[00:00:00] Speaker 00: case number 24-1094 et al. [00:00:03] Speaker 00: Appellation voices et al. [00:00:05] Speaker 00: Petitioners versus Federal Energy Regulatory Commission. [00:00:08] Speaker 00: Mr. Luckett for the petitioners. [00:00:10] Speaker 00: Mr. Perkins for the respondents. [00:00:12] Speaker 00: Mr. Moriwell for the interviewees. [00:00:15] Speaker 02: Good morning, counsel. [00:00:17] Speaker 02: Mr. Luckett, please proceed when you're ready. [00:00:21] Speaker 04: Good morning. [00:00:22] Speaker 04: May it please the court. [00:00:22] Speaker 04: My name is Ben Luckett, and I represent the petitioners. [00:00:25] Speaker 04: I'd like to reserve two minutes of my time for rebuttal. [00:00:29] Speaker 04: Under the Natural Gas Act, FERC may not allow a company to maintain a placeholder certificate for a project that it has stated it will not build while the company plans and seeks approval for a new, substantially different project. [00:00:43] Speaker 04: Here, FERC's extension order and rehearing order did precisely that. [00:00:47] Speaker 04: Those orders allowed Mountain Valley to maintain its certificate and the extraordinary power of eminent domain along with it. [00:00:53] Speaker 04: even though the commission knew that Mountain Valley had long ago abandoned its plans to build the approved project and had yet to determine that the new larger capacity project was required by the public convenience and necessity. [00:01:07] Speaker 04: That unprecedented set of facts renders FERC's finding of good cause to grant the extension arbitrary and makes clear that the information underlying FERC's balancing of public benefits and adverse impacts in the original certificate has grown stale. [00:01:22] Speaker 04: The court should thus vacate the extension order and with it the certificate for the original project. [00:01:29] Speaker 04: FERC's finding of good cause was arbitrary for the simple reason that the company had abandoned its efforts to pursue the project approved in the certificate more than a year before the extension order. [00:01:41] Speaker 04: FERC has stated that good cause for a certificate extension can be shown by a project sponsor demonstrating it made good faith efforts to meet its deadline [00:01:51] Speaker 04: but encountered circumstances that prevented it from doing so. [00:01:55] Speaker 04: But this is not the typical case where FERC grants a short extension because a developer diligently pursued its project but was thwarted by outside forces, such as the MVP mainline litigation delays cited by the commission. [00:02:10] Speaker 04: But it was not those delays that set Mountain Valley's project back. [00:02:15] Speaker 04: Instead, Mountain Valley abandoned its efforts to secure permits and property rights [00:02:20] Speaker 04: for the approved Southgate project in 2022. [00:02:23] Speaker 04: Its need for an extension was not a result of unforeseen outside forces, but the company's own decision to pursue a markedly different, larger capacity project. [00:02:34] Speaker 02: Does everything on this axis of your argument, does everything turn on it being markedly different? [00:02:40] Speaker 02: I think you wouldn't disagree that you can have changes that wouldn't require every single time there's even an iota of a change you have to start over. [00:02:50] Speaker 04: That's correct, Your Honor. [00:02:51] Speaker 04: It is the significance of the differences here, that we're having an all-new precedent agreement, a much larger capacity pipeline, more emissions coming out of that pipeline. [00:03:04] Speaker 04: So it is altogether the significance of the difference, yes. [00:03:07] Speaker 02: At the relevant time when the extension was approved, the amendment had not been formally proposed, is that right? [00:03:15] Speaker 04: That's correct, Your Honor. [00:03:17] Speaker 04: But at the time of the rehearing order, FERC was aware that the project, as originally approved, would not proceed. [00:03:26] Speaker 02: Right. [00:03:27] Speaker 02: And how do you define something as being markedly different? [00:03:30] Speaker 02: Because it's proceeding along the same path. [00:03:33] Speaker 02: The decatherms actually went up in some respects. [00:03:37] Speaker 02: The physical path is shorter. [00:03:40] Speaker 02: And I mean, something's got to be an amendment too. [00:03:42] Speaker 02: There's got to be some circumstances in which even if it's a reasonably significant change, it still counts as an amendment rather than an entire abandonment. [00:03:50] Speaker 02: And it just seems like as a general matter, that's the sort of distinction as to which an agency gets some leeway to draw a divide between when you're just [00:04:04] Speaker 02: throwing something aside and starting from scratch, and when you're making adjustments to something that's already been the subject of consideration. [00:04:13] Speaker 04: Yes, John. [00:04:13] Speaker 04: Well, when you have changes that are so significant that you have an all new precedent agreement, the primary basis of the commission's finding of public convenience and necessity is no longer valid. [00:04:25] Speaker 04: There's a new agreement, and it's not for the same deliveries that were originally contracted for. [00:04:34] Speaker 04: We have deliveries to new delivery points. [00:04:36] Speaker 01: That's not answering the question. [00:04:39] Speaker 01: You're assuming [00:04:40] Speaker 01: the answer you want. [00:04:42] Speaker 01: The chief was asking you, how do you make that determination amendment versus abandoned? [00:04:48] Speaker 04: I don't know about a bright line, your honor, but in this case where you have all new, how do you make it when they haven't even requested an amendment yet? [00:04:58] Speaker 04: Well, your honor, what they had told the commission at that time was they did not plan to build the project as approved. [00:05:04] Speaker 01: Is there any, has there been any formal submission indicating we will [00:05:10] Speaker 01: be proposing an amendment? [00:05:12] Speaker 01: Is that on the record yet? [00:05:13] Speaker 01: Formally. [00:05:14] Speaker 04: At this time, there has been, Your Honor. [00:05:16] Speaker 04: That was included in a Rule 28j letter submitted by the company. [00:05:21] Speaker 04: But that amendment was not in front of FERC at the time it issued the rehearing order. [00:05:26] Speaker 04: But the project update from the company stating that it was no longer going to be building the approved project, that was in front of the agency. [00:05:37] Speaker 04: And that they were in the plan. [00:05:38] Speaker 01: There has been no approval of whatever that change might be, right? [00:05:42] Speaker 04: That is correct. [00:05:43] Speaker 04: But the company has made clear that they will not construct. [00:05:46] Speaker 01: But wait, I just want to make sure I have it straight in my head. [00:05:50] Speaker 01: Whatever it is they may be thinking, it cannot happen until there's approval, right? [00:05:55] Speaker 01: That's correct, Your Honor. [00:05:56] Speaker 01: And there has been no approval, right? [00:05:58] Speaker 04: That is correct. [00:05:59] Speaker 01: And if you go through the process of amendment, considerations of the sort that you're talking about would be raised, is that right? [00:06:08] Speaker 01: This is really not an amendment. [00:06:10] Speaker 01: It's really an abandonment. [00:06:11] Speaker 01: There are environmental concerns. [00:06:13] Speaker 01: It's different, whatever. [00:06:14] Speaker 01: All of those questions now come back into play, yes? [00:06:17] Speaker 04: Well, whether you style it as an abandonment or a significant amendment, the fact remains that the company made clear they do not intend to build the project. [00:06:28] Speaker 01: I hear you. [00:06:30] Speaker 01: I hear you. [00:06:30] Speaker 01: Let's assume that's a given. [00:06:33] Speaker 01: That I couldn't really debate that. [00:06:34] Speaker 01: I'm just trying to get a picture. [00:06:36] Speaker 01: There has not been any approval of a change. [00:06:39] Speaker 01: Whatever you call it, abandonment or amendment, has not been approved. [00:06:43] Speaker 01: So right now, the only thing approved on the books is what was originally approved, right? [00:06:48] Speaker 04: That's correct, Your Honor. [00:06:50] Speaker 01: And so we don't know what will happen. [00:06:52] Speaker 01: If and when there is a process to change this thing, it