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Tase number 22-1146 et al.

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Four river residents against the compressor station et al petitioners versus Federal Energy Regulatory Commission.

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Mr. Hayden for the petitioners, Mr. Fish for the respondents, Mr. Marwell for the respondent interviewees.

[00:00:18] Speaker 05:
Good morning, Council.

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Mr. Hayden, please proceed when you're ready.

[00:00:28] Speaker 03:
Sure.

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May it please the court, Madam Clerk,

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Your honors, Michael Hayden on behalf of the petitioners.

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And with me also is town of Braintree, town solicitor, Crystal Huff.

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This is my first argument before this court.

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It's second visit I've made to this courtroom following a 2018 visit on this same matter.

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I filed a intervener's brief.

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Judge Malik and Judge Tatel were on the panel.

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and given the circumstances described by Chief Judge Grunewassen concerning today's retirement, it's an honor to be back and arguing before this specific panel.

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The petitioners in this case are two municipalities, two citizen groups, and two individuals.

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The intervener Algonquin Gas Transmission LLC's brief notes that the Atlantic Bridge Project

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is a $627 million expansion of certain interstate natural gas pipeline and related facilities.

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The petitioner's challenge in this matter pertains only to a single facility associated with that project.

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The natural gas compressor station located on a peninsula in Weymouth, Massachusetts, which does have some historical significance

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It's actually the location of the second oldest settlement of the English settlers, the West Augusta settlement, which was settled in 1622, two years after the Plymouth settlement was settled.

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This natural gas compressor station facility was shoehorned into this $627 million project where it never belonged.

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And what's worse, the gas company that built it

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tells a different electric motor driven compressor option in its company literature that is emissions free.

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There was no environmental impact statement prepared by the commission in this case, rather an environmental assessment was prepared which evaluated the electric motor driven compressor option and rejected it ironically on the grounds that it would take too long to build back in 2015.

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Two extremely frustrating developments to the petitioners form the factual underpinnings for this consolidated appeal.

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First, Congressman Stephen Lynch wrote a letter to the commission in January of 2018, noting that the deadline for Algonquin to complete construction and place the compressor station in operation was arriving one year later, in January 2019.

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And Congressman Lynch asked the commission not to extend that two-year deadline.

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The commission responded in March of 2018 by advising the congressman that no request had been presented to it, and therefore there was no extension request for the commission to consider at that time.

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And yet, just a few months later, on December 26, 2018,

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The commission circulated to its distribution list on the morning after Christmas, a letter request by Algonquin to extend the two-year deadline to complete construction and to place this facility in operation.

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Within 34 minutes, the commission posted an approval of that request for a two-year extension in a letter order signed by Richard Foley, Chief Certificate Branch 1.

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approving that extension the same morning that the request had been filed.

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There's no evidence in this record that there was any sub-delegation confirmed to Mr. Foley, and there's certainly no evidence of what, if any, consideration Mr. Foley gave to that request.

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So our decisions contemplate that no matter what one might say about those kinds of questions, that the commission in full can ratify the decision in a way that then

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includes the kind of challenge that you've made in your briefs and it sounds like you're making now.

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What's your response to that?

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Thank you, Chief Judge Srinivasan.

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The response to that is the Commission abused its discretion and exhibited a complete and utter lack of reasoned decision-making in ratifying how that letter order was issued the morning after Christmas.

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Did you make that argument in your brief?

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Yes.

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Yes, Judge.

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In response to the

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question that the chief judge does ask about ratification?

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Yes.

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So the distinction that I'm drawing here, and thank you for both questions.

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The distinction that I'm drawing here is not that the commission upon independent grounds, having conducted a full inquiry of whether a two year extension was warranted.

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That's not what happened here.

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What the commission said, the commission actually explained that even though the 34 minutes look suspicious,

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that the commission was aware that the deadline was approaching and that the employees of the commission were actively considering a two-year extension before the request was even made.

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That's the explanation for why the 34 minutes was not too short a period of time.

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But that explanation is completely belied by the response that the commission gave to Congressman Lynch.

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When Congressman Lynch wrote and said, I see this deadline coming.

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I want this commission to focus

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on the potential harm that this facility will have on my constituents.

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The commission didn't write Congressman Lynch a letter explaining we're aware that the deadline is approaching.

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We need to have this discussion.

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All the commission said to Congressman Lynch was no request has been made.

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There's nothing for us to answer here.

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And so the abuse of discretion and the lack of reason decision making is not by articulating an independent and separate basis

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for why this extension should have been granted.

