[00:00:00] Speaker 00: case number 22-1214 et al. [00:00:04] Speaker 00: Food and Water Watch petitioner versus Federal Energy Regulatory Commission. [00:00:08] Speaker 00: Ms. [00:00:08] Speaker 00: Doran for the petitioner, Mr. Hediger for the respondent, Mr. O'Neill for the respondent interveners. [00:00:16] Speaker 06: Good morning, Ms. [00:00:17] Speaker 06: Sawdoran. [00:00:18] Speaker 06: We will hear from you. [00:00:22] Speaker 01: Good morning. [00:00:24] Speaker 01: May it please the court, Erin Doran on behalf of the Commissioner of Food and Water Watch. [00:00:27] Speaker 01: I've reserved two minutes for rebuttal. [00:00:30] Speaker 01: We're here today because the Federal Energy Regulatory Commission approved the EAST 300 project despite New York State's groundbreaking climate and without adequate review of environmental and climate impacts. [00:00:42] Speaker 01: Today, I'll talk about three ways in which the commission erred. [00:00:47] Speaker 01: First, the commission failed in its consideration of all factors related to the public interest and need for the project, and specifically failed to give adequate weight to New York's Climate Leadership and Community Protection Act. [00:01:00] Speaker 01: Second, the commission failed to assess and determine the significance of the project's impacts on climate change. [00:01:07] Speaker 01: And third, the commission failed to adequately evaluate and disclose the project's indirect and climate impacts. [00:01:15] Speaker 01: For these reasons, Food and Water Watch respectfully requests that the court vacate and remand the orders under review. [00:01:21] Speaker 01: Turning first to the commission's failure to consider the New York Climate Leadership and Community Protection Act adequately in its need determination. [00:01:28] Speaker 01: The commission here based its finding on a single precedent agreement. [00:01:33] Speaker 01: And while precedent agreements are important factors under this court's precedent, the court has also recognized in the Environmental Defense Fund that they're not always determinative. [00:01:45] Speaker 01: First, 1999 policy statement reflects its obligation to consider all relevant factors. [00:01:50] Speaker 01: And in 2022, the commission recognized that it is short, over relying on precedent agreements. [00:01:58] Speaker 01: There, the commission identified the precise problem here, that if the commission relies on precedent agreements at the expense of other contrary factors, it reaches the determination on need that's inconsistent with the weight of the evidence. [00:02:19] Speaker 01: Here, FERC seems unable to even grasp the relevance of the Climate Act in this proceeding. [00:02:26] Speaker 01: To be clear, the Climate Act is relevant because of its long-term implication. [00:02:30] Speaker 01: New York is moving away from fossil fuel use, and that will implicate demand. [00:02:36] Speaker 05: Moving away, but Con Ed signed a 20-year contract. [00:02:42] Speaker 01: Yes, Your Honor, Con Ed did enter into the contract here. [00:02:45] Speaker 05: In the face of shortages in Westchester County. [00:02:49] Speaker 01: Correct. [00:02:50] Speaker 01: Con Ed may have been motivated by short-term constraints to enter into the precedent agreement. [00:02:55] Speaker 01: But the precedent agreement, nevertheless, is for a 20-year term. [00:02:58] Speaker 01: And the life of the infrastructure itself will extend beyond that. [00:03:02] Speaker 01: And that's inconsistent with what will happen over the course of the Climate Act's implementation, with New York seeking to reduce by 40% by 2030 its greenhouse gas emissions. [00:03:13] Speaker 01: That's just seven. [00:03:14] Speaker 05: It's a certificate of public need and necessity. [00:03:17] Speaker 05: People need gas now. [00:03:19] Speaker 05: They, Con Ed thinks that's a serious enough problem to commit themselves for 20 years. [00:03:28] Speaker 05: So sure, the project might last 30 or 40 or 50, but that doesn't bar them from issuing the certificate. [00:03:39] Speaker 01: Well, Your Honor, respectfully, we're arguing that the Climate Leadership and Community Protection Act should have been given adequate weight in light of its implications on long-term demand. [00:03:49] Speaker 01: So again, while Con Ed may have been motivated to enter into the precedent agreement based on short-term constraints, it has other options and it has dealt with these issues for the past several years using solutions that are more consistent with the Climate Act. [00:04:06] Speaker 06: Is your argument that they didn't consider [00:04:09] Speaker 06: the New York Act at all, or they didn't adequately consider it? [00:04:14] Speaker 06: Because they did discuss it, right? [00:04:18] Speaker 01: They did discuss the Climate Act to a limited extent. [00:04:24] Speaker 01: They did not take into consideration the long-term implications on demand. [00:04:30] Speaker 01: The Commission dismissed the Climate Act because it doesn't ban Con Ed from providing gas