would have to take account of all of the questions you're raising, right? [00:07:01] Speaker 04: Uh, we believe so. [00:07:03] Speaker 01: Now, whether FERC would actually take account of those in amendment proceedings, FERC actually takes... In your view, surely your view would be that if they come back to amend and seek an amendment, the things that we're raising now are surely in play. [00:07:17] Speaker 01: Is that right? [00:07:18] Speaker 01: That's true, Your Honor. [00:07:19] Speaker 04: The problem is that the company retains the power of eminent domain and indeed says they intend to [00:07:27] Speaker 04: obtain the easements by the end of 2025 for this new project. [00:07:31] Speaker 04: They say we're going to get the easements for this new project by the end of 2025, not to build the old project. [00:07:38] Speaker 04: When, as your honor says, that project has yet to be approved. [00:07:42] Speaker 01: How do you get eminent domain on an assumption that you have the right to build a new project which has not yet been approved? [00:07:48] Speaker 04: Well, that's exactly what the assumption that FERC is allowing to maintain by allowing this place. [00:07:54] Speaker 04: But FERC wouldn't be in control of that. [00:07:57] Speaker 04: Precisely, Your Honor. [00:07:58] Speaker 01: FERC has allowed to remain would not be before FERC, right? [00:08:02] Speaker 04: No, Your Honor. [00:08:04] Speaker 01: So before the tribunal that makes that determination, you would have to say some of the things that you're suggesting, which are not yet true because you're asking for approval to do something based on something that has not yet been approved. [00:08:20] Speaker 04: Well, that's not what Mountain Valley says, and it's not clear that FERC believes that. [00:08:25] Speaker 04: Mountain Valley says on page 24 of their brief that by leaving the existing certificate in place, that FERC has determined that the portion of the route that will stay the same is required by the public convenience and necessity. [00:08:43] Speaker 04: And they say they will go. [00:08:44] Speaker 01: They de facto approve the amendment? [00:08:46] Speaker 04: They have not approved the amendment. [00:08:48] Speaker 01: But the way you just said it suggested they would be able to honestly say that. [00:08:53] Speaker 01: No, Your Honor. [00:08:54] Speaker 01: I'm not getting it. [00:08:54] Speaker 01: They either have or have not. [00:08:56] Speaker 01: If they have not approved an amendment, I'm not sure how anyone, although in this world, no, anything is possible. [00:09:02] Speaker 01: I'm not sure how an amendment can be assumed to be in place justifying eminent domain and whatever else comes with it when no one has approved it. [00:09:12] Speaker 04: The problem, Your Honor, is that the Commission has left the underlying certificate in place. [00:09:17] Speaker 04: And what the Commission has said is when a certificate is in place, FERC has no authority to prevent the use of imminent domain. [00:09:26] Speaker 04: So what we have here is a company that has a certificate for a project it will not build is using that project to negotiate with landowners under the threat of imminent domain to take parcels. [00:09:38] Speaker 04: And that's including one of the plaintiffs' members. [00:09:41] Speaker 02: Can I ask you, suppose that we didn't have a case involving an extension order at all, and we just had an original project that then was sought to be adjusted. [00:09:53] Speaker 02: So we have a time frame. [00:09:55] Speaker 02: going to know this way better than me. [00:09:56] Speaker 02: But whatever the normal time frame is for a project, let's say it's 10 years or something, if that's permissible. [00:10:03] Speaker 02: And then at some point in the midst of that, there's a determination made by the entity that's carrying out the project that actually we've got to do this differently than we thought initially. [00:10:14] Speaker 02: And then I assume that you have to go to the commission to get approval to adjust. [00:10:18] Speaker 02: Then wouldn't we be in the same situation that whatever's been approved had been approved? [00:10:24] Speaker 02: there's an adjustment on the table, and then there's some process by which there's a determination made as to whether whatever was within the fold of the original approval, including the power of eminent domain, can continue while the proposed amendment is in place. [00:10:40] Speaker 02: We're not in extension land because we're still within the timeframe of the original project. [00:10:44] Speaker 02: Would we still have the same dynamic that you're talking about no matter what? [00:10:50] Speaker 04: Possibly, Your Honor, but here we had a decision point where FERC was required to make a determination that its findings of public convenience and necessity for the project remained valid. [00:11:03] Speaker 04: Because of the extension. [00:11:04] Speaker 02: Because of the extension. [00:11:05] Speaker 02: I'm just trying to understand. [00:11:06] Speaker 02: This is a practical matter. [00:11:07] Speaker 02: I honestly don't know the answer. [00:11:08] Speaker 02: I'm just trying to understand. [00:11:10] Speaker 02: If we didn't have an extension case, you're right that this case comes up in the context of an extension. [00:11:14] Speaker 02: And therefore there's a determination that was made to grant the extension that is ripe for challenge. [00:11:19] Speaker 02: And you brought that challenge. [00:11:21] Speaker 02: I'm just trying to understand practically what the difference is vis-a-vis some of the things that you're outlining as principally at issue here, the continuation of the power of eminent domain and those sorts of things. [00:11:32] Speaker 02: It just seems like that kind of dynamic could also play itself out in the absence of an extension. [00:11:37] Speaker 02: And then this case happens to involve an extension. [00:11:39] Speaker 02: But if you had the same set of circumstances happening in the absence of an extension, then we'd be exactly where I think, unless you disabuse me of that notion, we'd be exactly where we are right now. [00:11:50] Speaker 02: But there wouldn't be. [00:11:52] Speaker 02: an opportunity to have a ripe challenge because it wouldn't have been an extension, unless there's something that can happen in the course of that that says, you know, you have to, somebody can come in on an emergency basis and says, look, if this project is going to change to this extent, then the original approval can't possibly cover this. [00:12:07] Speaker 02: And so you have to cut this off right now. [00:12:08] Speaker 02: Maybe there's a way to do that. [00:12:10] Speaker 02: And that means, as Judge Edwards was saying, then the amendment process already accounts for that and has within it an ability to [00:12:18] Speaker 02: Deal with this dynamic, but it just seems like what we're doing here is there happens to be an extension. [00:12:23] Speaker 02: The temporal dimensions of this make the extension salient and therefore all the load bearing weight is going to be born by the approval of the extension when we've already got this process that could replicate even without the extension. [00:12:36] Speaker 02: And so there has to be some way to deal with it even. [00:12:38] Speaker 02: in that context, but I may be missing. [00:12:40] Speaker 04: But I think the extension is an important aspect of it, because one of the reasons for including these deadlines, which are required by regulation, is that all the findings will remain valid. [00:12:52] Speaker 04: And so when you're having major. [00:12:54] Speaker 01: With respect to the unamended project, that's all. [00:12:59] Speaker 01: I don't know how else it could cover anything else. [00:13:03] Speaker 01: The only thing, the fight over now, it's kind of a, [00:13:07] Speaker 01: weird fight if in fact there is going to be an amendment. [00:13:12] Speaker 01: Because we're fighting over the approval of something that you're saying the other side agrees is not going to be done. [00:13:19] Speaker 01: That's kind of like, well, so what? [00:13:21] Speaker 01: Including eminent domain. [00:13:23] Speaker 01: Now, I can't say that I've sat and researched eminent domain and know the answer to this question, but I don't know how you can honestly get approval [00:13:34] Speaker 01: to do something based on something that doesn't yet exist because it hasn't been approved. [00:13:40] Speaker 04: Well, I