[00:00:00] Speaker 01: Case number 21-1042, Edda. [00:00:03] Speaker 01: Village of Mooresville, Vermont, petitioner versus Federal Energy Regulatory Commission. [00:00:09] Speaker 01: Mr. Nolan for the petitioner, Mr. Christensen for the respondent, Ms. [00:00:12] Speaker 01: Murphy for the interviewer. [00:00:15] Speaker 03: Mr. Nolan? [00:00:16] Speaker 03: Good morning. [00:00:18] Speaker 03: Good morning, your honor. [00:00:20] Speaker 03: May it please the court, Paul Nolan, co-counsel, Carolyn Elephant, for petitioner, Village of Mooresville, Vermont. [00:00:28] Speaker 03: First, I'll address the standing issue. [00:00:31] Speaker 03: The issue of certification waiver is so intertwined with the relicensing of Mooresville's project that it ultimately will determine whether a license is issued at all. [00:00:42] Speaker 03: And if issued, it will determine what terms and conditions are included in that license. [00:00:50] Speaker 03: All of which affects the interests of Mooresville in continuing to operate this project for the benefit of spray payers and to provide renewable power to them at low cost. [00:01:01] Speaker 03: If there aren't any questions, I'll proceed. [00:01:06] Speaker 03: Okay. [00:01:06] Speaker 03: I'm going to make three points. [00:01:10] Speaker 03: First point is that there was a functional agreement. [00:01:14] Speaker 03: In fact, I would argue there are expressed agreements. [00:01:18] Speaker 03: The second point is that FERC's interpretation of the statute is an error. [00:01:23] Speaker 03: It misinterprets section 401. [00:01:28] Speaker 03: And third, that waiver cannot be excused by the conduct of an applicant. [00:01:38] Speaker 03: argument or the best example of a functional agreement is actually provided by Intervenor Vermont in their brief at 7 and 8, page 7 and 8. [00:01:48] Speaker 03: And throughout all the briefs, we talk about a littoral habitat study. [00:01:52] Speaker 03: That littoral habitat study was commenced by Vermont in 2014. [00:01:57] Speaker 03: It was finished in August of 2015. [00:02:00] Speaker 03: It was transmitted to Morrisville [00:02:04] Speaker 03: for their consideration and for further discussions on August 14th, 2015. [00:02:11] Speaker 03: On August 27th, 2015, Morrisville wrote to Vermont in an email and said, over 100 page report, a lot of data, we need more time to review this. [00:02:25] Speaker 03: Would you agree to an extension of time? [00:02:28] Speaker 03: This is the second one I call circumvention. [00:02:32] Speaker 03: Vermont wrote back on September 8, 1915, said, we'll give you a little bit of an extension of time, but you have to file something right away. [00:02:43] Speaker 03: In fact, you have to file it by September 9, 2015. [00:02:46] Speaker 03: The morning of September 9, 2015, Vermont emailed Morrisville to remind them that in order to have this deal done, they had to submit [00:03:00] Speaker 03: a second letter withdrawing and resmitting what is referred to by Morseville in the letters as a renewed application, not a new application, a renewed application. [00:03:10] Speaker 03: This is the second time they've done it. [00:03:12] Speaker 03: They filed that letter. [00:03:13] Speaker 03: I went to too much explanation of briefs about the timing when things were done. [00:03:20] Speaker 03: It was accepted that same day by a separate letter from Vermont. [00:03:25] Speaker 03: And then Vermont turned around and took their letter and sent it to FERC [00:03:30] Speaker 03: to give FERC notice that there had been a withdrawn and resubmit of the previous renewed application, the one submitted on November 11th, 2014. [00:03:40] Speaker 03: That's an agreement. [00:03:42] Speaker 03: They asked us to do something. [00:03:43] Speaker 03: We did it. [00:03:44] Speaker 03: And then they actually usurped our role as a licensed applicant and went ahead and told FERC that there was no need to do anything. [00:03:55] Speaker 03: We're taking care of the fact. [00:03:57] Speaker 03: I'll go on to the next issue. [00:03:59] Speaker 03: I believe that FERC. [00:04:00] Speaker 05: FERC didn't really characterize things that way in their decision, did they? [00:04:08] Speaker 03: No, they did not, Your