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Case number 22-1217 et al.

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Sierra Club petitioner versus United States Department of Energy.

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Ms.

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Eberly for the petitioner, Mr. Anderson for the respondent, Mr. Brightfield for the interveners.

[00:00:28] Speaker 00:
Good morning, and may it please the court.

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My name is Louisa Eberle, representing Petitioner Sierra Club.

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I'd like to reserve three minutes for rebuttal.

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These cases challenge the Department of Energy's orders authorizing exports from two liquefied natural gas terminals along the Gulf Coast.

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We're here because Energy says that Sierra Club isn't entitled to review of the agency's responses to our comments, even though we followed its instruction.

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Today, I'll talk about three things.

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First, the jurisdictional issues.

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Second, energy's arbitrary denials of the rehearing requests.

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And third, the merits of two NEPA claims that are ripe for this court's review.

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But to set the stage, energy has chosen an unusual process for approving

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for evaluating export application.

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Energy decided to conduct several general studies with general comment periods and energy instructed commenters not to resubmit their comments in project specific dockets, including the two dockets here.

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So that's what we did.

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But now energy has changed its mind.

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So turning to the threshold jurisdictional issues,

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Stand on standing, the only dispute is whether these orders will actually increase the volumes of exported gas.

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Energy argues that these orders don't increase the amount that the companies are authorized to export, but what they do is allow the companies to export gas to countries that actually want to buy it.

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So as a practical matter, these orders will increase the gas that can be exported by at least 12%.

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Energy assumed that these amendment orders would increase gas exports.

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And those assumptions are entirely warranted given basic facts about the LNG market and economic principles.

[00:02:24] Speaker 05:
The requirement to establish standing isn't though that we assume something is going to happen.

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It's that you establish a substantial probability of injury.

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And a lot of the facts in the record

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that you point to are in your reply brief.

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And I remind you of Sierra Club versus EPA from 2002 and our circuit rule 28 a seven that say that you are supposed to avert to any facts in support of standing in your opening brief, not in your reply brief.

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So a

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Why should we entertain or consider at all any facts that you avert to for the first time in your reply brief?

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And B, if we don't consider any of those facts in your reply brief, what in your opening brief establishes that substantial probability of injury?

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As to your first question,

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The purpose of averring facts in the reply in the opening brief is to facilitate the parties to litigate issues.

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And here we have litigate, we have fully been able to litigate this.

[00:03:55] Speaker 05:
Well, we don't know what the response is to the facts that you put out in your reply brief because the respondents and interveners don't have a sir reply.

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And it's not guaranteed that we're going to hear argument.

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I mean, nobody's entitled to argue.

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Yes, Your Honor.

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Our reply brief doesn't just raise new facts.

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It points out the basic economic principles and common sense that are at issue here.

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And energy's own orders and the general studies that are cited refer and assume that the orders here will, as a practical matter, increase exports.

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So even if this court doesn't reach the issues in the reply brief,

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there's still sufficient evidence here and common sense and economic principles to support a finding of standing in this case.

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And those basic economic principles are that more countries available for exports broadens the market and makes it easier for the companies to actually sell the gas.

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There's nothing in the... But we don't know whether they would sell all the gas anyway.

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There's strong indications and a substantial probability here that without these non-FTA approvals, they would not be able to sell this gas.

[00:05:22] Speaker 00:
It's just a handful of countries, only seven countries, received US LNGs in 2016 and- Facts from your reply brief.

[00:05:30] Speaker 05:
Those weren't facts in your opening brief.

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Correct.

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But the assumptions that energy made were that these amendments would increase exports.

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They relied on the benefits that would come from increased exports throughout the orders here.

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Can I ask, were you on notice that there would be a strong argument against standing given that the agency in the

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prior proceedings conceded that there would be an increase in exports of US LNG associated with these applications.

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And I'm just unclear as to what the posture was when you wrote your opening brief and whether your arguments in your reply brief were in response to a more specific argument that maybe you couldn't have anticipated.

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Yes, Judge Pan, our opening brief was replying and anticipating what Energy had assumed in its orders, which was that the non-free trade agreement approvals here are critical to actually exporting this entire amount of gas.

