I think it's very important to start with the legal framework.

[01:01:34] Speaker 05:
Before you do that, could you just answer the question we've been asking everybody else, but you are the only one who probably knows the answer, which is if we were to vacate the license, would Constellation continue in place these provisions to protect eels, fish and things?

[01:01:50] Speaker 07:
And our constellation certainly was previously under an obligation to protect the environment under the interim licenses.

[01:01:58] Speaker 07:
It would go back to those interim licenses and absolutely constellation would take all adequate measures to protect the environment, the fish, the eels.

[01:02:08] Speaker 07:
I think it's important for the court to understand the context.

[01:02:10] Speaker 01:
Can I clarify your answer?

[01:02:11] Speaker 01:
You said you would go back to the terms of the prior license.

[01:02:15] Speaker 01:
Does under this settlement agreement,

[01:02:20] Speaker 01:
Are the terms for protecting eels and other fish more protective than they were under the annual license that was being issued before?

[01:02:29] Speaker 01:
They were.

[01:02:30] Speaker 01:
They were.

[01:02:31] Speaker 01:
And so if this license is vacated, when you said we'd go back and we would protect the environment, are you going to protect it under the terms of the old license?

[01:02:40] Speaker 01:
Are you going to continue to protect it under the terms of the settlement agreement?

[01:02:43] Speaker 07:
So several things there.

[01:02:44] Speaker 07:
First, I think this court clearly has authority

[01:02:47] Speaker 07:
Even if it were to reverse, which I will argue in a minute, there is no reason to do.

[01:02:52] Speaker 07:
But this court does not need to vacate the license, even in cases in which it finds a violation of law.

[01:02:58] Speaker 07:
And I can cite you three cases that this court has decided, including recently, that has found that a remand without vacatur is appropriate, even in cases where it finds a violation of law, in order to leave in place an environmental scheme that is more protected.

[01:03:15] Speaker 01:
So the situation was- I was just asking what the company would plan to do.

[01:03:19] Speaker 01:
Would it go with the- would it continue with the settlement terms for protecting fish or would it revert to the terms under the one-year license?

[01:03:28] Speaker 07:
The annually renewed one-year license?

[01:03:30] Speaker 07:
We don't know what the court's order says.

[01:03:31] Speaker 01:
We don't know what the commission- we operate- The submission order is just a vacature of the license.

[01:03:35] Speaker 01:
I'm asking you what as a matter of what- I think I'm trying to ask you what Judge Tatel was asking and that is- Same question.

[01:03:41] Speaker 01:
The company can choose either of those paths.

[01:03:45] Speaker 01:
We have to, at a minimum, do the one year license.

[01:03:47] Speaker 07:
There was a settlement agreement that included a number of provisions, including significant reductions in the flow regime, which is the way the company is able to make money by operating a hydroelectric plant.

[01:03:59] Speaker 07:
So I cannot say, without knowing what the court does, whether we're going to pick and choose and impose obligations on the company while at the same time... Well, it's a simple question.

[01:04:10] Speaker 05:
We'll tell you what the court's going to do.

[01:04:12] Speaker 05:
Soon the court vacates the license.

[01:04:14] Speaker 05:
But just a hypothetical, just assume we do.

[01:04:18] Speaker 05:
Is the company going to stick with the flow requirements in the settlement agreement, or is it going to return the flow requirements in the 2018 license?

[01:04:28] Speaker 07:
I cannot answer that.

[01:04:29] Speaker 07:
I can tell you that I assume.

[01:04:30] Speaker 05:
I thought you said you could answer if you knew what our options were.

[01:04:33] Speaker 07:
Well, if that is your option, I cannot tell you what the company would do or be required to do.

[01:04:39] Speaker 05:
OK, why don't you give us, what are the three cases that you want us to look at?

[01:04:44] Speaker 06:
It stands to be clear, these are three cases that stand for the proposition that we can remand without vacatur.

[01:04:48] Speaker 07:
We can remand without vacatur even if you file a violation of law.

[01:04:53] Speaker 07:
North Carolina versus EPA, 550 F-3 1176.

[01:04:58] Speaker 07:
You are Sugarcorp versus EPA, 844 F-3 268.