Honor. [00:04:09] Speaker 03: They basically said there's no functional agreement. [00:04:11] Speaker 03: There's no substantial evidence. [00:04:12] Speaker 03: We're just going to go ahead and deny you your petition for a declaratory order. [00:04:18] Speaker 05: And what we review isn't whether FERC could have reasonably [00:04:25] Speaker 05: agreed with your view of the what we're reviewing is whether there was substantial evidence or hurts. [00:04:34] Speaker 05: Findings or conclusion with respect to the facts, right? [00:04:39] Speaker 03: Correct, Your Honor. [00:04:40] Speaker 03: And I'm not disputing that. [00:04:41] Speaker 03: I'm saying that I believe that their interpretation of the record was that they picked in shoes, ignored evidence that was favorable to our position and came up with what they wanted to do. [00:04:53] Speaker 03: And they obviously had KEI and a few other cases going at the same time. [00:04:58] Speaker 03: But they did that in the face that there was an agreement, actually two agreements, to circumvent the one-year rule. [00:05:08] Speaker 03: If I may go on. [00:05:11] Speaker 03: Section 401 is clear. [00:05:13] Speaker 04: Can I just ask, in this case seems very different from Hoopa Valley. [00:05:21] Speaker 03: Yes. [00:05:24] Speaker 03: I'll explain the major difference. [00:05:27] Speaker 03: After Hoopa Valley, any certifying agency would have to be just impaired to enter into an express agreement. [00:05:37] Speaker 03: No one's doing an express agreement. [00:05:38] Speaker 03: What's wrong with... And I mean a written agreement, Your Honor, my apology. [00:05:42] Speaker 04: What's wrong with a state certifying agency in an ordinary case saying, [00:05:53] Speaker 04: They get the application, they're not sure what to do with it. [00:05:58] Speaker 04: They say, we need more information. [00:06:03] Speaker 04: It seems fine. [00:06:06] Speaker 04: You can call it asking for more information. [00:06:08] Speaker 04: You could call it denial without prejudice. [00:06:12] Speaker 04: It just doesn't seem like there's anything wrong with that. [00:06:16] Speaker 04: And on the other side of the transaction, what's wrong with an applicant [00:06:21] Speaker 04: in that situation, you know, he has one or two choices, can forge ahead and force a decision within a year by the agency and then appeal that if it's unfavorable, or the applicant can try to work with the agency and say, okay, I understand your concerns, I'm gonna withdraw, I'm gonna try again. [00:06:42] Speaker 04: It doesn't seem... [00:06:46] Speaker 04: manipulative or improper or to frustrate the federal licensing scheme? [00:06:53] Speaker 03: I would start by everyone has been acting in good faith under all those scenarios. [00:07:01] Speaker 03: And in our own particular case, I think it was good faith. [00:07:03] Speaker 03: We have a village manager, not necessarily retired village manager. [00:07:08] Speaker 03: Maybe not that sophisticated in the duality of having a FERC license going on, where you basically then hand the ball off to the Vermont agency and say, you get to dribble with it for a time. [00:07:19] Speaker 03: But this is important, I think, and I try to make this issue. [00:07:24] Speaker 03: When an agency decides that it doesn't have, first of all, we know now that [00:07:31] Speaker 03: The clock starts to tick when they receive the application. [00:07:35] Speaker 03: That application is so deficient that they can't do anything with it. [00:07:38] Speaker 03: They should deny it with or without prejudice. [00:07:42] Speaker 03: If the application is OK, we can process it, but we need more information. [00:07:47] Speaker 03: But they can't get it in time. [00:07:49] Speaker 03: They should take action, as required by the statute, act on the application and deny it with or without prejudice. [00:07:56] Speaker 03: This lets everyone know, particularly the federal agency, FERC, [00:08:01] Speaker 03: What is going on? [00:08:03] Speaker 03: If I, as an applicant, say, I don't know what the hell is going on, this is not good for my project, and I withdraw the application, OK, I've stopped the one-year clock. [00:08:16] Speaker 03: I'll concede that point