right now. [00:04:35] Speaker 01: But respectfully, the commission can't see the forest for the trees here. [00:04:39] Speaker 01: It is ignoring the monumental shift that's occurring in states like New York that have real climate action on the books to accelerate the transition away from fossil fuels. [00:04:50] Speaker 01: Rather than give the Climate Act the weight it deserved, the commission simply approved this based on the precedent agreement. [00:04:56] Speaker 03: Well, but isn't it true that the commission focused on concerns it had about [00:05:06] Speaker 03: the short-term measures that were being used and had been used in the last few years, trucking, moratoria, et cetera. [00:05:16] Speaker 03: So it's not as though it didn't take into account other concerns that were contrary to policies it thought were important. [00:05:25] Speaker 03: Isn't that correct? [00:05:26] Speaker 03: I mean, the record demonstrates that. [00:05:30] Speaker 01: Governor, the record does include assertions by Con Ed about need. [00:05:35] Speaker 01: It also includes internal snapshots from Con Ed suggesting that need had increased at least 2013. [00:05:44] Speaker 01: Those projections themselves are inconsistent in the record. [00:05:47] Speaker 01: And FERC's ultimate determination on need here was based on the precedent agreement. [00:05:52] Speaker 01: Again, not taking into account what will happen with need over the longer term. [00:05:58] Speaker 03: I understand your point, but I'm trying to focus on the now aspect following up on Judge Katz's question. [00:06:10] Speaker 03: I didn't see, and maybe I missed, an attack on Con Ed's statements about the situation that it was facing in terms of increased demand and [00:06:26] Speaker 03: the alternatives it had had to use as sort of failsafe measures during this period, even assuming New York were to get to the goal that you're talking about. [00:06:45] Speaker 01: Your honor, there is no indication in the record, I agree, that there is an attack on Con Ed for the short-term constraints that it's using. [00:06:54] Speaker 01: We're simply putting forward that the Climate Act needs to be taken into consideration when looking at whether those short-term constraints and other short-term solutions would be adequate, as opposed to locking in carbon and fossil fuel infrastructure for the next several decades. [00:07:12] Speaker 01: So again, rather than giving the Climate Act the weight it deserves in terms of projecting demand over the next several years, the commission simply approved the project based on the precedent agreement. [00:07:39] Speaker 01: Respectfully, Your Honor, I'm not sure your question is coming through. [00:07:43] Speaker 06: Judge Rogers, we're having problems with the audio. [00:07:46] Speaker 06: If you could just repeat your question, please. [00:08:00] Speaker 06: Let's just pause the time we can. [00:08:30] Speaker 06: Judge Rogers, I'm sorry. [00:08:34] Speaker 06: We had problems with your audio. [00:08:36] Speaker 06: You could repeat your last question. [00:08:39] Speaker 03: Yes, I'm sorry. [00:08:40] Speaker 03: I've had repeated problems this morning with the audio. [00:08:43] Speaker 03: It's just not working. [00:08:45] Speaker 03: I'm on my iPad because my computer won't hook up. [00:08:48] Speaker 03: So I apologize, but I don't want to delay this. [00:08:54] Speaker 03: Judge Katz's question, I think, really covered what I was getting at. [00:08:58] Speaker 03: And I was just trying to say to counsel, the way I read the record here, and she may have read more of the record than I, [00:09:09] Speaker 03: there were realities that the commission was trying to address now. [00:09:19] Speaker 01: Yes, Your Honor. [00:09:20] Speaker 01: The issue with that is over the long term, and again, looking at demand with the implementation of the Climate Act, those factors themselves shouldn't outweigh the movement toward lower demand, the economy-wide implications of the Climate Act. [00:09:40] Speaker 01: Turning, if I may, to FERC's failure to consider the significance of climate impacts of the project. [00:09:47] Speaker 01: The significance determination goes to the very core of NEPA. [00:09:51] Speaker 01: Here, Chairman Glick said that the significance determination is perhaps the single most important step in informing federal decision makers and the public of a decision. [00:10:02] Speaker 01: And here the significance determination should have been an easy call, especially when you consider that there will be 2.2 million tons per year of carbon dioxide equivalent even under the commission's flawed analysis as compared to the commission's initial threshold proposed for significance of 100,000. [00:10:21] Speaker 06: I'm trying to understand this argument. [00:10:24] Speaker 06: The statute requires a significance finding with respect to whether to do an environmental impact statement. [00:10:33] Speaker 06: Where else does the statute require a significance finding? [00:10:38] Speaker 01: Yes, your