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I would agree that would be a much more difficult case for the petitioners to appeal.

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What the commission has done is they've sought to ratify this 34-minute decision-making process without evidence of subdelegation.

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And it's the threat of this court's affirmance that 34 minutes is okay for all future extension requests that should be

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um, gravely considered here because it's, it's not a question of whether under independent review, the actions of the commission can be justified.

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The commission is sought to ratify this ill considered, completely rushed 34 minute decision, which provided the all parties in this action with absolutely no notice.

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Didn't just sign off and say, we're good with the 34 minutes.

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It made its own determination.

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but there was good cause for an extension.

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It made its own decision.

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And so, and I haven't understood your briefs here to dispute that independent finding of good cause.

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So there was good cause at that time on December 26th to grant the extension.

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You don't contest that.

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Have you in your brief contest, you may personally, but in your brief, your blue brief, I didn't read you and tell me if I'm wrong to have contested

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that the reason the good cause cited Algonquin's efforts to obtain permits and its inability to do so and just sort of drawing out litigation processes is arbitrary and capricious or lack substantial evidence.

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The way I would answer that Judge Mallette is the petitioners can agree to disagree with the commission as to whether that separate review is appropriate or not.

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But yes, I don't have the evidence to submit to this panel to explain why an independent review

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of the two-year extension request would have been an abuse of discretion.

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The challenge that we raise is that they package together a ratification of the 34-minute approval so that for all future proceedings, that still is available to the commission.

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And much of what the petitioners have done is only available to the committee.

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I mean, when the commission said it was changing its processes, which I haven't understood you to challenge that to be true.

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So that would take care of some concern.

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And two, as long as the commission gives lawfully proper appropriate explanation and finding of good cause that is on challenge.

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What is the harm that you're concerned about going forward?

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The precedent that this, this ratification has said much of what, how does that injure you, your, your clients?

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Well, the injury is that the, the,

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approval was granted on the day after Christmas without my clients having any opportunity to present their case.

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And then they had full opportunity of rehearing and their arguments and they made submissions and they were heard and a decision was made that is not challenged.

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So what, after the commission's rehearing decision, how were they injured by, we just don't like you smiling upon a 36 minute or 34 minute

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approval process.

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Understood.

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So the injury and the convenience of this consolidated appeal is that both segments, both factual underpinnings go together.

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What should have happened in the injuries sustained by my clients, the way the commission handled this extension request, as is evidenced by the letter written by Congressman Lynch, is there was not a full and open opportunity to present the environmental justice concerns that this community had from day one

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continues to have to this day at that moment where the two-year extension was being considered, there should have been a complete.

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But you were able to make all that presentation to the commission in your rehearing petitions.

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And we have.

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And you did in your rehearing petitions.

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So today, how are they injured?

[00:10:33] Speaker 03:
Today we are injured because there has never been any substantive environmental justice review ever for this project.

[00:10:40] Speaker 01:
It sounds like attack on the certification or.

[00:10:42] Speaker 03:
Well, and I do want to be careful about that, so as not to mount a collateral attack.

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So the certificate order was presented to this court.

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It was affirmed in 2018.

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That's completely understood.

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What's happened since that time is that there has been a material change in the core circumstances surrounding the authorization of this facility.

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The material changes include the COVID-19 pandemic, the attorney general's report written on the adverse

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Uh, overly adverse consequences the pandemic has had upon environmental justice populations in Massachusetts and the three unplanned emergency gas releases that occurred that triggered offends or corrective action investigation.

[00:11:24] Speaker 01:
And, um, did you raise all of those to FERC in re-hearing?

[00:11:27] Speaker 01:
Yes.

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Okay.

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And then they, they ruled and you haven't challenged it.

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So again, I'm, so you've, you've raised all that.

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You've had your day in FERC court as a worker to make that, to make those presentations.

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And they were made, and FERC heard them.

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But FERC drew a different conclusion from the record that is unchallenged here.

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So I'm asking again, you said our injury is we never got to do it, but then you said we did get to do it.

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So now that FERC has ruled, has heard you, you've said everything.

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And then there was that whole other order on briefing.

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I mean, you've had rounds of saying everything you wanted to say to them.

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But in particular, after the rehearing on the extension request, I'm still struggling to understand what the injury is.

[00:12:13] Speaker 03:
Thank you, Judge Muller.

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And the injury is after the second round with the order on briefing and the opportunity to submit supplemental briefs, which is the second factual underpinning for this appeal, FERC one year later actually issues its updated policy statement.