would just again point to Mountain Valley's understanding on page 24 of their brief where they said that the part of the route that is the same, even though there's going to be a larger diameter pipeline, which would require a larger trench, they said FERC already found that this first part is required by the public convenience and necessity. [00:14:00] Speaker 04: And that's what [00:14:02] Speaker 04: They take that because Bert left the certificate in place and they intend to use that to go ahead and assert eminent domain and assert to obtain property on the parts that were not on the parts that. [00:14:18] Speaker 02: under the amended plan are no longer part of the project on the parts that were part of the approved project and remain it. [00:14:24] Speaker 04: That's the that's their representation now with that certificate in place there under first interpretation of their law. [00:14:31] Speaker 04: There's nothing for could stop them from doing now from going to that portion of North Carolina that they don't intend to build and taking properties for some future use. [00:14:42] Speaker 04: So that this certificate is in place, granting eminent domain authority along the entire pipeline route. [00:14:49] Speaker 04: Now Mountain Valley says they're not going to use it, certainly not along the southern portion, but that's an unenforceable promise. [00:14:56] Speaker 02: And your concern is focused on which part? [00:15:00] Speaker 02: The part that was within the original approval, but it's not within the amendment, or the part that is still within the amendment? [00:15:12] Speaker 04: Both, I think the concerns about the southern portion of the route that are not within the amendment are a little farther afield. [00:15:20] Speaker 04: We are concerned about the company waiving a certificate for a project that does not intend to build to pressure landowners to sign easements for a project that has not yet been found by FERC to be required by the public convenience in the city. [00:15:35] Speaker 02: And then let's go back to the hypothetical situation in which there's not an extension and we still have the same dynamic. [00:15:42] Speaker 02: What would happen? [00:15:43] Speaker 02: Is there a way to go to the commission and say, look, you approved this. [00:15:48] Speaker 02: It turns out there's an amendment on the table that's only going to be one quarter of the length of the original project. [00:15:53] Speaker 02: There's still a concern that there's going to be an eminent domain exercised over the remaining 75% that's not part of the project and also the original 25%. [00:16:00] Speaker 02: You've got to put a stop to that. [00:16:03] Speaker 02: Is there a way for that practically to happen? [00:16:07] Speaker 04: I don't know how that would happen in front of FERC, Your Honor. [00:16:11] Speaker 04: But again, the fact that this could this that, you know, sword that hanging over these landowners of the improper use of eminent domain could now go on indefinite. [00:16:21] Speaker 04: You know, we have a construction debt for Mountain Valley thinks it won't complete this project now until June of twenty twenty eight. [00:16:28] Speaker 04: even though the extension sets a deadline of june of 2026 so you know that's one of the problem again and why and why these extension orders are important and you know should be taken seriously by the court make sure my colleagues don't have additional questions for you and we'll get we'll we will give you time for a bottle thank you your honor thank you counsel [00:16:56] Speaker 03: I'm sure. [00:16:58] Speaker 03: May please the court Jason Perkins for the commission. [00:17:01] Speaker 03: And just to jump right in on a lot of the questions that were already asked. [00:17:05] Speaker 03: Though the amendment has not been approved yet it is pending before the commission. [00:17:09] Speaker 03: There's an open comment period now about the amendment. [00:17:12] Speaker 03: And so the only thing that has already been approved by FERC is the original project route. [00:17:16] Speaker 01: And so amendment proposals before the commission now. [00:17:20] Speaker 03: Currently, before the commission, there's no guarantee as to how the commission will rule on it. [00:17:24] Speaker 03: It's possible that it could be denied. [00:17:27] Speaker 03: It's possible it could be approved. [00:17:28] Speaker 03: It's possible it could be approved with new or different conditions. [00:17:32] Speaker 03: And so that is an open question still before the commission. [00:17:36] Speaker 03: And in terms of questions about the scope of the amendment authority, I think that the court was exactly right. [00:17:43] Speaker 03: The agencies should get leeway in this situation because it is a procedural question about how the commission will make decisions about potential changes to an already-certificated project. [00:17:53] Speaker 03: And we know from a lot of the cases cited in the briefs that project amendments do happen. [00:17:57] Speaker 03: Project sponsors sometimes need to change routes to avoid resource issues or other types of permitting. [00:18:06] Speaker 03: issues. [00:18:07] Speaker 03: And so that is the sort of flexibility that the commission allows to project sponsors to exercise because the idea is that project sponsors will know best how to actually implement the building of the project. [00:18:19] Speaker 03: And if there are changes that the project sponsor decides would be better able to make the project actually happen, the commission should be open to that to now make everybody start back again at zero if something somewhat unexpected comes about. [00:18:34] Speaker 01: Is this true Mountain Valley voluntarily dismissed all eminent domain actions in North Carolina when it became clear that that portion of the route would not proceed? [00:18:45] Speaker 03: As far as we know, that's correct. [00:18:47] Speaker 03: We're not disputing that those are the basic facts. [00:18:49] Speaker 03: I think the intervener could explain better exactly what happened there. [00:18:53] Speaker 03: But as the commission explained as to the good cause standard, the mainline delays caused a delay in this project and there were permitting challenges that this project faced. [00:19:03] Speaker 03: And so the good cause standard was well met under these circumstances as explained in the extension order. [00:19:13] Speaker 02: What would happen in a situation where you don't have an extension order? [00:19:17] Speaker 02: How would that play out? [00:19:19] Speaker 03: Right. [00:19:19] Speaker 03: So that would be a situation where the project sponsor would have to come back and explain the type of changes they would like to make. [00:19:26] Speaker 03: And we only have one set of facts that the commission actually ruled on in circumstance. [00:19:30] Speaker 03: But that set of facts includes essentially the idea that this project will move gas down from the end of the main line to North Carolina. [00:19:40] Speaker 03: Serving the same one and same anchor customers and potentially an additional customer and so it is projected to occupy a portion of the same already certificate route, albeit with slightly different facilities. [00:19:54] Speaker 03: And so the commission looked at that and rehearing orders, paragraph 13 to 16, and said, that seems like the same project purpose. [00:20:01] Speaker 03: That seems like a change to the facilities. [00:20:03] Speaker 03: And so there would need to be an amendment because the approval is specific to the exact facilities proposed. [00:20:08] Speaker 03: But it seems like you're trying to do the same general thing. [00:20:11] Speaker 03: And so that is an appropriate situation where an amendment should happen. [00:20:15] Speaker 03: But we don't have a precise analog to this case. [00:20:19] Speaker 02: And then in the amendment process, [00:20:22] Speaker 02: then I take it when the amendment process, the commission's consideration of the amendment is occurring, then the same kinds of concerns that have been raised here will be folded into the decision whether to approve the amendment. [00:20:38] Speaker 03: Right so rehearing order paragraph 16 talks about review under the appropriate statutory authorities and review under NEPA and so the process looks somewhat similar to an initial new certificate application in the sense that you're proposing new facilities and we have to study those facilities but the main difference