honor. [00:10:39] Speaker 01: So significance is relevant in getting from an environmental assessment to an environmental impact statement. [00:10:44] Speaker 01: However, NEPA is not an exercise in busy work. [00:10:47] Speaker 01: The significance determination should actually influence the commission's decisions. [00:10:52] Speaker 01: And in making that determination, the commission should communicate to the public about how it is taking accountability for the climate impacts of the projects it approves. [00:11:01] Speaker 06: But we've never said [00:11:04] Speaker 06: I don't believe you cited any other court opinions that have said that a significance finding is necessary in some context other than whether or not to do the environmental impact statement. [00:11:20] Speaker 06: Am I right about that? [00:11:21] Speaker 06: There's no precedent that says that if you've done the environmental impact statement, you still nonetheless have to make a significance finding. [00:11:32] Speaker 01: Your Honor, there may not be precedent on that specific point, but I would direct the court to EPA's conclusions here, where EPA found the final environmental impact statement contained insufficient information to assess potentially significant environmental impacts of the proposed action and is inadequate to meet the purposes of the National Environmental Policy Act. [00:11:53] Speaker 01: So beyond that procedural component, NEPA requires agencies to take that hard look and to make a determination as to whether their projects will have significant environmental. [00:12:04] Speaker 06: I get that. [00:12:05] Speaker 06: I mean, that's the core of NEPA, that the agency has to really consider all the relevant factors and take the hard look. [00:12:15] Speaker 06: But that's different than saying that [00:12:19] Speaker 06: You know, even if it considers all of the factors, it's still deficient because they didn't say, you know, which factor was significant or not significant. [00:12:30] Speaker 06: That's what I'm trying to get to. [00:12:32] Speaker 06: It's like, what really, what does it really get you for us to find that there was a significant finding that should have been made that wasn't? [00:12:43] Speaker 01: Your honor, again, I would suggest that this is not simply a procedural issue, but a substantive issue under NEPA that the commission failed to grapple with whether climate impacts are significant. [00:12:54] Speaker 01: This project could have had 100 times the impacts that the commission says it will have, and they would still defer on significance, failing to take accountability for those actual climate impacts that they know, as Chairman Glick said, they know will occur. [00:13:09] Speaker 01: simply claiming there's no universal standard, simply trying to avoid conducting this analysis and making this determination based on an ongoing generic proceeding. [00:13:20] Speaker 01: But the commission has to comply with NEPA now. [00:13:22] Speaker 01: We can't come back. [00:13:23] Speaker 06: The commission calculated the social cost of carbon. [00:13:27] Speaker 06: The commission calculated the amount of greenhouse gas emissions. [00:13:32] Speaker 06: The commission did lots of different things. [00:13:35] Speaker 06: What the commission said is that [00:13:37] Speaker 06: Ultimately, we don't believe that there is kind of one reliable methodology to determine kind of climate impact. [00:13:50] Speaker 06: But all of the various different types of methodologies were used by the commission. [00:13:58] Speaker 06: They just said that we can't find one that we find is reliable. [00:14:04] Speaker 06: Is that a fair assessment of the record? [00:14:06] Speaker 01: The commission does claim, yes, that they don't have that universal methodology, but as Chairman Glick said, again, a universal methodology is not the standard here. [00:14:16] Speaker 01: In saying we can't figure out significance, the commission is refusing to really grapple with the impacts that the project has, the impacts that its approvals are having, waiting for this generic proceeding. [00:14:29] Speaker 06: So I'm just trying to understand [00:14:34] Speaker 06: Was there a calculation or methodology that the commission should have used that it did not use? [00:14:43] Speaker 01: Well, your honor, there were several methodologies that the commission should have used. [00:14:46] Speaker 01: And to the extent it did use methodologies like the social cost of carbon, the commission went only so far and then decided not to say whether that impact is significant. [00:14:54] Speaker 06: Is there a methodology that they should have used that you asked them to use that they did not use? [00:15:01] Speaker 01: No, your honor, we don't have a specific methodology that FERC needs to use. [00:15:05] Speaker 01: There are numerous methodologies that the commission could consider. [00:15:09] Speaker 01: The commission could also go back to what it did in the Northern natural gas proceeding. [00:15:13] Speaker 06: The problem here