[00:00:00] Speaker 03:
Case number 25-1092, American White Water Petitioner versus Federal Energy Regulatory Commission.

[00:00:08] Speaker 03:
Ms.

[00:00:08] Speaker 03:
Nicholson for the petitioner, Mr. Shaner for the respondent.

[00:00:13] Speaker 06:
Good morning, Ms.

[00:00:13] Speaker 06:
Nicholson.

[00:00:16] Speaker 02:
Start when you're ready.

[00:00:18] Speaker 02:
Good morning, and may it please the court.

[00:00:20] Speaker 02:
My name is Haley Nicholson, and I represent the petitioner, American White Water.

[00:00:25] Speaker 02:
American Whitewater followed the requirements in Rule 214 to file for late intervention and for surrender proceedings for the Niangwa Hydroelectric Project in Missouri.

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At first, there was nothing but green flags in response to American White Water's motion.

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It was an early stage of the proceedings before any final orders had been issued.

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No party opposed American White Water's intervention.

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And two months after American White Water's motion, FERC issued the Environmental Assessment, or EA, for the proposed surrender, which listed American White Water in a table as an intervener alongside the other parties who had already intervened in the proceedings.

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American Whitewater then filed timely comments on the EA advocating for surrender with dam removal.

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It was only then that those initially green flags suddenly became red.

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Just two weeks after these comments were filed, FERC denied American Whitewater's motion.

[00:01:18] Speaker 06:
Is this case moot because this commission issued its order approving the license surrender without

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taking down the dam in December.

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And so I'm unclear as to what relief this court could give you at this point, even if you were able to intervene.

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This case is not moot, Your Honor, for several reasons.

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The first is this court's decision in Public Service Commission of State of New York versus Federal Power Commission, where in that case they were dealing with the denial of intervention from the Federal Power Commission proceedings.

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And they held that once a petition for review of that denial was properly filed, quote, it cannot be mooted by any action of the Federal Commission.

[00:02:08] Speaker 06:
You couldn't properly file a, I know you filed a probably protective petition for review, but you have to be a party to the proceeding to file a petition for review.

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Is your theory that if you went here and then we remand, just for FERC to apply its test again, we can't dictate that they let you intervene.

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That's not the type of area you've identified.

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And if they then were to decide to let you intervene, that would somehow ratify a petition that was filed when we were not a party?

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In this case, Your Honor, the Federal Power Act, there's a section in 16 USC 825 LB that allows for FERC to modify its rehearing request orders.

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So in this case, even after the petition for review was filed in that related case on the surrender order, FERC still has the ability to modify its findings if it does find on remand that American Whitewater is properly a party to these proceedings.

[00:03:15] Speaker 06:
I'm first giving no indication that has any interest in modifying its decision.

[00:03:20] Speaker 06:
I mean, instead we consider your environmental assessment comments, even without intervention, and you haven't, I mean, you're saying that they didn't.

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And so I'm still unclear as to, I mean, it seems rather speculative that they would both have, we have to speculate both that they would grant you intervention and that then they would,

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a year after the fact, decide to modify.

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But even if they modified it, you would only get to seek review of the modified decision, not the original decision to surrender the license.

[00:03:59] Speaker 02:
That's correct, Your Honor.

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And in this case, we're dealing with a procedural injury.

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So redressability looks a little bit different.

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It's the mere possibility that the order could be changed on remand that matters.

[00:04:16] Speaker 06:
Well, I'm not sure that works here when, you know, processes are going forward.

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And, I mean, we would have to both remand your intervention decision and direct them to reopen.

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they're underlying proceeding, right?

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Normally those procedural injuries come up at the same time.

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There's a challenge to the merits in the same case.

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And so then we can also send the merits back and say, let us know if anything changes.

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But we don't have a petition here.

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Nobody has petitioned for review.

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No party has petitioned for review of the decision to surrender the license.

[00:05:04] Speaker 06:
Beyond American white water, Your Honor.

[00:05:06] Speaker 06:
You're not, I said no party.

[00:05:08] Speaker 06:
You're not a party.

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And even if you become a party later, it'll be way after the time for filing a petition for review from the surrender decision has run.

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Your theory is that it recessed the clock?

[00:05:20] Speaker 02:
No, Your Honor.

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It's the 16 U.S.C.

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825 L.B.

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that will allow FERC to modify its decision on American White Water's hearing request, which included merits discussions.

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It wasn't about intervention.

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So FERC could modify its discussion even after the petition for review was filed, and this court would still have jurisdiction to hear it.

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And that case that I cited, the Public Service Commission, they were dealing with a remarkably similar situation in which there was a denial of intervention and then a final order.

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And the court still held that it could not be mooted by that final order of the Federal Commission.

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And Public Service Commission has not been overruled by this court and should still be followed.

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What's the site?

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The site for that case, Your Honor, is 284F2D200.

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And that's DC Circuit 1960.

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So I just want to make sure I understood what you just said, because I thought that you had already submitted any substantive comments that you had about the decision.

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And the only issue is really whether you're an intervener or not, and whether your motion to intervene should have been granted.

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And the only stakes for that is then you would have the right to appeal this decision.

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Because in terms of

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just submitting your thoughts and comments.

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I think that happened and the commission said it would consider, and I assume that it did because it said it would consider those substantive comments.

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So I thought the only issue now is this motion to intervene in whether or not you could therefore appeal.

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Am I correct?

[00:06:56] Speaker 02:
That's the primary issue, Your Honor, and it's important that that's the issue because FERC changed its rationale for the approval of the surrender without dam removal in between the EA and the surrender order.

[00:07:08] Speaker 02:
It dropped its rationale for environmental justice, and because that environmental justice rationale wasn't in the EA, no party had the ability to comment on it.

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And American White Water's request for rehearing of the surrender order discusses the merits of that approach for the first time.

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So it's not just that the consideration of the EA comments removes any possible remedy that American Whitewater could seek in this case.

[00:07:32] Speaker 06:
We had a case called Narragansett Indian Tribe Historical Office versus FERC where we held that once there's no more proceeding before the agency, there's just no ongoing proceeding in which you could intervene, intervention, even a wrongful dial of intervention,

[00:07:51] Speaker 06:
is moot and given that nobody else has sought review, I just I don't know what proceeding you're going to intervene in.

[00:08:05] Speaker 02:
Yes, Your Honor.

[00:08:05] Speaker 02:
Technically, the surrender proceedings are still live because the surrender order is not yet effective.

[00:08:11] Speaker 02:
It's only effective once Xiaomi completes the operations for the decommissioning activities.

[00:08:16] Speaker 06:
Yes, but that is some paperwork and inbox checking and reports from so and so and so and so.

[00:08:23] Speaker 06:
And if they didn't do that, you could challenge their failure to get the engineer report saying they've decommissioned the plant.

[00:08:31] Speaker 06:
But that's not what you want to challenge.

[00:08:34] Speaker 06:
No, your honor, but this any ongoing proceeding about the dam surrender, the surrender of the license and the surrender of the license without taking down the dam itself.

[00:08:46] Speaker 02:
If this court were to grant American Whitewater's request, American Whitewater would still be able to have that judicial review of the final surrender order.

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American Whitewater is not seeking to reopen the proceedings in any way.

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And this court found that after a denial of intervention, petition for review was properly filed in that Public Service Commission case.

[00:09:06] Speaker 06:
And no one else in Public Service Commission had filed a petition for review?

[00:09:10] Speaker 02:
Not that I'm aware of, Your Honor.

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And in that case, it was still that they sought judicial review after a final order was issued.

[00:09:17] Speaker 06:
And this court still- I'm asking if in that case, was there still a pending proceeding either in this court on petition for review or before the agency in which you could have intervened?

[00:09:29] Speaker 06:
I just don't know what the proceeding is as opposed to forms coming in from dam operators.

[00:09:35] Speaker 02:
In that particular case, Your Honor, the proceeding was still before the D.C.

[00:09:39] Speaker 02:
Circuit because the petition- That's very different.

[00:09:42] Speaker 06:
Not necessarily- There's no challenge to the merits before us by a party.

[00:09:47] Speaker 02:
American Whitewater did seek judicial review of the final suit.

[00:09:50] Speaker 06:
I know, but it's just the statute requires a petition for review by a party.

[00:09:56] Speaker 06:
That's just statutory.

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We're jurisdictional.

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We don't have any choice in that matter.

[00:10:01] Speaker 06:
And so in the Public Service Commission case, were there petitions for review pending before this court from people who were already parties?

[00:10:11] Speaker 02:
No, Your Honor.

[00:10:12] Speaker 02:
In that case, they were dealing with intervention petitions in a case very similar to this one.

[00:10:16] Speaker 02:
And there, like American Whitewater, the petitioners filed a petition for review of the intervention denial as well as a petition for review of the final order.

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And this court in that case still found that this court could hear the intervention denial and that the case would not be mooted by any action of the commission.

[00:10:34] Speaker 02:
And the court provided reasoning there in saying that a contrary holding of mooting a case after a final order had been issued, quote, would create too ready a means by which the administrative agencies could thwart the power of a reviewing court to pass upon the validity of orders denying intervention.

[00:10:52] Speaker 02:
Such applicants for intervention have a right to judicial review of such denials, unquote.

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But even if the sport finds that American Whitewater's petition could be mooted by an action of the Federal Commission, the capable of repetition yet evading review exception to the mootness doctrine still applies.

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And that's because the challenge action here was too short to be fully litigated.

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The surrender order came down the day before American Whitewater's supply brief was due in this case.

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And given the long-standing inconsistent practice of FERC on Rule 214's application to late intervention, it's reasonably likely that American Whitewater would be subject to the same action again.

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And if this court finds that the mootness issue is relevant, it has not been briefed by either party, and American Whitewater would welcome the opportunity to brief.

[00:11:38] Speaker 03:
Why didn't you file a 20HA letter to inform the court of these developments and to make these arguments?

[00:11:45] Speaker 02:
The developments that you're talking about, Your Honor, the surrender order or different developments?

[00:11:50] Speaker 03:
Well, the surrender order and then you've already filed a petition for reuse of the surrender order.

[00:11:55] Speaker 03:
All that seems very relevant to what we're talking about here today.

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And you never brought to our attention.

[00:12:01] Speaker 03:
I think some law clerks found this information.

[00:12:04] Speaker 03:
Is it difficult for us?

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Now you're saying it's not briefed, but part of that is your fault, is it not?

[00:12:09] Speaker 02:
No, Your Honor.

[00:12:10] Speaker 02:
American Whitewater noted that the surrender order had been issued in its reply brief because it had been issued the day before the reply brief was due.

[00:12:18] Speaker 02:
And we noted in the reply brief that if this was an issue by this court, that it should be briefed further.

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But in that particular instance, we noted it was in a footnote that there was nothing about the issuance of the surrender order that affects the particular validity of this case before this court.

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And that's consistent with the Public Service Commission case that I was citing.

[00:12:43] Speaker 06:
I've distracted you from making your actual intervention argument.

[00:12:47] Speaker 06:
We want to go ahead for a few minutes.

[00:12:50] Speaker 02:
Thank you, Your Honor.

[00:12:51] Speaker 02:
In this case, FERC's decision should be rejected for several reasons.

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The first is that its interpretation is contrary to the text of the regulation, regulatory history, and binding precedent.

[00:13:02] Speaker 02:
The most important issue here is this court's decision in Swanson Mining Corp versus FERC.

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where this court held that the determination of facts of why a proposed intervener was unable to file a timely petition for intervention, or D1I, quote, is not the sole component of good cause under FERC's rules, end quote.

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This is directly contrary to FERC's interpretation in this case, and that court's decision should be followed by this court.

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But even if this court agrees with FERC's interpretation of the regulatory language, this court should still reject FERC's decision as arbitrary and capricious.

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This court's precedent makes clear that even in cases where agencies have broad authority and discretion to act on requests before them, they still must apply decision making criteria in a consistent manner.

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In this court's decision in Airmark Corp versus FAA.

[00:13:53] Speaker 03:
I just want to make sure I've got this right.

[00:13:56] Speaker 03:
You were nine months late to file your motion and your only excuse was that you only recently became aware of this proceeding and you were unaware that the deadline had passed.

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And you think it was arbitrary and capricious for the agency to deny your petition to intervene?

[00:14:11] Speaker 02:
That's correct, Your Honor.

[00:14:12] Speaker 02:
FERC has not stated any principle that after a set number of months, such as nine months, means that a denial of a late intervention is warranted.

[00:14:20] Speaker 02:
And in this case, FERC is inconsistent.

[00:14:23] Speaker 03:
Well, you don't dispute that that's a relevant factor.

[00:14:27] Speaker 03:
How late were you?

[00:14:28] Speaker 03:
And I don't see any authority

[00:14:32] Speaker 03:
where the lateness was this late, nine months, where they granted emotion trickling.

[00:14:39] Speaker 02:
A relevant case, Your Honor, where it has been passed this level of time is cited in our reply brief.

[00:14:44] Speaker 02:
And that's the transcontinental gas pipeline case.

[00:14:47] Speaker 02:
And in that case, FERC granted late intervention to two governmental agencies and one nongovernmental organization over a year past the intervention deadline, even in a case where they didn't find good cause.

[00:15:00] Speaker 03:
But this is a discretionary

[00:15:02] Speaker 03:
Call and it's fact bound, et cetera.

[00:15:05] Speaker 03:
And I just think it's difficult for you to say that it's arbitrary and capricious for them to deny when the only good cause that you gave was that you didn't know about it.

[00:15:17] Speaker 02:
The asserted good cause by American Whitewater, Your Honor, is not D1I administrative oversight.

[00:15:23] Speaker 02:
American Whitewater's asserted good cause is based on an evaluation of all of rule 214D's factors.

[00:15:28] Speaker 02:
So the fact that there was no evidence of prejudice or disruption and that American Whitewater's interests would not be adequately represented by parties in the proceeding.

[00:15:37] Speaker 02:
And the D1I good cause is not the same thing as B3 good cause.

[00:15:41] Speaker 02:
And so this instance, the mere fact that there was administrative oversight does not doom American Whitewater's motion.

[00:15:47] Speaker 02:
And as this court held in Airmark Corp versus FAA, discretion to agency expertise is not an excuse for arbitrary and capricious behavior.

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The court held there that, quote, deference to agency authority or expertise, however, is not a license to treat like cases differently, end quote.

[00:16:05] Speaker 02:
And that's precisely what Ferguson made.

[00:16:07] Speaker 06:
is the length of delay just by itself a factor?

[00:16:12] Speaker 06:
Or is it only when it intertwines with prejudice, disruption, those types of things?