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So we were responding to that and our reply brief provided some additional information to flesh that out.

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But yes, based on what we had previously seen,

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energy had never previously articulated in the orders that it anticipated these non free trade agreement orders would simply allow the companies to displace of gas that would otherwise be sold.

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Turning to party status, Energy waived this claim processing argument by waiting until litigation to raise it.

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The text of the Natural Gas Act does not frame party status as a jurisdictional bar.

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And this court has actually granted equitable exceptions to non-parties.

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And that type of equitable exception is only allowed because this is a claim processing rule.

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And even if Energy didn't waive this argument,

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Sierra Club properly intervened here.

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Where is the grant of jurisdiction for our court to review this order?

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It's in 717RB, right?

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Yes.

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On the filing of such petitions, such court shall have jurisdiction.

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And the such petition refers up to the aggrieved party.

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It refers up to a petition that needs to be filed.

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A petition filed by the agreed party.

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It doesn't explicitly tie the party portion to the petition requirement.

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And under the Supreme Court precedent, it has to be a very clear statement by Congress.

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And so this simply isn't that clear statement that's required.

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So it's not a jurisdictional bar.

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And again, even if this is a jurisdictional issue and energy didn't waive it, we properly intervened.

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Energy never indicated that the proceedings had terminated.

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And instead, energy kept these proceedings active by choosing to use them for the amendment in gas increase orders at issue here.

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Because this court has jurisdiction, I'll turn to why Energy's rehearing orders were arbitrary.

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This is not a case where Sierra Club waited until the last minute.

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Energy knew our concerns and actually addressed most of them.

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But for the first time ever, Energy said that Sierra Club needed to re-protest.

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In its brief, Energy now admits that a party

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may object through a motion to intervene instead.

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And this lets the horse out of the barn.

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The rules provide multiple avenues.

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Where did they say that?

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They said that there's a header on page 30 of their brief and then also pages 35 and 38.

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And they refer to motions intervene as an acceptable alternative to protest.

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So the rules provide multiple other vehicles for participation.

[00:10:06] Speaker 07:
Oh, the motion to intervene, but the petition for rehearing, that's not some, they have not conceded that the petition for rehearing can be filed instead of the protest.

[00:10:16] Speaker 00:
Correct.

[00:10:17] Speaker 07:
They, yes, their argument is that- So I just want to ask, why didn't you file a protest in this case?

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Cause it seems that you've done this many times before and you've normally filed a protest before then filing a petition for rehearing.

[00:10:31] Speaker 00:
So why we didn't file isn't at issue because we're not claiming that we had good cause for not filing, but ultimately we didn't file a protest because we didn't think that we were required to, and we weren't required to based on the rules.

[00:10:46] Speaker 07:
So have you ever before filed or appeared for the first time at the petition for a hearing stage and not filed a protest?

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I am not aware of a time with this exact fact pattern in the past.

[00:11:01] Speaker 07:
But if you thought that that was the procedure, why would you ever file a protest?

[00:11:06] Speaker 00:
So there was one prior example with respect to Jordan Cove, the LNG terminal at Jordan Cove.

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And there we filed a protest.

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But the protest raised issues.

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that went beyond the kind of general proceeding type comments that are at issue here, and actually went into raising concerns about the scope of the comment period that energy.

[00:11:32] Speaker 07:
So is your answer that you're not aware of any other time that Sierra Club has come in at the petition for rehearing stage and not first filed a protest?

[00:11:42] Speaker 00:
I am not aware of one.

[00:11:43] Speaker 07:
So it just strikes me that you've framed your argument here as

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one of arbitrary and capricious action by the agency.

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And how is it arbitrary and capricious for an agency to deny your petition because you didn't follow their procedural rules if they're applying those procedural rules consistently?

[00:12:04] Speaker 07:
How is that arbitrary and capricious?

[00:12:05] Speaker 00:
The issue is that they're not applying this consistently.

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They have never done this before.

[00:12:10] Speaker 00:
But you've just said you've never done this before.