is that if you fail to ask them to use a specific methodology, you can't come here now and say, well, they should have used that methodology. [00:15:27] Speaker 01: Well, respectfully, your honor, we did identify the social cost of carbon, but that is not a methodology that is the only one that the commission can use. [00:15:38] Speaker 06: And they calculated the social cost of carbon. [00:15:42] Speaker 01: They did, and yet they didn't say whether that was significant. [00:15:45] Speaker 01: And it's important to note that agencies make these determinations. [00:15:48] Speaker 06: So we're supposed to overrule their scientific judgment about [00:15:53] Speaker 06: of how reliable that methodology is for this purpose. [00:15:59] Speaker 01: No, your honor. [00:16:00] Speaker 01: What we're asking the court to do here is recognize that the commission failed to consider the important aspect of the project here, which is the significance of the impacts on climate change. [00:16:13] Speaker 01: It didn't come to a conclusion, and it's going on approving projects without identifying and taking responsibility for whether those projects are having a significant impact on [00:16:24] Speaker 01: and agencies make these determinations all the time for things outside of climate. [00:16:28] Speaker 01: They consider any number of environmental factors that have multiple methodologies and use their judgment and experience to get to a determination about the significance of those impacts, which again should inform the contours of the project. [00:16:44] Speaker 01: I see that I'm out of time. [00:16:45] Speaker 06: I'll give you a couple minutes to make any final points or to cover something that you did not get a chance to. [00:16:54] Speaker 01: Thank you, Your Honor. [00:16:55] Speaker 01: First, I will say that with regard to upstream impacts, they are reasonably foreseeable, and we know that because EPA told the commission that fact in the record. [00:17:05] Speaker 01: Second, downstream impacts are also reasonably foreseeable because the commission knew exactly where the gas was going and exactly how it would be used. [00:17:13] Speaker 01: And for these reasons, again, Food and Water Watch respectfully request that the court vacate and remand the orders. [00:17:18] Speaker 06: So on the upstream, where, [00:17:24] Speaker 06: The commission found that we really didn't know where the gas would be coming from because of all of the different lines it could input into the pipeline. [00:17:38] Speaker 06: If that finding is correct, kind of given our precedent in Burkhead and Sabo Trail and others, [00:17:52] Speaker 06: Doesn't that relieve FERC of the obligation of calculating greenhouse gas emissions, etc., associated with upstream effects? [00:18:03] Speaker 01: Respectfully, Your Honor, if that finding is correct and Food and Water Watch doesn't believe it is, in this case, Food and Water Watch did raise in its rehearing request the commission's responsibility to ask for additional information. [00:18:14] Speaker 01: So the court doesn't have to reach the same conclusion and take the record as it stands as it did in those previous cases. [00:18:23] Speaker 01: However, I will say again that EPA told the commission they could use default assumptions here to evaluate reasonably foreseeable upstream impacts. [00:18:31] Speaker 01: These impacts are global. [00:18:32] Speaker 01: The commission knows it. [00:18:33] Speaker 01: It doesn't depend on where they occur, and omitting these impacts resulted in a lack of informed decision making. [00:18:42] Speaker 06: All right, Judge Rogers, do you have any other questions? [00:18:44] Speaker 03: No, thank you. [00:18:46] Speaker 03: Thank you. [00:18:46] Speaker 06: All right, thank you. [00:18:47] Speaker 06: We'll give you a couple minutes on rebuttal. [00:19:05] Speaker 02: Thank you. [00:19:06] Speaker 02: Good morning. [00:19:07] Speaker 02: Good morning. [00:19:07] Speaker 02: Good morning. [00:19:08] Speaker 02: Um it may please the court. [00:19:09] Speaker 02: I'm Scott Edgar. [00:19:10] Speaker 02: I'm for the Federal Energy Regulatory Commission and thank you for hearing this case this morning. [00:19:17] Speaker 02: Um I would like to take the, um. [00:19:22] Speaker 02: Issues in the same order addressed by Food and Water Watch, and I'd like to make a few [00:19:33] Speaker 02: first I want to discuss the Environmental Defense Fund and a case cited by my friend for Food and Water Watch. [00:19:41] Speaker 02: That case is distinguishable from this one in that a single precedent agreement was at issue there with an affiliate. [00:19:49] Speaker 02: And it is clear from that case that the court there was concerned in light of those two facts and the fact that there wasn't additional evidence of a growing need in the service area that the commission hadn't taken seriously issues of self-healing. [00:20:08] Speaker 02: That is the opposite of the situation that we have in this case today. [00:20:14] Speaker 02: Consolidated Edison