being the commission has already approved in general the idea of the project purpose and how you originally intended to carry it out and so in most cases that's going to be [00:21:06] Speaker 03: more truncated review because of everything has already been decided. [00:21:10] Speaker 03: And so in that paragraph, the commission is acknowledging that we will still study this under Natural Gas Act. [00:21:15] Speaker 03: We will still study this under NEPA. [00:21:17] Speaker 03: We will get full airing of any new issues that come up as a result of it. [00:21:21] Speaker 03: And it's cited in the application that Mountain Valley submitted to FERC, but there's a case called LA Storage that's cited in that application. [00:21:30] Speaker 03: And it basically looks through what the commission already approved and what changes to the information might have happened in the meantime. [00:21:37] Speaker 03: So that type of analysis is what happens in an amendment proceeding. [00:21:41] Speaker 03: And so the exact scope of it depends on the facts, but usually the commission is looking back to what they've already approved, any changes to what they've already approved, and any new information that came up in the meantime. [00:21:51] Speaker 01: Do you agree that what is facially before some science, the proposed amendment to any reasonable person would be seen to be markedly different from what was originally approved? [00:22:08] Speaker 01: It is different in terms of... Markedly different. [00:22:10] Speaker 01: In other words, to me, uninitiated, this is not my field of endeavor. [00:22:15] Speaker 01: It looks markedly different. [00:22:17] Speaker 01: Yes? [00:22:18] Speaker 03: It is still trying to accomplish the same general. [00:22:21] Speaker 01: Can you go with me? [00:22:22] Speaker 03: So I don't think it's markedly different because I have not very different not insignificant. [00:22:32] Speaker 01: It is come on Council. [00:22:33] Speaker 01: It's not a trivial amendment and it's on. [00:22:37] Speaker 01: It's in play now. [00:22:38] Speaker 01: That's right. [00:22:39] Speaker 01: Okay, it is a significant proposed amendment that is significant. [00:22:43] Speaker 01: That's correct. [00:22:43] Speaker 01: Okay, now if that's the case, there's a [00:22:47] Speaker 01: Looking at it from our vantage point, there's a proposed amendment to this entire thing that is not insignificant. [00:22:54] Speaker 01: Why can't I conclude this is not right for our consideration? [00:22:57] Speaker 01: Come back when this is all done. [00:22:58] Speaker 01: Because we don't know what FERC is liable to do in the amendment process when they take all these things into account with respect to a significantly different project than the one they first approved. [00:23:12] Speaker 03: I think that makes sense as applied to the request for further study of new facts and circumstances that may be part of this case. [00:23:20] Speaker 03: As to the extension, that is on separate ground. [00:23:23] Speaker 03: So the extension deals with circumstances that were in place as of 2023. [00:23:26] Speaker 03: The scope of what's happening with the amendment and how FERC will study it, that's right. [00:23:31] Speaker 03: It's a future kind of concern. [00:23:34] Speaker 03: And so the request for further study of market need and NEPA consequences, that will be part of the future case. [00:23:41] Speaker 01: Why would we [00:23:43] Speaker 01: as a court see fit to approve or disapprove an extension when really all the information is not properly before us. [00:23:53] Speaker 01: FERC hasn't considered everything yet. [00:23:57] Speaker 03: I think we did consider the basis for the extension. [00:23:58] Speaker 01: In other words, if you looked at the amendment and is markedly different, there really are some concerns now with this new project. [00:24:07] Speaker 01: One possibility in that fight is FERC would say, no, you've gone too far. [00:24:13] Speaker 03: I think that does remain possible in the future case. [00:24:15] Speaker 01: Why would we decide this now? [00:24:18] Speaker 01: When the one possibility is for consent, no, we're not going to, you know, now that we're digging in and looking carefully and everyone is being heard, this is a completely different project. [00:24:29] Speaker 01: And maybe you have a right to do it or not do it, but we need to hear more and assure ourselves on need, the environmental issues and all the other questions. [00:24:42] Speaker 01: Because this is a different project now. [00:24:44] Speaker 03: Right. [00:24:44] Speaker 03: I think that is possible. [00:24:45] Speaker 03: The commission did say in general, based on the representations in the record, the certificate amendment was the right procedural approach here. [00:24:53] Speaker 03: But you're right that the actual proposal was not before FERC. [00:24:57] Speaker 03: So there wasn't total... I know. [00:24:59] Speaker 01: We're at a new stage now. [00:25:00] Speaker 01: There is an amendment before the... It's the kind of thing that we will sometimes say, no, we shouldn't consider this yet. [00:25:07] Speaker 01: There's more to be done. [00:25:10] Speaker 03: Right. [00:25:10] Speaker 03: And that is something the court could decide to do as a matter of managing this case. [00:25:16] Speaker 03: I would say that the commission will eventually study the amendment application in detail and render a judgment on it. [00:25:25] Speaker 02: And what happens in a situation in which the commission gets an amendment that it feels is so significant that the prior approval just can't really govern this anymore because we're effectively talking about a new project? [00:25:39] Speaker 03: Right, so the hint that we get from that from the commission's past cases at the end of the Chestnut Ridge storage order, there's the idea that that applicant who essentially did stop developing that project had their certificate vacated. [00:25:54] Speaker 03: But that was without prejudice to a new application if they decided that they wanted to pursue it again. [00:25:59] Speaker 03: And they were told that they could rely on any findings that still remained valid. [00:26:04] Speaker 03: So there would be a situation potentially where [00:26:07] Speaker 03: Commission finds an amendment is significantly different, very different, markedly different, however you want to categorize it, and decides that that process is going to have to take so long and go into so many new and different issues, it's basically the same thing as if you made a new application, right? [00:26:22] Speaker 03: And so the Commission might have that back and forth with an applicant, ask for more data, ask for more [00:26:26] Speaker 03: information there might be multiple comment periods it could get very long and drawn out as a result i don't know that it's based on the formal labeling of whether it was labeled as new or labeled as an amendment but functionally the commission will need to have a full set of information before can make a decision and it might be further away from that if the changes are are markedly or drastically different and then what happens to the approval that's in effect in the interim so suppose you have a situation in which projects been approved [00:26:53] Speaker 02: project sponsor, and I think I now have the term project sponsor come back and says, actually, we want to adjust this. [00:27:00] Speaker 02: And then the commission looks at it and says, OK, that's an adjustment. [00:27:02] Speaker 02: But man, that seems like quite a significant adjustment. [00:27:06] Speaker 02: That may well be the sort of situation in which it's functionally a new application. [00:27:10] Speaker 02: I mean, in litigation, we think about TROs and preliminary injunctions and things. [00:27:15] Speaker 02: And I'm just wondering, what happens with the authority, the approval, when FERC gets, the commission gets something that looks to be [00:27:24] Speaker 02: that looks to be a tantamount to a new application, then does whatever's approved and what comes along with that stop while the new application's being considered? [00:27:34] Speaker 02: Because you don't get the approval in advance of approving a new application. [00:27:39] Speaker 03: Right. [00:27:39] Speaker 03: So it takes us a little bit beyond our cases so we don't have an exact analog [00:27:43] Speaker 03: But the original approval would remain in effect during that period of time. [00:27:47] Speaker 