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Joint Appendix 4, and it draws all these new policies that say the impact to an environmental justice community alone is sufficient for the commission to deny a ruling of public convenience and necessity for all future project applications.

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So everything that we've argued in this case for every new project going forward is grounds for the commission to rule that this compressor station should not be authorized.

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and the thought that our clients have to live and breathe and work and recreate immediately in the actual physical space with this compressor station for the next 50 years as it operates 24 hours a day, 365 days a year.

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That is the harm.

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They have never received the due consideration that they are entitled to as environmental justice communities, even dating back to the 1994 executive order, which requires this for all commission projects.

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The only conclusion that the environmental assessment reached was what there would be temporary benefit to the local community with additional jobs during construction and tax benefits.

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Let me just interrupt you.

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I hear what you're saying, and I've read your briefs, and there are members of the commission who agree with you that this was not FERC's finest out.

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But let me just ask you, I don't mean to be technical about it, but this is the way we look at issues like this, okay?

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So take the issue about your claim that the branch chief lacked authority, right?

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That's one of your arguments.

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As the chief judge pointed out,

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In the first brief, they said, well, the commission ratified that, and it relies on our opinion in Murray Oil.

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And then in the reply brief, I didn't see any response to that.

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So to us, that's a waiver.

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Not a waiver, but that issue is done.

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You didn't respond to the commission's ratification argument, relying on Murray.

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Same thing with your argument

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that the grant chief's order was arbitrary and capricious, right?

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Again, the respondents say, well, we have the commission's denial of rehearing before us, which directly responded to all of your arguments.

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And again, and they relied on Murray.

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And again, you didn't respond to that in the reply brief.

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So when I look at that, I think, OK, these issues were done.

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That's it.

[00:15:05] Speaker 02:
You didn't respond to the commission's argument.

[00:15:07] Speaker 03:
Thank you, Judge.

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What's the matter with it?

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Thank you, Judge Settle.

[00:15:10] Speaker 03:
I'd like to address that if I go ahead.

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In the eight years that my clients have been opposing this compressor station, we've achieved a number of Pyrrhic victories.

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We have a new Massachusetts environmental justice law that does not apply to this station.

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It's the same here.

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Through our advocacy, FERC now has an updated policy statement that will protect future environmental justice populations.

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We're very happy with that development.

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We don't rest there.

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We are seeking environmental justice review from my clients

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and a pyrrhic victory in vacating the ratification of the 34-minute approval of the two-year extension to remand back to the Commission for purposes of potentially rubber-stamping what has already happened.

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And I recognize that with Chairman Glicks, the lack of the Senate confirmation hearing, now the Commission is down to four.

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uh, inviting deadlock going forward.

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I recognize it is a mountainous uphill climb for my clients to expect any change to occur before first.

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So we don't expect it to happen voluntarily.

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It is only going to happen through the influence of the courts.

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And even if everything that you've described Judge Tatel means that our victories will be peric in nature, we still implore this court to consider them.

[00:16:29] Speaker 05:
Can I ask you, um,

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A lot of what we talked about this morning is on 22-1146.

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I think that's where a lot of the questions come up about ratification in the 34 minutes and the subdelegation.

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On the other petition, 1147, the commission and the intermediaries make the argument that there's no jurisdiction to consider that because you're only challenging, you only identified the order being challenged as the rehearing order in 2022, not the 2020 authorization order.

[00:17:01] Speaker 05:
And that's the one that should be identified as the one that you're challenging for purposes of jurisdiction.

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Because if you were challenging the 2022 re-authorization, re-hearing order alone, I think there's some law that indicates that you would have needed to have sought re-hearing of that.

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And then in your reply brief, in a couple of places you specifically say, you're not challenging the 2020 authorization order.

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And you say that at footnote one on page five and then on page six.

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And then on page seven, again, clarify that you are actually not challenging the 2020 authorization.

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Correct.

[00:17:38] Speaker 03:
May I respond, Mr. Chief Judge?

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Yeah, I guess my questions are A, is that true?

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And I take it that it is because you're saying that.

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And then B, if that's true, how do we have jurisdiction?

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Understood.

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So unequivocally, we are not challenging the September 24, 2020 authorization.

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Our view is that to do so would have been mounting a collateral attack on this court's affirmance of the original certificate order.

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So that is not our challenge.

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What flowed from that September 24th, 2020 authorization order, we did submit petitions for review to the commission.

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And since that time in September of 2020, that's when the two unplanned emergency gas releases occurred, which prompted the commission to issue its separate briefing order, which I agree with the commission.