is not an affiliate of the pipeline. [00:20:17] Speaker 02: This is an arms length transaction, and this transaction itself, as this court has said, and Delaware Riverkeeper, Adelphia, Siding, Minisink, and Myersville, that contract itself is important evidence of need. [00:20:32] Speaker 02: And as we pointed out in our brief, the need didn't stop there. [00:20:36] Speaker 02: The commission went well beyond that. [00:20:37] Speaker 02: And as the colloquy that the court has already had with Petitioner, there are additional acts that play into playing here. [00:20:48] Speaker 02: And that is that consolidated medicine participated in this proceeding. [00:20:52] Speaker 02: and explained that they have had an increased load growth. [00:20:59] Speaker 02: And as a result, they have had to resort to extraordinary measures such as trucking, compressed natural gas, and imposing a moratoria on new hookups. [00:21:13] Speaker 02: So the contract isn't just is not just a simple contract. [00:21:18] Speaker 02: There's a lot that goes behind the contract. [00:21:22] Speaker 02: And that has significant evidence of need here. [00:21:28] Speaker 02: I would also point out that the New York commission is not here today saying that the commission erred by granting a certificate. [00:21:43] Speaker 02: That does happen in other cases. [00:21:44] Speaker 02: And I can cite one, and I don't cite this for precedent, but this is just an example. [00:21:49] Speaker 02: For example, an order in the Spire case, which this court reviewed an environmental defense fund, if we look at 164 FERC 61085 paragraph 30, the state commission there was in front of the commission saying that the commission should not approve the project or should not validate the precedent. [00:22:13] Speaker 02: that is not the case here. [00:22:14] Speaker 02: And I just cite that not as precedent, but just as an example, I'm making an argument of negative inference that the New York Commission isn't here today saying, no, no, no, don't look at this contract. [00:22:27] Speaker 02: And the New York Commission, as we pointed out in our brief, is the entity that regulates consolidated Edison. [00:22:35] Speaker 06: get you off track too much, but I did want to ask you questions about upstream. [00:22:40] Speaker 06: Yes. [00:22:41] Speaker 06: The facts and particularly even if we take the commission at its word or not at its word, we say it was a reasonable conclusion for the commission [00:22:56] Speaker 06: to make that we don't know exactly where this gas is coming from. [00:23:01] Speaker 06: It may not all be coming from the Marcellus Shale. [00:23:09] Speaker 06: The EPA says that that doesn't matter because greenhouse gas and other impacts aren't localized. [00:23:20] Speaker 06: But the commission said, well, [00:23:23] Speaker 06: We're not going to calculate those because they're not foreseeable because we don't know where they are, where the gas is coming from. [00:23:35] Speaker 06: How are we supposed to reconcile kind of those two conflicting judgments of expert agencies, so to speak, and is an EPA a little bit more of an expert on this issue than FERC, respectfully? [00:23:51] Speaker 02: The EPA does certainly have expertise, but we are here to review the commission's orders under the relevant standard review, arbitrary and capricious. [00:23:59] Speaker 02: And the commission has expertise here and is entitled to deference on this question. [00:24:05] Speaker 02: And I would submit that the commission was on firm ground when it made the determination that we're talking about, i.e. [00:24:12] Speaker 02: The gas that will be transported by this project can come from a vast swath of geographic location from the Rockies going down to the Gulf Coast. [00:24:23] Speaker 02: And the Commission said that in Rehearing Order Paragraph 27, EJA 435. [00:24:29] Speaker 02: The commission also cited a order that was over 10 years old at Tennessee gas case 131 for 61 140 at paragraph 18, which, which made the same point. [00:24:44] Speaker 02: that the project will will allow shippers to have an access access to a vast supply sources and the commission also cited the application that Tennessee filed in that docket that CP 09444 that was filed on September [00:25:04] Speaker 02: and the commission also cited the exhibit to the application before at page 2 and the footnote for to that. [00:25:16] Speaker 02: Exhibit that's a J a 33 commission discussed all this in a footnote and to the rehearing order footnote 74. [00:25:24] Speaker 02: That's attached to her 27 J a 4.36. [00:25:26] Speaker 02: So. [00:25:29] Speaker 02: That's a long-winded way, Judge Wilkins, of answering your question, that the commission here was on solid footing in making the conclusion that the supply sources for this project can come from a vast variety of geographic locations. [00:25:44] Speaker 02: And based on that, the commission couldn't tell what the environmental impacts were. [00:25:49] Speaker 06: And if I could add just one more thing, I would