[01:05:03] Speaker 07:
American Great Lakes versus Shultz, 962 F-3 510.

[01:05:06] Speaker 06:
Can I ask this question?

[01:05:10] Speaker 06:
Some of the questions are presupposed that the company would choose whether

[01:05:13] Speaker 06:
to in the event of a vacator of the license, the company would choose whether to revert to the last annual license or the settlement agreement.

[01:05:21] Speaker 06:
My question is, does the company have a choice or did the settlement agreement already kick in because the license issued?

[01:05:29] Speaker 06:
So it doesn't matter what happens on judicial review.

[01:05:31] Speaker 06:
The settlement agreement is actually operative.

[01:05:33] Speaker 07:
But the settlement agreement imposed a series of interrelated conditions.

[01:05:38] Speaker 07:
If certain conditions limiting flow and other provisions

[01:05:42] Speaker 07:
were incorporated into the license, the company in turn agreed to a series of provisions, but ultimately the company operates pursuant to a license that is issued by FERC.

[01:05:52] Speaker 07:
So if this court were to vacate the license, we have no legal authority to do anything unless and until FERC issues a new license.

[01:06:01] Speaker 07:
In the past, when our long-term 40-year license had expired, FERC addressed that problem by issuing interim licenses that continued on an annual basis.

[01:06:12] Speaker 07:
I'm presuming that if this court were to vacate a license, which it should not do legally and even as a remedy need not do, that the commission would have to decide what license to reimpose.

[01:06:25] Speaker 07:
And I presume they would reimpose the interim license.

[01:06:28] Speaker 07:
We would have to look under the terms of that interim license how to operate.

[01:06:32] Speaker 06:
So there's no room, in other words, for a separate agreement on top of a FERC license under which the company undertakes additional protective measures.

[01:06:43] Speaker 07:
Possibly, Your Honor.

[01:06:44] Speaker 06:
But if that's possible, then why isn't that this case?

[01:06:47] Speaker 06:
Why doesn't the settlement agreement just do that?

[01:06:49] Speaker 07:
Well, because there could be inconsistent provisions between what the purchase is requiring and what... And I'm not going to stand here and say, without looking at the agreement, what the company may or may not do.

[01:07:00] Speaker 06:
But is that conceptually possible?

[01:07:02] Speaker 06:
If it's not inconsistent, I take your point about inconsistent, you can't have things at loggerheads.

[01:07:06] Speaker 07:
It's conceptually possible that the company could voluntarily choose to do things above and beyond what it's licensed.

[01:07:12] Speaker 06:
And that it already has by entering into the settlement.

[01:07:17] Speaker 07:
Possibly.

[01:07:17] Speaker 07:
Again, I don't read the settlement agreement that way.

[01:07:21] Speaker 07:
Why don't you?

[01:07:23] Speaker 06:
Well, what is it that tells you that?

[01:07:25] Speaker 07:
The structure of the settlement was a combination of provisions, including the company took the position that Maryland waved by failing to act

[01:07:34] Speaker 07:
over the course of many years, which we raised essentially a Hoopa Valley type argument.

[01:07:38] Speaker 07:
That was one of the very significant legal risks Maryland faced.

[01:07:42] Speaker 07:
And Maryland chose to enter a voluntary settlement of its rights, which is a bedrock fundamental legal principle.

[01:07:48] Speaker 07:
The parties who have legal rights can waive those rights.

[01:07:53] Speaker 07:
And that essentially the company then agreed to withdraw the Hoopa Valley challenge if

[01:07:59] Speaker 07:
FERC accepted the party's offer of settlement, which is a very common procedure at FERC.

[01:08:03] Speaker 07:
Parties propose offers of settlement to the commission all the time.

[01:08:08] Speaker 07:
FERC is not obligated to accept those offers of settlement.

[01:08:11] Speaker 07:
FERC has its own both power and responsibility under the Federal Power Act to develop the waterways of the nation for use of clean, renewable electric power, but also to protect the environment at the same time.

[01:08:24] Speaker 07:
And Congress said in the Federal Power Act that FERC should give equal weight to those two goals.