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There was no prejudice to my clients by the briefing order because it invited the very discussion we've been begging the commission to have for eight years.

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So there's no prejudice from them.

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It is the subsequent February 21st, 2020 order on briefing

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that is prejudice my 2020 or 2022 thank you thank you my apologies um it's the order on briefing

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that responded to the briefing order that has prejudiced my clients, because in considering all of our arguments that the materially changed core circumstances, the COVID-19 impact on the environmental justice communities, and the complete and utter lack of any substantive environmental justice review ever for this project, the commission had the opportunity in writing the order on briefing to address those issues.

[00:19:19] Speaker 03:
It was a borderline apology, such as, we're sorry you feel that way, because what the commission wrote in its order on briefing was, we recognize, and this is at page 15 of that order, paragraph 22, we recognize the legitimate health and safety concerns associated with the siting and operation of the Weymouth Compressor Station, together with the petitioner's allegations that outreach and engagement with affected environmental justice communities

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was insufficient.

[00:19:50] Speaker 05:
That's an order denying re-hearing, right?

[00:19:52] Speaker 03:
No.

[00:19:52] Speaker 05:
The 2022 order?

[00:19:54] Speaker 03:
That is the 2022 order on briefing.

[00:19:58] Speaker 03:
So that was the response to the briefing order.

[00:19:59] Speaker 03:
The terminology is very duplicative, but we had the 2021 briefing order and then the 2022 order on briefing.

[00:20:11] Speaker 03:
And I was reading from the order on briefing at paragraph 22,

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which is page 15.

[00:20:17] Speaker 03:
If a citation to the appendix would be helpful, I can find that in a moment.

[00:20:22] Speaker 01:
Yeah, that was the, that was still part of the rehearing, right?

[00:20:25] Speaker 01:
They had two headings in this.

[00:20:27] Speaker 01:
They were doing two things.

[00:20:29] Speaker 01:
Section, you know, you see from page 1375.

[00:20:33] Speaker 01:
So section A is response to arguments on rehearing.

[00:20:38] Speaker 01:
And then on 1380, they start a new section there when they're responding to brief order, briefing order arguments.

[00:20:46] Speaker 01:
And so that paragraph 22 is part of re-hearing.

[00:20:50] Speaker 03:
Thank you.

[00:20:50] Speaker 03:
Thank you.

[00:20:51] Speaker 03:
So same document, different section.

[00:20:53] Speaker 01:
It seemed like they were doing two things.

[00:20:54] Speaker 01:
Well, it's a little confusing, and tell me if you have a different understanding.

[00:20:59] Speaker 03:
No, that is consistent.

[00:21:00] Speaker 03:
Thank you.

[00:21:00] Speaker 03:
Thank you for that clarification.

[00:21:03] Speaker 05:
But if it's enough, then you did not need to seek reconsideration of the denial of re-hearing?

[00:21:11] Speaker 03:
No, because the briefing order itself,

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The briefing order of February 18, 2021 invited all interested parties to comment on four categories.

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Those four categories were in light of the concerns expressed regarding public safety.

[00:21:29] Speaker 03:
Is it consistent with the Commission's responsibilities under the Natural Gas Act to allow the Weymouth compressor station to enter and remain in service?

[00:21:37] Speaker 03:
Question number two, should the commission reconsider the current operation of the Weymouth Compressor Station in light of any change circumstances since the project was authorized?

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For example, are there changes in the Weymouth Compressor Station's projected air emissions impacts or public safety impacts the commission should consider?

[00:21:56] Speaker 03:
We encourage parties to address how any such changes affect the surrounding communities, including environmental justice communities.

[00:22:02] Speaker 03:
So you're on the A part.

[00:22:04] Speaker 03:
That was from the briefing order, yes, Your Honor.

[00:22:08] Speaker 03:
And it's in response to that question that my clients reiterated their years-long argument that environmental justice review needs to begin, not be revisited, not questioning something that was done before.

[00:22:23] Speaker 03:
It needs to start.

[00:22:24] Speaker 03:
It never started.

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And the only response to that we got was former Chairman Blick issuing the devastating comment that my clients read, which stated,

[00:22:38] Speaker 03:
In my opinion, the commission likely aired in citing the Weymouth compressor station where it did.

[00:22:42] Speaker 03:
That was in his concerns.

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My client's reaction was we won.

[00:22:47] Speaker 03:
And of course, they very much did not.

[00:22:50] Speaker 05:
So let me make sure I don't have additional questions for my colleagues.