to you. [00:08:18] Speaker 03: But then the question happens, what's FERC going to do? [00:08:21] Speaker 03: Each time, in your scenario, FERC has to do something. [00:08:25] Speaker 03: Now, I'm not going to criticize FERC. [00:08:27] Speaker 03: I do that as a regular course of business. [00:08:32] Speaker 03: Either they're asleep at the switch, or they're just negligent, because they really should have said, in your case, this application has been denied with prejudice. [00:08:42] Speaker 03: Burke says, what happened? [00:08:44] Speaker 03: It was inadequate. [00:08:47] Speaker 03: Are you going to fix it? [00:08:48] Speaker 03: No, we're not going to fix it. [00:08:49] Speaker 03: All right, your license application is dismissed. [00:08:52] Speaker 03: We're done. [00:08:53] Speaker 03: Are you going to fix it? [00:08:54] Speaker 03: Yes, we're going to fix it. [00:08:55] Speaker 03: Here's what we're going to do. [00:08:56] Speaker 03: All right, we will permit you to resubmit [00:09:00] Speaker 03: And I don't want to characterize it, whether a new or revised, but it would be, in my mind, a new application with the information provided at the agent. [00:09:08] Speaker 03: And that's why the regs are so interesting now under the EPA, the 2023 regs. [00:09:12] Speaker 03: Because those regs say, when you dismiss something, when you deny something with or without prejudice, tell the applicant why. [00:09:21] Speaker 03: And they know what to fix. [00:09:25] Speaker 03: If I came in, as I, and I'll just reiterate it, if I came in and just went through my application, because I didn't think it was, you know, I wasn't going to get what I wanted, and I think that's the best way to negotiate with you, then FERC has a huge crudgeon. [00:09:39] Speaker 03: They can say, put fooling around, or we're going to dismiss that application. [00:09:44] Speaker 03: You've dismissed my application, just as Morseville's future use of his project is in jeopardy. [00:09:52] Speaker 03: I have a huge investment at risk. [00:09:55] Speaker 03: a little tongue tied, I apologize. [00:09:58] Speaker 03: I have a huge investment at risk. [00:10:00] Speaker 03: If I don't get a new license to continue to operate that project, Burke's going to tell me, surrender your license, and they may, and certainly our friends from American Whitewater here, they're going to say, and maybe you should also [00:10:14] Speaker 03: decommissioned the project by removing it at a dam. [00:10:17] Speaker 03: So we have a lot at risk here and we're not playing games. [00:10:20] Speaker 03: We went and got an agreement for the first extension of time. [00:10:24] Speaker 03: We got an agreement for the second sequencing. [00:10:26] Speaker 03: Both those agreements circumvented the one-year rule. [00:10:31] Speaker 03: Let's say I have eight seconds. [00:10:33] Speaker 03: So let me briefly go into this whole molarchy about [00:10:39] Speaker 03: that I can act uniformly, unilaterally for my own benefit. [00:10:43] Speaker 03: No, you can't. [00:10:44] Speaker 03: That can't be done. [00:10:45] Speaker 03: If I did that, as I argued earlier, then FERC would be on me for not processing in good faith my application. [00:10:53] Speaker 03: No one can act unilaterally. [00:10:55] Speaker 03: I would ask, we don't act unilaterally, and the agency didn't act unilaterally. [00:10:59] Speaker 03: We acted collaboratively to do this study, a study that started in 2014, went to 2015, and necessitated a second reset. [00:11:10] Speaker 03: I'm out of oyster and everything here. [00:11:14] Speaker 05: There are no other questions. [00:11:16] Speaker 03: We'll give you a little bit of time on rebuttal. [00:11:18] Speaker 05: Thank you, your honor. [00:11:22] Speaker 00: Thank you, your honor. [00:11:33] Speaker 00: Matthew Christensen for Respondent Federal Energy Regulatory Commission. [00:11:37] Speaker 00: May it please the court? [00:11:38] Speaker 00: I'd like to start with Judge Katz's hypothetical, which I don't actually think is a hypothetical here. [00:11:43] Speaker 00: Here the applicant had the opportunity to proceed with its application to allow the state the full year to act that the Clean Water Act provides, and the