[00:16:18] Speaker 02:
To my knowledge, Your Honor, FERC has not stated a specific principle on a certain number of months should be the timeline in which a denial should occur.

[00:16:25] Speaker 02:
Is that one of the D factors?

[00:16:26] Speaker 02:
No, Your Honor.

[00:16:27] Speaker 02:
And you're correct.

[00:16:28] Speaker 06:
Apart from, obviously, sometimes length of delay

[00:16:35] Speaker 06:
affect prejudice or disruption.

[00:16:38] Speaker 02:
That's correct, Your Honor.

[00:16:39] Speaker 02:
And Your Honor is correct that to the extent that timing is considered, it really goes to the prejudice and disruption factors, which there was no evidence of in this particular case.

[00:16:48] Speaker 02:
And FERC has on many occasions looked at a lack of prejudice and disruption to find good cause to grant late intervention.

[00:16:55] Speaker 02:
And so the fact that FERC has departed from its precedent, finding that an evaluation of the rule 214D factors is B3 good cause is arbitrary and capricious in this case.

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And finally, I just want to note that the danger of arbitrariness in this case is heightened.

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As this court found in Network IP LLC versus FCC, where regulation standards are, quote, opaque, the danger of arbitrariness or worse is increased.

[00:17:23] Speaker 02:
Complainants the agency likes can be excused, while difficult defendants can find themselves drawing the short straw," end quote.

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Where FERC is so inconsistent in its precedent of applying good cause administrative oversight and the rule 214D factors, there's nothing stopping FERC from applying rule 214 in a way to keep out flaws from its decision in the record and to prevent interested parties from seeking judicial review of law decision.

[00:17:49] Speaker 02:
For the foregoing reasons, American Whitewater

[00:17:53] Speaker 06:
Do you have any questions?

[00:17:59] Speaker 02:
For the foregoing reasons, America Whitewater respectfully requested this court grant expedition to vacate first intervention orders.

[00:18:04] Speaker 06:
Thank you.

[00:18:25] Speaker 01:
I'd like to begin with the threshold.

[00:18:37] Speaker 01:
The merits order in this case is a final and non-appealable order that could only be subject to an improper collateral attack.

[00:18:46] Speaker 01:
As Judge Mallette pointed out, the merits proceedings have largely finished.

[00:18:49] Speaker 01:
I would like to add a gloss on that.

[00:18:52] Speaker 01:
My friend is correct that there are post-order submissions.

[00:18:56] Speaker 01:
from the current licensee to a field office, and then the field office will issue approval of the surrender of the license, at which point the commission will lose jurisdiction over the project entirely, and jurisdiction will revert to the state.

[00:19:09] Speaker 01:
I understand that my friends have moved for an administrative stay at the commission level.

[00:19:15] Speaker 01:
I'm not aware of a commission action on that right now, so as I understand it, the surrender order is still entirely in effect.

[00:19:22] Speaker 01:
Because they were not, I'm sorry.

[00:19:24] Speaker 06:
One thing I'm really confused about.

[00:19:25] Speaker 06:
Sure.

[00:19:26] Speaker 06:
Because the surrender order says it will not become effective until you get this commission of dam safety letter saying, until the commission gets this letter from the division of dam safety saying the plant itself.

[00:19:43] Speaker 01:
You have properly, you've complied with the conditions of the ordering paragraph.

[00:19:47] Speaker 01:
And at that point.

[00:19:47] Speaker 06:
The project facilities are decommissioned.

[00:19:49] Speaker 01:
And at that point the license surrender becomes effective.

[00:19:51] Speaker 06:
What does effective mean?

[00:19:52] Speaker 01:
The commission loses jurisdiction over the project.

[00:19:55] Speaker 01:
The license has been surrendered.

[00:19:57] Speaker 06:
It's adjusting to lose jurisdiction to.

[00:20:00] Speaker 06:
So, is that is that sort of the last report because it seems like there's a number of reports or things that come in.

[00:20:06] Speaker 01:
There are various submissions.

[00:20:07] Speaker 06:
This has to be the last one, then, if you're losing track.

[00:20:09] Speaker 01:
The letter from the field office is the last sort of statement that would terminate the commission's jurisdiction over the dam, as I understand things.

[00:20:17] Speaker 06:
Do you know where we are in that process?

[00:20:19] Speaker 06:
Is that the only thing that the commission is now waiting for?

[00:20:22] Speaker 06:
Have all the other paperwork been filed?

[00:20:25] Speaker 01:
My apologies.

[00:20:25] Speaker 01:
I don't know that exactly in terms of the submission, but I would understand that the letter from the field office as being the critical event here that would terminate jurisdiction entirely.

[00:20:35] Speaker 06:
Let's just assume hypothetically that we found that FERC not only made an improper decision here, but imagine we actually said you improperly denied intervention.

[00:20:50] Speaker 06:
So I know there are steps there normally, but just for this hypothetical, I'm trying to understand how this all works.

[00:20:57] Speaker 06:
If we had decided you were improperly denied intervention, they of course should have been allowed to intervene and remand for action.

[00:21:04] Speaker 06:
And consistent with that, what would the commission do with the fact that it had a proceeding go forward

[00:21:14] Speaker 06:
without somebody who was supposed to be a party.

[00:21:16] Speaker 01:
To be frank with Your Honor, I'm not sure that we've seen an example of this, in part because the court, as I understand it, has never overturned.

[00:21:22] Speaker 06:
Well, she cited the Public Service Commission case.

[00:21:24] Speaker 01:
Uh, that is true.

[00:21:25] Speaker 06:
I believe it's not exactly for it.

[00:21:28] Speaker 01:
But if I, I think that was a federal power act case before the commission.

[00:21:32] Speaker 01:
And frankly, before a lot of modern standing, right?

[00:21:34] Speaker 01:
This is just ability doctrines generally.

[00:21:37] Speaker 01:
So I'm not sure how truly viable is this case.

[00:21:39] Speaker 01:
I think Narragansett is probably a much better factual analog here where the facts really have changed.

[00:21:45] Speaker 01:
And the key facts here are that.

[00:21:47] Speaker 01:
The order issued, there were 60 days for a party to the proceedings.

[00:21:51] Speaker 06:
We have both cases on the books and I'm not sure what to do.

[00:21:53] Speaker 06:
I mean, I haven't found, I think we've cited Public Service Commission relatively weak recently in the, beyond nuclear decisions.

[00:22:01] Speaker 06:
So I don't think this panel is at liberty to brush it off.

[00:22:05] Speaker 01:
That's true.

[00:22:06] Speaker 01:
It is still a good case law.

[00:22:09] Speaker 06:
Burke's sitting there and it's got this precedent.

[00:22:10] Speaker 01:
I would think also that the statements on sort of what would happen in terms of future commission proceedings are at best dicta because the procedural rules might have changed and it doesn't lay out a clear path.

[00:22:19] Speaker 00:
Have they changed?

[00:22:21] Speaker 06:
Well, you have the authority to reopen, and that's what was discussed there.

[00:22:26] Speaker 06:
So you'll have to reopen.

[00:22:28] Speaker 01:
We do have our reopening rule.

[00:22:30] Speaker 01:
But as Your Honor noted, all of the substance that petitioner would raise in the merits proceeding, they've already done that.

[00:22:37] Speaker 01:
The commission's already reviewed it.

[00:22:38] Speaker 01:
So there's no realistic reason.

[00:22:42] Speaker 06:
I think they disagree with that decision that you made, and they would like review that.

[00:22:47] Speaker 01:
That is true because the court only has the procedural order in front of it right now.

[00:22:52] Speaker 01:
There is no relief that it can direct towards the surrender order.

[00:22:55] Speaker 06:
I mean, there's this court of pending petition for review on the merits.

[00:22:58] Speaker 01:
Well, there is a file petition for review.

[00:23:01] Speaker 01:
Whether or not that's a proper petition for review is certainly up for debate.

[00:23:05] Speaker 01:
But they have certainly filed that.

[00:23:06] Speaker 06:
I'm just asking the same question again about

[00:23:10] Speaker 06:
how something like this gets remedied.

[00:23:12] Speaker 01:
I think everyone understands the statute requires a party, a proper party to file a petition for review within 60 days.

[00:23:21] Speaker 01:
That didn't happen here.

[00:23:22] Speaker 06:
One hypothetical was, assume we say, wow, they should have been a proper party from the beginning.

[00:23:28] Speaker 01:
I think the way that would work is the commission gets the chance to make the procedural decision a second time around.

[00:23:39] Speaker 01:
The commission may or may not do that.

[00:23:41] Speaker 01:
Certainly you may relax some of the requirements because it's procedural, but here we're looking at the end state and we already know the substantive outcome.

[00:23:47] Speaker 01:
So if we're thinking of like the footnote from Lujan where it might change the EARS, we already consider their substantive arguments in their comments on the environmental assessment.

[00:23:55] Speaker 06:
I don't know, but it's the value that's well recognized is that they get a chance.

[00:24:00] Speaker 06:
That was the same thing in the Public Service Commission case.

[00:24:02] Speaker 06:
And now they got a chance to get judicial review.

[00:24:06] Speaker 01:
Well, I think the opportunity for judicial review of orders is downstream of two facts in this case.

[00:24:10] Speaker 01:
One is simply that they waited a very long time to intervene in these proceedings.

[00:24:14] Speaker 01:
And if they hadn't done that, they might have been a proper party and then have could have brought a proper peer request and proper petition for review.

[00:24:20] Speaker 01:
So that was something they could have solved on their own.

[00:24:22] Speaker 01:
Secondly, they could have sought expedited briefing in this case.

[00:24:25] Speaker 01:
They understood where the substance, the proceedings were at the time that they were denied intervention.

[00:24:29] Speaker 01:
And at times they filed their initial petition for review.

[00:24:31] Speaker 01:
They did not do that.

[00:24:32] Speaker 01:
That's a clear path for a relief where the marriage order had an issue, but they didn't.

[00:24:37] Speaker 01:
And for that reason, the current order is final and unappealable.

[00:24:42] Speaker 06:
I'm actually just confused about the state of

[00:24:46] Speaker 06:
for rules on intervention.

[00:24:47] Speaker 06:
So in a case called EE that was in 2020, so post- EE pipeline.

[00:24:52] Speaker 06:
Yeah, post Tennessee pipelines, supposedly new strict rule.

[00:24:57] Speaker 06:
Although I guess it was only for natural gas, strict rule.

[00:25:00] Speaker 06:
Commission said it would commonly allow late intervention as long as the person came in before the end of the comment period in environmental impact study cases.

[00:25:13] Speaker 06:
which this would fall exactly within that.

[00:25:16] Speaker 06:
But the commission said, well, we won't do an environment.

[00:25:20] Speaker 06:
We will not do that in environmental assessment cases.

[00:25:25] Speaker 06:
Is that still the rule?

[00:25:27] Speaker 06:
And if so, what on earth is the rationale for saying this very same intervention would have been permitted if you were doing an environmental impact statement?

[00:25:35] Speaker 01:
So as I understand, as I understand it for double E pipeline, along with the other three commission decisions, I'm sorry, the two other commission decisions have put note 36 as well as broad view solar.

[00:25:47] Speaker 01:
In each of those instances, a party has been six to 12 months late and the commission found under factor D11, because they had such an egregious delay and did not have good calls for the time of their intervention, that was sufficient to deny intervention.

[00:26:00] Speaker 06:
I just, I'm asking you about

[00:26:04] Speaker 06:
That wasn't the rationale that was said there.

[00:26:07] Speaker 06:
What they said was, they're the groups filed their late motion intervene during the comment period on the environmental assessment.

[00:26:19] Speaker 06:
This is paragraph 24, on the environmental assessment.

[00:26:24] Speaker 06:
Same as this case.

[00:26:26] Speaker 06:
While the Commission's regulations provide that any person who files a motion to intervene on the basis of a draft environmental impact statement will be deemed to have filed a timely motion if filed during the comment period, that provision is inapplicable where the staff prepared an environmental assessment instead of an environmental impact statement.

[00:26:50] Speaker 01:
Understood.

[00:26:50] Speaker 01:
As I understand it, that case was unique because when the commission issued notice of intent to prepare an environmental assessment, it indicated in that notice that parties were welcome to intervene.

[00:27:02] Speaker 01:
That did not occur in this case and as a matter of practice does not occur in most environmental assessment cases.

[00:27:07] Speaker 01:
And as I understand it, that was part of the basis of Commissioner Glick's dissent.

[00:27:11] Speaker 01:
In that case, because the commission had made an affirmative representation of a second opportunity to intervene.

[00:27:17] Speaker 06:
which is the standard practice for regulations provide.

[00:27:20] Speaker 06:
Was there a regular?

[00:27:22] Speaker 06:
So that wasn't a one off if it's a regulation.

[00:27:24] Speaker 01:
Well, I believe the regulations don't provide that as I understand it.

[00:27:28] Speaker 01:
Well, the regulations have changed because of the changes as I understand it.

[00:27:32] Speaker 01:
But my understanding is the regulation.

[00:27:34] Speaker 01:
Go ahead.

[00:27:35] Speaker 01:
The regulations, I understood them provided a second opportunity to intervene for environmental impact statements.

[00:27:41] Speaker 06:
You're in during the comment period.

[00:27:43] Speaker 01:
for environmental impact statements because they had by rule a separate opportunity to intervene.

[00:27:49] Speaker 01:
It's not my understanding that that was true for environmental assessments, but I have to be frank that I don't have the CEQ or FERC rule as it existed at that time.

[00:27:59] Speaker 01:
But my understanding is that that environmental assessment was a one-off.

[00:28:06] Speaker 06:
Why wouldn't you have?

[00:28:08] Speaker 06:
What is the rationale for treating

[00:28:11] Speaker 01:
in environmental assessments versus environmental impact statements.

[00:28:17] Speaker 01:
Environmental impact statements are much larger as this court knows.

[00:28:19] Speaker 01:
They're much, much harder work.

[00:28:21] Speaker 06:
And by rule, the last thing you want is more people jumping in at the last minute on those.

[00:28:26] Speaker 01:
Recall that in the EIS cases, this court is seeing there's often a draft EIS.

[00:28:31] Speaker 01:
And then a final yes with a comment period in between those two.

[00:28:35] Speaker 01:
And that comment period in cases like Healthy Gulf or Public Citizen can be decisive in terms of forfeiture.

[00:28:40] Speaker 01:
Here, we just had an EA published.

[00:28:43] Speaker 01:
The parties were allowed to comment on it.

[00:28:44] Speaker 06:
And then a marriage order.

[00:28:45] Speaker 06:
You had it published.