[00:12:12] Speaker 07:
Are you aware of any other incident or action where

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a party came in just at the petition for rehearing stage and never filed a protest first and were allowed to have their claim heard.

[00:12:27] Speaker 00:
There are other examples where we have filed a motion to intervene without filing a protest.

[00:12:32] Speaker 07:
That wasn't my question.

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And here we did file a motion.

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That wasn't my question.

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Can you answer my question?

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I'm not aware of another example exactly like this.

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Then how are they not applying their rule consistently?

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Because they gave us instructions that told us that we didn't need to refile our concerns about the general studies.

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In the notices for the general studies, they explicitly stated that commenters on the general studies need not refile in the project-specific dockets.

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And those notices listed out

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several dockets, including the two that are at issue here.

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And so by filing our comments in those dockets, then energy posted our comments from those general proceedings into the dockets at issue here.

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So we are aware of any other time in which you are able to preserve a claim and a petition for a hearing by just objecting to the studies and not filing a protest.

[00:13:33] Speaker 00:
I am not aware of that, but the distinguishing issue here is that we had raised these issues before.

[00:13:40] Speaker 07:
So the agency was aware of- All I'm trying to get at council is that you're saying this was arbitrary and capricious, but if they're applying their rules consistently, I don't see why it's arbitrary and capricious.

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And you can't identify any other time where they've applied these rules in a way that's different from how they did this time.

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You're saying this is the first time, I guess, that you're raising this issue.

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So I just don't see why that's arbitrary and capricious.

[00:14:05] Speaker 00:
It's arbitrary and capricious because every indication given to us was that this was the proper way to proceed.

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And only after the fact did energy indicate that this was a different interpretation.

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There's no support for Energy's position that these other forms of participation, including the additional procedures that Energy themselves created.

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They created these other additional procedures in the general dockets.

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They told commenters that commenters need not submit their comments in these other project-specific dockets.

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And we followed those instructions.

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There was nothing else in the rules

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to indicate that we needed to do this differently.

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And so the fact that energy is changing the goalpost after the fact based on things that actually aren't in the rules is what makes this an arbitrary denial of RV hearing request.

[00:15:08] Speaker 05:
We'll give you some time on rebuttal.

[00:15:12] Speaker 03:
We'll hear from respondent.

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Good morning, your honors.

[00:15:29] Speaker 02:
Christopher Anderson for the Department of Energy.

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I'd just like to make a couple of quick points on the jurisdictional arguments before turning to the merits.

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First, on standing, it was the club's burden to establish a substantial likelihood that these orders, if vacated, would result in fewer exports and less vessel traffic.

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in the areas frequented by their members.

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Sierra Club didn't even attempt to do that in its opening brief.

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And in its reply brief, it merely refers to basic principles of economics.

[00:16:02] Speaker 07:
There is no basic principle of economics, however, that dictates- Can I ask you though, is it true that you didn't make the argument in the proceedings below that there's going to be a displacement, that that's all that there is here, so therefore not a net increase in exports?

[00:16:18] Speaker 02:
So we did not address standing below because an administrative proceeding, but we disagree with Sierra Club's characterization of what the department said.

[00:16:28] Speaker 02:
The department hypothesized that these orders would increase shipments so that it could analyze what the effects of those shipments might be on energy markets and on the environment.

[00:16:43] Speaker 02:
But hypothesizing that that might happen is not sufficient to establish

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a substantial likelihood that it will happen for standing purposes.

[00:16:52] Speaker 01:
And if the department didn't do that, there would be little point in the public interest analysis that's required to adopt as part of the natural gas act.

[00:17:04] Speaker 07:
It seems though the way it was at least one of these examples was phrased was

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your order acknowledging that there will be an increase in exports of US LNG associated with the applications, but you can't conclude that these exports would increase global GHG emissions in a material or predictable way.

[00:17:24] Speaker 07:
That seems to be a concession that there's going to be an increase in exports.

[00:17:28] Speaker 07:
You just don't know what the effect of

[00:17:30] Speaker 02:
Well, so the analysis looks at all exports both to free trade agreement nations and non-free trade agreement nations.