[01:08:29] Speaker 07:
develop the waterways for use of clean power, check the environment, and FERC issues license accordingly.

[01:08:35] Speaker 07:
So we proposed terms to FERC, and it was up to FERC under its own discretion under the Federal Power Act to accept them.

[01:08:44] Speaker 07:
If FERC did that, Maryland agreed it would waive.

[01:08:48] Speaker 07:
And I'd like to, if I have, before my time runs out, provide the court what I think is a critical legal framework for this case, which is why Section 401 clearly allows

[01:08:59] Speaker 07:
Maryland to affirmatively waive, even though there's nothing in the text of 401 itself that addresses an affirmative waiver.

[01:09:07] Speaker 07:
But as I'm sure this court is familiar, courts read text in context and with a view to their place in the overall statutory scheme.

[01:09:17] Speaker 07:
And as the Supreme Court held in the Marx case that we cite, quote, background presumptions are a highly relevant contextual feature.

[01:09:26] Speaker 07:
Here, there is a firmly established background presumption, and I quote from this court, that statutory rights are generally waivable unless Congress affirmatively provides they are not.

[01:09:38] Speaker 07:
And that's the Price case, also the Supreme Court case.

[01:09:41] Speaker 05:
But you see, all that does, I know that case, but that just begs the question in this case.

[01:09:48] Speaker 05:
Of course they're waivable.

[01:09:49] Speaker 05:
The question is whether this statute limits the waiver to the two circumstances in the statute.

[01:09:55] Speaker 07:
Two things, Your Honor.

[01:09:57] Speaker 07:
First of all, I don't mean to interrupt, do you?

[01:09:59] Speaker 07:
That's OK.

[01:10:00] Speaker 07:
You answered my question.

[01:10:01] Speaker 07:
Go ahead.

[01:10:01] Speaker 07:
What the text of 401 is addressing is not waiver at all in the traditional sense.

[01:10:07] Speaker 07:
Section 401 sets a condition of forfeiture.

[01:10:12] Speaker 07:
As the Supreme Court has said, and this is the Milano case, quote, waiver is different from forfeiture, whereas forfeiture is the failure to make the timely assertion of a right

[01:10:25] Speaker 07:
Waiver is the intentional relinquishment or abandonment of a known right.

[01:10:30] Speaker 07:
In 401, Congress imposed a statutory condition of forfeiture.

[01:10:37] Speaker 07:
If the state fails or refuses to act within one year, and I submit that that statutory text fails or refuses, does not encompass an affirmative waiver, that Congress imposes a forfeiture, a failure to act within one year

[01:10:54] Speaker 07:
is a forfeiture.

[01:10:55] Speaker 07:
And in this case, Congress went further and treated it and called it a waiver in the sense that unlike most forfeitures, which may be excused, waivers, a knowing intentional relinquishment of a right, is not excusable.

[01:11:11] Speaker 07:
There is a difference in various contexts between forfeiture and waiver.

[01:11:15] Speaker 07:
Under the plain error rule,

[01:11:18] Speaker 07:
certain rights can be plain air can be waived, but plain air cannot be forfeited under rule 52.

[01:11:26] Speaker 07:
So there is a difference.

[01:11:28] Speaker 07:
This statute is talking about a situation of forfeiture, clearly.

[01:11:32] Speaker 07:
It calls it a waiver because it doesn't intend for there to be a way for the state to excuse it.

[01:11:38] Speaker 07:
No part of this statute is dealing with waiver.

[01:11:42] Speaker 07:
The background principle that rights

[01:11:45] Speaker 07:
are generally waivable unless Congress says otherwise.

[01:11:48] Speaker 07:
Congress did not say otherwise in this provision of 401 that these rights could not be waived.

[01:11:54] Speaker 07:
When Congress intended for rights not to be waived, it said so.

[01:11:59] Speaker 07:
It said so in section 403, just two provisions later.

[01:12:03] Speaker 07:
There is nothing in this statute that is addressing waiver.

[01:12:06] Speaker 07:
The first and the second sentence takes you to focus on the first saying that a state that fails or refuses to act within one year

[01:12:15] Speaker 07:
The right shall be, they use the word waiver, and FERP cannot proceed unless... What's the limit on waiver, if that's reading of the statute is right, such that it doesn't touch waiver at all?