communications that the applicant listed in the record indicate that the applicant believed that the state would act. [00:12:02] Speaker 00: within the one year period, but that the state would grant the application with terms that the applicant disliked. [00:12:08] Speaker 00: So instead of proceeding with the application, giving the state the full year to act, the applicant, both in 2014 and in 2015, withdrew and resubmitted its application. [00:12:18] Speaker 00: So it had more time to negotiate with the state. [00:12:21] Speaker 00: In 2014, I believe the internal communications in Morrisville's own internal communications [00:12:27] Speaker 00: indicated that they believed the state would issue the application, but that the application would contain those conditions, the conditions along the lines that the state proposed in 2013, and that the applicant thought would be burdensome or would somehow prevent it from meaningfully implementing the license. [00:12:45] Speaker 00: In 2015, when they withdrew and resubmitted for the second time, they said they needed additional time to consider the record. [00:12:51] Speaker 00: They needed to consider potential use of microturbines. [00:12:53] Speaker 00: They needed to consider [00:12:54] Speaker 00: and then they also needed to do conduct what they described as a cost benefit analysis. [00:13:00] Speaker 00: If I could direct you to JA 24 and 25, this is the commission's rehearing order, paragraphs 14 to 17. [00:13:07] Speaker 00: The commission considered all of this evidence. [00:13:09] Speaker 00: and concluded that both times the withdrawals and resubmittals were not done as part of the type of coordinated scheme to use this court's language in Hupa to delay the issuance of the 401, but rather so for the benefit of the applicant Morrisville. [00:13:24] Speaker 00: I think that the evidence that the commission [00:13:26] Speaker 00: listed at those paragraphs and 14 to 17 of the rehearing order provides substantial evidence to judge Wilkins question. [00:13:32] Speaker 00: And that's the question before the court, not whether Morrisville is correct in arguing their view of the facts, but rather rather the record in this proceeding provides substantial evidence in support of the commissions. [00:13:43] Speaker 00: And I would submit that those four paragraphs at J 24 and 25 do exactly that. [00:13:50] Speaker 05: Um, was the language in [00:13:57] Speaker 05: Hupa, part of the holding, or is that just really dictum as far as there needing to be some sort of agreement or working together? [00:14:13] Speaker 00: So I think Hupa was, as the Fourth Circuit described it, a narrow holding based on a fairly egregious set of facts. [00:14:20] Speaker 00: I think Hupa pointed to a number of things that I think were concerning to the court. [00:14:24] Speaker 00: But the way in which the court resolved Hupa, as I read it, was based on the presence of that agreement. [00:14:30] Speaker 00: And so the court said, [00:14:31] Speaker 00: In fact, the court specifically said there are a number of questions we don't need to resolve, but an agreement that obligates a state not to act is evidence that the state failed or refused to act over the course of more than one year, which is sufficient for a finding of waiver under 401. [00:14:47] Speaker 00: So I think the direct answer to your question is, I think it was essential to the holding, but it doesn't say, in our standard, it's the only way a state could have failed or refused to act. [00:14:57] Speaker 05: Suppose the state says, [00:15:00] Speaker 05: This is very complicated application. [00:15:04] Speaker 05: We're not going to be able to act on it within a year. [00:15:12] Speaker 05: What we do in those circumstances is just, if it's really complicated, is just deny it. [00:15:19] Speaker 05: If you don't want that to happen, withdraw it and resubmit it. [00:15:24] Speaker 05: And that's what the applicant does. [00:15:28] Speaker 05: They're not really agreeing to anything there. [00:15:31] Speaker 05: They basically kind of have a gun to their head. [00:15:35] Speaker 05: They don't want a denial, so they withdraw it and resubmit it. [00:15:40] Speaker 05: Does that trigger this provision? [00:15:44] Speaker 