point... Well, I guess, let me just try to see if I can... [00:25:56] Speaker 06: Simplify my question. [00:26:01] Speaker 06: Let's suppose that it were undisputed that it were all coming from a Marcellus Shale region. [00:26:08] Speaker 06: Then you would agree then that the commission would have had an obligation to look at these kind of indirect upstream effects with respect to that region, right? [00:26:24] Speaker 02: I'm not sure I would concede that, Your Honor. [00:26:27] Speaker 02: And I would point, Your Honor, to Birkhead on that point, where the shipper was a producer. [00:26:31] Speaker 02: That's an important distinction here. [00:26:34] Speaker 02: The shipper here is the opposite of that. [00:26:36] Speaker 02: It's an LDC. [00:26:38] Speaker 02: And they're going to understand. [00:26:39] Speaker 06: I don't want you to fight my hypothetical. [00:26:41] Speaker 06: I want you to try to answer my hypothetical. [00:26:44] Speaker 06: Let's suppose we knew for a fact that all of the gas was coming from a particular region. [00:26:55] Speaker 06: So wouldn't the commission under those circumstances have an obligation to, for instance, calculate the additional greenhouse gas emissions or other emissions as a result of that increased supply? [00:27:22] Speaker 02: I don't think that's necessarily true. [00:27:24] Speaker 02: I think the commission, and I point your honor to the final environmental impact statement at page 28, 258. [00:27:32] Speaker 02: And their commission staff talks about all the things that are unknown here. [00:27:37] Speaker 02: And that's the location of the supply source and whether there would be new or existing wells that would be necessary. [00:27:46] Speaker 02: And under your honors hypothetical, if somehow, [00:27:51] Speaker 02: if somehow we knew that the gas would come from a particular region. [00:27:55] Speaker 02: And again, I believe my purpose of mentioning Birkhead is I think given that the shipper there was a producer that you had perhaps that regional aspect to it. [00:28:05] Speaker 02: I think it's still unclear or it would be in this case unclear whether the supply is coming from newer existing wells. [00:28:13] Speaker 02: And we don't know that. [00:28:14] Speaker 02: And we don't know where the location of those wells would be. [00:28:18] Speaker 02: And what the commission staff there explained was that the commission approaches this on a case by case basis. [00:28:25] Speaker 02: And if there are new infrastructures involved, that's a whole new, you would think that would be a whole new different set of environmental impacts because there might be affiliated infrastructure, et cetera. [00:28:39] Speaker 06: When the EPA made its comments about upstream greenhouse gases, in its comments that are at J-196, they said that there were these various generic estimates that could be used from the Department of Energy methodologies. [00:29:04] Speaker 06: You're just saying that the EPA just has that wrong there because [00:29:09] Speaker 06: whose estimates don't really work if we don't know whether there's going to be new wells or not. [00:29:16] Speaker 02: The result and let me quickly explain that the commission did acknowledge EPA's comments at the certificate order paragraph 55 J 352 commission. [00:29:26] Speaker 02: commission was well aware of EPA's comments and seriously, I think what the commission is saying here is that despite EPA's comments is that this production would not be causally connected and that's [00:29:42] Speaker 02: because, and as the commission explained, the sources are known and can actually change. [00:29:48] Speaker 02: So that undercuts the idea that there's actually a causal relationship between this project and what may happen in terms of upstream production. [00:30:01] Speaker 02: All right. [00:30:04] Speaker 02: Thank you. [00:30:06] Speaker 02: And if there are no additional questions on that, I might turn to significance of the greenhouse gas emissions. [00:30:17] Speaker 02: And Judge Wilkins, I want to. [00:30:21] Speaker 02: Go back to some of your questions about that and I think you're right that we start with basics. [00:30:27] Speaker 02: We start with the statute itself, 42 USC 4332, which says that the agency, if there's a project that's going to significantly affect the environment, then it has to do a report. [00:30:40] Speaker 02: And then as we said in our brief, 40 CFR 1502-16, which says not that the commission or an agency has to make a significance determination, but that it should study the significance of those impacts. [00:30:58] Speaker 02: And I would assert I can go through all the information that's in the record here. [00:31:02] Speaker 02: The commission has definitely studied the significance of greenhouse gas emissions [00:31:09] Speaker 02: discussion. [00:31:10] Speaker 02: Disclosing the quantities of greenhouse emissions by discussing how those quantities fit in with national and state emissions by doing the qualitative analysis and by discussing how those