[00:28:47] Speaker 06:
The parties commented.

[00:28:49] Speaker 06:
And so you were taking comments.

[00:28:51] Speaker 06:
And they intervened long before that comment period closed.

[00:28:56] Speaker 06:
In fact, they were identified in the assessment itself.

[00:29:00] Speaker 06:
as having filed a motion to intervene.

[00:29:01] Speaker 06:
So before that.

[00:29:02] Speaker 06:
And so I'm trying to understand what the harm is.

[00:29:07] Speaker 06:
I mean, I don't understand.

[00:29:09] Speaker 06:
It sounds like you just want to argue they were nine months late.

[00:29:12] Speaker 06:
But that has never been a factor that I've, oddly enough, that FERC has trotted out.

[00:29:19] Speaker 06:
I mean, it's had interventions two years after the deadline.

[00:29:23] Speaker 01:
I disagree with that, Your Honor.

[00:29:25] Speaker 01:
A few points there.

[00:29:27] Speaker 01:
I think the length of delay is germane to the D1-1 factor.

[00:29:31] Speaker 01:
And I think we see that in cases like the three cases in footnote 36, as well as EE pipeline, all of which are six months to one year of delay.

[00:29:39] Speaker 01:
And the court, I'm sorry, the commission says you failed on their D1-1 factor.

[00:29:43] Speaker 01:
You do not have a good explanation for this delay.

[00:29:45] Speaker 01:
And that is sufficient because this rule gives us an ample amount of discretion, as Judge Pan noted earlier.

[00:29:49] Speaker 06:
Hang on.

[00:29:52] Speaker 06:
I think it's also important because- Just to be clear, what you just said has nothing to do with lateness other than it flagged the time period being analogous to this one.

[00:30:01] Speaker 01:
Well, I can go to the weight of the factor.

[00:30:02] Speaker 01:
And I think it's also- Wait, where?

[00:30:04] Speaker 06:
Where has the commission said weight of what factor?

[00:30:07] Speaker 01:
Which factor?

[00:30:08] Speaker 01:
D11 factor.

[00:30:08] Speaker 01:
But even if that's- Which?

[00:30:10] Speaker 01:
The good cause?

[00:30:10] Speaker 01:
D11 factor.

[00:30:11] Speaker 01:
Correct.

[00:30:12] Speaker 01:
Sorry.

[00:30:12] Speaker 01:
You mean the good cause?

[00:30:14] Speaker 01:
D11.

[00:30:14] Speaker 06:
Good cause to the failure to file late.

[00:30:16] Speaker 01:
Correct.

[00:30:17] Speaker 00:
Correct.

[00:30:17] Speaker 00:
The first factor of paragraph D11.

[00:30:18] Speaker 00:
Okay.

[00:30:18] Speaker 06:
They're already late.

[00:30:20] Speaker 06:
Okay, where has the agency said, because what you just said to me does not communicate that we independently, apart from prejudice, disruption, we independently look at how late you are as part of the good cause for being late.

[00:30:38] Speaker 01:
The last sentence of paragraph 13 of your hearing order here mentions that- Before this case.

[00:30:43] Speaker 01:
Before this case.

[00:30:44] Speaker 01:
Well, it is citing other cases and I believe it's- I know, did any of those cases say that?

[00:30:49] Speaker 01:
Yes, they say that the D1 one factor is important for the orderly proceeding orderliness of commission proceedings.

[00:30:53] Speaker 01:
And the commission also notices important for to promote efficiency and timeliness.

[00:30:58] Speaker 06:
And even if that were the case is affected, even if that were the way I'm just trying to clear.

[00:31:03] Speaker 06:
So it sounds like the answer to my question.

[00:31:05] Speaker 06:
Have they ever before said that length of time alone is a factor in determining good cause for being late.

[00:31:16] Speaker 06:
It sounds like the answer is no, because I haven't heard it from you yet.

[00:31:20] Speaker 06:
And then you say, well, we want efficient proceedings.

[00:31:23] Speaker 06:
And that makes perfect sense.

[00:31:24] Speaker 06:
That's when lateness would go to disruption.

[00:31:28] Speaker 01:
Not necessarily, not necessarily, because disruption might be in the individual circumstances.

[00:31:32] Speaker 06:
Since you were still, you acknowledged them in the assessment itself as having, as being interveners, I think.

[00:31:40] Speaker 01:
I disagree with that.

[00:31:41] Speaker 01:
I don't believe that's the correct characterization of the record.

[00:31:43] Speaker 01:
We acknowledged at, I believe it's J42 that they filed a motion to intervene.

[00:31:47] Speaker 01:
That's fine.

[00:31:48] Speaker 01:
I'm not sure.

[00:31:49] Speaker 01:
Right.

[00:31:49] Speaker 06:
Right.

[00:31:50] Speaker 06:
I mean they didn't even have to file a motion to intervene to comment.

[00:31:54] Speaker 06:
I mean that's the strangeness of your position because anyone, it's open to anyone in the public to comment on your environmental assessment and every one of those people who comments is coming in, they're coming in at the same time and you don't say citizens

[00:32:16] Speaker 06:
We've invited public comments, but now we're going to all say it's too late.

[00:32:19] Speaker 06:
It's too disruptive.

[00:32:20] Speaker 06:
It's not efficient to have your comments.

[00:32:23] Speaker 01:
No, we didn't reject their comments at all.

[00:32:25] Speaker 01:
We rejected party status.

[00:32:26] Speaker 06:
So there was no efficiency.

[00:32:27] Speaker 06:
I don't understand what efficiency you're asking here.

[00:32:30] Speaker 01:
Well, because it's setting an example, you can think of it, perhaps this might be a little too esoteric, but rule utilitarianism versus act utilitarianism or just the precedent.

[00:32:40] Speaker 01:
The precedent in this case in terms of timeliness, if we were to excuse every, first of all, the rule does not require us to make a prejudice finding or disruption finding.

[00:32:51] Speaker 01:
but the commission needs to enforce its rules so parties understand that if they want to be involved proceedings or future cases for example, they need to intervene on time.

[00:32:59] Speaker 01:
Here they were put on notice not once but twice and still waited a long time before they actually intervened.

[00:33:05] Speaker 01:
Now whether or not they found comments is irrelevant to that because we consider the substance of those comments.

[00:33:09] Speaker 01:
I would also understand.

[00:33:11] Speaker 06:
Sorry, your rationale was we need to have efficiency in doing this, but this environmental assessment is a process where

[00:33:21] Speaker 06:
There's nothing remotely inefficient about somebody showing up and commenting.

[00:33:26] Speaker 06:
First time you've ever heard of this party, not party, sorry, that's the wrong word, but commenter, is when comments are sent in.

[00:33:34] Speaker 06:
The last day of the open period for comments.

[00:33:37] Speaker 06:
And there's nothing inefficient about that because it's a public comment period.

[00:33:42] Speaker 06:
So I don't understand, I understand other situations that there may be efficiency, but normally

[00:33:48] Speaker 06:
something makes something inefficient.

[00:33:50] Speaker 01:
That's exactly what Tennessee Gas says.

[00:33:54] Speaker 01:
We apply these rules more strictly because we have created bad precedent for other parties who are sleeping on their rights.

[00:34:01] Speaker 01:
And if we do that here, we're likely to encourage entities like American Whitewater to come at the last minute, perhaps even after a merits order issued and say, well, what is the harm being done?

[00:34:09] Speaker 06:
You have a whole different rule for after merits board.

[00:34:12] Speaker 01:
Well, no, that's not what happened.

[00:34:13] Speaker 01:
I disagree.

[00:34:14] Speaker 01:
There is a different application of rule 214.

[00:34:17] Speaker 01:
That's an extraordinary circumstances.

[00:34:20] Speaker 01:
But city of Orville says that is a refinement of rule 214 itself is an outgrowth of the rule is not independent of that rule.

[00:34:28] Speaker 06:
I mean, that's that is a really difficult standard to meet.

[00:34:33] Speaker 06:
And it's obvious because it comes in after decision.

[00:34:37] Speaker 06:
I mean, it's going to be hard for that.

[00:34:39] Speaker 06:
I can't imagine how they're going to avoid the prejudice box, but that world's best.

[00:34:45] Speaker 01:
That rule was based on, say, a presumption of prejudice.

[00:34:48] Speaker 01:
And they may not, the commission doesn't necessarily need to make a prejudice finding.

[00:34:51] Speaker 01:
But this goes really to the permissiveness of the rule generally.

[00:34:54] Speaker 01:
There is no requirement in the rule that the commission make a finding of harm to this proceedings.

[00:34:59] Speaker 01:
If you don't meet factor D11, that is sufficient.

[00:35:01] Speaker 01:
That is what this court said in St.

[00:35:02] Speaker 01:
Louis.

[00:35:03] Speaker 01:
That is what the Ninth Circuit said in California Trout.

[00:35:06] Speaker 01:
And there's no requirement for that.

[00:35:07] Speaker 06:
You didn't apply that rule in DTE Energy, Athens Utility Board, maybe West Texas was so close.

[00:35:15] Speaker 06:
I don't know if that was grandfathered in.

[00:35:17] Speaker 01:
Let's get to these.

[00:35:18] Speaker 01:
Can I start with Swanson Mining before I get to the reply brief cases?

[00:35:22] Speaker 01:
I think there are two, both Swanson Mining and all the cases in the reply brief.

[00:35:28] Speaker 01:
The most important issue here is that absolutely none of these cases were mentioned at all in their hearing request to the commission.

[00:35:35] Speaker 01:
So if they expected response to specific precedent, it should have been in there.

[00:35:40] Speaker 01:
And now they fault us for only raising those cases on appeal.

[00:35:43] Speaker 01:
Now, Swanson is distinguishable, and I think it actually helps us nonetheless, even if the court considers it, because the commission, while it did not find that the D-101 factor had been satisfied, was a completely different type of situation, factually distinguishable, because they're a state resource agency, had alerted the commission to a patently unlawful exemption that it issued under inaction,

[00:36:06] Speaker 01:
and that state resource agency had a specific statutory duty.

[00:36:10] Speaker 01:
There's nothing like that analogous to this case.

[00:36:12] Speaker 01:
They are an ordinary run-of-the-mill party.

[00:36:14] Speaker 04:
I guess what we're trying to understand or I'm trying to understand is every case can be distinguished.

[00:36:24] Speaker 04:
That is correct and that is true because the question is what does the commission hope to accomplish with its rule?

[00:36:32] Speaker 01:
to promote the timeliness and efficiency and orderliness of its proceedings.

[00:36:36] Speaker 04:
And what I understand Judge Millett's question going to is that's all well and good.

[00:36:42] Speaker 04:
But there are some indications that that is not how the commission has been applying the rule.

[00:36:52] Speaker 04:
And so here, in some of the cases you cite, where the court has sort of made off not

[00:36:59] Speaker 04:
uh, dispositive comments about kindness is important.

[00:37:04] Speaker 04:
But that wasn't your argument here in, or not you, but the Commission's argument in denying intervention.

[00:37:13] Speaker 04:
There wasn't any suggestion that the Commission process was prejudiced, that had the American Whitewater

[00:37:27] Speaker 04:
notified the Commission earlier that the Commission would have changed course or done another study or looked to other issues.

[00:37:37] Speaker 04:
That's not this case.

[00:37:39] Speaker 00:
That's correct, Your Honor.

[00:37:40] Speaker 04:
And so the question is,

[00:37:42] Speaker 04:
Why couldn't they come in?

[00:37:44] Speaker 04:
Because everybody else could come in.

[00:37:47] Speaker 04:
That's all.

[00:37:49] Speaker 04:
And you have a rule.

[00:37:51] Speaker 04:
And if you want to say you have to be a filer by 60 days, then it applies to everyone.

[00:38:00] Speaker 04:
But that's not the way the commission has used this rule.

[00:38:04] Speaker 04:
So I ask my clerk to find any instance in which

[00:38:08] Speaker 04:
the commission had denied intervention of a public interest group as opposed to a utility.

[00:38:16] Speaker 04:
And the closest we could find was, well, there was the state, all right?

[00:38:22] Speaker 04:
But the state is not representing the same interests that the petitioner here is purporting to represent.

[00:38:32] Speaker 04:
So I couldn't find any case.

[00:38:34] Speaker 04:
Do you have a case?

[00:38:36] Speaker 01:
To make sure I understand the question, Judge Rodder, is it can't.

[00:38:39] Speaker 04:
In other words, industry gets in.

[00:38:42] Speaker 04:
Anti-industry doesn't get in.

[00:38:47] Speaker 01:
So I think that certainly industry interveners are often denied intervention.

[00:38:51] Speaker 01:
The commission doesn't determine it by the NGO versus industry status.

[00:38:55] Speaker 01:
And I think actually that to return to Judge Millett's question a bit, the transcontinental pipeline case that they cite in the reply brief, which is doubly forfeited because it's not in the hearing request or in the opening brief, is a good example there.

[00:39:07] Speaker 01:
In the same paragraph they cite, the commission.

[00:39:09] Speaker 05:
I haven't even cited that one, but go ahead.

[00:39:10] Speaker 01:
They commission, I'm sorry.

[00:39:11] Speaker 05:
That's not one of the ones I listed, but go ahead.

[00:39:14] Speaker 01:
Okay.

[00:39:14] Speaker 01:
The commission denied intervention to a non-industrial group called 1.5 degrees LLC because they had no good justification or no good cause in their filing.

[00:39:24] Speaker 01:
My friends say that the commission responded to commission

[00:39:27] Speaker 01:
granted intervention to the watershed conservancy.

[00:39:30] Speaker 01:
I believe Judge Malau was mentioning it roughly 15 months afterwards.

[00:39:35] Speaker 01:
But what they left out of that is what the watershed conservancy said in their motion.

[00:39:39] Speaker 01:
This is page two of the motion from the administrative docket, accession number 2022-1118-5224.

[00:39:46] Speaker 01:
APWC, the Watershed Conservancy, is a small volunteer-based organization that does not have any lawyers and therefore did not know about the requirements of becoming a party until now.

[00:39:56] Speaker 01:
That is in stark contrast to the petitioner here, which is a repeat player before the commission, was put on notice twice and is able to call on the capable skills of not only in-house counsel, but at least in this proceeding alone, outside counsel from three different organizations.

[00:40:12] Speaker 04:
I understood Fert's point to be, we need to be able to control our docket, right?

[00:40:19] Speaker 01:
That is certainly a big consideration, yes.

[00:40:24] Speaker 04:
Well, I mean, I'm surprised you didn't focus on that in this case.

[00:40:29] Speaker 01:
Well, we did.