05: Does that violate the rule in Hupa? [00:15:47] Speaker 00: Well, that's obviously not this case, but I do not think that would violate the rule in Hupa, no, because I think that's a circumstance where the state is prepared to act. [00:15:56] Speaker 00: And they say the act you will get is essentially a denial, a denial without prejudice, which this court's opinion in Turlock, I think, says does not cause waiver. [00:16:03] Speaker 00: And at that point, the applicant has a choice. [00:16:05] Speaker 00: The applicant can proceed and get the denial without prejudice, which is what the state indicates would follow, or the applicant can instead deny or withdraw and resubmit, thereby restarting the one-year clock. [00:16:16] Speaker 00: And I think if you look at the stat, the emphasis in the statute is on the state failing or refusing to act within the one-year period following an application. [00:16:24] Speaker 00: And I think in the hypothetical that you presented, there's no failure on the part of the state to act. [00:16:28] Speaker 00: They're quite ready to act. [00:16:30] Speaker 00: But then the choice is on the applicant, whether they want to move ahead and receive that decision from the state or instead withdraw and resubmit and thereby restart the one year. [00:16:43] Speaker 04: What's the talks about frustrating the purpose of the regulatory scheme and if the [00:16:54] Speaker 04: State and the applicant are in cahoots to do a seriatim withdrawal and resubmission. [00:17:02] Speaker 04: Somehow that frustrates FERC. [00:17:07] Speaker 04: I'm just having a hard time understanding that. [00:17:11] Speaker 04: What's your understanding? [00:17:13] Speaker 04: I mean, my sort of gut reaction to that is, [00:17:17] Speaker 04: Scheme is set up so that you need three parties to agree for a license to be granted. [00:17:24] Speaker 04: You want the operator to want to pursue it. [00:17:27] Speaker 04: You need the state to certify it and you need FERC to certify it and any one of them, if any one of them says no, that's not frustrating the scheme, that's the scheme operating. [00:17:41] Speaker 04: Yeah, I agree. [00:17:42] Speaker 04: I'm just having a hard time getting my hands around [00:17:47] Speaker 04: the rationale of Hupa, and I guess the best I can come up with, I mean, tell me if you agree or not, is that when you have a scheme like that, the one-year licenses with the old conditions just keep getting renewed and somebody, an environmental group or a tribe or whoever wants updated conditions, is that what is driving this? [00:18:14] Speaker 04: Is that the concern that's driving this? [00:18:15] Speaker 00: I think that could be part of the concern. [00:18:17] Speaker 00: I think, to your point, Section 401 specifically contemplates that the licensing proceeding might not move forward at all if the state doesn't grant the certification. [00:18:25] Speaker 00: I think what I understood to animate the court in Hoopa was... Sorry, go ahead. [00:18:31] Speaker 04: I mean, if that becomes a real problem, don't you have a trump, which is you can threaten not to give the one-year renewal? [00:18:41] Speaker 04: You can say this is getting ridiculous. [00:18:43] Speaker 04: We need 2025 conditions instead of 1975 conditions. [00:18:50] Speaker 04: Get your act together or we won't give you the one year renewal. [00:18:54] Speaker 00: I think that's potentially possible to my knowledge. [00:18:56] Speaker 00: The commission has never issued a threat like that. [00:18:59] Speaker 00: Um, but if I can do just to go back to your question about what was animating Hoopa, um, I think it was the fact that 401 in the one year time limit existed on or according to the legislative history that was put in place to prevent sheer inactivity on the part of the state. [00:19:13] Speaker 00: And so I think it's, you have this three part, um, licensing, you know, this three actor licensing proceeding. [00:19:18] Speaker 00: And I think the idea of having that multi-part procedure, that multi, [00:19:22] Speaker 00: just been proceeding, I'll call it, is that they'll all move forward in good faith. [00:19:26] Speaker 00: And that's why you can have this scheme. [00:19:28] Speaker 