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Now, the free trade agreement nations have to be approved by statute.

[00:17:40] Speaker 07:
But this was associated with the applications, which was for an increase in the non-FTA.

[00:17:48] Speaker 02:
I believe both companies applied for both free trade agreement and non-free trade agreement increases in the same application.

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They were granted in different orders, however.

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But the fact that energy didn't distinguish in its analysis of the exports between free trade agreement and non-free trade agreement nations doesn't relieve Sierra Club of its burden to show that if this court grants the relief that it's requested, that that relief will actually or with a substantial likelihood address the injuries that their members assert.

[00:18:23] Speaker 08:
I guess the thing that I'm trying to figure out is

[00:18:28] Speaker 07:
If you took a position previously conceding that exports would go up and then Sierra Club says in their opening brief, exports are going to go up and that's going to injure our members.

[00:18:41] Speaker 07:
And then you make a more specific argument about displacement of energy, et cetera, in your opposition brief.

[00:18:48] Speaker 07:
May Sierra Club then in their reply brief address this displacement argument that you raised for the first time in your opposition brief.

[00:18:55] Speaker 02:
So I don't think so, Your Honor.

[00:18:57] Speaker 02:
Under this court's precedent, it's their burden to establish all the facts necessary to establish standing in their opening brief.

[00:19:04] Speaker 02:
But even if you consider the facts that they presented in the reply brief, we don't think those are sufficient to establish the substantial likelihood that's required for them to show that their members' injuries are actually redressable by this court.

[00:19:19] Speaker 07:
It seems to me that your argument

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seems to assume that they can max out their exports to the FTA countries and therefore adding the non-FTA countries doesn't increase exports, but I don't know that that's supported by the record.

[00:19:36] Speaker 07:
Why would they even ask for the non-FTA countries if they're already maxing out

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using the FDA.

[00:19:41] Speaker 02:
So to take your second question first, I think there are a number of reasons why the companies might want the additional export authority.

[00:19:47] Speaker 02:
It is true that it creates more customers.

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There might be better prices in different markets.

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It might make it easier for them to find their customers.

[00:19:56] Speaker 02:
But the fact that it might make it easier for them to sell the full amount of their authorizations doesn't mean that there's a substantial likelihood that they won't be able to find free trade agreement customers for the full volumes.

[00:20:09] Speaker 02:
So that is why they might seek it.

[00:20:11] Speaker 02:
Energy does not forecast whether the companies will or will not be able to sell the full amount of their authorizations.

[00:20:22] Speaker 02:
Energy, for purposes of analysis, assumes that the full amount authorized will be exported.

[00:20:28] Speaker 02:
But that isn't a concession that

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that that is necessarily true or that both authorizations are required for that to pass.

[00:20:39] Speaker 02:
It's simply an assumption for analysis purposes and not a forecast of actual market conditions.

[00:20:44] Speaker 02:
But standing requires actual facts on the ground.

[00:20:46] Speaker 02:
And that's why it was Sierra Club-Sperton to provide some market analysis, at least, that would make it possible that these companies wouldn't.

[00:20:53] Speaker 02:
And we're only talking about approximately an eighth of their authorizations.

[00:20:56] Speaker 02:
Were this a different situation with different percentages

[00:21:00] Speaker 02:
Maybe Sierra Club's common sense argument would have some merit.

[00:21:05] Speaker 02:
But in this case, when you're talking about really a slice of what's authorized, we think they need to do more.

[00:21:14] Speaker 07:
Whether this is waived or not is another question.

[00:21:16] Speaker 07:
But it seems that they said that in order for the FTA markets to absorb this additional capacity, the existing levels would have to go up by 43% or 47%, something like that.

[00:21:28] Speaker 07:
And that seems to indicate that they're not currently maxed out, which means that adding this ability to sell to non-FTA countries would likely increase exports.

[00:21:40] Speaker 02:
So I think whether there's a substantial likelihood is a judgment for the court to make, but I would say the orders, all of these orders presuppose that the market for liquefied natural gas will expand.