[01:12:28] Speaker 06:
Even though it calls a waiver, it's dealing with what we traditionally get for forfeiture.

[01:12:31] Speaker 06:
Of course, we know Rule 52 and all that.

[01:12:33] Speaker 06:
What's the cap on waiver past certification?

[01:12:38] Speaker 07:
So, rights traditionally can be waived even after they're asserted.

[01:12:43] Speaker 07:
So we all know a defendant frequently asserts a right to trial.

[01:12:46] Speaker 07:
So is there any limit?

[01:12:47] Speaker 07:
There is no limit beyond the typical requirements of waiver, which typically is that a waiver being no involuntary.

[01:12:55] Speaker 07:
And in fact, the petitioner's argument today frankly makes no sense.

[01:13:00] Speaker 07:
What if for a case she's a license?

[01:13:03] Speaker 07:
Well, that is an interesting limitation.

[01:13:08] Speaker 06:
So it is a limit.

[01:13:09] Speaker 07:
Well, yes, in this sense.

[01:13:13] Speaker 07:
The statutory scheme is set up in such a way that any federal agency, including FERC, here, cannot issue a license that involves a discharge into navigable waters unless there has been either a certification or, for picture, or, pursuant to the background statutory presumption, a waiver, which is within any party who has a statutory right to do to waive unless Congress says otherwise and Congress didn't hear say otherwise.

[01:13:43] Speaker 07:
Once FERC issues a license, the state's 401 powers are essentially over.

[01:13:51] Speaker 07:
And at that point, FERC has issued the license.

[01:13:54] Speaker 07:
It can modify the license, but the license is within FERC's control.

[01:13:59] Speaker 07:
Now, FERC has said as a matter of practice that when state proceedings are ongoing, either state administrative proceedings is here, state

[01:14:10] Speaker 07:
administrative agency itself had not even finished its process.

[01:14:14] Speaker 07:
It had issued a certification prior to trial, subject to reconsideration.

[01:14:19] Speaker 07:
All of that remained.

[01:14:22] Speaker 07:
FERC has said if state processes remain, it will exercise its discretion, typically, to adopt changes from that process and modify the license.

[01:14:34] Speaker 07:
Again, FERC has the power at any time within 50 years

[01:14:38] Speaker 07:
to modify its license on an application of any party.

[01:14:41] Speaker 07:
But legally, upon the issuance of a license, the 401 power of the state has been eliminated.

[01:14:49] Speaker 07:
Burt has now issued the license, and it's up to Burt to change it.

[01:14:54] Speaker 07:
But what is critical is that the power that 401 gives to the state, which is a very significant power, is the state's power.

[01:15:03] Speaker 07:
And like any right under any statute, background principle,

[01:15:06] Speaker 07:
the state can waive.

[01:15:07] Speaker 07:
It's no different than under 1983, which says every person who deprives another by color of state law of a constitutional right may be found liable.

[01:15:19] Speaker 07:
Absolute sentence.

[01:15:20] Speaker 07:
Every person.

[01:15:21] Speaker 07:
And yet the Supreme Court in Embler and other cases has recognized the background principle is there are, there are immunities, there are absolute immunities of judges, prosecutors, and others.

[01:15:31] Speaker 07:
cannot be found liable under 1983.

[01:15:33] Speaker 07:
Why?

[01:15:33] Speaker 07:
Because that's what the text says?

[01:15:35] Speaker 07:
No, because that is a background principle.

[01:15:37] Speaker 07:
Let me make sure my colleagues don't have additional questions for you.

[01:15:42] Speaker 07:
Can I just address, well, I guess I have addressed the remedy point.

[01:15:45] Speaker 07:
Again, as the court has, I don't believe there's any need to consider remedy here, but because the court has raised it, I do believe under the authority, because of vacatur of the license would be disruptive,

[01:15:58] Speaker 07:
the environmental benefits of the current license above and beyond the previous license.

[01:16:03] Speaker 07:
The court can and should, at most, remand without vacatur.

[01:16:09] Speaker 07:
Because not only would there be environmental disruption, but I submit to you that as the petitioners can see, we can get to the same place as we are now.