00: And if at some point, two of the three in that case basically said, no, we're not going to move this forward, at that point, you are frustrating the proceeding. [00:19:36] Speaker 00: And I think that's why Hoopa says it is the failure to act. [00:19:42] Speaker 00: I believe it was deliberate and contractual idleness on the part of the state. [00:19:45] Speaker 00: And that seems inconsistent with the spirit of 401 and with the legislative history that says the one-year limitation is put in place to prevent sheer inactivity on the part of the state, which is exactly what we saw in that case. [00:19:57] Speaker 07: How did the party like party on the other side get out of a box of the sort that they found themselves in? [00:20:05] Speaker 07: What should their strategy be? [00:20:09] Speaker 00: And just so I can understand your hypothetical, Judge, the box is that they disagree with the conditions. [00:20:13] Speaker 00: They want to end up with a waiver because the state's not moving. [00:20:17] Speaker 00: Well, respectfully, Your Honor, I think the state was prepared to move. [00:20:20] Speaker 00: Both withdrawals and resubmittals took place, I think, roughly 10 months after the applications were submitted, and both times the record of the proceeding suggested that Morrisville itself believed the state would proceed with issuing the water quality certification [00:20:35] Speaker 00: just with conditions that it didn't like. [00:20:37] Speaker 00: So if that was the box, then I think the thing to do would be to proceed, get the water quality certification, and then litigate any conditions they objected to in state court, which is exactly what happened here, where Morrisville appealed Vermont's certification. [00:20:51] Speaker 06: I mean, that's the answer, which I hadn't remembered the answer, at least for me anyways. [00:20:57] Speaker 06: Challenging the state court. [00:20:58] Speaker 06: That's their answer. [00:20:59] Speaker 00: Absolutely. [00:20:59] Speaker 00: And I think they they vigorously pursued it all the way to the state Supreme Court, if I recall, which largely affirmed the conditions of Vermont eventually issued. [00:21:09] Speaker 05: No further questions. [00:21:12] Speaker 05: We'll hear from intervener. [00:21:14] Speaker 05: Thank you. [00:21:15] Speaker 05: Good morning. [00:21:26] Speaker 02: Good morning and may it please the court. [00:21:28] Speaker 02: Laura Murphy for the Vermont Agency of Natural Resources, intervener in this case. [00:21:34] Speaker 02: So I have three short points on standing. [00:21:37] Speaker 02: First, it is a foundational principle of standing that the injury must flow from the conduct complained of. [00:21:45] Speaker 02: In this case, the conduct complained of is that A&R, the Agency of Natural Resources, did not issue Morrisville certification within one year of Morrisville's original request. [00:21:56] Speaker 02: This is the purported failure to act that is the basis of Morrisville's petition. [00:22:01] Speaker 02: But Morrisville does not claim any injury flowing from this alleged inaction and in fact explicitly disclaims it. [00:22:09] Speaker 02: In its reply brief at page 6, quote, the injury to Morrisville is caused by the FERC orders on review, not to any delay by Vermont. [00:22:18] Speaker 02: There are similar statements on page 24 of Morrisville's reply. [00:22:22] Speaker 02: And this morning council also said that it's standing [00:22:25] Speaker 02: blows from the terms and conditions of the certificate, not from any alleged inaction on the part of her mind. [00:22:31] Speaker 02: Second, there is no redressability. [00:22:33] Speaker 02: There is nothing for the court to fix. [00:22:35] Speaker 02: There is no inaction that needs to be stopped. [00:22:38] Speaker 02: A&R issued the certification almost eight years ago, more than four years before Morrisville ever sought waiver. [00:22:45] Speaker 02: And this is different from Hoopa Valley, where this court noted that it would not be futile to issue a waiver order because it would allow Hoopa, which was the petitioner in that case, where the application was still pending, to come back to the table at FERC. [00:22:59] Speaker 05: What does it