[00:21:54] Speaker 02:
If not, you know,

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If there were no more demand in what's currently in the market, then no company would seek to enter the market to sell gas.

[00:22:03] Speaker 02:
The other thing that I would say about that is even the statistics that they cite, which are just for last year and are not projections of the future, show that there is enough demand from existing demand from free trade agreement countries to absorb the volumes that we're talking about here.

[00:22:17] Speaker 01:
And so I don't think that that alone is sufficient to establish the substantial likelihood that they need.

[00:22:26] Speaker 01:
If I could move on to the intervention point and the party status.

[00:22:31] Speaker 02:
So this court has held the party status as jurisdictional.

[00:22:33] Speaker 02:
It held it in 1960.

[00:22:34] Speaker 02:
It's reiterated that point on several occasions.

[00:22:38] Speaker 02:
But even if that weren't stare decisis, I think that the text of 717R is pretty clear that party status is part of the jurisdictional grant and that statute.

[00:22:50] Speaker 02:
717RB begins any party to a proceeding

[00:22:53] Speaker 02:
May obtain may obtain review and I would also refer the court backup to 717 are a which says that no proceeding to review any order of the Commission shall be brought by any person.

[00:23:03] Speaker 02:
Any person refers up to the top of the paragraph, which is any person, which is a party to the proceeding, so we think that it's pretty clear.

[00:23:13] Speaker 02:
that the statute only contemplates the parties to the proceeding may seek judicial review.

[00:23:19] Speaker 05:
Their argument is that they were a party to the proceeding because this proceeding is essentially the same as the prior proceeding where they were explicitly, affirmatively took steps to become a party.

[00:23:33] Speaker 02:
That is their argument, their honor, but it's incorrect under the department's rules.

[00:23:36] Speaker 02:
The department's rules

[00:23:37] Speaker 02:
clearly distinguish between dockets and proceedings.

[00:23:40] Speaker 02:
Dockets are essentially files that contain the administrative record.

[00:23:44] Speaker 02:
Proceedings is the process by which energy receives, evaluates, and makes a final order on an application.

[00:23:51] Speaker 02:
How does one know when one proceeding stops and another one begins?

[00:23:55] Speaker 02:
Sure, a proceeding begins filing an application and it stops with the issuance of a final order subject only to any proper request for a hearing and judicial review.

[00:24:06] Speaker 02:
And in this case, the proceedings that

[00:24:07] Speaker 02:
Sierra Club says that they intervened in, in fact, they did intervene in, ended years ago when the department issued final orders.

[00:24:15] Speaker 02:
Sierra Club sought rehearing.

[00:24:16] Speaker 02:
The department denied rehearing.

[00:24:18] Speaker 02:
And then Sierra Club declined to seek judicial review.

[00:24:21] Speaker 02:
That brought that process to an end.

[00:24:24] Speaker 02:
And having that beginning and end, Your Honor, I think is really important, not just for the department, but also for the parties.

[00:24:30] Speaker 02:
Applicants need to know when their applications are approved or denied with finality so that they can plan their affairs.

[00:24:38] Speaker 02:
And the department needs to know when it can theme proceedings to be closed so that it can move on to address new applications and new issues.

[00:24:48] Speaker 07:
So are you saying that you require a new motion for intervention for any amendment or upgrade or any additional proceedings?

[00:24:58] Speaker 08:
For any new application.

[00:25:03] Speaker 02:
If a party has intervened in a proceeding on an application and that proceeding has terminated, which is undisputably the case here, then if there's... It's because you issued an order on that first application.

[00:25:13] Speaker 02:
Yes, yes.

[00:25:14] Speaker 07:
So it seems that in Jordan Cove, that's not what happened, right?

[00:25:18] Speaker 02:
So Jordan Cove was a different procedural...

[00:25:21] Speaker 02:
the department followed a different procedure that it no longer follows so Jordan Cove the department issued a conditional not a final order and subsequent to that conditional order Jordan Cove moved to amend its application and Sierra Club did actually file a protest in response to that amendment but there wasn't a final order step proceeding hadn't terminated okay

[00:25:41] Speaker 07:
They just didn't have to file another motion to intervene.