[00:22:54] Speaker 05:
We'll give the commission a chance to argue and we'll give a little bit of time for rebuttal.

[00:22:58] Speaker 05:
Thank you very much, Your Honors.

[00:23:02] Speaker 05:
Mr. Fish?

[00:23:10] Speaker 06:
Mr. Chief Judge, and may it please the court, Jared Fish for the Federal Energy Regulatory Commission.

[00:23:15] Speaker 06:
I'd like to begin with a couple of jurisdictional points across the two cases, if I may, that go to your honor's questions.

[00:23:22] Speaker 06:
First, it is true in a case number 22-1147, the authorization order proceeding, the petitioners did not challenge the grieving order.

[00:23:31] Speaker 06:
And a petitioner must challenge the aggraving order under Section 717R of the Natural Gas Act and this court's precedent in the City of Oconto in order to preserve their right to seek judicial review.

[00:23:42] Speaker 06:
And there is no response to our argument in petitioners' reply brief that petitioners failed to challenge the aggraving order here.

[00:23:50] Speaker 06:
and even if this court were to somehow deem the 2022 order to be an aggrieving order, which it is not, it merely sustained the authorization order from 2020.

[00:24:02] Speaker 06:
You're correct, Mr. Chief Judge, that petitioners had to seek rehearing.

[00:24:06] Speaker 06:
Section 717RA is clear.

[00:24:10] Speaker 06:
A party that seeks to challenge an aggrieving order must seek rehearing before the commission before it may petition for a judicial review.

[00:24:18] Speaker 06:
So that takes

[00:24:19] Speaker 06:
There is no jurisdiction to hear.

[00:24:21] Speaker 01:
I get our rule is clear.

[00:24:23] Speaker 01:
I really do get that.

[00:24:26] Speaker 01:
But what this briefing decision, order on briefing decision is, it's anything but clear.

[00:24:34] Speaker 01:
They try to sort of categorize things into hearing and order on briefing, but then they insist they never reopened anything.

[00:24:42] Speaker 01:
And yet from their perspective, this was their shot to really

[00:24:48] Speaker 01:
tell the story about why this thing shouldn't be allowed to sort of continue operating because of all the mistakes that were made.

[00:24:55] Speaker 01:
The commission essentially said in the paragraph he cited, yeah, we screwed up rehearing tonight.

[00:25:03] Speaker 01:
And for them to, it's such an unusual animal.

[00:25:09] Speaker 01:
even some of the commissioners thought it was quite unusual or not improper animal.

[00:25:14] Speaker 01:
Such an unusual animal with this round three was.

[00:25:20] Speaker 01:
I feel like it's a little unfair to put on them not to know how to challenge it because on the one hand, you're not disputing the original motion to authorize the plant to come on.

[00:25:36] Speaker 01:
line because the usual rules for that, the boxes were all checked and it had complied with everything it was supposed to comply with and it should come online and we hadn't had the blow downs at that point.

[00:25:47] Speaker 01:
And so they're like, no, what we're really upset about is this hybrid, whatever it is, decision on briefing, where they essentially said, come to us, tell us about your concerns.

[00:26:01] Speaker 01:
And they agreed with us that we were right and nothing happened.

[00:26:06] Speaker 01:
I don't think it's supposed to know that they have to do another rehearing on this thing that was called already an order on hearing.

[00:26:12] Speaker 01:
It's just awful.

[00:26:14] Speaker 01:
It feels I credit for having done the work and confessed its need to change going forward.

[00:26:22] Speaker 01:
But it's a fear the technical people are

[00:26:27] Speaker 01:
Real people are getting lost in the technical technicalities of all of this.

[00:26:31] Speaker 06:
I understand the concern, Judge Milan.

[00:26:32] Speaker 06:
I also understand that this was kind of an unusual animal, but that we have to look at what petitioners were actually arguing and their hearing request.

[00:26:41] Speaker 06:
They did raise the lowdown events.

[00:26:43] Speaker 06:
They did address COVID-19.

[00:26:45] Speaker 06:
They did address environmental justice concerns, which are the very issues they are raising here.

[00:26:51] Speaker 06:
The problem is that what they sought for the commission to do was to use its rule 716 to reopen the certificate order record.

[00:27:00] Speaker 06:
And that is simply not something that the commission can do once once the 6 day period to challenge the certificate order had passed.

[00:27:10] Speaker 06:
And more importantly, once this court in its 2018 town of Weymouth decision decided finally that the certificate order and all of the environmental reviews they're under were lawful.