emissions. [00:31:24] Speaker 02: Um, comport with state. [00:31:26] Speaker 02: Um. [00:31:27] Speaker 02: State goals. [00:31:29] Speaker 02: Climate goals. [00:31:30] Speaker 02: Um and, um, the only other [00:31:39] Speaker 02: I want to highlight the fact that, and this is at the certificate order, paragraph 84, JA 367, the commission there finds that this project is environmentally acceptable. [00:31:52] Speaker 02: And I just want to make sure that it's very clear that all commissioners, although there are concurring opinions in this, no commissioner descended from that point. [00:32:01] Speaker 02: This is an environmentally acceptable [00:32:04] Speaker 02: Um, project and in light of the significant evidence of need in this case, all commissioners felt like this project should go forward. [00:32:15] Speaker 06: Uh, Judge Rogers, did you have any other questions? [00:32:18] Speaker 03: No, thank you. [00:32:21] Speaker 06: All right. [00:32:21] Speaker 06: Thank you. [00:32:21] Speaker 06: Thank you. [00:32:22] Speaker 06: Here from Council for respondent intervener. [00:32:31] Speaker 04: May I please the court? [00:32:32] Speaker 04: My name is Brian O'Neill on behalf of the respondent and conveners of Tennessee Yes Pipeline Company and Con Ed. [00:32:38] Speaker 04: I'd like to address a couple of points here. [00:32:42] Speaker 04: First of all, with respect to need, I think there's just no question in that regard. [00:32:49] Speaker 04: It's correct that there is a contract, long-term contract between Con Ed and Tennessee [00:32:56] Speaker 04: They are unaffiliated entities. [00:32:58] Speaker 04: This court has found that the contract is sufficient for a demonstration of need in several cases, including many sink. [00:33:06] Speaker 04: However, in this instance, the commission took the additional step of looking beyond the contract, and the record is unrefuted on. [00:33:14] Speaker 04: I refer you to J303 and 315, where Con Ed demonstrated, and this is all unrefuted. [00:33:22] Speaker 04: It needs this additional capacity in order to provide service to its existing demand, existing demand that has been growing over the years. [00:33:32] Speaker 04: It needs it to end reliance on compressed natural gas trucking that it has. [00:33:38] Speaker 04: The reliability issue is a real one. [00:33:41] Speaker 04: It affects it during harsh weather when there's significant snow and ice developments in trucks may or may not be able to navigate. [00:33:49] Speaker 04: In addition, the need here demonstrates that Con Ed will be able to lift the temporary moratorium that it has had and to allow existing customers to switch from fuel oil and propane to natural gas service. [00:34:05] Speaker 04: And significantly, it allows Con Ed to meet its statutory obligation to provide service upon request. [00:34:13] Speaker 04: Finally, it is the evidence demonstrates on behalf [00:34:17] Speaker 04: kind of its perspective that this additional service that it's getting, it's additional capacity is consistent with its goals in meeting your Climate Act requirements. [00:34:30] Speaker 04: This is unrefuted evidence. [00:34:35] Speaker 04: With respect to significance, we agree with your honor that the significant, from the standpoint of the statute, [00:34:43] Speaker 04: It's required if there is a significance determination, what has to happen is then, not an EA, but an environmental impact statement has to occur. [00:34:53] Speaker 04: In this case, there was an environmental assessment, there was a draft environmental impact statement, and a final environmental impact statement. [00:35:00] Speaker 04: This certainly passed muster through this court's precedent, and I'll refer you, as we did on our brief, to the American Bird Observatory case. [00:35:09] Speaker 04: With respect to the upstream issue, [00:35:11] Speaker 04: The commission was spot on on this one. [00:35:16] Speaker 04: Tennessee Gas Pipeline Company is a long line integrated system. [00:35:20] Speaker 04: It operates on a bi-directional basis. [00:35:23] Speaker 04: It's a dynamic system. [00:35:25] Speaker 04: The inputs and outputs vary from day to day, and that certainly affects where the gas comes from with respect to the needs that Con Ed has to meet. [00:35:35] Speaker 04: Con Ed, for its part, as most, if not all, local distribution companies, [00:35:42] Speaker 04: paying their gas via contracts with marketers. [00:35:45] Speaker 04: The marketers have portfolios that can come from anywhere in the country. [00:35:50] Speaker 04: The Tennessee system, by the way, in addition to what the commission cited, they also have sources from Canada. [00:35:56] Speaker 04: But the marketers also have the ability under the commission's regulations to put together in their own transportation portfolios, [00:36:09] Speaker 04: contract demand that their customers have as well as their own contract. [00:36:14] Speaker 04: So the bottom line is that the source of the gas can vary from day to day, week to week. [00:36:20] Speaker 