[00:25:44] Speaker 02:
Exactly, Your Honor.

[00:25:45] Speaker 02:
Exactly.

[00:25:45] Speaker 02:
But in this case, the proceeding had terminated, and it was necessary for Sierra Club to file a new motion to intervene in response to the application.

[00:25:53] Speaker 07:
So it's your practice in all these cases to require another motion to intervene?

[00:25:58] Speaker 02:
So this has not happened before that we're aware of that a proceeding has terminated, a new application has been filed, and a party hasn't.

[00:26:11] Speaker 02:
voluntarily issued or submitted a new motion to intervene or a protest in the application.

[00:26:19] Speaker 02:
So this was really a situation of first impression for the department.

[00:26:23] Speaker 07:
So people normally routinely file a second motion to intervene.

[00:26:29] Speaker 02:
I am not aware of whether they routinely file motions to intervene or just protests.

[00:26:33] Speaker 02:
I can check with the department and provide you more information.

[00:26:36] Speaker 02:
I don't want to speak out of turn.

[00:26:38] Speaker 07:
But they can file a protest, but then they're not a party.

[00:26:41] Speaker 02:
That's correct.

[00:26:42] Speaker 02:
I see.

[00:26:43] Speaker 02:
I can tell you, Your Honor, that we've never had a circumstance where there was an application, a person did not file a motion to intervene, and then that person also attempted to seek rehearing after the final order.

[00:26:56] Speaker 02:
That has never happened before.

[00:26:57] Speaker 01:
And that was the issue of first impression that the department decided in these orders.

[00:27:05] Speaker 03:
I see my time's up.

[00:27:06] Speaker 03:
If the court has no further questions, we would ask that the petitions be dismissed or denied.

[00:27:11] Speaker 03:
Thank you.

[00:27:23] Speaker 03:
Council for interveners.

[00:27:27] Speaker 04:
I'm pleased to report Jonathan Brighto from Winston and straw.

[00:27:29] Speaker 04:
And I'm here to address the merits and in particular that a federal agency only has the statutory authority, the Congress.

[00:27:41] Speaker 04:
Statutory Interpretation 101 has released to administrative agencies.

[00:27:44] Speaker 04:
And the Department of Energy itself has said that under Section 3A of the Natural Gas Act, it does not have the statutory authority to consider environmental effects that are upstream and beyond and downstream and below marine transportation of natural gas when it is making an export authorization determination for a non-free trade agreement country.

[00:28:11] Speaker 04:
DOE has enshrined this statutory interpretation into law by way of a duly promulgated final regulation that was subject to notice and comment rulemaking and created NEPA categorical exception B57.

[00:28:25] Speaker 04:
So the principles of the Supreme Court's

[00:28:30] Speaker 04:
Precedents, including public citizens, and then this court's subsequent decisions, applying public citizens to instances where you're dealing with administrative agencies with limits on their statutory authority mean that they, such an agency also does not have to do NEPA as to such a question.

[00:28:52] Speaker 04:
So notably here,

[00:28:55] Speaker 04:
I know the million dollar question that you all want to know is like, okay, how do we get to that?

[00:28:59] Speaker 04:
Right?

[00:28:59] Speaker 07:
And I think can I ask you a question?

[00:29:01] Speaker 07:
Sure.

[00:29:03] Speaker 07:
Was this argument that you're making raised by one of the parties?

[00:29:06] Speaker 07:
Because as an intervener, you can only

[00:29:08] Speaker 07:
raise arguments that were raised by the parties.

[00:29:10] Speaker 07:
Isn't that right?

[00:29:11] Speaker 04:
So with respect to that case law, someone made the point that we don't get a sir reply.

[00:29:15] Speaker 04:
And in fact, the case law here in the DC circuit is different as it relates to respondent intervenors as, as compared to petitioner intervenors.

[00:29:23] Speaker 04:
In fact, judge Wilkins, one of your curcumin opinions in Mozilla be FCC is really the precedent of the type to look at as it relates to the type of argument that we're bringing here.