03: The commission originally decided the circumstances would still be valid or still be in place. [00:27:53] Speaker 03: So it is possible for the project sponsor to keep moving forward with the original project while they're contemplating. [00:27:57] Speaker 03: The project sponsor can continue on with the original project while they are contemplating changes to it. [00:28:05] Speaker 03: I think that the approach is flexible in that regard. [00:28:09] Speaker 03: Whether or not there should be a stay imposed on the existing certificate while the changes are working their way through, that's the case that we don't have clear guidance from how the commission exactly handled that. [00:28:23] Speaker 03: But there could be a claim or a good basis to say that the project sponsor has officially abandoned the project, that they are actually pursuing something that is totally different. [00:28:33] Speaker 03: And again, only one set of facts here, but you can imagine that if you're talking about connecting two entirely different parts of the natural gas transition infrastructure, [00:28:41] Speaker 03: If you're talking about serving totally different customers, if it really does look like you're trying to do something completely different, then there might be a basis to say that, well, you've actually abandoned the thing that we approved. [00:28:51] Speaker 03: And so you should start over. [00:28:53] Speaker 03: We don't have a case that exactly says that. [00:28:55] Speaker 03: You could imagine a situation. [00:28:57] Speaker 02: And if you get to the level of abandonment, then does that mean that then the approval that's in effect is no longer in place and therefore you can't go forward? [00:29:04] Speaker 03: Essentially, in the cases where a project sponsor has officially said that they are abandoning it, I believe the Penn East case wound up that way. [00:29:11] Speaker 03: If you're not going to build it, then the commission will vacate the certificate. [00:29:15] Speaker 03: In circumstances, the circumstances get more complicated if you started construction and then you decided you weren't going to finish it, in which case the commission might hold the certificate open just to ensure that the remediation [00:29:26] Speaker 03: has been completed for whatever ground you disturbed. [00:29:28] Speaker 03: But in a situation more similar to this where no construction has happened, then once the project sponsor says, we are affirmatively not going to build this anymore, then it gets vacated. [00:29:38] Speaker 03: And one of the reasons why is that other potential competitors might step in and say, well, we'd like to serve that need instead. [00:29:45] Speaker 03: And while there's a certificate in place, that might ward them off from moving forward because somebody else might decide to build and serve that need. [00:29:53] Speaker 02: But they haven't confronted a situation in which it's not that the project sponsor voluntarily says we're abandoning, but they come with something that's different. [00:30:01] Speaker 02: And somebody might be able to say, even the commission itself could say, well, look, this is functionally an abandonment. [00:30:07] Speaker 02: We don't have a precedent in which the commission deemed something to be an abandonment, even though the project sponsor didn't itself volunteer that it was an abandonment. [00:30:16] Speaker 02: Right. [00:30:16] Speaker 02: I'm not aware of a case exactly like that. [00:30:19] Speaker 01: And the other thing that makes it strange is to request [00:30:23] Speaker 01: an extension in the face of what any reasonable person would say is a significant abandonment, doesn't make a whole lot of sense, an extension to what? [00:30:35] Speaker 01: Because everyone, let's assume, assume everyone agrees, no, this is a really major change. [00:30:42] Speaker 01: So how can you measure the amount of time that would be necessary to achieve what everyone now agrees is really on the table? [00:30:52] Speaker 01: So the prior certification becomes kind of silly. [00:30:54] Speaker 01: Why are we even talking about that? [00:30:56] Speaker 01: Because that's not the project anymore. [00:30:58] Speaker 01: And the person seeking to have the certification agrees that's not the project anymore. [00:31:04] Speaker 01: I don't know how you just easily split it and say, well, this is just an extension case. [00:31:09] Speaker 01: But it's an extension with respect to something that's been approved, hypothetically, is not on the table anymore because [00:31:17] Speaker 01: person who wants the certification agrees no that's not what I'm going to do and what I'm going to do is significantly different from what I got approval to do. [00:31:26] Speaker 03: I think the the interveners can speak to what their reliance might be on the certificate in the interim but I understand what the commission said in the hearing order to be [00:31:34] Speaker 03: Because you're attempting to provide the same general purpose, the project certificate shouldn't be shut down in the interim. [00:31:41] Speaker 03: That you can continue to think about how you're going to change the project. [00:31:44] Speaker 03: Because again, the ultimate purpose, and I believe we cited quoted back to the- What does same general purpose mean? [00:31:50] Speaker 01: More gas? [00:31:52] Speaker 01: The service- It becomes kind of silly to say that. [00:31:55] Speaker 01: Same general purpose. [00:31:57] Speaker 01: Because providing more gas one way as opposed to another. [00:32:02] Speaker 01: Maybe everyone would agree, they're completely different projects. [00:32:05] Speaker 01: How you do it matters. [00:32:08] Speaker 01: But if you're saying same general purpose trumps, that ignores the real question. [00:32:14] Speaker 01: Do we have the same project here? [00:32:15] Speaker 01: And it's no answer to say, but in either project, even though they're completely different, we're going to be offering more gas. [00:32:23] Speaker 01: So what? [00:32:25] Speaker 03: It's offering more service to the same, one of the same customers. [00:32:28] Speaker 03: I think that's a key point. [00:32:30] Speaker 03: One same customer from the same delivery points. [00:32:32] Speaker 03: So it is not completely. [00:32:33] Speaker 01: How you get there matters to people who are being affected on the roads on the way, right? [00:32:39] Speaker 01: Right. [00:32:40] Speaker 01: OK, so I'm not sure saying we're going to be offering more in the end either way. [00:32:45] Speaker 01: Well, maybe. [00:32:46] Speaker 01: But it's a different project. [00:32:48] Speaker 01: I don't know. [00:32:49] Speaker 01: I'm just saying hypothetically. [00:32:55] Speaker 02: OK, thank you. [00:32:56] Speaker 02: Thank you. [00:33:05] Speaker 02: From interveners now, Mr. Marwell. [00:33:10] Speaker 05: Morning, Your Honors. [00:33:10] Speaker 05: May it please the Court, Jeremy Marwell for Intervener Mountain Valley Pipeline. [00:33:14] Speaker 05: If I could briefly speak to what is before the Court and what is not before the Court, talk to whether it is the same or a different project, and provide some information about eminent domain. [00:33:25] Speaker 05: But of course, I'm happy to answer the Court's questions. [00:33:29] Speaker 05: In our view, what's before the court today is only the question of whether the commission reasonably exercise discretion in granting the extension. [00:33:37] Speaker 05: Given the rationale the commission gave and the commission's past orders and the framework. [00:33:41] Speaker 05: The basic point is. [00:33:45] Speaker 05: did the information that the commission previously analyzed, had it become stale in a manner that undermined the continuing validity? [00:33:53] Speaker 05: And the commission explained, as to both need and environmental impacts, it did not find staleness. [00:34:00] Speaker 01: As to whether this is- Because they haven't taken into account the breadth of the proposed amendment. [00:34:06] Speaker 01: Well, so- That's why I threw out the possibility. [00:34:09] Speaker 01: I don't mean to interrupt you, except I do. [00:34:10] Speaker 01: That's why I threw out the possibility of unright. [00:34:15] Speaker 01: You now are presenting to us something that is different than the case that I originally started preparing. [00:34:23] Speaker 01: The suggestion being made that this may be substantially everyone's agreeing significantly different and how much more we say about it