[00:40:30] Speaker 04:
You have people coming in nine months later.

[00:40:32] Speaker 04:
I think that's where you were going.

[00:40:34] Speaker 04:
That's a bad precedent to set, saying it's OK if you come in nine months later.

[00:40:39] Speaker 01:
Judge, I believe paragraphs 10 and 13 are making exactly the same points that you're making here.

[00:40:46] Speaker 01:
The last sentence, paragraph 13, talks about why the D11 factor is critical to the efficiency and timeliness of commission proceedings.

[00:40:52] Speaker 01:
The footnote appended.

[00:40:54] Speaker 04:
I'm getting at a slightly different point, I think.

[00:40:56] Speaker 04:
Maybe I haven't made myself clear.

[00:40:58] Speaker 01:
perhaps or I'm sure I misunderstood.

[00:41:02] Speaker 04:
The commission cites Alcoa for example and in Alcoa the commission makes the point about it's important to know as early as possible so other interested parties will know what the issues are likely to be and come prepared and I thought

[00:41:28] Speaker 04:
having done a lot of agency work myself, having been a judge.

[00:41:33] Speaker 04:
I mean, aren't all these rules designed to enable the agencies to handle their cases efficiently, and they have limited resources, and so they want to know upfront what the issues are going to be, and they're going to plan their research

[00:41:57] Speaker 04:
Accordingly, if somebody comes in late, then they have to start all over again or they have to do some additional research.

[00:42:06] Speaker 04:
That was not the argument, as I understood it, being made by the commission here.

[00:42:13] Speaker 04:
Rather, I thought the commission was saying, look, you're nine months late.

[00:42:17] Speaker 04:
You had notice, you're a repeat player, and you don't give us any explanation.

[00:42:24] Speaker 04:
for why you were late other than you overlooked it.

[00:42:29] Speaker 04:
And that's not enough.

[00:42:30] Speaker 04:
That's not good cause.

[00:42:32] Speaker 04:
End of discussion.

[00:42:33] Speaker 04:
And you quote some dictum in various circuits.

[00:42:37] Speaker 04:
And one circuit goes much further than even the commission has gone in terms of what it requires under its rule.

[00:42:47] Speaker 04:
And so if we get to that issue, it ought to be a simple case.

[00:42:53] Speaker 01:
Well, I think it is certainly a simple case, and that's because the rule says the commission may consider any, all, or really some, none, or all of the factors.

[00:43:01] Speaker 01:
In paragraph D here, we consider the D11 factor, and that is sufficient under the text of the rule and this surrogate precedent under the City of Oroville, as well as your honor noted, Cal Trout.

[00:43:11] Speaker 01:
Now, it is true that the commission didn't make a specific finding on prejudice to these proceedings, but as your honor noted,

[00:43:17] Speaker 01:
The commission notes all these factors because they all ultimately get at the same sort of issue fundamentally about the efficiency and integrity of commission processes.

[00:43:25] Speaker 01:
So while we might not make a finding of disruption or prejudice and query whether or not those overlap, the fact that we can make a finding on the D01 factor is...

[00:43:34] Speaker 01:
Blamely sufficient under the 214 rule here.

[00:43:37] Speaker 03:
So the rule is come at this from somebody who's been a trial judge and to me, like a deadline is important.

[00:43:44] Speaker 03:
A deadline is a deadline.

[00:43:45] Speaker 03:
And if you miss a deadline, then the burden is on you to explain why this deadline should not apply to you.

[00:43:54] Speaker 03:
And I think that.

[00:43:57] Speaker 03:
It's really hard for me as a former trial judge, perhaps to say that a 9 month delay.

[00:44:01] Speaker 03:
Is no worse than a 1 day delay to me.

[00:44:05] Speaker 03:
Like, this is just a standard thing that you look at when you're looking at good cause and even beyond the time.

[00:44:13] Speaker 03:
limit.

[00:44:14] Speaker 03:
All they said was we missed it.

[00:44:15] Speaker 03:
I mean, I feel like the process here is the commission is obligated to publish this.

[00:44:21] Speaker 03:
And that's how people are put on notice that there's a deadline.

[00:44:25] Speaker 03:
And if you miss the deadline, the burden is on you to show good cause.

[00:44:29] Speaker 03:
And if all you can say is missed it, didn't see it in the federal register, that's not good cause.

[00:44:36] Speaker 03:
So to me, if we get to that point, it does seem to be a simpler case.

[00:44:41] Speaker 03:
The rule is not

[00:44:43] Speaker 03:
Anybody who wants to come in can come in if we're not that far along in the proceedings.

[00:44:49] Speaker 03:
Like, that's just not the rule.

[00:44:50] Speaker 03:
And even if it's been applied that way in some occasions to me, these are just such fact bound decisions in each case that I think it's hard to draw.

[00:45:02] Speaker 03:
a rule and hold the commission to it, that anybody who comes in when there's no prejudice determined by who I don't even know, then they should be allowed to intervene.

[00:45:13] Speaker 03:
I just don't think you can run a process this way.

[00:45:17] Speaker 01:
Yeah, your honor is exactly correct.

[00:45:18] Speaker 01:
That's no way to run a railroad.

[00:45:20] Speaker 01:
It creates a terrible ex ante incentive if they just mail it in with a one sentence non-explanation about why they waited nine months to file.

[00:45:27] Speaker 01:
And the rule doesn't say the commission has to go beyond that.

[00:45:30] Speaker 06:
And here the rule is written- Well, this is, you know,

[00:45:32] Speaker 06:
You're not a district court.

[00:45:34] Speaker 01:
You know, we're a commission that, we're a commission that.

[00:45:38] Speaker 01:
We're a commission that runs large multi-party proceedings.

[00:45:41] Speaker 06:
I understand what the commission does.

[00:45:44] Speaker 06:
I'm fully familiar with that.

[00:45:47] Speaker 06:
Now, you have a rule that multiple commissioners themselves have said is inconsistently applied post Tennessee.

[00:45:59] Speaker 06:
That didn't fix anything.

[00:46:01] Speaker 01:
Obviously, the other commissioners didn't agree with Commissioner Danley.

[00:46:04] Speaker 06:
Who said it was inconsistent and wrong?

[00:46:07] Speaker 06:
And two said, I mean, you had Danley and Glick and then a third one who thought our rules broken and should be fixed anyhow.

[00:46:15] Speaker 06:
So you've got them already saying we're not consistent.

[00:46:20] Speaker 06:
And a majority of commissioners believed that we are.

[00:46:24] Speaker 06:
I'm happy I'll let you talk about cases I didn't mention.

[00:46:27] Speaker 06:
DTE Energy,

[00:46:30] Speaker 06:
It was a late-filed motion to intervene.

[00:46:33] Speaker 06:
It was granted no discussion of good cause, given their interest in the proceeding, the early stage of the proceeding, and the absence of undue prejudice or delusion.

[00:46:44] Speaker 01:
Well, I think DTE Energy has the same problem as West Texas Pipeline Gas, Athens Utility Board, Duquesne Lighting Company, and Swanson.

[00:46:51] Speaker 01:
It's not raised in their hearing request.

[00:46:53] Speaker 01:
And other than Swanson.

[00:46:55] Speaker 06:
I'm going to assume the agency, when it announces, oh, we have this rule that unless there's good cause, we don't grant it, they've checked.

[00:47:06] Speaker 06:
They've done their homework to make sure they actually have that rule.

[00:47:10] Speaker 06:
And when it turns out they don't have that rule,

[00:47:15] Speaker 06:
and they didn't have it for these companies, in this case, power companies or gas or oil, whatever it was, but we do have that rule for American Whitewater, that's a problem.

[00:47:29] Speaker 06:
And then we have, these are the cases I want you to address, Athens Utility Board, all right?

[00:47:38] Speaker 01:
bus access pipeline.

[00:47:40] Speaker 06:
Sorry, granting late intervention because it will not disrupt proceedings or place additional burdens on existing parties.

[00:47:50] Speaker 06:
Nothing there about you've got to get through the good cause.

[00:47:53] Speaker 06:
You could have this rule and you could also have a rule that says we'll do these factors, but if you're after three months, six months, nine months, you pick the time.

[00:48:04] Speaker 06:
You're out of business.

[00:48:06] Speaker 01:
If I could make one high-level point for all of them before I get into the individual facts, I think Judge Pan's insight here is very important.

[00:48:13] Speaker 01:
The rule is written to maximize the commission's discretion.

[00:48:16] Speaker 01:
It is reviewed for an abuse of discretion standard.

[00:48:19] Speaker 01:
That means the commission is entitled to draw factual distinctions among parties.

[00:48:24] Speaker 01:
And in this case, they face a very high burden of showing that identically situated party was treated differently.

[00:48:30] Speaker 01:
Sure, sure.

[00:48:31] Speaker 06:
If this one was setting the role.

[00:48:34] Speaker 01:
None of the parties.

[00:48:35] Speaker 06:
We do not find PJM's reason, PJM.

[00:48:38] Speaker 06:
We don't find their reason for delay persuasive.

[00:48:41] Speaker 06:
This was to be clear after this decision.

[00:48:44] Speaker 06:
But every other rule criterion points in their favor.

[00:48:48] Speaker 06:
So guess what?

[00:48:50] Speaker 06:
Intervention was granted when they specifically found

[00:48:54] Speaker 06:
We don't find good cause.

[00:48:57] Speaker 06:
That was PJM.

[00:48:58] Speaker 06:
It wasn't an environmental organization.

[00:49:01] Speaker 06:
And then we had Vector Pipeline.

[00:49:07] Speaker 06:
It didn't oppose.

[00:49:09] Speaker 06:
Nothing here was opposed.

[00:49:10] Speaker 06:
Opposed motion to intervene.

[00:49:11] Speaker 06:
While we find that INGAA has not provided good cause,

[00:49:18] Speaker 06:
Looking at the other factors, we're going to let them in.

[00:49:21] Speaker 06:
I mean, we have an obligation when someone brings the issue to us to make sure that the commission applies.

[00:49:33] Speaker 06:
When someone says it's not being applied in an even-handed manner, we have an obligation to check the pattern of decisions here.

[00:49:40] Speaker 06:
And it's the commission's own mouth here.

[00:49:46] Speaker 01:
I'm going to skip DTE for now.

[00:49:48] Speaker 01:
We're going to go to a group of cases.

[00:49:49] Speaker 06:
No, tell me about DTE.

[00:49:51] Speaker 01:
OK, PJM or because the response is slightly different.

[00:49:53] Speaker 06:
First of all, I threw a lot at you.

[00:49:54] Speaker 06:
I'm sorry.

[00:49:55] Speaker 06:
So let's start with DTE.

[00:49:57] Speaker 01:
DTE.

[00:49:59] Speaker 01:
So DTE, West Texas Pipeline, Athens Utility Board, Duquesne Light.

[00:50:03] Speaker 06:
I'm just, no.

[00:50:04] Speaker 01:
OK, sorry.

[00:50:05] Speaker 06:
I'll call them out one at a time.

[00:50:07] Speaker 06:
How about that?

[00:50:07] Speaker 06:
We'll be clear, because you keep referencing ones that I haven't.

[00:50:09] Speaker 06:
So DTE.

[00:50:10] Speaker 01:
It's factually distinguishable.

[00:50:11] Speaker 01:
The delay there is less than two weeks.

[00:50:14] Speaker 06:
Where does it say that in the analysis granting the motion?

[00:50:17] Speaker 01:
Paragraph 11.

[00:50:18] Speaker 06:
No, no, that's not that's not discussion.

[00:50:20] Speaker 06:
That's just a description.

[00:50:21] Speaker 06:
That's a background description.

[00:50:22] Speaker 06:
Certainly, I believe it.

[00:50:24] Speaker 06:
Where do they say in paragraph 21, which is the entire explanation of their decision granting it, that how long makes it?

[00:50:32] Speaker 06:
The commission could do it.

[00:50:34] Speaker 06:
They could say it's an independent factor.

[00:50:38] Speaker 06:
But they haven't.

[00:50:39] Speaker 06:
The only time they've mentioned expressly time being too long is when they then tied it to prejudice or disruption.

[00:50:48] Speaker 06:
They could have that rule, they don't.

[00:50:51] Speaker 06:
And there's paragraph 21.

[00:50:53] Speaker 06:
Tell me, what in paragraph 21 distinguishes this case?

[00:50:56] Speaker 01:
My apologies, Your Honor.

[00:50:57] Speaker 01:
I don't have paragraph 21 in front of me.

[00:50:59] Speaker 01:
I'm sorry.

[00:50:59] Speaker 01:
But I can't tell you that reading the decision as a whole makes it clear that it's a very factually different case.

[00:51:04] Speaker 06:
Again, it's only, no.

[00:51:06] Speaker 06:
The only fact you've identified is a time thing which the commission chose not to rely on because it didn't affect the absence of undue prejudice or delay.

[00:51:17] Speaker 01:
So, Your Honor, paragraph 10 clearly mentions the delay.

[00:51:20] Speaker 01:
It mentions seven months between the notice of intervention and the notice of intent to prepare environmental assessment.

[00:51:26] Speaker 01:
It then mentions a two-month delay after that.

[00:51:28] Speaker 01:
It then also mentions sophistication of the parties.

[00:51:31] Speaker 01:
But your honor also pointed out, even if this is not a D-1-1 factor itself, those facts can still be relevant to the commission's decision because the list of factors in D-1 is not exclusive.

[00:51:41] Speaker 01:
As this court said in City of Oroville, the commission is not required to communicate with that.

[00:51:46] Speaker 06:
I agree with that.

[00:51:46] Speaker 06:
And that's why if I saw a pattern here of the agency being consistent on timeframes,

[00:51:53] Speaker 06:
And I mean, one, it could announce a rule, which would really be helpful to everybody.

[00:51:58] Speaker 06:
The commission, if it really wants this efficiency and lack of disruption, it could announce a rule and it could, I'm not going to set it three months, six months.

[00:52:05] Speaker 06:
You tell me what you think would make sense.

[00:52:07] Speaker 06:
I don't know.

[00:52:07] Speaker 01:
That's not my- You do see a pattern in footnote 36.

[00:52:10] Speaker 01:
We're here in order.

[00:52:11] Speaker 01:
Venture Global CP2, EE Pipeline, Broadview Solar, STS Hydropower.

[00:52:16] Speaker 01:
All of those cases are in the six to one year range.

[00:52:18] Speaker 01:
They're nothing like DTE, which is under two weeks.

[00:52:21] Speaker 01:
And the rest of the cases in the reply brief, which are a month or less in terms of delay, nor does the commission.

[00:52:25] Speaker 06:
You have to admit that's not the rule they've adopted.