[01:16:19] Speaker 07:
Apparently, under adherence to a state process that they concede we can do.

[01:16:24] Speaker 07:
I submit that's exactly what we did do.

[01:16:26] Speaker 07:
We adhered to a state process.

[01:16:28] Speaker 07:
We settle the petition for reconsideration.

[01:16:30] Speaker 07:
I don't know what more, but in any event, we can go back and come to the same place as we are today.

[01:16:36] Speaker 06:
Thank you.

[01:16:37] Speaker 06:
Thank you, Mr. DeBron.

[01:16:40] Speaker 06:
Mr. Bees.

[01:16:56] Speaker 03:
May it please the court?

[01:16:58] Speaker 09:
John Beas here representing the Department of the Interior on behalf of Fish and Wildlife Service.

[01:17:04] Speaker 09:
Congress enacted Section 18 of the Federal Power Act to protect the environment when higher electric power plants are built to ensure that they don't harm the environment by interfering with the passage of fish, migratory fish, up and down river.

[01:17:18] Speaker 09:
The Collingard Dam was built in the 1920s, 10 miles from Chesapeake Bay on the Susquehanna River, which is the largest watershed on the eastern seaboard.

[01:17:28] Speaker 09:
The dam, along with other factors, has harmed the population of American shad, river herring, and American eel, which play an important role in the larger aquatic environment, both as prey and in promoting the growth of mussels that filter the water, and also have been important to human endeavors in the past for recreation and for food source.

[01:17:51] Speaker 09:
Sadly, the populations of those fish have been severely diminished by, among other things, the dams on the Susquehanna River.

[01:17:58] Speaker 09:
Before the 1921 license, Dan included two fishways, one built in the 1970s, one built in the 1990s.

[01:18:08] Speaker 09:
But the study and research done in connection with the pre-application process for this license in 2009 showed that they were inadequate to protect the healthy population of these fish.

[01:18:19] Speaker 09:
And through the Fish and Wildlife Service, engaged in years of effort, including research and scientific study,

[01:18:26] Speaker 09:
working with the company and drafting language for prescriptions, accommodated in the April 2016 settlement, and modified prescriptions that can help improve the population of these fish in important ways, including a trap and transport program that the company agreed to plant that moves the fish from below the dams, some of them all the way above all four dams, to the Upper Susquehanna, through some structural improvements to the two lifts that are significant investments of resources and

[01:18:56] Speaker 09:
are staged based on the date of the license.

[01:18:58] Speaker 09:
So the obligations to make certain corrections take place a number of years after the license is issued.

[01:19:04] Speaker 05:
So you don't want us to vacate the license, right?

[01:19:09] Speaker 05:
You don't want us to vacate the license, right?

[01:19:12] Speaker 09:
If you were to vacate the license entirely, it would mean all of these protections would be gone, including the significant infrastructure changes to the list.

[01:19:20] Speaker 09:
And in response to your honest questions earlier, while the annual license says that the

[01:19:25] Speaker 09:
presumably would fall back into place if the license was vacated.

[01:19:29] Speaker 09:
It might include some protections.

[01:19:31] Speaker 09:
Historically, they didn't forget that.

[01:19:32] Speaker 05:
Well, they would be protected if we did what waterkeepers want, right?

[01:19:38] Speaker 05:
Vacate the license in order for the issue of license based on the 2018 certification, right?

[01:19:44] Speaker 09:
That would delay the process for which all these infrastructure changes would be made.

[01:19:49] Speaker 09:
Why?

[01:19:50] Speaker 09:
Because they're keyed off the date of the license issuance.

[01:19:52] Speaker 09:
So the company's obligations

[01:19:54] Speaker 09:
to make the changes to the west fish lift and the east fish lift would be... No, I'm sorry.

[01:20:00] Speaker 05:
Aren't the 2018 provisions, aren't the conditions in the 2018 certification more rigorous than the ones in the settlement agreement?

[01:20:12] Speaker 09:
There are some additional features for fish passage in the MDE settlement that weren't in the modified description that Fish and Wildlife reached, but the important one changes from

[01:20:22] Speaker 09:
services are these important infrastructure changes, which I think would be delayed.