matter that we didn't seek waiver until long after the actions of A&R? [00:23:07] Speaker 05: I mean, their complaint [00:23:11] Speaker 05: their response to your lack of standing argument is that, look, if FERC simply would just find that Vermont waived its right to have a say in the certification, then we wouldn't have to be subject to the conditions that the state insisted upon, right? [00:23:34] Speaker 05: Isn't that their argument? [00:23:35] Speaker 02: That's exactly their argument. [00:23:37] Speaker 02: And the injury there flows from the conditions and the certification. [00:23:41] Speaker 02: The remedy for that injury is to go to state court, litigate the conditions, which is exactly what happened here, but they have no injury from remedy is to say that that. [00:23:50] Speaker 05: I mean, what's the whole point of 401? [00:23:54] Speaker 05: 401 has to have some legal effect. [00:23:58] Speaker 02: So the point of 401 writ large is to allow states to protect water quality. [00:24:03] Speaker 02: The point of the waiver provision is to prevent inaction on the part of the state. [00:24:08] Speaker 05: Yeah, but it has an impact when it's invoked by FERC, right? [00:24:13] Speaker 05: And the impact is then to set aside any attempt by the state or any permit requirements by the state, right? [00:24:25] Speaker 02: Not necessarily. [00:24:26] Speaker 02: So that could be an outcome. [00:24:28] Speaker 02: So if a state has not acted on a pending application, which is not what happened here because the application was withdrawn, if the state has not done that and a year passes, my understanding is that FERC, you know, in the normal course may go ahead, issue the license and say, dear state, you waived your authority. [00:24:43] Speaker 02: We're not including your conditions. [00:24:45] Speaker 02: FERC could include the conditions if it wanted to. [00:24:50] Speaker 02: I can't recall what happened. [00:24:52] Speaker 02: So in Hoopa, when the waiver petition was filed, the application, the 401 application was still pending. [00:24:58] Speaker 02: So there was something, so it wasn't as if, so right now there's no delay, and this really gets to the redressability. [00:25:04] Speaker 02: There's no delay from any purported state inaction on the certification. [00:25:08] Speaker 02: There's nothing to fix there. [00:25:10] Speaker 02: That was different from Hoopa Valley. [00:25:12] Speaker 02: And with respect to the injury that needs to be present for a waiver petition, this court's case in Weaver's Cove [00:25:20] Speaker 02: is on point because it was very clear that to have standing for waiver under 401, the injury must flow from the alleged state inaction. [00:25:29] Speaker 02: And the court said, the applicant here hasn't claimed any injury from the inaction, and that's exactly what we have here. [00:25:34] Speaker 02: And just quickly, on the issue of Morrisville saying, well, we were agreed by FERC's order because if we have waiver, we don't have to comply with the conditions [00:25:46] Speaker 02: In Hydro Investors, also from this court, and Wilcox from the Eighth Circuit, those cases were very clear that to come to court, the petitioner needs to have standing for the relief it sought before the agency. [00:25:57] Speaker 02: So that is the relevant standing inquiry. [00:26:00] Speaker 02: Was there injury from inaction? [00:26:03] Speaker 02: And is any edge alleged inaction redressable? [00:26:06] Speaker 02: And it's not because there's no inaction to stop. [00:26:08] Speaker 02: Morseville should not be allowed to bootstrap its way into court. [00:26:12] Speaker 02: And more generally, applicants should not be able to game the system in this way. [00:26:16] Speaker 02: we respectfully ask the court to dismiss for lack of standing. [00:26:20] Speaker 05: So when would an applicant be able to base standing on FERC's improper interpretation of Section 40? [00:26:40] Speaker 02: So if there's still a 401 application pending, [00:26:45] Speaker 02: Let's say there's a pending application. [00:26:47] Speaker 02: The state hasn't done anything, let's say, for five years, or let's just say for one and a half years. [00:26:52] Speaker 02: And the applicant goes to FERC