[00:52:29] Speaker 01:
But there isn't necessarily a rule that says that, but it is a clear pattern for these decisional cases and obvious from the decisional law.

[00:52:36] Speaker 01:
And it requires an incredibly, I think, somewhat tendentious reading to say that the length of the delay did not matter.

[00:52:42] Speaker 06:
It's particularly in this case.

[00:52:43] Speaker 06:
I'm a tendentious person, at least when it comes to agency, because I expect the agency to say it and not for me to have to knit it together and then somehow figure out why the 18-month or the two-year delays.

[00:52:56] Speaker 06:
were different.

[00:52:57] Speaker 01:
Well, I think it's I think it's remained to the D1 one factor is good calls under paragraph D in a different sense and that is because the justification they were they raised was that they were not aware that the notice of intervention had occurred but they are charged with a constructive notice under the Federal Register Act which means that they had been supposedly not aware of this case for seven months while proceeding and then the agency put them on notice again independently through a second publication.

[00:53:26] Speaker 01:
So in some sense, this case is truly unique because they're second public notice of intent for parent environmental assessment.

[00:53:31] Speaker 01:
We put them on notice that this dissipated in that they did, but they did not move to intervene until two months after that.

[00:53:38] Speaker 01:
They said they sat on the rights once again.

[00:53:40] Speaker 06:
Two months is too long now as well.

[00:53:42] Speaker 01:
It certainly can be under the under rule 214, which is judgmental.

[00:53:45] Speaker 06:
No, when two months will be and when it won't be reliably.

[00:53:49] Speaker 04:
See, and the other thing that's odd about this case candidly is that you had comments.

[00:53:55] Speaker 04:
So the institutional delay to the agency that could result in prejudice isn't present here.

[00:54:04] Speaker 04:
And that was the only explanation I came up for myself as to why the agency hadn't mentioned

[00:54:13] Speaker 04:
that aspect of prejudice, because there is no prejudice here.

[00:54:17] Speaker 04:
Because the agency knew exactly what American White Water was going to say were it a formal party in the case.

[00:54:28] Speaker 04:
And it proceeded.

[00:54:30] Speaker 04:
So that line of prejudice doesn't work here.

[00:54:34] Speaker 00:
Your corrector honor.

[00:54:35] Speaker 04:
Arguably.

[00:54:36] Speaker 00:
Your corrector honor that.

[00:54:37] Speaker 04:
And so all you had was

[00:54:40] Speaker 04:
They're too late.

[00:54:42] Speaker 04:
They had notice.

[00:54:43] Speaker 04:
All these other cases, there was public notice.

[00:54:46] Speaker 04:
And most of these utilities have permanent legal staffs, if not firms on retainer.

[00:54:54] Speaker 04:
And so they were on constructive notice as well.

[00:54:57] Speaker 04:
But good cause was not enough to keep them from having intervener status before the commission.

[00:55:08] Speaker 04:
That's what's so troubling here.

[00:55:10] Speaker 04:
Aren't you concerned about that?

[00:55:12] Speaker 01:
If we're talking about this, Your Honor, maybe talk about the PJM case.

[00:55:16] Speaker 01:
I would certainly note that it is correct to the commission to not rely on a finding of prejudice in this case.

[00:55:20] Speaker 01:
But this is just like what Judge Bann noted, this is no way to run a railroad.

[00:55:24] Speaker 01:
You have to set proper X and D incentives.

[00:55:27] Speaker 04:
But that's where...

[00:55:29] Speaker 04:
It's so unconvincing, given that the Commission's been all over the waterfront with its rule.

[00:55:36] Speaker 04:
All right?

[00:55:37] Speaker 04:
And I have even come up with a list of factors based, not factors, but elements based on your presence.

[00:55:46] Speaker 01:
Considerations.

[00:55:47] Speaker 04:
Considerations.

[00:55:47] Speaker 04:
Thank you.

[00:55:48] Speaker 04:
That the Commission has used.

[00:55:50] Speaker 04:
But the normal ones that you're talking about today and the commission raised in this case are not present.

[00:56:01] Speaker 04:
That's what's so odd about it.

[00:56:02] Speaker 04:
And I thought initially when

[00:56:05] Speaker 04:
American White Water was listed in the EA.

[00:56:08] Speaker 04:
I thought, well, it was a typographical error.

[00:56:11] Speaker 04:
Somebody thought they had actually, their motion had been granted.

[00:56:14] Speaker 04:
But in fact, it hadn't.

[00:56:17] Speaker 04:
So somebody, and their cause and effect argument, I'm not persuaded by.

[00:56:25] Speaker 04:
They say we filed negative comments.

[00:56:27] Speaker 04:
Two weeks later, the commission denied.

[00:56:31] Speaker 04:
That doesn't persuade me, all right?

[00:56:34] Speaker 04:
But it is concerning that the commission doesn't address the fact asserted by American Whitewater that they represent an interest that is relevant to the commission's decision-making that is not otherwise

[00:57:00] Speaker 04:
represented.

[00:57:01] Speaker 04:
So back to Judge Millett's point about these are agencies, they want to hear from everybody, they want to get the public view, so they make informed decisions

[00:57:12] Speaker 04:
And someone who's late says, look, I have a point of view that's not being represented.

[00:57:21] Speaker 04:
And the commission ought to consider this before it makes its decision.

[00:57:26] Speaker 04:
So I thought, well, the backside of that is, well, the commission took their comments into account, presumably.

[00:57:33] Speaker 04:
But of course, the key point on intervention is you become a party.

[00:57:40] Speaker 04:
And you have all kinds of rights that you don't have as a member of the public to submit comments.

[00:57:47] Speaker 04:
So that's why it's so critical that we have a rule that we can understand.

[00:57:51] Speaker 01:
So one purpose of your honor's question, I would direct the court to foot, I believe it's the last footnote in the hearing order.

[00:58:00] Speaker 01:
I believe that's footnote 43.

[00:58:03] Speaker 01:
Where, in fact, there are several other parties and commoners who raise similar arguments about damn removal in this case, but the commission never addresses.

[00:58:13] Speaker 04:
American light waters claim that they represent.

[00:58:19] Speaker 04:
Interests that are not adequately represented.

[00:58:24] Speaker 04:
by anyone else who is a party before the commission.

[00:58:28] Speaker 04:
I didn't see the commission challenge that at all.

[00:58:32] Speaker 04:
Now you have the Department of Recreation in there, you have other people, but the Department of Recreation may have a lot of interests.

[00:58:41] Speaker 04:
It's got capital costs as well as operating costs, et cetera.

[00:58:45] Speaker 04:
That's not what American White Order is talking about.

[00:58:49] Speaker 04:
That's not what they say their members are concerned about.

[00:58:53] Speaker 04:
And yet the commission doesn't want to give them standing, as it were, in its proceedings.

[00:59:01] Speaker 01:
Well, the commission didn't need to, Your Honor, and the point is well taken about other entities.

[00:59:04] Speaker 04:
They didn't need to, but shouldn't it have a rule that makes it clear what's going on?

[00:59:12] Speaker 01:
If the court, perhaps the court might think the rule should read must consider a list of exclusive factors, but that is not the way the rule has been written.

[00:59:20] Speaker 01:
It is not the way the rule has been applied.

[00:59:21] Speaker 01:
The rule is final and not appealable.

[00:59:23] Speaker 01:
It can't be challenged on its own.

[00:59:24] Speaker 01:
This is the rule we have in this case.

[00:59:27] Speaker 01:
And that rule is interpreted by this court and the Ninth Circuit says the commission can consider individual factors, but need not consider all of them.

[00:59:34] Speaker 04:
Well, with all due respect,

[00:59:36] Speaker 04:
to our sister circuit, it also says the commission has been consistent in applying the rule.

[00:59:45] Speaker 04:
All right?

[00:59:46] Speaker 01:
And I think we have.

[00:59:50] Speaker 01:
And I think that we're hearing more demonstrates that, particularly with footnote 36, adding Broadview Solar.

[00:59:56] Speaker 01:
And I think to discuss about inconsistency, it's just critical that I talk about individual cases here.

[01:00:01] Speaker 01:
But I've tried to offer the core distinctions to the extent that they get in the decisions raised

[01:00:06] Speaker 01:
only on reply and not during a hearing.

[01:00:08] Speaker 01:
I don't believe I've addressed your honor's point, I think reference to PJM and Judge Maletz reference to PJM, so I'd like to address that now if that's possible.

[01:00:17] Speaker 01:
As I think the court knows, the fact that the agency might make a separate decision later after the order's under review does not make the orders under review arbitrary and capricious.

[01:00:29] Speaker 01:
That is well established law and it's, I can give you one citation.

[01:00:33] Speaker 06:
Look, I mean, we are all familiar with the rules of agency record review, but the difficulty here is we've got cases before and after that show a pattern of inconsistency.

[01:00:54] Speaker 06:
We don't need to rely on the after ones by themselves, but

[01:00:59] Speaker 06:
You know, at some point, do we have to stick our head in this?

[01:01:03] Speaker 06:
I mean, if you had been fully consistent up to and through this decision and the wheels just came off after this decision, your point would be extremely well taken.

[01:01:14] Speaker 01:
Well, it does address a certain number of cases, but to your honors.

[01:01:17] Speaker 06:
No, my point is that when we see, sorry, I do know, I owe you a finishing a sentence, I apologize, but just when we see this stuff before, and it's inexplicable, and there's commissioners going, what is the rule other than inconsistence, consistently inconsistent, I think Commissioner Danley said.

[01:01:35] Speaker 06:
And then we look and it's like, it seems to be getting worse even afterwards.

[01:01:40] Speaker 06:
That's what seems troubling to me.

[01:01:42] Speaker 06:
So I'm not relying just on things maybe changed after the fact.

[01:01:47] Speaker 06:
I take your point on that.

[01:01:49] Speaker 01:
Go ahead.

[01:01:49] Speaker 01:
As the commission noted, I think in paragraph 13, what is being construed as inconsistency here is simply a degree of matter of fact-specific determinations that may involve some of the de-factors, but not all of them.

[01:01:59] Speaker 01:
Maybe none of them.

[01:02:00] Speaker 01:
The commission isn't applied to require any of them.

[01:02:02] Speaker 01:
So the commission is entitled under its rule.

[01:02:04] Speaker 06:
The inconsistency, to be clear, is that we were told in this decision

[01:02:09] Speaker 06:
We do good cause first, and if you don't get through good cause, you're done.

[01:02:14] Speaker 01:
It's sufficient, and that is true under venture global CP2.

[01:02:17] Speaker 06:
No, we don't look at the other factors.

[01:02:22] Speaker 06:
That's what happened here, because they met every other factor.

[01:02:26] Speaker 06:
But you didn't meet good cause, we're not going to talk about them.

[01:02:29] Speaker 06:
And then we go to other cases, and we don't either discuss good cause, the commission doesn't discuss good cause at all, and grants intervention.

[01:02:40] Speaker 06:
I mean, I read the decision in this case is not just sufficient, but necessary to have good cause.

[01:02:45] Speaker 06:
That's what I read the commission saying here.

[01:02:47] Speaker 06:
And then we read ones where they don't even talk about it at all.

[01:02:50] Speaker 06:
And then ones where they say, this is not good cause, but the other factors are met, so we'll let you in.

[01:02:58] Speaker 01:
Well, it's not necessarily the other factors.

[01:02:59] Speaker 01:
There may be something entirely outside the factors like Swanson Mining.

[01:03:02] Speaker 06:
I have not mentioned Swanson Mining.

[01:03:04] Speaker 06:
I know you keep wanting to go to that very old case that long predates even your Tennessee gas where you're supposedly we're trying to clean this up, simply I have for the commission.

[01:03:16] Speaker 06:
it has to hold a line.

[01:03:18] Speaker 06:
And again, you can react and go seven months is too long, but that's not the commission.

[01:03:25] Speaker 06:
You want to run a railroad, right?

[01:03:26] Speaker 06:
The train is leaving at this time.

[01:03:29] Speaker 06:
If you're not on board, you're not on the train.

[01:03:31] Speaker 06:
Okay?

[01:03:33] Speaker 06:
You set a hard time limit.

[01:03:35] Speaker 06:
And if they don't want to do that, then they can say, well, length of time itself will be a factor.

[01:03:43] Speaker 06:
It'll be one of our considerations, but they haven't even said that.

[01:03:46] Speaker 06:
The only times they've talked about it apart from this case is when they did it in a sentence explaining prejudice or disruption.

[01:03:57] Speaker 06:
That's the concern here.

[01:03:59] Speaker 01:
Well, the factors aren't necessarily hermetically sealed.

[01:04:02] Speaker 01:
I mean, for take disruption or prejudice, I'm not sure how the court necessarily distinguishes between those two.

[01:04:07] Speaker 01:
Obviously, there's lots of overlap.

[01:04:08] Speaker 01:
But even if those factors aren't in play, we can have discussion without prejudice.

[01:04:13] Speaker 06:
You know, when prejudice often is looked at to other parties.

[01:04:16] Speaker 01:
But in many cases, disruption will imply prejudice, right?

[01:04:21] Speaker 01:
But the commission might make findings differently in the same way.

[01:04:23] Speaker 01:
They're tasked.

[01:04:24] Speaker 01:
I didn't write that.

[01:04:24] Speaker 01:
The same way with good cause under D11, right?

[01:04:27] Speaker 01:
Sometimes it may create prejudice.

[01:04:29] Speaker 01:
And sometimes we may be concerned about the ex ante incentives it creates for the whole process in terms of future cases later, because we do need to draw a line somewhere.

[01:04:36] Speaker 01:
And the commission has done that here.

[01:04:38] Speaker 01:
And in many cases, it's cited.

[01:04:40] Speaker 01:
And I think ultimately, the other consideration we haven't talked too much about is really that the commission or hearing order is responding to a limited set of cases that they raised on their hearing and their hearing request.

[01:04:51] Speaker 01:
And they raised a lot of them.

[01:04:52] Speaker 01:
And the commission went through all of those.

[01:04:54] Speaker 01:
Now, most of them were just non-responsive because they were ALJ cases or because of it.

[01:04:59] Speaker 01:
But they didn't raise the cases that posted the orders.

[01:05:01] Speaker 01:
But the only two cases they properly raised where they can make this argument were Erie Hydro Boulevard.

[01:05:06] Speaker 01:
That's responded.

[01:05:07] Speaker 01:
That's answered in paragraph 12 of the hearing order.

[01:05:09] Speaker 01:
and in note 37 of their hearing order, which is the Wood-Pulp decision.