[01:20:27] Speaker 05:
Where did they come from?

[01:20:28] Speaker 09:
Did they come from the 2018?

[01:20:30] Speaker 09:
They come from the modified prescription that the service implemented as part of the license through their April 2016 settlement with the company.

[01:20:38] Speaker 09:
And then Burke approved the modified prescriptions that are independent.

[01:20:43] Speaker 06:
Your point isn't that the settlement agreement actually is less protective than the 2018 certification.

[01:20:49] Speaker 06:
Your point is not

[01:20:51] Speaker 06:
based on the relative protective degree, it's based on the temporal dimension that actually the trigger date is delayed if you go back to the 2018 instrument because we'd be issuing the license on a particular date and then the time frames would only kick in at that point.

[01:21:06] Speaker 09:
The obligation of the company to make the infrastructure changes is key off the day of the issuance of the license.

[01:21:12] Speaker 06:
If the license is vacated and a new license is issued, it would affect... So even if they're more rigorous, even if they're more protective measures,

[01:21:19] Speaker 06:
they take longer to come into effect.

[01:21:22] Speaker 06:
That's your point.

[01:21:23] Speaker 06:
Assuming that the new license incorporated the same description for a fish class.

[01:21:27] Speaker 06:
As a 20th.

[01:21:29] Speaker 06:
OK.

[01:21:29] Speaker 06:
I'll make sure my colleagues don't have additional questions for you.

[01:21:32] Speaker 06:
No.

[01:21:34] Speaker 06:
Thank you, Your Honor.

[01:21:35] Speaker 06:
Thank you, Mr. Beas.

[01:21:36] Speaker 09:
If I could just conclude, we think that the court has discretion to be cognizant of the concrete realities on the ground here, that the dam is there.

[01:21:45] Speaker 09:
The fish are there.

[01:21:46] Speaker 09:
These measures will protect them.

[01:21:48] Speaker 04:
Thank you.

[01:21:49] Speaker 06:
Thank you, Council.

[01:21:52] Speaker 06:
Mr. Pugh, I think we're back to you now.

[01:21:56] Speaker 06:
We'll give you three minutes for your rebuttal.

[01:22:08] Speaker 03:
I'd just like to make a few points.

[01:22:12] Speaker 02:
the idea of a permanent waiver.

[01:22:13] Speaker 02:
And we've discussed that before.

[01:22:14] Speaker 02:
I just wanted to mention, I want to make sure I provide a citation to EPA's regulations.

[01:22:19] Speaker 02:
EPA is actually the agency in charge of implementing the Water Act.

[01:22:22] Speaker 02:
And its interpretation of Section 401 does get deference.

[01:22:26] Speaker 02:
And what EPA said in a permanent waiver is a decision not to act.

[01:22:33] Speaker 02:
It's not what Burke and Marilyn were talking about.

[01:22:39] Speaker 02:
The next point I'd like to make is very briefly about the idea that the state process hasn't finished and the concession my colleagues guess we made that they could get the same result.

[01:22:50] Speaker 02:
The reason the state process hasn't finished is that Maryland and Constellation left it, abandoned the process before it.

[01:23:00] Speaker 02:
I would add that we don't concede anything of the sort.

[01:23:02] Speaker 02:
We think that if this process was followed properly, Maryland would have to reach a different result.

[01:23:07] Speaker 02:
And if it came to the same, if it concluded that all the things that it said are necessary to protect the Chesapeake Bay and the Susquehanna River are not necessary, I think we would have some very strong arguments that, well, first of all, we'd have to explain it to the public.

[01:23:22] Speaker 02:
I think it was very important.

[01:23:23] Speaker 02:
And second, I think we would have some very strong arguments that it was acting arbitrarily.

[01:23:28] Speaker 05:
Could you weigh in on this remedy question for us?

[01:23:32] Speaker 02:
Pardon me?

[01:23:32] Speaker 05:
Could you say something about this remedy question?

[01:23:36] Speaker 05:
The Interior Department says that if we, I understand what you want.

[01:23:41] Speaker 05:
You want us to vacate in order for it to issue license based on the 2018 conditions, right?