no one's sure. [00:34:34] Speaker 05: So maybe I could speak to that because I think it's important two things on is it the same project or a different project. [00:34:40] Speaker 05: The first is, I think that is the judgment that the commission made in the first instance, given its expertise and its background with this project. [00:34:47] Speaker 05: It made that judgment saying, we think it is appropriate to grant an extension of the existing certificate. [00:34:53] Speaker 05: We understand that an amendment is coming in, and this is in footnote 24 of the extension, sorry, the rehearing order. [00:35:00] Speaker 05: They said, we think as to the changes, the appropriate way to manage that is the amendment application that is forthcoming. [00:35:07] Speaker 05: We have now filed that two weeks ago, and that process is undergoing. [00:35:10] Speaker 05: So I think that falls comfortably within the commission's discretion in adjusting a deadline it had set three years earlier. [00:35:18] Speaker 05: But is it the same project or a different project? [00:35:22] Speaker 05: Let me try to convince you that it really is the same project and that under this court's standard review, there is substantial evidence to support the commission's determination that this was the right way to go. [00:35:33] Speaker 05: You didn't have to start over from scratch, essentially vacate the certificate and start over. [00:35:39] Speaker 05: And this, in terms of the record, would be JA360, JA410 to 411. [00:35:45] Speaker 05: And then if you are interested in looking at it, our amendment application, which was filed two weeks ago, we put in a 20HA letter that is available to you in terms of what we are actually proposing. [00:35:56] Speaker 05: But what did the commission know at the time it granted the extension? [00:35:59] Speaker 05: We told them it was going to come from the same place. [00:36:02] Speaker 05: In other words, you're going to get gas from the main line and one other place. [00:36:06] Speaker 05: It has essentially the same route in Virginia. [00:36:09] Speaker 05: You can think about this as a Virginia to North Carolina pipeline. [00:36:12] Speaker 05: We're going just across the border into North Carolina. [00:36:15] Speaker 05: We are serving the same shipper, the anchor shipper, which is a local gas distribution utility. [00:36:20] Speaker 05: So Judge Edwards, when we talk about need, yes, it is important how you get there. [00:36:24] Speaker 05: But we are giving gas to a local distribution utility that is going to serve its service area in North Carolina. [00:36:30] Speaker 05: And it's the same shipper, the same shipper that supported the original certificate [00:36:35] Speaker 05: Now we told the commission that we expected and we had entered into an additional contract that is with Duke Energy for additional capacity and that's why we have to make it from a 24 inch to a 30 inch [00:36:50] Speaker 05: But we told them, and then the receipt point, as originally certificated, we had one receipt point just over the border and one about 40 miles south. [00:37:00] Speaker 05: The one just over the border is the same. [00:37:03] Speaker 05: Now, we've taken away the 40 miles down into North Carolina. [00:37:07] Speaker 05: And with that, we've taken away the second receipt point. [00:37:10] Speaker 05: But from our perspective as the developer of a project, we are serving need for a customer who's going to use the gas to serve the same general area, you know, it's it's customers and Any of the changes which I agree, we fully agree will be ventilated in the forthcoming amendment application. [00:37:28] Speaker 05: We were making these changes to be ameliorative in response to these obstacles that we had encountered. [00:37:34] Speaker 05: So there was concern about a compressor station and potential air emissions. [00:37:38] Speaker 05: We redesigned the project. [00:37:39] Speaker 05: There will be no compressor station. [00:37:41] Speaker 05: There was concern in North Carolina about impacts on water. [00:37:44] Speaker 05: We've taken away 40 miles of the pipe in North Carolina, completely avoiding those areas. [00:37:49] Speaker 05: And I think one way to think about this case is, did the commission reasonably [00:37:54] Speaker 05: conclude that we didn't have to start over. [00:37:58] Speaker 05: They would give us some more time to work through these issues and that instead of trying to front load all of this review into the decision, whether to grant an extension, the commission would wait, receive the formal amendment application and do all of that review there. [00:38:13] Speaker 05: And the difference between that and what petitioners are proposing is that the amendment can focus on what has changed, what is new. [00:38:21] Speaker 01: Let me ask you this. [00:38:23] Speaker 01: Am I right in assuming [00:38:24] Speaker 01: Mr. Morrill, that it's inconceivable that the new amended project can be finished within the extension period. [00:38:36] Speaker 01: It's not conceivable. [00:38:38] Speaker 01: Everything I've read suggests that that's not even an interesting debate. [00:38:41] Speaker 01: It is not going to happen. [00:38:44] Speaker 01: No conceivable way. [00:38:47] Speaker 01: Yeah, you're smiling because you know that's right. [00:38:49] Speaker 01: The answer to that question is clear. [00:38:50] Speaker 01: They will not finish within the extension period. [00:38:54] Speaker 01: And so I come back to my original concern is, why in heaven's name would we be fussing over approval of that extension date now when we know it's meaningless? [00:39:07] Speaker 05: Well, so it is not meaningless to us. [00:39:10] Speaker 01: Am I right in my assumptions? [00:39:11] Speaker 01: There's no conceivable way. [00:39:12] Speaker 01: If you were betting, man, if we were taking bets, you and I'd bet the same way, right? [00:39:16] Speaker 01: It's not going to happen. [00:39:16] Speaker 05: So what we told the Commission in December, this is at JA360, was once we had the contracts with the existing customer and the new customer, we said 2028. [00:39:27] Speaker 05: And you are right, 2028 is later than 2026. [00:39:30] Speaker 05: Why did we ask for only three years? [00:39:32] Speaker 05: What we were asking in June, before we had gelled the contracts, that was a request that we thought was within the wheelhouse of what FERC had given. [00:39:40] Speaker 05: in other orders, and we thought it was potential. [00:39:43] Speaker 05: These are complicated projects. [00:39:44] Speaker 05: We have very able adversaries who I'm sure will bring any shortcomings to the attention of the relevant courts. [00:39:51] Speaker 05: And as you've seen from the main line, the permitting and litigation pathway is not always linear. [00:39:57] Speaker 05: So yes, we are gonna do our best. [00:39:59] Speaker 05: We have contractual obligations to our customers to get this done as quickly as we can. [00:40:03] Speaker 01: And I take your answer to be it. [00:40:05] Speaker 01: I agree, Judge, it's not likely. [00:40:07] Speaker 05: But we still should be able to see why. [00:40:10] Speaker 05: And if that's true, then FERC is keeping us on a short leash by giving us three years. [00:40:16] Speaker 05: We'll have to come back again. [00:40:17] Speaker 05: That should be something I think. [00:40:18] Speaker 02: That's the question. [00:40:19] Speaker 02: So if it turns out, as seems quite likely, that it's not going to happen by the end of the extension period that's on the books, then I assume you have to go ask for another extension. [00:40:29] Speaker 05: Correct. [00:40:30] Speaker 05: And then that's subject to review. [00:40:31] Speaker 05: We might be here for South Gate 3 or possibly South Gate 4. [00:40:35] Speaker 05: Now, you know, in the amendment, we described to the Commission, this is the pending amendment, Judge Edwards, that has not been acted on. [00:40:41] Speaker 05: We described to the Commission our expected time period, both for permitting and for construction, and that's the 2028 figure. [00:40:49] Speaker 05: You know, the Commission will take that into account, and we hope we'll issue an order granting our amendment somewhere down the road. [00:40:55] Speaker 05: And it may or may not say something about the time. [00:40:58] Speaker 05: Again, these are deadlines that the commission sets as an exercise of its own discretion. [00:41:02] Speaker 02: The extension doesn't get folded