[01:05:14] Speaker 01:
In both those cases, the facts are very different and the commission explained why the facts were different, essentially both equated to a failure of notice.

[01:05:22] Speaker 01:
In Wood-Pulp, note 37, the entity seeking late intervention was in Canada, so not deemed to have constructive notice via federal register publication, had never participated in commission proceedings, and nonetheless, still managed to intervene only one month after the deadline.

[01:05:38] Speaker 01:
Now, in Erie Hydro Boulevard, the citizens for Hinkley Lake case in paragraph 12, the commission essentially admitted that its own notices to have two interrelated proceedings created some confusion.

[01:05:49] Speaker 01:
Nothing like that is here.

[01:05:51] Speaker 01:
That might also be something like a EE pipeline where the commission mistakenly offered an opportunity to intervene in its environmental assessment, even though it was not an environmental impact statement.

[01:06:00] Speaker 01:
But those cases are distinguished, and that is the only universe of cases that they have properly raised on hearing in this case.

[01:06:06] Speaker 01:
And in the opening brief.

[01:06:08] Speaker 01:
For that reason, I ask the court to affirm.

[01:06:11] Speaker 03:
I'm sorry.

[01:06:12] Speaker 03:
I had just a couple things.

[01:06:14] Speaker 03:
One is just, it just seems to me that if you're applying the words of 214, it says you may consider a bunch of factors, including whether this disrupts the proceeding, whether the interest is adequately represented.

[01:06:30] Speaker 03:
So it's a permissive thing.

[01:06:32] Speaker 03:
And what I'm hearing from the tenor of this

[01:06:35] Speaker 03:
Um, discussion in the colloquies is that.

[01:06:38] Speaker 03:
If a, an agency has discretion and has.

[01:06:44] Speaker 03:
Factors that may consider if it.

[01:06:49] Speaker 03:
Often, or it seems some people think always, um.

[01:06:54] Speaker 03:
treats certain factors a certain way, then they lose their discretion in every case to not consider those factors, even though the rule says they are allowed not to consider those factors.

[01:07:08] Speaker 03:
And I guess that leads me to wonder, is it really true that the commission has never denied an intervention motion just because you were late and you didn't have a good reason?

[01:07:18] Speaker 03:
That seems to be the tenor of what I'm hearing here.

[01:07:21] Speaker 03:
You never do this.

[01:07:22] Speaker 03:
You were late.

[01:07:23] Speaker 03:
You didn't have a good reason.

[01:07:24] Speaker 01:
You're done.

[01:07:24] Speaker 01:
We've done exactly this case in multiple other situations.

[01:07:27] Speaker 01:
Venture Global CP2, they say the FISH, the NGO whose name is abbreviated by the acronym FISH, you didn't explain the D1-1 factor.

[01:07:35] Speaker 01:
That's sufficient to kick you out.

[01:07:37] Speaker 01:
It was sufficient on its own in Broadview Solar, in EE Pipeline, and in STS Hydropower.

[01:07:43] Speaker 01:
Three of those cases are collected again at note 36.

[01:07:46] Speaker 01:
And in all four of those cases,

[01:07:48] Speaker 01:
The commission says you mailed it in on D-11.

[01:07:52] Speaker 01:
We're not going to excuse that.

[01:07:54] Speaker 01:
You were on notice because of our cases that this is important.

[01:07:57] Speaker 01:
We may consider this factor, and that is sufficient.

[01:08:00] Speaker 01:
And it's incumbent on the petitioner here to really show that something like, I think International Transmission Company cited in the red brief is also a good analog there.

[01:08:10] Speaker 01:
It was a very different sort of proceeding under the Federal Power Act transmission incentives, but the commission had a policy of making fact-specific determinations just like it does here under a rule designed to allow it to do exactly that.

[01:08:21] Speaker 01:
And when that is the case, the part needs to show that the facts are there.

[01:08:25] Speaker 01:
No materially different facts here.

[01:08:26] Speaker 01:
They haven't done that because they fit well into the time range of the four cases I mentioned.

[01:08:31] Speaker 01:
Plus they are sort of unique in that they got a second notice from the notice of intent to prepare the EA and sat on their hands for two months.

[01:08:38] Speaker 03:
It's true the commission did not make a... The reason was we didn't know about it, but then they did know about it for two months and they still were late.

[01:08:45] Speaker 01:
Well, the reason is essentially that they didn't have actual notice, but by federal statute, they had constructive notice.

[01:08:51] Speaker 03:
But then even then they had actual notice, they waited, I guess is your point.

[01:08:55] Speaker 01:
Apparently, certainly.

[01:08:55] Speaker 03:
And then my other question... And many other entities like PJM moved much more... Okay, so my other question is about mootness, and it just seems to me that

[01:09:06] Speaker 03:
If we were to rule against you, you could reconsider whether or not the intervention motion should have been granted using more factors or not, whatever.

[01:09:20] Speaker 01:
I actually think that is a great question.

[01:09:22] Speaker 01:
I think there is an important factual distinction.

[01:09:24] Speaker 01:
Once the letter issues, the commission loses jurisdiction entirely.

[01:09:27] Speaker 01:
I don't know how we could reopen after that point.

[01:09:30] Speaker 03:
I thought you said that had not yet happened.

[01:09:32] Speaker 01:
It had not yet happened.

[01:09:33] Speaker 03:
So what's the time frame in which this ruling would have to come down for it not to be moot?

[01:09:38] Speaker 03:
When will it become moot, I guess?

[01:09:40] Speaker 01:
I don't know.

[01:09:40] Speaker 01:
And if I knew, I couldn't tell you.

[01:09:42] Speaker 06:
Well, you do have a pending motion for administrative stay that would also include issuance of that latter for precisely this reason, right?

[01:09:50] Speaker 06:
I think there is a pending motion for administrative state from the petitioners.

[01:09:54] Speaker 06:
Yes, that was file includes issuance of this letter.

[01:09:56] Speaker 01:
I understand that was filed sometime last Friday.

[01:09:58] Speaker 01:
I believe I'm not sure the status that and I have no idea whether I believe that mentions.

[01:10:05] Speaker 06:
I mean, council can correct me if I'm wrong, but that that includes.

[01:10:09] Speaker 06:
asking a stay of issuance of that letter for precisely the reason you just mentioned.

[01:10:14] Speaker 06:
Once you don't have jurisdiction, I don't know what anybody is going to do.

[01:10:17] Speaker 06:
Right.

[01:10:17] Speaker 06:
That is my understanding.

[01:10:18] Speaker 04:
Well, you could always write a letter and ask them to withdraw that letter because of the decision by the court, which makes it mandatory now for you to reconsider whether or not American law.

[01:10:33] Speaker 01:
Well, I think the court's relief at most in this situation, Your Honor, would be limited to vacater of the intervention orders.

[01:10:39] Speaker 04:
Sure, I understand.

[01:10:40] Speaker 04:
But we're not sort of in an impossible world.

[01:10:44] Speaker 04:
And if the letter comes tomorrow, the other thing I'm concerned about is when judges ask questions, they don't necessarily and often don't indicate what their views are.

[01:11:01] Speaker 04:
And I can see all kinds of reasons why agencies have this kind of rule, where they have a lot of flexibility.

[01:11:12] Speaker 04:
And they give you a signal that you ought to file in 90 days.

[01:11:17] Speaker 04:
And if you don't, you may not be able to be an intervener.

[01:11:23] Speaker 04:
On the other hand, there are going to be circumstances in the agency where we want some flexibility.

[01:11:31] Speaker 04:
And in our expert judgment, even though somebody or some entity hasn't shown, quote, good cause as we would normally require, the commission has determined that it's important to its proceeding that this late filed party be in the case.

[01:11:59] Speaker 04:
That's exactly what I understand that.

[01:12:02] Speaker 04:
And all I'm getting at is it seems to be clear here.

[01:12:08] Speaker 04:
And what's so troubling is that you knew what their views were.

[01:12:16] Speaker 04:
You considered them.

[01:12:18] Speaker 04:
All right.

[01:12:19] Speaker 04:
So the only thing that's at stake here is whether they're going to have the right to appeal.

[01:12:27] Speaker 01:
And the commission, when they file timely motions, the commission is routinely granted American Whitewater itself intervention as this court saw in a prior case from this item in 2025.

[01:12:36] Speaker 01:
So the commission has no animus against American Whitewater.

[01:12:38] Speaker 01:
I just want to make that crystal clear here.

[01:12:40] Speaker 04:
Oh, and I wasn't suggesting that.

[01:12:42] Speaker 04:
I was suggesting that the pattern of cases doesn't give us confidence as to what the commission is doing.

[01:12:51] Speaker 01:
Well, I would think it does, Your Honor, because the rule entitles the commission to draw very fine factual distinctions.

[01:12:56] Speaker 01:
And when you take a look at the facts of these cases, they fit very comfortably in the cases in note 36.

[01:13:02] Speaker 01:
And they are much different than the other cases.

[01:13:05] Speaker 04:
They fit comfortably in the sense that both the mandatory rule and what Petitioner calls the mandatory rule and the discretionary rule both talk about good cause.

[01:13:20] Speaker 04:
And I think it's fair to assume the commission isn't defining good cause differently within those two subsections of the same rule, that you may have good cause or you may not.

[01:13:35] Speaker 04:
And here the commission says, you gave us no reason.

[01:13:39] Speaker 04:
And you had legal notice and you had actual notice.

[01:13:44] Speaker 04:
And you just said, you forgot.

[01:13:47] Speaker 04:
And that's not good enough.

[01:13:49] Speaker 04:
All right, end of discussion, says the commission.

[01:13:51] Speaker 04:
But on the other hand, in these other cases, even the parties who are more involved in the actual decisions that the commission is going to make, because it'll affect their bottom lines, get to come in late.

[01:14:12] Speaker 04:
So it's not a question of bias, but it's a question of how you're applying the rule.

[01:14:17] Speaker 04:
And that's what's just odd about it.

[01:14:19] Speaker 01:
Well, I think it would go to the weight of the D11 factor in terms of they're trying to explain a degree of delay.

[01:14:25] Speaker 01:
And the longer the delay, in terms of the good cause for that delay, the greater explanation you need.

[01:14:31] Speaker 01:
And that's an egregious delay here with the minimum attempted explanation.

[01:14:37] Speaker 01:
But I would also note for your honor, even if it's the case that the length of delay articulated as a grounds for decision in paragraph 10 of the rehearing order is not, in fact, properly put under paragraph D1, Romanet 1 as good cause, it would still be sufficient grounds on its own because rule 214 does not limit the commission to even those factors.

[01:15:00] Speaker 01:
And this case is factually unique as far as I understand it because they slept on two different notices or ignore two different notices.

[01:15:08] Speaker 04:
Well, it's factual you need in several respects.

[01:15:11] Speaker 01:
That's true.

[01:15:12] Speaker 04:
OK.

[01:15:13] Speaker 04:
On your favor and on petitioners' favor.

[01:15:17] Speaker 03:
So on the moodness issues, though, what do we do with the fact that it's not moot now as we sit here at oral argument, but could become moot at any moment?

[01:15:25] Speaker 01:
On the moodness issue, I'm not sure that it isn't moot really right now because

[01:15:33] Speaker 01:
There's no, as I understand, there's no possibility for a viable petition for review of this demerits order.

[01:15:39] Speaker 01:
Sure, the commission might grant them party status, but I'm not sure what that achieves because the 60-day window has already run.

[01:15:44] Speaker 01:
They needed to file a proper hearing request, which the commission rejected.

[01:15:48] Speaker 01:
And so they've already missed not only the 825LB 60-day window, they missed the 825LB, I'm sorry, A window as well.

[01:15:57] Speaker 01:
And so even if the commission were to grant them party status, the court would have to reject

[01:16:01] Speaker 01:
We may have to reject their notice for hearing yet again.

[01:16:05] Speaker 03:
Correct me if I'm wrong.

[01:16:06] Speaker 03:
I mean, this is just hypothetical because it's mootness.

[01:16:08] Speaker 03:
Is there a possibility of relief?

[01:16:10] Speaker 03:
Because it seems to me that if this were remanded to you, you could probably, given the broad discretion that the commission has, come with a better rationale or rationale that fits whatever we say to deny them intervention, which is probably what would happen.

[01:16:25] Speaker 03:
But is there a possibility that if we were to remand and say that,

[01:16:30] Speaker 03:
you didn't apply your intervention rule correctly, reapply it.

[01:16:33] Speaker 03:
And if you were to hold, okay, they should have been allowed to intervene, that you would go back and look at what they filed, which you rejected because they weren't a party, because now they are at the rehearing station, because the whole process has moved.

[01:16:47] Speaker 01:
Right, right.

[01:16:48] Speaker 01:
The commission already rejected an earlier attempt at a hearing request because they weren't a party.

[01:16:52] Speaker 01:
But I'm not sure how the commission, you know, this is...

[01:16:55] Speaker 01:
I can't fully speak for the commission.

[01:16:57] Speaker 01:
This is my understanding of the statutory clock.

[01:16:58] Speaker 01:
It is a hard jurisdictional limit at both 30 days for a hearing request and six days for permission for review.

[01:17:04] Speaker 01:
Both of those statutory clocks have run.

[01:17:05] Speaker 01:
So even if we were to grant them party status, I'm not sure how that would happen.

[01:17:08] Speaker 03:
They were just rejected.

[01:17:09] Speaker 03:
Did they file in a timely fashion, but they were just rejected because they weren't a party?

[01:17:13] Speaker 01:
I don't know off the top of my head, but I think you could assume so, and if that's true, they could tell you.

[01:17:18] Speaker 03:
So if they were timely, I'm just asking, is it just too late because the rest of the process has moved on?

[01:17:23] Speaker 03:
You can't reopen it for one party then at this stage?

[01:17:26] Speaker 01:
Well, I think that.

[01:17:28] Speaker 03:
I mean, you could theoretically look at their hearing petition and say we wouldn't have granted this anyway.

[01:17:33] Speaker 01:
Right.

[01:17:34] Speaker 01:
The commission, like this court, treats the 60-day clock in paragraph B of 825L.

[01:17:39] Speaker 01:
The commission treats the, and I believe this court and virtually every other circuit since Boston Gas and the First Circuit in the late 70s, I believe, has treated the 30-day clock in paragraph A as jurisdictional as well and binding both on the commission and the court and not subject to equitable waiver.

[01:17:54] Speaker 01:
So I'm not sure what the commission could do there.

[01:17:56] Speaker 01:
But again, this problem was avoidable for them in two different ways.

[01:18:00] Speaker 01:
One is to read the Federal Register with the 7,000 folks they had able to read it in the three outside law firms and move faster.