[00:27:22] Speaker 06:
So at the end of the day, the briefing order

[00:27:24] Speaker 06:
was a way for the Commission to assure itself it had all the information it needed to issue a reasoned decision on rehearing to determine whether it should revisit the authorization order from 2020.

[00:27:37] Speaker 06:
And it acknowledged that all those briefs that were submitted in response to the briefing order would be made part of the record.

[00:27:45] Speaker 06:
That's precisely why at footnote 53 of the 2022 order, it said JA 1377, the commission explained that petitioners reopening claim, which is the only claim they have here that's jurisdictionally preserved in the authorization order proceeding,

[00:28:02] Speaker 01:
that claim was moot because the commission did uh state in the briefing order it would make uh any submissions part of the record and critically why is it moot why isn't actually a reopening i mean why isn't moot why isn't actually why wasn't this order on briefing a reopening because it asked for not just rehearing briefs it asked for evidence it asked for factual information

[00:28:30] Speaker 01:
So why aren't they right to understand this for all practical intents and purposes?

[00:28:35] Speaker 01:
However, that commission labels its headings within its decision.

[00:28:39] Speaker 01:
When you ask for new evidence, new briefing, arguments about events that post-state the facility coming online, that it's not a reopening.

[00:28:54] Speaker 01:
How is it not a reopening?

[00:28:56] Speaker 06:
Well, that might have been a reopening for purposes of considering the authorization order.

[00:29:00] Speaker 06:
So the time between the authorization order was issued in the time that the commission issued a 2022 order.

[00:29:06] Speaker 06:
That's very different from seeking a reopening of the certificate order record, which is something that the commission said.

[00:29:13] Speaker 06:
explicitly in the 2022 order it could not do.

[00:29:17] Speaker 06:
It was accepting arguments on the blowdown events, COVID-19 impacts, environmental justice impacts.

[00:29:23] Speaker 06:
All of those events did post-state the certificate order.

[00:29:26] Speaker 06:
But the key here is those events were relevant to the determination on rehearing to

[00:29:33] Speaker 06:
determine if Algonquin was out of compliance with any of the conditions on the certificate order itself.

[00:29:39] Speaker 06:
And so the commission found at paragraph 16, 24, 25 of the rehearing order, or I'm sorry, paragraph 17 to 19 of the rehearing order, that's JA 1377 to 79, that there is no allegation

[00:29:56] Speaker 06:
that Algonquin was out of compliance with its air permits.

[00:29:59] Speaker 06:
No allegation, it was out of compliance with its PIMSA, Pipeline Hazardous Materials Safety Administration regulations, or any other condition of the certificate order.

[00:30:07] Speaker 06:
And because the condition precedent, the continuing operation of the compressor station is continuing compliance with the conditions of the certificate order, the commission found no basis to revisit the authorization order.

[00:30:20] Speaker 01:
But that's- That's the kind of ironic thing here is that

[00:30:24] Speaker 01:
The commission found, and I don't take them to dispute, that Algonquin was in full compliance with the certificate order.

[00:30:31] Speaker 01:
And so, of course, the authorization order is fine.

[00:30:34] Speaker 01:
What we have here is a decision where this says Algonquin was in compliance with the law.

[00:30:39] Speaker 01:
It's the commission that was not.

[00:30:42] Speaker 01:
And that's what they said.

[00:30:45] Speaker 01:
We said we didn't do it right.

[00:30:47] Speaker 01:
We didn't, and we're going to change it going forward.

[00:30:49] Speaker 01:
I think it's more than this wasn't our best work.

[00:30:52] Speaker 01:
I think they say we didn't do it right.

[00:30:54] Speaker 06:
Well, we're changing our procedures going forward.

[00:30:57] Speaker 06:
I think that's, you know, we created an office of public participation to engage with environmental justice communities earlier.

[00:31:03] Speaker 06:
I don't think that procedural revision necessarily means you got it wrong substantively.

[00:31:11] Speaker 06:
Yes, there are commissioners, commissioner clicks.

[00:31:17] Speaker 01:
I'm not, I'm not, I'm not saying for sure that adopting this new office and this new approach

[00:31:24] Speaker 01:
suggest anything was wrong.

[00:31:26] Speaker 01:
I'm and I'm you're absolutely right.

[00:31:28] Speaker 01:
We wouldn't do that.

[00:31:29] Speaker 01:
It's their sentence that, um, additional allegations that outreach and engagement with affected environmental justice communities was insufficient.

[00:31:39] Speaker 01:
They mean legally in session.