in. [00:41:04] Speaker 02: The second extension doesn't automatically get folded into the amendment request if the amendment itself presupposes that until 2028. [00:41:11] Speaker 05: So I wouldn't want to foreclose. [00:41:13] Speaker 05: I mean, obviously, that's up to the commission. [00:41:14] Speaker 05: One factor here that might be helpful to the court is the commission has a policy, and this is cited in footnote 17 of our brief, that you shouldn't ask too soon. [00:41:23] Speaker 05: In other words, you wait until 120 days before your extension. [00:41:27] Speaker 05: And I think that's motivated by the notion that they don't want to have to deal with extension requests that maybe you won't wind up needing. [00:41:34] Speaker 05: Yes, you have to wait. [00:41:35] Speaker 05: You have to wait. [00:41:36] Speaker 02: Four months before. [00:41:37] Speaker 02: the end of the extension period in order to request before you make the request. [00:41:40] Speaker 05: Yes. [00:41:41] Speaker 05: And then the commission will provide notice and go through its process if they don't act by the time as long as you've you've sought the you've you've timely made the request. [00:41:51] Speaker 05: Your deadline will be told while the commission is excuse me thinking about the request. [00:41:56] Speaker 05: But that's why we're trying to comply with the commission's policy. [00:41:59] Speaker 05: That's why we waited until close to the deadline and why we're we didn't [00:42:04] Speaker 05: I guess, request another extension if you can think about it. [00:42:06] Speaker 02: Some of the items that you enumerated earlier to the effect that it's the same customer, various considerations that in your mind make it seem like it's an amendment of the same project rather than starting over with a new project, that was all folded into the amendment request that you filed with FERC. [00:42:24] Speaker 02: That wasn't, you're saying that those things are part of that amendment process. [00:42:29] Speaker 02: It's not that it was before the commission in connection with the extension. [00:42:33] Speaker 05: Right, so what the commission knew at the time it was. [00:42:37] Speaker 05: The commission, what the commission had before it at the time of the extension, and then also at the time that it was acting on the rehearing, was primarily our letter of December 29, which is a JA360. [00:42:48] Speaker 05: And there we described what we could about what was coming. [00:42:52] Speaker 05: Obviously, that was December, and it took us until February of the following next year to file the actual amendment. [00:43:00] Speaker 05: But by that point, we had the customers. [00:43:02] Speaker 05: And that's really the driver here, right? [00:43:03] Speaker 05: You don't build these pipelines on spec. [00:43:05] Speaker 05: You can't. [00:43:06] Speaker 05: And so we told them, and it's the second paragraph on that page, a redesigned project extending about 31 miles from the terminus of the Mountain Valley pipeline. [00:43:16] Speaker 05: That's the point I made, is that the gas is coming in from the same place. [00:43:20] Speaker 05: And it notes that it's a 30-inch pipe rather than what I think it was. [00:43:22] Speaker 05: A 30-inch pipe. [00:43:23] Speaker 05: And just to be clear, that segment, the Virginia segment, was approved originally as 24-inch, so 24 to 30. [00:43:29] Speaker 05: increasing by six inches. [00:43:30] Speaker 01: Am I understanding the record or misunderstanding the record with respect to demand? [00:43:35] Speaker 01: I understand there's a new major customer now, right? [00:43:39] Speaker 01: And it seemed a little fuzzy when the question was asked somewhere. [00:43:42] Speaker 01: So precisely how much of what's gonna be produced is guaranteed to be bought? [00:43:48] Speaker 01: Originally with Dominion, it seemed fairly clear it was like 80% or whatever, right? [00:43:54] Speaker 01: That number became, [00:43:56] Speaker 01: kind of fuzzy as we moved to add a customer and there was some conditions precedent and no one wanted to say what they were and wanted to say how it would affect the figure, right? [00:44:07] Speaker 05: Yes, so hopefully I can clarify the fuzziness. [00:44:10] Speaker 05: It was originally 300 for dominions, the originally certificated project. [00:44:15] Speaker 05: And we were proposing to build something slightly larger than that. [00:44:17] Speaker 05: So there was 20% that was on contract, so to speak. [00:44:22] Speaker 05: What we told the commission in that December 29th letter is that we had gone up to 550. [00:44:26] Speaker 05: And so your question is how much for each shipper. [00:44:30] Speaker 05: The easiest answer to that is we have now filed those precedent agreements with FERC. [00:44:36] Speaker 05: Now, this is post-stating, so I want to be clear. [00:44:39] Speaker 05: As attachments to our amendment, dominions the same, Duke took another 250. [00:44:44] Speaker 05: So that is the answer. [00:44:45] Speaker 05: But I mean, I take the point. [00:44:47] Speaker 05: What we were able to tell the commission at the time [00:44:50] Speaker 05: given that sometimes the relationship with customers, you need to try to have your discussions confidentially, because they may decide to sign up. [00:44:57] Speaker 05: They may not decide to sign up here. [00:44:59] Speaker 05: We were telling them what we could about the contracts that we had entered into. [00:45:02] Speaker 05: But you know what those contracts are. [00:45:04] Speaker 05: We filed them with FERC as part of the amendment. [00:45:07] Speaker 05: As to the conditions, Judge Edwards, this is commonplace in this industry. [00:45:13] Speaker 05: Remember that these precedent agreements are binding contractual commitments that parties enter into 20-year terms [00:45:22] Speaker 05: take or pay, so to speak. [00:45:23] Speaker 05: The customers are paying for the capacity to be available to them all the time, whether they need it or not. [00:45:29] Speaker 05: That's the benefit to these utilities. [00:45:32] Speaker 01: That depends on the conditions precedent and the conditions. [00:45:34] Speaker 05: Correct. [00:45:34] Speaker 05: But what I can say, so the version of the precedent agreements that were filed with the commission, they were filed in sealed and redacted version. [00:45:43] Speaker 05: The redactions did include these conditions. [00:45:45] Speaker 05: But what I can tell you generally is that the conditions are [00:45:51] Speaker 05: commonplace in these contracts. [00:45:53] Speaker 05: For instance, if FERC denies the certificate, right, these are contracts for service on a pipeline that you don't know whether it's going to exist. [00:46:01] Speaker 05: You sign these contracts before you've even applied to FERC. [00:46:04] Speaker 05: If other agencies deny the permit, such that the [00:46:07] Speaker 05: A pipeline can't go forward. [00:46:09] Speaker 05: It makes no sense to have a 20-year contract on something that doesn't exist. [00:46:13] Speaker 05: Also, if we can't do it in time. [00:46:15] Speaker 05: We said that publicly. [00:46:16] Speaker 05: It's in the record here that our original contracts with Dominion, if we couldn't get it done by December 2023, they had the ability to walk. [00:46:25] Speaker 05: But they didn't. [00:46:26] Speaker 05: They signed up to extend because they need the gas. [00:46:29] Speaker 02: I have one last question for me, at least, which is this question about what happens in the interim while an amendment application is pending. [00:46:38] Speaker 02: So you can imagine situations in which the amendment is quite significant and it substantially changes the scope of the project. [00:46:45] Speaker 02: And so naturally, questions will arise. [00:46:47] Speaker 02: Well, OK, well, you've got approval to do all kinds of stuff that's predicated on an entirely different set of facts. [00:46:52] Speaker 02: Why should that approval carry over while you yourself have said you're changing this substantially? [00:46:57] Speaker 02: And this all deals with the amendment process. [00:46:59] Speaker 02: I get that, but it informs at least to some extent. [00:47:02] Speaker 02: And as a feedback mechanism, how we think about the extension request that we have for us today. [00:47:08] Speaker 05: I understand. [00:47:09] Speaker 05: So amendments are commonplace in the industry. [00:47:12] Speaker 05: These are big complicated projects. [00:47:14] Speaker 05: They can take a decade. [00:47:16] Speaker 05: You know, the permitting pathway is not always linear. [00:47:21] Speaker 05: So amendments frequently happen in the industry. [00:47:23] Speaker 05: I think from our perspective, an important thing is that the certificate is really [00:47:27] Speaker 05: the keystone authorization for these kinds of projects. [00:47:31] Speaker 05: FERC is the lead agency they're running the show. [00:47:34] Speaker 05: Here we had a certificate that was issued, challenged, upheld by this court. [00:47:39] Speaker 05: And so in our view, under the Natural Gas Act, which has a judicial review provision that provides for prompt review, after that process, the certificate is something that we can rely on. [00:47:51] Speaker 05: And we make investments based on our customers are relying on. [00:47:54] Speaker 05: So I think [00:47:55] Speaker 05: The answer would be yes, that certificate remains valid unless and until the commission amends it. [00:48:01] Speaker 05: And if we're coming to the commission asking for an amendment saying, look, we think it's going to be really hard to build the original project. [00:48:07] Speaker 05: We need to make these changes. [00:48:08] Speaker 02: commission can deny the amendment the commission can deny if we need another extension they can deny another extension um but then but what happens the authority in because we're going to suppose that you decided you wanted to and you represented that you're not going to but if you decided you wanted to exercise eminent domain in a part of the project the part of the original project that's not actually not within the fold of the amendment let's just suppose that happened [00:48:29] Speaker 02: then how does that procedure get worked out? [00:48:32] Speaker 02: Because that seems like a problem. [00:48:33] Speaker 02: It seems like, no, the project sponsor shouldn't be able to exercise eminent domain on the part of an original project that it's not even saying it wants to pursue anymore. [00:48:41] Speaker 05: I understand that. [00:48:42] Speaker 05: And we are sensitive to the concern. [00:48:44] Speaker 05: I think we try to be very responsible on how we exercise the authority. [00:48:48] Speaker 05: Under the Natural Gas Act, if you have a certificate, Congress has conferred eminent domain. [00:48:52] Speaker 05: So I don't mean to be too blunt about that. [00:48:56] Speaker 05: The best way, in our view, to address the concern about landowners in North Carolina is for the commission to promptly process our amendment. [00:49:02] Speaker 05: We've asked to remove that segment. [00:49:04] Speaker 05: As soon as they do that, our eminent domain authority will not exist as to that part of the project. [00:49:10] Speaker 05: And just in case there's any question, we did voluntarily dismiss all of the eminent domain cases in North [00:49:15] Speaker 05: Carolina. [00:49:16] Speaker 05: There are none pending. [00:49:18] Speaker 05: I would note that none of the standing declarations in this case are from North Carolina landowners suggesting that there's a problem here. [00:49:24] Speaker 05: We have publicly said we want to change the project. [00:49:27] Speaker 05: We have formally applied to FERC. [00:49:29] Speaker 05: I understand the question about, well, is this sort of a cloud on title? [00:49:33] Speaker 02: Will that get worked out in the state proceeding then? [00:49:34] Speaker 02: If you try to, there's a landowner [00:49:38] Speaker 02: Correct. [00:49:38] Speaker 02: And you're trying to take over the property and then they say, whoa, they found an amendment already with the federal commission that says they don't even need eminent domain over here anymore. [00:49:47] Speaker 05: Correct. [00:49:47] Speaker 05: And I think it's also important [00:49:51] Speaker 05: Just filing a condemnation complaint does not give us anything. [00:49:57] Speaker 05: You file a complaint, and that initiates the case. [00:50:00] Speaker 05: And these cases can take years, because you might have a disagreement with the landowner about the amount due for compensation, for instance. [00:50:08] Speaker 05: And you could have a trial on that. [00:50:09] Speaker 05: Now, there are some cases where the pipeline will ask for essentially preliminary relief, in other words, to get access to the property. [00:50:17] Speaker 05: Sometimes we do that because it's the only way we can do even something as simple as an environmental survey. [00:50:22] Speaker 02: There are cases where you need... But if you try to do any of this with respect to a part of the project that's not even a part of the project that you're seeking approval for anymore because it's cut off by the amendment, [00:50:34] Speaker 02: then I would imagine that in the state condemnation proceedings, that would come up as an obstacle to your proceeding. [00:50:40] Speaker 05: I am sure it would be litigated. [00:50:43] Speaker 05: And by very able counsel, there's a reason some of these condemnation cases take years and years. [00:50:51] Speaker 05: I will say, under the Natural Gas Acts review scheme, [00:50:58] Speaker 05: it vests exclusive jurisdiction in the Court of Appeals, this court in this case, to review the certificate. [00:51:05] Speaker 05: So if there is a challenge to the validity of the certificate, our position would be you can't relitigate that in the condemnation case. [00:51:12] Speaker 05: I just want to be totally transparent. [00:51:14] Speaker 05: But it can take years. [00:51:16] Speaker 05: And we're hoping, and we've asked FERC to grant our amendment by the end of this calendar year. [00:51:21] Speaker 05: So we're hoping that whatever cloud exists over the North Carolina landowners, that it will soon be resolved. [00:51:28] Speaker 02: Make sure my colleagues don't have any questions. [00:51:33] Speaker 05: Thank you very much. [00:51:34] Speaker 05: We ask that you do not petition. [00:51:40] Speaker 02: Mr. Luckett, we'll give you the two minutes that you asked for for a rebuttal. [00:51:43] Speaker 04: Thank you, Your Honors. [00:51:44] Speaker 04: I'd just like to address a few quick points. [00:51:47] Speaker 04: First, Your Honor mentioned the issue of rightness. [00:51:51] Speaker 04: This case is right because petitioners are being injured right now by the challenged orders. [00:51:57] Speaker 04: Had FERC not granted those orders the certificate would not be in place. [00:52:01] Speaker 04: Mountain Valley has said it plans to obtain outstanding easements [00:52:06] Speaker 04: prior to the end of 2025, prior to any action on its amendment request. [00:52:12] Speaker 04: So that injury is occurring now. [00:52:14] Speaker 04: Now, Your Honor asked about the ability to raise the pending amendment in the condemnation proceedings. [00:52:21] Speaker 04: In the controlling law where these proceedings are taking place, what the courts have said is we will not look behind a valid FERC certificate. [00:52:29] Speaker 04: We do not answer those questions. [00:52:30] Speaker 04: If there's a FERC certificate in place, we condemn. [00:52:33] Speaker 04: Now, questions of value and things are litigated there. [00:52:36] Speaker 04: But the power to condemn is not. [00:52:38] Speaker 04: That is granted by the FERC certificate. [00:52:41] Speaker 04: And so that interim validity of that certificate is what is causing the injury here. [00:52:48] Speaker 04: And now another point, I heard both counsel for FERC and the interveners talk about vacating the certificates, requiring them to start back at ground zero. [00:52:58] Speaker 04: And in the interveners briefs, they talked about years of delay and millions and millions of dollars of cost. [00:53:05] Speaker 04: Petitioners don't believe there's any support for that. [00:53:09] Speaker 04: In a new application, the company could rely on existing analysis to the extent they remain valid in exactly the same way that it can in an amendment application. [00:53:20] Speaker 04: The primary difference would be that the certificate does not remain valid in the interim, conferring the extraordinary power of imminent domain for a project that the applicant has said it does not intend to construct. [00:53:34] Speaker 04: And for those reasons, the court should vacate the challenged orders and with them, the underlying certificate. [00:53:40] Speaker 02: Thank you, counsel. [00:53:41] Speaker 02: Thank you to all counsel. [00:53:42] Speaker 02: We'll take this case under submission.