[01:23:50] Speaker 02:
Correct?

[01:23:51] Speaker 05:
Yes.

[01:23:52] Speaker 05:
Okay.

[01:23:52] Speaker 05:
But do you agree that if we just vacate and nothing else, that the protections for fish will revert to the interim license, which aren't even as protective as the settlement?

[01:24:06] Speaker 02:
I don't know.

[01:24:07] Speaker 02:
I do think that's a possibility.

[01:24:09] Speaker 02:
But I would, I guess, make a few points on that.

[01:24:12] Speaker 02:
One is, there can't be a more fundamental violation of the Clean Water Act than doing something that the Clean Water Act expressly precludes and forbids.

[01:24:19] Speaker 02:
And that's what happened here.

[01:24:20] Speaker 02:
So that's, I think, a very important part of the outline.

[01:24:24] Speaker 02:
The other thing to remember on disruption is this is a 50-year license for the dam.

[01:24:28] Speaker 02:
This is what's going to decide what happens to the Chester Bay and the Contalingo River for the next half century.

[01:24:35] Speaker 02:
And it's important to start getting it right.

[01:24:39] Speaker 02:
Neither the coal license nor the settlement even come close to doing that.

[01:24:43] Speaker 02:
What's missing from them, what Maryland found necessary to protect the bay and the river and its certification are very large reductions in the dam's discharges of nutrients, over 6 million pounds a year.

[01:24:57] Speaker 02:
allowing millions more fish past the dam than do now, you know, changing, providing far more flow for the fish to survive below the dam and providing the gill passage so that the, you know, the mussels can, the mussel population, which has been wiped out, can be restored and the mussels can start cleaning up the water again.

[01:25:19] Speaker 01:
So how many years is it going to take to get

[01:25:23] Speaker 01:
to this point, right?

[01:25:24] Speaker 01:
They've still got, if it's vacated, they've still got administrative processes and other things to go through.

[01:25:31] Speaker 01:
And then I just don't know how long it's going to be.

[01:25:35] Speaker 01:
And they're going to be left by the time we get around to a new license.

[01:25:39] Speaker 02:
That's why, frankly, we think it would be more helpful to just issue the license with the certification in it.

[01:25:44] Speaker 02:
We also think that would be appropriate under

[01:25:48] Speaker 05:
But suppose, just suppose, hypothetically, we don't do that.

[01:25:54] Speaker 05:
You brought this case because you're seeking to protect the quality of the water and the fish and animals that live there, right?

[01:26:03] Speaker 05:
So if your only option is between two options, vacating the license or remanding without vacatur, which do you pick in terms of

[01:26:18] Speaker 05:
your goals in this case?

[01:26:19] Speaker 02:
I think it's true because this is a 50 year.

[01:26:22] Speaker 05:
I see.

[01:26:22] Speaker 05:
So you think maybe even though this short term loss of protections, because the company might return to the interim license that in the long run, that's better for the quality of the Conowingo Blake and everything, right?

[01:26:37] Speaker 02:
That's right.

[01:26:37] Speaker 02:
The only way to get this license right is to start fixing it.

[01:26:40] Speaker 02:
And the only way to start fixing it in a way that does apply with the license.

[01:26:44] Speaker 01:
As a matter of law, FERC issues these interim licenses that have the ability to impose new conditions on an interim license, or can it only carry forward what happened before?

[01:26:54] Speaker 02:
I believe FERC has authority to impose conditions beyond those in the license, beyond those in its own license.

[01:27:02] Speaker 06:
Because each annual license is a new license.

[01:27:04] Speaker 06:
Each annual license is a new license.

[01:27:06] Speaker 01:
Could it impose these settlement terms on its interim license?

[01:27:09] Speaker 01:
Could it impose these same settlement terms as part of its interim license?

[01:27:13] Speaker 01:
I believe so.

[01:27:14] Speaker 01:
and just keep doing that for years?

[01:27:16] Speaker 02:
Probably not 50 years.

[01:27:22] Speaker 06:
Thank you, council.

[01:27:22] Speaker 06:
Thank you to all council.

[01:27:24] Speaker 06:
We'll take this case under submission.