06: We have further questions here. [00:36:26] Speaker 06: All right. [00:36:26] Speaker 06: Let me just check. [00:36:27] Speaker 06: Judge Rogers, did you have any questions? [00:36:41] Speaker 06: Judge Rogers, I don't know if you're on mute. [00:36:43] Speaker 06: Do you have any questions? [00:36:49] Speaker 06: Judge Rogers, did you have any questions? [00:36:52] Speaker 03: No, thank you. [00:36:54] Speaker 04: All right. [00:36:54] Speaker 04: Your Honor, one final point, if I may. [00:36:57] Speaker 04: I would like to advise the court that the project is in service. [00:37:02] Speaker 04: It will be fully in service next week. [00:37:05] Speaker 06: All right. [00:37:05] Speaker 06: Thank you. [00:37:07] Speaker 06: All right, Ms. [00:37:09] Speaker 06: Doren, we'll give you three minutes for rebuttal. [00:37:14] Speaker 01: Thank you. [00:37:15] Speaker 01: Three points on rebuttal. [00:37:16] Speaker 01: With regard to upstream impacts, the commission is not on solid footing here. [00:37:21] Speaker 01: The commission is actually on thin ice. [00:37:23] Speaker 01: Under the commission's rationale, they would never have to consider upstream impacts if they did not know the exact source of gas, regardless of the project, regardless of the scope of the project. [00:37:36] Speaker 01: EPA says the commission cannot make an informed decision without these impacts. [00:37:41] Speaker 01: That's at the record at 300. [00:37:43] Speaker 01: That goes to the very core of NEPA, and here the commission failed to do it. [00:37:48] Speaker 01: That's arbitrary and capricious. [00:37:50] Speaker 01: With regard to significance, the commission claims it does all of these things, but ultimately it throws up its hands and approves the project anyway. [00:37:59] Speaker 01: The commission refuses to use a particular method. [00:38:02] Speaker 01: The commission refuses to go back to its ad hoc analysis of significance that it did in northern natural gas, and is simply going forward without taking accountability for climate impacts. [00:38:14] Speaker 01: Third, with regard to need and the precedent agreement, again, the commission did not consider projections consistent with the Climate Leadership and Community Protection Act. [00:38:24] Speaker 01: It failed to come to grips with this evidence in the record, instead relying on the precedent agreement. [00:38:29] Speaker 01: Again, the commission identified the problem that occurs here. [00:38:33] Speaker 01: When it looks at the precedent agreement, it may not give adequate weight to other factors, including here the Climate Act. [00:38:41] Speaker 01: Thank you. [00:38:42] Speaker 06: On upstream effects, are you saying that can you, I guess, cite a case either in FERC or decided by our court or another court of appeals that has said that you have to calculate upstream effects where you can't identify the source? [00:39:10] Speaker 01: Your honor, there are cases that identify that upstream impacts can be reasonably foreseeable. [00:39:16] Speaker 01: Here, I am not aware of a case that says when you can't identify the source. [00:39:23] Speaker 01: But again, we're looking in the context of greenhouse gas emissions and the global impacts this could have. [00:39:30] Speaker 06: I mean, hasn't our precedent said the opposite in that it's not reasonably foreseeable [00:39:38] Speaker 06: or either that or it doesn't meet the causation standard if we can't say where the gas is coming from. [00:39:48] Speaker 01: There have been cases, including Birkhead, including Food and Water Watch, where discussions of reasonable foreseeability and causation were correlated. [00:39:57] Speaker 01: Here, though, the commission is undoubtedly a cause of the indirect impacts of the projects it approves. [00:40:07] Speaker 01: It could have chosen to deny this project based on climate impacts, had it gone far enough to determine the significance of those impacts. [00:40:16] Speaker 01: So they are causally connected. [00:40:18] Speaker 01: And again, I would very much encourage the court to look at EPA as the climate expert agency as to whether they are reasonably foreseeable even if you cannot pinpoint the exact source of gas over the lifetime of the project. [00:40:31] Speaker 06: What's your best case for us to find that it's reasonably foreseeable upstream effect even if we can't identify the source? [00:40:48] Speaker 01: Your honor, that is a excellent question. [00:40:50] Speaker 01: And I'm sorry, I don't have a case for you on that. [00:40:53] Speaker 01: But again, looking at the context of these impacts and the global implications, I would encourage the court and encourage the commission to take those factors into account. [00:41:03] Speaker 01: And again, without considering those factors, according to EPA, we cannot make an informed decision. [00:41:09] Speaker 06: Judge Rogers, did you have any question? [00:41:11] Speaker 01: No, thank you. [00:41:13] Speaker 06: Thank you. [00:41:14] Speaker 06: We'll take the case under submission.