[00:29:36] Speaker 04:
So that was, uh,

[00:29:41] Speaker 04:
940 F third one, which derives from a long line of precedents from this court that deal with the different circumstances here where we have a respondent intervener who is presenting arguments that were made before the agency Sierra Club.

[00:29:55] Speaker 04:
And I can cite you to those parts of the joint appendix as well, joint appendix 411 to 412.

[00:30:02] Speaker 04:
Joint Appendix 414.

[00:30:04] Speaker 04:
So Sierra Club itself, before the agency recognized that the issue of the agency's statutory authority to consider indirect effects, cumulative effects, greenhouse gas emissions around the world, that that was a gating issue under the Supreme Court's public citizens precedent and this court's precedence under Freeport and very recently back in May, as it relates to the Department of Energy,

[00:30:31] Speaker 04:
and FERC and their application of the Natural Gas Act.

[00:30:35] Speaker 06:
These are pretty important issues you're asking us to address in the context of a case where there may be three different reasons why we either shouldn't or can't get to the merits.

[00:30:50] Speaker 04:
We acknowledge, Your Honor, that there are some predicate issues here that the court

[00:30:55] Speaker 04:
may very well want to reach first and may very well reach first standing obviously and then the procedural question.

[00:31:02] Speaker 04:
But this is a gating question that comes between the merits issues that have been presented by Sierra Club and those procedural questions.

[00:31:10] Speaker 04:
Because if this court

[00:31:13] Speaker 04:
Concludes as it should already because what we're really talking about here is the flip side of what this court has already held with respect to the natural gas act in FERC in Freeport one and more recently in the center for biological diversity before case which we cited in our 28 J case in those decisions.

[00:31:33] Speaker 04:
This court recognized that under the public citizen standard where you have the natural gas act, and there we were talking about FERC, but because the Department of Energy has exclusive authority regarding the export question, FERC doesn't have to do NEPA on the questions that are beyond their authority and within the exclusive authority of the Department of Energy.

[00:31:56] Speaker 04:
This is a mirror image

[00:31:59] Speaker 04:
of those holdings and of those cases, it's the same statute.

[00:32:03] Speaker 04:
If you go to that statute, right, you can read in section three E, the FERC.

[00:32:09] Speaker 04:
So now we're talking about upstream from DOE has exclusive authority to approve or deny an application for the expansion or operation of an LNG terminal.

[00:32:17] Speaker 04:
So there's no question, there should be really no question under this court's prior decisions that DOE does not have the authority to look upstream.

[00:32:27] Speaker 04:
And with respect to downstream and beyond marine transportation effects, we have the insights of the agency itself construing its own statute that at the point at which marine transportation passes into international waters, that is now likewise also beyond their statutory regulatory authority, beyond the scope of what they look at for purposes of a public interest analysis.

[00:32:52] Speaker 04:
And therefore,

[00:32:53] Speaker 04:
also do not have to do NEPA.

[00:32:56] Speaker 04:
That is why they did the categorical exclusion for marine transport because that is the scope of their authority and their authorization and the scope of the environmental effects that they've argued that they can consider.

[00:33:09] Speaker 04:
Although my client wouldn't actually see even at that aspect of it, but it's secondary for purposes of this procedure.

[00:33:17] Speaker 05:
All right.

[00:33:18] Speaker 05:
If you could bring your argument to a conclusion.

[00:33:21] Speaker 04:
Okay.

[00:33:21] Speaker 04:
I just want to make sure in terms of, you know, Sonoma's in terms of the presentation of this Sonoma financial court, nine 52 F second, four 26 village of Venice, will be F FAA four 57 F third 52.

[00:33:36] Speaker 04:
It's a different standard when you're dealing with a intervener who presented these arguments below.

[00:33:41] Speaker 04:
We unquestionably did.

[00:33:43] Speaker 04:
We responded to the Sierra Club having raised these.

[00:33:45] Speaker 04:
We saw it lead to answer.

[00:33:47] Speaker 04:
We did answer.

[00:33:48] Speaker 04:
We intervened in this case to make these arguments.