[00:31:42] Speaker 06:
I'm not sure, Your Honor, but that wasn't something that the Commission could reconsider as the Commission stated in the 2022 order anyway.

[00:31:50] Speaker 06:
So, you know, Commissioners' statements in a subsequent order that, you know, I, Commissioner, whoever, personally feel that we should have come out differently,

[00:32:02] Speaker 06:
You know, that's not expounded upon because the commission, as a legal matter, could not go back and reopen the certificate order proceeding, which already addressed the issues of environmental.

[00:32:12] Speaker 01:
But it could have said we shouldn't have.

[00:32:15] Speaker 01:
No, maybe it couldn't have.

[00:32:15] Speaker 01:
Tell me this.

[00:32:17] Speaker 01:
Could it have said we shouldn't have authorized operation?

[00:32:21] Speaker 01:
Or could it not have because the only requirement for authorizing operation is whether Algonquin did things right, not whether the commission did things right?

[00:32:28] Speaker 06:
Right, the condition precedent to authorizing operation is compliance with the conditions in the certificate order.

[00:32:34] Speaker 06:
That's where the certificate order has continuing life.

[00:32:37] Speaker 06:
Because the conditions, once the project is approved for construction and operation, that's done.

[00:32:43] Speaker 06:
But as continuing life, because the conditions on it, especially the environmental conditions in Appendix B of the certificate order, and need to be complied with.

[00:32:51] Speaker 06:
That's what the commission means when it has a continuing public interest obligation

[00:32:57] Speaker 06:
to ensure that the compressor station is operating in a way that was contemplated by the certificate order itself.

[00:33:09] Speaker 06:
But that's very different from suggesting that there was a legal right to go back and reopen the certificate order.

[00:33:19] Speaker 06:
If I could turn to 22-1146 briefly, the extension order proceeding.

[00:33:24] Speaker 06:
Judge Mallette, you asked questions about what Kitchener's injury is.

[00:33:28] Speaker 06:
I think that sounds in standing.

[00:33:30] Speaker 06:
I would submit that the commission administratively resolved any possible injury that could have derived from a, subdelegation, and b, the 34-minute decision by more than one year later

[00:33:43] Speaker 06:
having the full commission vote and ratify the good cause determination in the original decision.

[00:33:51] Speaker 06:
And I think it's really important petitioners nowhere challenge our good cause finding.

[00:33:57] Speaker 06:
that Algonquin was trying to get wetlands and zoning ordinance permits from Massachusetts.

[00:34:03] Speaker 06:
They couldn't.

[00:34:04] Speaker 06:
That our branch chief was monitoring that situation, was aware of the reason for the delays, and so was in a position to render a determination on Algonquin's extension request upon receipt.

[00:34:19] Speaker 06:
It would be a different matter as far as standing is concerned if petitioners actually were challenging the good cause

[00:34:29] Speaker 05:
Thank you, Council.

[00:34:31] Speaker 05:
Thank you, Your Honors.

[00:34:33] Speaker 05:
We'll hear from Intervenors Council now, Mr. Marwell.

[00:34:51] Speaker 04:
Good morning, Your Honor.

[00:34:53] Speaker 04:
Jeremy Marwell for the industry entrepreneurs.

[00:34:56] Speaker 04:
Just a few quick points, and I'm happy to answer questions.

[00:35:00] Speaker 04:
First, I do think there was some questioning about reopening and the record.

[00:35:05] Speaker 04:
I do think it's important to maintain the context that this Court is often called upon to adjudicate a challenge to the original certificate authorizing construction and operation.

[00:35:15] Speaker 04:
Here we have challenges to implementation orders, and so there would be

[00:35:19] Speaker 04:
kind of overlapping records, but the principle of finality for the original certificate that authorizes Algonquin and other companies to invest huge sums of money, that is a very important principle and I think it's reflected in FERC's order.

[00:35:36] Speaker 04:
Second, as to the case 1147,

[00:35:43] Speaker 04:
Putting aside the various threshold questions, I think the reality is the Commission undertook an extensive additional process that allowed it to consider all of the petitioner's concerns with regard to post-certificate events.

[00:35:56] Speaker 04:
And as the Commission said, the Commission specifically found there were no violations of the certificate order, no violations of the air permit, no violations of the FIMSA regulations that govern safety and operation of these facilities.

[00:36:11] Speaker 04:
And I don't take petitioners

[00:36:12] Speaker 04:
challenging those points or really the commission's broader findings with regard to why it was, there was no basis to set aside the authorization order.