and says, or even doesn't go to FERC, goes to FERC and says, please declare waiver. [00:26:59] Speaker 02: And FERC says, no. [00:27:00] Speaker 02: The application is still pending. [00:27:01] Speaker 02: There is still delay that needs to be fixed. [00:27:05] Speaker 02: I think it's safe to say the applicant would have standing under those circumstances. [00:27:12] Speaker 02: As Morseville has conceded, it's not claiming any injury from delay. [00:27:16] Speaker 02: There is none. [00:27:17] Speaker 02: And again, coming back to this redressability point, if there's been a certification that's already been issued, there's nothing to fix under the failure to act provision. [00:27:27] Speaker 05: So if the state takes a year and a day to act on an application and they impose conditions that an applicant doesn't like, [00:27:43] Speaker 05: And the applicant goes to FERC and says, well, under 401, their certification and their conditions are void. [00:27:56] Speaker 05: So set those aside. [00:27:59] Speaker 05: You're saying they wouldn't have standing because at that point, FERC can't redress any delay? [00:28:09] Speaker 02: They wouldn't have Article III standing. [00:28:10] Speaker 02: That's correct. [00:28:12] Speaker 02: Now, whether they could still decide it, I think, is a separate question, but they wouldn't have Article three standing to pursue that remedy in court. [00:28:19] Speaker 05: I understand your position. [00:28:21] Speaker 05: All right, thank you. [00:28:22] Speaker 05: Thank you. [00:28:30] Speaker 05: All right, Mr. Nolan, I think you're out of time, but we'll give you two minutes. [00:28:37] Speaker 03: Neither FERC nor Vermont are entitled to deference. [00:28:41] Speaker 03: The EPA speaks. [00:28:43] Speaker 03: The EPA has spoken twice, 2020 and 2023, when it implemented regulations that specifically said under Section 401, what actions are required, grant, deny, or expressly waive. [00:28:58] Speaker 03: Mooresville went to FERC and said, Vermont didn't take any of those actions. [00:29:05] Speaker 03: Therefore, under 401, their certification authority is deemed waived. [00:29:11] Speaker 03: We can talk about the terms and conditions. [00:29:14] Speaker 03: Those were litigated at the court, state court as properly. [00:29:18] Speaker 03: Our issue here and our injury here is that they actually had no authority to do anything. [00:29:25] Speaker 03: We went to FERC, asked them to declare that FERC refused to do that, came up with, you know, well, that's, you know, even though the statute doesn't say [00:29:36] Speaker 03: that withdraw and resubmit is not OK. [00:29:38] Speaker 03: We think it's OK. [00:29:39] Speaker 03: We think it's OK when it's done for unilateral action and your mutual benefit, whatever that really means in this circumstance. [00:29:46] Speaker 03: But I want to address one point that you raised, is that the FERC now says the reasonable period of time, no matter what, for any application, 1 kilowatt, 100 megawatt hydro project is now one year. [00:30:01] Speaker 03: And therefore, they've now said, OK, it's always one year. [00:30:04] Speaker 03: We don't know until an application, a 401 application is actually filed with the state how much will be involved. [00:30:11] Speaker 03: The bright line that we asked for is that you submit an application. [00:30:17] Speaker 03: We know it starts. [00:30:18] Speaker 03: That's the technique of analysis, I argue. [00:30:20] Speaker 03: Then we decide, has a year lapsed? [00:30:23] Speaker 03: And if a year has lapsed, then their certification authority is waived under the statute. [00:30:30] Speaker 03: If it hasn't lapsed and for some reason we withdrew and resubmitted because we thought we could cut off the one-year period as you heard Burke's attorney say, that's not what went on in this proceeding. [00:30:44] Speaker 03: We were told we had to file by September 9. [00:30:47] Speaker 03: Why did we have to file by September 9, 2015? [00:30:50] Speaker 03: It's because the state said they needed time to issue the notice to have the hearing and issue a 401. [00:30:56] Speaker 03: Thank you. [00:30:58] Speaker 05: Thank you. [00:30:58] Speaker 05: We'll take the matter under its eye.