[00:33:50] Speaker 04:
And this court's precedents, we feel, are very strong that these preceding issues to getting to their alleged procedural snafus are properly before this court and should cut off any determination on the merits for

[00:34:03] Speaker 04:
Sierra Club into the country, there should be no remand.

[00:34:05] Speaker 04:
It should be resolved here.

[00:34:07] Speaker 04:
As you said, Judge Wilkins, rule one, just speedy, efficient result of cases.

[00:34:13] Speaker 04:
My clients do not want to go back to the agency.

[00:34:16] Speaker 04:
They want it resolved here and it can't be resolved here on the merits if you get past the procedural issues.

[00:34:21] Speaker 05:
Not sure rule one applies in the administrative context.

[00:34:27] Speaker 03:
All right, thank you.

[00:34:40] Speaker 03:
All right, we'll give you three minutes for rebuttal.

[00:34:44] Speaker 00:
Thank you, your honor.

[00:34:46] Speaker 00:
Starting on standing, I just want to flag that the orders here were about the non-free trade agreement approvals specifically, and only about the non-FTA portion.

[00:35:00] Speaker 00:
They didn't cover the FTA portion.

[00:35:02] Speaker 00:
So the citations that we gave to those orders where DOE

[00:35:07] Speaker 00:
assumed that exports would increase as a result.

[00:35:11] Speaker 00:
Those were related to the non-free trade agreement approvals here.

[00:35:15] Speaker 00:
And in the Americans, in the Airlines for America case that we cite in our brief, in our reply brief, that case found that there is no additional evidence required if basic economic principles support a presumption.

[00:35:30] Speaker 00:
And here, well there, the,

[00:35:35] Speaker 00:
The situation was that TSA had increased fees and that would therefore increase airline prices and reduce demand, harming airlines.

[00:35:44] Speaker 00:
The airlines had standing in that case.

[00:35:47] Speaker 00:
And there's no evidence to support the speculation here that there is enough demand in free trade agreement countries.

[00:35:58] Speaker 00:
Judge Pan, as you noted, sending all of this gas only to free trade agreement countries would require a 47% increase in the amount that those countries received as of 2022.

[00:36:11] Speaker 00:
And then turning to the party status issue.

[00:36:17] Speaker 00:
The cases cited by the department refer to person of briefed not talking about the party status requirement.

[00:36:29] Speaker 00:
And Energy just acknowledged that they were claimed that they changed their policy since Jordan Cove.

[00:36:37] Speaker 00:
But they haven't actually announced a new rule here.

[00:36:40] Speaker 00:
This isn't a place where they announced a new rule in the rehearing orders.

[00:36:44] Speaker 00:
They didn't challenge our party status in the rehearing orders at all.

[00:36:49] Speaker 00:
And if they had, we would have had an opportunity to address that potentially through late filed motion to intervene.

[00:36:58] Speaker 00:
And the notices here were referring to amendment application.

[00:37:03] Speaker 00:
So that gave us the indication that they meant for the proceedings to continue.

[00:37:12] Speaker 00:
And then turning to.

[00:37:16] Speaker 00:
The discussion about whether a protest was required.

[00:37:20] Speaker 00:
The department concedes that protests are not required and that they're not the only vehicle for providing objections to the department.

[00:37:29] Speaker 00:
You can do that through a motion to intervene, which we did.

[00:37:31] Speaker 00:
You can do that through the additional procedures, which we did here.

[00:37:36] Speaker 00:
This is a special situation because energy has used these

[00:37:42] Speaker 00:
additional procedures opened in the general studies in order to accept party objections.

[00:37:48] Speaker 00:
We've complied with those instructions, and for those reasons, energy's denial of our rehearing request was arbitrary.

[00:37:57] Speaker 00:
We asked this court to vacate the orders, rule now on the two legal issues that we will rest on the briefs for, and remand to energy.

[00:38:06] Speaker 00:
Thank you.

[00:38:06] Speaker 05:
All right.

[00:38:07] Speaker 05:
Thank you.

[00:38:07] Speaker 05:
The case is submitted.