[00:36:23] Speaker 04:
And then finally, as to the question of agreement and what petitioners might've needed to do.

[00:36:31] Speaker 04:
I understand agreement in the statute to be tied to the concept of standing.

[00:36:37] Speaker 04:
And I understand petitioners claim of standing here.

[00:36:40] Speaker 04:
uh, to be they're concerned about the operation of the station in that community that we were authorized to do that by the 2020 order, which petitioners have made clear they are not challenging support.

[00:36:53] Speaker 04:
So if there are any further questions, I'm happy to answer.

[00:36:57] Speaker 05:
Do you on 11 47 you went to the merits?

[00:37:01] Speaker 05:
Um, and do you think that we should go to the merits?

[00:37:05] Speaker 04:
Oh, I'm sorry if I was not clear.

[00:37:09] Speaker 04:
When I made the point about a grievement, that's what I understand to be the primary jurisdictional problem there that they didn't name and they've now disclaimed any challenge to the 2020 order.

[00:37:20] Speaker 04:
So I do think that under City of Oconto and the National Gas Act, what they should have done is named not my

[00:37:27] Speaker 04:
not my client, but I think what they could have done and what they did in the 1146 case was to name both orders.

[00:37:34] Speaker 04:
They named the in-service authorization, the 2020 authorization, and the 2022 order that was both an order on rehearing and an order that went beyond a typical order on rehearing.

[00:37:45] Speaker 04:
And I think that's the statutory jurisdictional problem for them.

[00:37:50] Speaker 04:
But I take Judge Millett's point that this was an unusual sort of extra procedure that the commission did, and so that's why I went

[00:37:58] Speaker 04:
Thank you very much.

[00:38:01] Speaker 05:
Thank you, Mr. Marlwell.

[00:38:05] Speaker 05:
Mr. Hayden will give you two minutes for rebuttal.

[00:38:11] Speaker 03:
Thank you very much.

[00:38:12] Speaker 03:
Bringing everything to this court's attention, there are still three matters being held in abeyance.

[00:38:18] Speaker 03:
Those are docket numbers 21, 1155, 1138, and 1153.

[00:38:24] Speaker 03:
Those are challenges raised by the interveners to the original briefing order in terms of whether the commission had the authority to do that in the first place.

[00:38:33] Speaker 03:
We're not focused on that for purposes of today's proceedings.

[00:38:37] Speaker 03:
So the argument submitted by the petitioners is that the commission has opened the door through this briefing order process, which by all accounts is a very unique and unprecedented process.

[00:38:50] Speaker 03:
It doesn't seem that it's ever been done before.

[00:38:53] Speaker 03:
The next time I have to challenge something of this nature, perhaps, I'll throw the kitchen sink at it.

[00:38:59] Speaker 03:
But we certainly don't believe that there's been any prejudice that's resulted from the choices of which orders to appeal, because the arguments are understood by all.

[00:39:08] Speaker 03:
We agree to disagree on the decision-making that underlay them.

[00:39:12] Speaker 03:
But we do believe that everything is properly presented for this court's consideration.

[00:39:17] Speaker 03:
Simply as an aside, the state licenses and permits

[00:39:20] Speaker 03:
that are required for the Office of Coastal Zone Management to issue the consistency determination, which is required under the original certificate order, they're still not finalized.

[00:39:31] Speaker 03:
The petitioners have been successful in vacating a Chapter 91 waterways license in Massachusetts, which has now been remanded back to the Massachusetts Department of Environmental Protection, is going to be scheduled for further administrative proceedings and trial this autumn.

[00:39:46] Speaker 03:
And if we are successful there, we would be revisiting the commission

[00:39:50] Speaker 03:
seeking to vacate the ability for this facility to continue operating because then the coastal zone management certificate of compliance would no longer be in effect.

[00:40:02] Speaker 03:
So my clients respectfully implore this court to consider the authority that has been cited by this court in the Vecinos-Pera-El-Bienestar decision

[00:40:15] Speaker 03:
and by the Fourth Circuit and the Friends of Buckingham decision, recognizing that historically environmental justice communities have been marginalized, underrepresented, and ignored, it is never, ever too late to give environmental justice consideration to the people who are living and breathing and working and recreating near this facility.

[00:40:32] Speaker 03:
We respectfully ask for this court to require the commission to conduct an environmental justice review.

[00:40:40] Speaker 05:
Thank you, Council.

[00:40:40] Speaker 05:
Thank you to all Council.

[00:40:42] Speaker 05:
We'll take this case under submission.