[01:18:07] Speaker 03:
So you're saying even equitable matter, even if there were equitable matters?

[01:18:09] Speaker 01:
Right.

[01:18:09] Speaker 01:
There would be no equitable reason to do that here.

[01:18:12] Speaker 01:
And secondly, I mean, they could have solved expedited briefing, for example.

[01:18:15] Speaker 01:
I mean, the commission certainly took its time with the merits order, went through a long sexual 106 process.

[01:18:19] Speaker 06:
I'm not at all sure that had they intervened.

[01:18:21] Speaker 06:
um closer in time but still a little bit late within your little bit late's okay role then we're talking about three or four months difference in timing but this case still isn't coming up here we'd still have to do the intervention um i don't i don't see why that would have changed anything on our mootness issue i don't understand

[01:18:47] Speaker 06:
It was a commission that took forever to rule on its intervention.

[01:18:50] Speaker 01:
I think my point might not have been clear if they had intervened in a timely fashion.

[01:18:57] Speaker 01:
But the commission might well have created some party stacks.

[01:19:00] Speaker 06:
There's some number of lateness that's OK and some number that isn't argument.

[01:19:06] Speaker 01:
Well, it wouldn't be lateness at all.

[01:19:07] Speaker 06:
Right.

[01:19:08] Speaker 06:
OK, you're only making a lateness at all argument.

[01:19:11] Speaker 06:
I mean, it is.

[01:19:17] Speaker 06:
It is very strange to sort of figure out what happens.

[01:19:23] Speaker 06:
If we're right, they haven't made as a matter of law, we had to be granted intervention argument.

[01:19:32] Speaker 06:
You're right.

[01:19:32] Speaker 06:
They've only said.

[01:19:34] Speaker 06:
test was applied in arbitrary way, and they asked to have only the intervention decision sent back.

[01:19:41] Speaker 06:
They don't ask us to say and direct FERC if it grants intervention then to reopen the proceedings.

[01:19:53] Speaker 06:
Would FERC at this stage, I assume it still has the authority to reopen?

[01:20:01] Speaker 06:
Assuming this magic letter doesn't come in from the commissioner of dam safety or there is a rule on reopening.

[01:20:09] Speaker 01:
I have to apologize to your honor.

[01:20:10] Speaker 01:
I'm not sure the exact basis of it and how that would I am not sure the commission policy on the clock.

[01:20:16] Speaker 01:
The statutory clocks vis a vis the reopening rule as well.

[01:20:19] Speaker 01:
But you know, in a worst case scenario, we might need to brief that.

[01:20:22] Speaker 01:
I mean, it's early, but all right.

[01:20:26] Speaker 06:
Any questions?

[01:20:27] Speaker 06:
Thank you very much.

[01:20:29] Speaker 06:
A little bit of your time.

[01:20:30] Speaker 06:
We appreciate working with us on this.

[01:20:34] Speaker 06:
I think also will give you three minutes for rebuttal.

[01:20:43] Speaker 06:
You haven't asked for to direct them to reopen if they grant intervention.

[01:20:48] Speaker 06:
You haven't asked us to rule as a matter of law that they should have granted intervention.

[01:20:54] Speaker 06:
So it does feel like.

[01:20:58] Speaker 06:
bit of a pickle here on what you would even be intervening in.

[01:21:03] Speaker 02:
I understand that concern, Your Honor, but that concern was addressed by the Public Service Commission case in which they noted really old case.

[01:21:10] Speaker 06:
And since then, we've gotten arrogance.

[01:21:14] Speaker 06:
It's just a little hard to figure out what to do with these two cases.

[01:21:20] Speaker 02:
Narragansett is distinguishable, Your Honor.

[01:21:22] Speaker 02:
That case was decided on standing grounds, and the court specifically noted that standing had to be evaluated at the time the petition for review was filed.

[01:21:30] Speaker 02:
And in that case, all of the relief that the petitioner was seeking was eliminated at the time that the petition for review was filed.

[01:21:37] Speaker 02:
And that is simply not the case here.

[01:21:39] Speaker 02:
And Public Service Commission is the most on-point case because it dealt with a circumstance that is like American Whitewater's posture here.

[01:21:46] Speaker 06:
Well, all the ability for relief may be eliminated since

[01:21:50] Speaker 06:
I mean, normally what happens is someone else has filed a petition for review too.

[01:21:54] Speaker 06:
I mean, FERC, you know, alas, makes hard decisions, which it tends to make somebody unhappy on one side and sometimes everybody unhappy on both sides.

[01:22:03] Speaker 06:
But this is just an unusual case where the only, everyone else was content with the decision.

[01:22:07] Speaker 06:
I'm not saying that you shouldn't have your views, as Judge Rogers has said, you had a different viewpoint.

[01:22:13] Speaker 06:
But this thing is over and done and they are, you know, have done everything except unplug.

[01:22:21] Speaker 06:
And so it seems a lot then to think that, and you haven't asked us to direct reopening in your brief.

[01:22:31] Speaker 06:
And I'm not, are you aware of any case since Public Service Commission where this court has claimed, and that wasn't a hydroelectric case, I don't think, where this came as, was it under the same statute though?

[01:22:48] Speaker 06:
I believe so, Your Honor.

[01:22:51] Speaker 06:
And the other case where this court has said, go back and if you grant intervention, then you must necessarily reopen.

[01:23:04] Speaker 06:
And it's that second part, which is what, I take your point, and that's your live interest.

[01:23:11] Speaker 06:
We don't assign anything for our authority to direct that.

[01:23:15] Speaker 06:
What is our authority to do that?

[01:23:17] Speaker 02:
The best authority I have, Your Honor, is the Public Service Commission case.

[01:23:20] Speaker 02:
And in that case, the petitioners.

[01:23:21] Speaker 06:
Is this something in a statute?

[01:23:24] Speaker 06:
Are there other cases where, maybe not in an intervention context, but for whatever reason, we had to direct them to reopen an otherwise completely finalized decision that no one else was challenging?

[01:23:38] Speaker 02:
As FERC counsel noted, FERC does have the ability to reopen proceedings.

[01:23:42] Speaker 02:
And this court is.

[01:23:43] Speaker 02:
What do you test when they do that?

[01:23:45] Speaker 06:
What is their test?

[01:23:46] Speaker 06:
I don't have the test on the top of my head.

[01:23:47] Speaker 06:
If the test was prejudice to other parties, then...

[01:23:51] Speaker 02:
In this case, Your Honor, any prejudice that might be considered can only be attributed to FERC's actions if this court agrees with American Whitewater.

[01:23:58] Speaker 02:
There has been no evidence of prejudice and disruption at the time American Whitewater filed its motion to intervene.

[01:24:05] Speaker 02:
And the Court and Public Service Commission, the petitioners did not ask for re-opener, but the court in that case noted that if it be decided on the merits of the intervention request that the Federal Power Commission had aired, then necessarily the proceedings would have to be reopened.

[01:24:20] Speaker 06:
I just don't know what the authority for that is.

[01:24:25] Speaker 06:
I mean, we've got the case, I guess I could just point to that.

[01:24:28] Speaker 06:
But that seems an extraordinary proposition.

[01:24:31] Speaker 02:
If Your Honor finds a moodness or any type of these issues to be relevant to this case, FERC Council or American Whitewater Council can submit to the FERC regulation or the part of the statute that pertains to re-opener.

[01:24:46] Speaker 02:
But both parties here agree that there is a particular authority that allows for FERC to reopen its proceedings.

[01:24:52] Speaker 03:
But what can it do upon reopening if statutory deadlines have passed?

[01:24:57] Speaker 02:
In this case, Your Honor, the issue of statutory deadlines is solved in part by 16 U.S.C.

[01:25:03] Speaker 02:
825 L.B.

[01:25:05] Speaker 02:
And in that part of the statute, it states that even after a petition for review is filed, FERC can modify its order.

[01:25:11] Speaker 02:
And the statute does not say- Well, that's not the judge's question, as I understood.

[01:25:17] Speaker 03:
Maybe I missed.

[01:25:18] Speaker 03:
So I understood your friend on the other side to be saying that it's too late.

[01:25:24] Speaker 03:
There was a 60-day deadline.

[01:25:25] Speaker 03:
It's done.

[01:25:27] Speaker 03:
We can't go back to that.

[01:25:30] Speaker 03:
So once, I guess there are two barriers.

[01:25:33] Speaker 03:
One is once this letter issues, we have no jurisdiction.

[01:25:37] Speaker 03:
Even before it issues, a reopening would not enable it to really do anything substantive because the process has moved on.

[01:25:46] Speaker 03:
And so at some point, I feel like that probably is the case.

[01:25:49] Speaker 03:
I don't know specifically how the FERC rules work, but why is he wrong?

[01:25:54] Speaker 02:
He's wrong, Your Honor, because of this court's decision in American Whitewater versus FERC in 2025.

[01:26:00] Speaker 02:
And while that case was not an intervention case, the case did decide the issue of mootness after a surrender order becomes effective.

[01:26:07] Speaker 02:
And at that time that that issue was decided, the court found that even if the surrender order was effective upon this court's decision, it still would not render the case moot because this court can vacate that surrender order, which would revert jurisdiction back to FERC.

[01:26:23] Speaker 03:
You haven't asked us to do that.

[01:26:25] Speaker 02:
No, Your Honor.

[01:26:26] Speaker 02:
And the issue of whether or not the related proceeding would be moot would have to be resolved in that particular case.

[01:26:33] Speaker 02:
But in this case, the best case and the only case that either party has raised on this issue is the Public Service Commission case.

[01:26:41] Speaker 04:
See, I'm thinking of some other cases, not for cases where we have said that the petitioner in this type of situation has to show

[01:26:55] Speaker 04:
how it was prejudiced.

[01:26:59] Speaker 04:
All right?

[01:27:00] Speaker 04:
And so the argument FERC makes is, look, not only did you have formal and legal notice, but you're frequently before FERC.

[01:27:10] Speaker 04:
So you know how FERC operates.

[01:27:13] Speaker 04:
All right?

[01:27:14] Speaker 04:
And you're a sophisticated party.

[01:27:19] Speaker 04:
All right?

[01:27:19] Speaker 04:
Furthermore, we have your views.

[01:27:23] Speaker 04:
We've considered them.

[01:27:25] Speaker 04:
So, you know, what's the prejudice to you?

[01:27:31] Speaker 04:
The people you represent, their views have been presented to the agency and the agency has considered them.

[01:27:37] Speaker 04:
The agency hasn't necessarily agreed with those views, but that's not the test.

[01:27:45] Speaker 04:
And so why should we sort of

[01:27:49] Speaker 04:
come up with some bad law, arguably, undercutting sort of the agency's procedural process when the party before us, quote unquote, hasn't pointed to any prejudice to it.

[01:28:08] Speaker 04:
Because the people it represents or the entities it represents, their views have all been presented to the commission

[01:28:16] Speaker 04:
And there's no suggestion that American Whitewater has anything more to say to the commission.

[01:28:29] Speaker 04:
That's not necessarily true, Your Honor.

[01:28:31] Speaker 04:
Well, I didn't see that in your brief.

[01:28:33] Speaker 04:
And we get briefs all the time where parties say, look, we're late or we want some special treatment because we've been prejudiced.

[01:28:41] Speaker 04:
All right?

[01:28:41] Speaker 02:
That's not in your brief.

[01:28:43] Speaker 02:
And that's because the issue of the difference between for considering American Whitewater's comments and now happened after briefing in this case.

[01:28:52] Speaker 02:
It was after the surrender order was issued.

[01:28:55] Speaker 04:
Well, you can file 28 J letters.

[01:28:57] Speaker 04:
You can put us on notice.

[01:29:00] Speaker 04:
None of that happened.

[01:29:01] Speaker 04:
You know, so literally 24 hours before we've got this new issue before us.

[01:29:07] Speaker 04:
All right.

[01:29:09] Speaker 04:
So I'm just trying to think, you know,

[01:29:13] Speaker 04:
In this case, why are the equities in your favor?

[01:29:18] Speaker 04:
When you haven't pointed us, you haven't asked for things, all right, as Judge Molens questions have pointed out, Judge Pan has pointed out how there are all kinds of issues that haven't been answered this morning.

[01:29:36] Speaker 04:
And

[01:29:39] Speaker 04:
You're not answering them now.

[01:29:41] Speaker 04:
You still haven't pointed to prejudice to the interests you represent.

[01:29:47] Speaker 02:
The specific prejudice is the change in position that FERC took in between the EA and the surrender order.

[01:29:53] Speaker 04:
That was not my question, counsel, and you're too bright.

[01:29:57] Speaker 04:
Okay.

[01:29:59] Speaker 04:
And you knew what my question was.

[01:30:02] Speaker 04:
The interests you say have not been adequately represented by any other party before FERC.

[01:30:10] Speaker 04:
But you submitted your comments on behalf of the members that you represent.

[01:30:18] Speaker 04:
And you're not denying or you're not challenging FERC's statement that it considered those comments.

[01:30:27] Speaker 02:
In the request for re-hearing of the surrender order, American Whitewater does argue that FERC did not sufficiently consider the arguments.

[01:30:34] Speaker 04:
Sufficiently?

[01:30:36] Speaker 04:
Okay, they considered them.

[01:30:38] Speaker 04:
All right, maybe not sufficiently from your point of view, but you haven't argued any prejudice here.

[01:30:44] Speaker 04:
It's not as though FERC overlooked some major issue.

[01:30:50] Speaker 04:
You know, that the dam after five years is going to explode and kill all the residents within 20 miles.

[01:30:59] Speaker 04:
That's not this case.

[01:31:00] Speaker 04:
I mean, this case is an intellectual case, right?

[01:31:07] Speaker 04:
Are we going to look at

[01:31:10] Speaker 04:
a rulemaking by an agency and say, yeah, they're all over the waterfront.

[01:31:15] Speaker 04:
Their cases are so different.

[01:31:18] Speaker 04:
And Fert comes back and says, yes.

[01:31:20] Speaker 04:
And that's exactly what our rule entitles us to do.

[01:31:25] Speaker 04:
But for a sophisticated litigant who had legal and had constructive and legal notice,

[01:31:35] Speaker 04:
What's the excuse for letting you come in so late in the game?

[01:31:38] Speaker 04:
There is none, and you haven't said you're prejudiced.

[01:31:42] Speaker 02:
Your honor, the specific prejudice is the inability to respond to the environmental justice rationale, which switched.

[01:31:48] Speaker 02:
So American Whitewater's interest is advocating for surrender with dam removal.

[01:31:53] Speaker 02:
And in the EA, unlike in the surrender order, FERC attested that environmental justice weighed against dam removal.

[01:32:00] Speaker 02:
And then it changed its mind in a way that no party has been able to comment on in the surrender order.

[01:32:05] Speaker 04:
Well, no other party has before us either, right?

[01:32:08] Speaker 04:
That's correct, Your Honor.

[01:32:09] Speaker 04:
All right, so apparently everybody's happy.

[01:32:12] Speaker 04:
Or they've just decided this litigation has to come to an end.

[01:32:16] Speaker 04:
It's clear that this dam is going to be decommissioned.

[01:32:21] Speaker 04:
All right?

[01:32:22] Speaker 02:
It's unclear, Your Honor.

[01:32:23] Speaker 02:
I have no way of knowing why the other parties may or may not have.

[01:32:26] Speaker 04:
No, we don't either.

[01:32:28] Speaker 04:
But all we have is what's before us.

[01:32:31] Speaker 04:
All right?

[01:32:33] Speaker 04:
And this rule has been on the books forever.

[01:32:38] Speaker 04:
You certainly had an opportunity to petition the agency to change its rules.

[01:32:42] Speaker 04:
Never did that.

[01:32:43] Speaker 04:
And that's not your argument here today.

[01:32:46] Speaker 04:
I'm just trying to think about, from our point of view, about why do we bend over backward in this type of case?

[01:33:00] Speaker 04:
All right?

[01:33:01] Speaker 04:
Because you don't like the way the commission has applied the rule over time, and some of the commissioners don't like it either.

[01:33:11] Speaker 04:
But the FERT has stuck with it.

[01:33:14] Speaker 04:
You're afraid, and the court, and it's stuck with it, and the court candidly has gone along with it.

[01:33:21] Speaker 04:
All right?

[01:33:21] Speaker 04:
So your burden is really high.

[01:33:25] Speaker 04:
And you're saying, we have some good arguments.

[01:33:30] Speaker 04:
I don't see the prejudice.

[01:33:32] Speaker 04:
And I've made some of the arguments for you in questions today.

[01:33:38] Speaker 02:
This court made clear in cases such as City of Oroville and Public Service Commission that would-be interveners are aggrieved by a denial of intervention.

[01:33:46] Speaker 02:
And in this case, as I just- How are you aggrieved?

[01:33:50] Speaker 04:
What is the prejudice?

[01:33:51] Speaker 02:
The specific prejudice relates to the procedural injuries related to the denial of intervention.

[01:33:57] Speaker 04:
And so you had constructive and actual notice, and that's the risk he took.

[01:34:05] Speaker 04:
Why is the problem that the agency has to reopen this whole thing months later?

[01:34:11] Speaker 04:
Because you decided other priorities.

[01:34:18] Speaker 02:
That's because the administrative oversight or the consideration of D1i in Rule 214 is not determinative, because it's not the same thing as B3 good cause.

[01:34:28] Speaker 02:
But even if this court disagrees.

[01:34:29] Speaker 04:
Well, I didn't see any real argument that we have to construe the words good cause differently in B3 and D1.

[01:34:42] Speaker 02:
Nobody has suggested that.

[01:34:45] Speaker 02:
Your honor, American Whitewater did state that in their briefing, and this court did decide that.

[01:34:49] Speaker 06:
They're textually different questions.

[01:34:51] Speaker 06:
Yes.

[01:34:52] Speaker 06:
They are textually different good cause questions.

[01:34:55] Speaker 02:
Yes, your honor.

[01:34:56] Speaker 02:
And this court decided that they were different types of questions in the Swanson mining case.

[01:35:01] Speaker 02:
And the reason for this case, the heart of this case relates to the arbitrary and capricious nature of FERC's decision making.

[01:35:07] Speaker 04:
I'm getting at, what do the words good and what does the word cause me?

[01:35:15] Speaker 04:
All right?

[01:35:15] Speaker 04:
And we have some understanding of what FERC thinks they mean.

[01:35:20] Speaker 04:
And we have some understanding of what at least two commissioners think they should mean.

[01:35:31] Speaker 04:
But the majority of the commission hasn't adopted those dissenting views.

[01:35:36] Speaker 04:
And so we have the rule as it is.

[01:35:39] Speaker 02:
The commission has not, you're right, your honor, the commission has not clearly stated what good cause means, but the two.

[01:35:45] Speaker 04:
Well, then it seems to me a party coming before us would have to argue why those two words should be understood differently in B3 as opposed to D1.

[01:36:02] Speaker 04:
And I didn't see any argument there.

[01:36:04] Speaker 04:
I saw an argument as to what factors the agency should have considered.

[01:36:10] Speaker 04:
But that's a different issue.

[01:36:13] Speaker 02:
Your Honor, American Whitewater did brief this issue and discussed how B3, good cause, and D1I asked different questions.

[01:36:20] Speaker 02:
D1I asked, what prevented the proposed intervener from filing on time?

[01:36:25] Speaker 04:
Yeah, I thought that was a very sophisticated argument, all right?

[01:36:28] Speaker 04:
And you made another very sophisticated argument like that.

[01:36:31] Speaker 04:
And that's why it's just amazing to me that American Whitewater waited for nine months

[01:36:41] Speaker 02:
Your Honor, American Whitewater doesn't dispute administrative oversight or the length of delay, but the length of delay, as Judge Millett pointed out, is not a factor in the Rule 214 analysis.

[01:36:51] Speaker 02:
FERC has not announced in any of the cases that it cites that a set number of months should relate to D1I.

[01:36:57] Speaker 04:
And Judge FERC says, hypothetically, this is the case.

[01:37:05] Speaker 04:
You have a sophisticated litigant who's before us all the time.

[01:37:09] Speaker 04:
It had constructive notice as a matter of law, and it had actual notice.

[01:37:16] Speaker 04:
If there is ever a case where we have proceeded, we should apply the rule here.

[01:37:29] Speaker 04:
Nine months under those circumstances just doesn't come within our rule.

[01:37:34] Speaker 04:
And there's no explanation as to why you couldn't come in.

[01:37:39] Speaker 04:
earlier, much less on a timely basis.

[01:37:43] Speaker 02:
The administrative oversight, Your Honor, is not determinative.

[01:37:46] Speaker 02:
FERC has on many occasions decided to grant the intervention in cases of administrative oversight, as Judge Millett pointed out.

[01:37:53] Speaker 04:
I know.

[01:37:54] Speaker 04:
But my point is, why can't the commission say, we have this rule, everybody's on notice, there's B3, and there's D. And D says May.

[01:38:06] Speaker 04:
OK?

[01:38:07] Speaker 04:
We're going to apply B3.

[01:38:11] Speaker 02:
FERC could do that, Your Honor, but they have not done so in this case.

[01:38:15] Speaker 04:
And in the words of recent FERC commissioner... Why do you think they haven't done so in this case?

[01:38:20] Speaker 02:
Your Honor, it's not clear why FERC decided to decide America Whitewater's motion in the way that it did, but it's... Oh, I read why they said they denied it.

[01:38:29] Speaker 04:
They said no explanation, administrative convenience, and we said that's not enough alone.

[01:38:37] Speaker 04:
You're a sophisticated litigant.

[01:38:39] Speaker 04:
You had constructive notice.

[01:38:41] Speaker 04:
You had actual notice.

[01:38:43] Speaker 04:
And a lot of time has passed.

[01:38:48] Speaker 04:
And we're going to consider your comments anyway.

[01:38:51] Speaker 02:
I apologize, Your Honor, if I misspoke.

[01:38:53] Speaker 02:
I was speaking to the hypothetical where FERC did explain how it's not been inconsistent in its past practice.

[01:38:59] Speaker 02:
But you're right, FERC did list those explanations.

[01:39:01] Speaker 02:
And as to your honor's questions about the experienced nature of American whitewater, FERC has never stated that that's a principle that it's going to apply in the application of Rule 214.

[01:39:12] Speaker 04:
Excuse me, go ahead.

[01:39:14] Speaker 06:
I mean, if they were adopting a new rule there,

[01:39:20] Speaker 06:
then we would expect to see that having been applied since your case, right?

[01:39:25] Speaker 06:
I mean, have cases since yours denied intervention because a sophisticated party couldn't show a good cause?

[01:39:37] Speaker 02:
I'm not aware of a case where there's been a... We've done the opposite, right?

[01:39:42] Speaker 06:
Right, PJM.

[01:39:43] Speaker 06:
We reject your good cause, but we're going to let you in anyhow.

[01:39:46] Speaker 02:
Yes, Your Honor.

[01:39:47] Speaker 02:
And in certain instances, I like the one... They weren't adopting a nuclear rule in your case.

[01:39:52] Speaker 02:
No, Your Honor.

[01:39:53] Speaker 02:
They have not been clear on why, in some cases, they allow for administrative oversight decisions to go forward, and in other cases, they do not.

[01:40:00] Speaker 02:
And as this court held in Airmark Court versus FAA, where a court is dealing with different decision-making criteria, and in that instance, they had five different criteria.

[01:40:09] Speaker 02:
They were applying two exemptions from noise standards.

[01:40:12] Speaker 02:
The court still found that they had to apply those five criteria consistently across parties.

[01:40:18] Speaker 06:
Do you have more questions?

[01:40:19] Speaker 06:
I just wanted to follow up on Judge Rogers' prejudice question.

[01:40:24] Speaker 06:
And your prejudice, normally what we see is an explanation of prejudice as to what happened before the agency.

[01:40:34] Speaker 06:
And I'm not sure that in Public Service Commission that they, it was a different proceeding and they were kicked out at an early stage and the proceeding went on without them.

[01:40:45] Speaker 06:
wasn't like an environmental assessment here where they said, but go ahead and take your comments and we're gonna consider your comments.

[01:40:52] Speaker 06:
Is there a case that says the prejudice can be just your ability to seek review in a court as opposed to prejudice before the agency's process itself?

[01:41:06] Speaker 02:
I'm not aware of an analogous case for American Whitewater's posture, Your Honor, but the only cases that either party have cited with respect to standing purposes for a denial of intervention have found that the petitioners have standing in those cases because of the procedural injuries associated with the denial.

[01:41:23] Speaker 06:
I guess I'm asking you where those procedural injuries usually happen.

[01:41:27] Speaker 06:
Usually it's before the agency.

[01:41:30] Speaker 06:
itself, collaterally, that limits your ability to come here.

[01:41:33] Speaker 06:
But there also is some prejudice before the agency.

[01:41:37] Speaker 06:
This is an unusual one, because it's an environmental assessment, and anyone in the world can comment on it.

[01:41:42] Speaker 06:
And so you didn't, as Judge Rogers explained.

[01:41:44] Speaker 06:
Your comments were taken and were considered.

[01:41:47] Speaker 06:
And so I'm trying to understand if there's a case where prejudice was exclusively.

[01:41:55] Speaker 06:
Nothing.

[01:41:55] Speaker 06:
You weren't prejudiced before the agency.

[01:41:59] Speaker 06:
by not being allowed to intervene.

[01:42:02] Speaker 06:
Your sole argument of prejudice, as I take it and correct me if I'm wrong, is that, but now we can't seek judicial review.

[01:42:08] Speaker 06:
Am I right in understanding that that is your sole argument as to prejudice?

[01:42:12] Speaker 02:
That's the correct posture right now, Your Honor.

[01:42:15] Speaker 02:
And as I mentioned earlier, there's not a specific case that decides this exact issue that I can point Your Honors to.

[01:42:21] Speaker 02:
But the only cases, as I mentioned earlier, that have decided this question have found that the petitioners have standing.

[01:42:26] Speaker 02:
And while Public Service Commission.

[01:42:27] Speaker 02:
I'm talking about.

[01:42:30] Speaker 06:
I mean, we have rootness issues here, but also, you know, if you're not, I'm trying to figure out if it would take some sort of expansion of our laws that require a showing of prejudice to say, or laws of our case precedent, to say that it's sufficient if your prejudice is, if your dial of intervention did not affect your ability to be

[01:43:00] Speaker 06:
Submit comments, have those comments addressed before the agency, and that's what the agency process was considered as part of their decision making process.

[01:43:09] Speaker 06:
You're just prejudiced in seeking judicial review.

[01:43:14] Speaker 06:
You're not aware of a case like that.

[01:43:16] Speaker 02:
No, Your Honor, the best case I can point you to is the Public Service Commission case where it was that that was an environmental assessment case.

[01:43:24] Speaker 02:
No, Your Honor.

[01:43:25] Speaker 02:
And it's not clear that in the standing case law or the mootness case law for EA versus EIS, it's not clear that the courts or FERC draw that particular distinction.

[01:43:34] Speaker 06:
No, but I'm talking about that we do sort of have, as Judge Rogers noted, a requirement of a showing of prejudice from procedural error, alleged procedural error by the agency.

[01:43:52] Speaker 06:
That's the body of cases I'm asking about.

[01:43:55] Speaker 02:
So the concrete injury that's related to the procedural denial of intervention here is that American Whitewater's members would recreate on this portion of the river if the dams were moved.

[01:44:04] Speaker 06:
That's your standing, that's your Article III injury.

[01:44:07] Speaker 06:
I'm talking about, I'm just not being clear, the prejudice to you from not being allowed to intervene.

[01:44:15] Speaker 06:
That's not a standing question.

[01:44:16] Speaker 06:
You were able to communicate those recreational interests to the commission.

[01:44:23] Speaker 06:
They were, you made your comments.

[01:44:25] Speaker 06:
They were considered by the agency.

[01:44:29] Speaker 06:
You don't dispute that.

[01:44:33] Speaker 06:
So that was not your prejudice before the agency.

[01:44:35] Speaker 06:
Tell me how you were prejudiced before the commission by not being allowed to intervene.

[01:44:46] Speaker 02:
Your Honor is correct that the specifics of the prejudice relate to the right to judicial review of a flawed surrender order decision.

[01:44:53] Speaker 02:
And in this instance, as I mentioned earlier, the fact that FERC changed its mind.

[01:44:57] Speaker 06:
I understand you have a petition for review on that issue.

[01:45:02] Speaker 03:
Do you have any more questions?

[01:45:06] Speaker 03:
I do.

[01:45:07] Speaker 03:
So I'm just trying to understand.

[01:45:08] Speaker 03:
I thought you had said that it wasn't just

[01:45:12] Speaker 03:
the right to appeal as an intervener, but there was also a substantive issue on rehearing, which perhaps complicates things somewhat because that's the thing that cannot be addressed in light of where the process is at this point.

[01:45:27] Speaker 03:
Because it seems to me that if it were just the right to appeal, public service might support

[01:45:35] Speaker 03:
That there's no mootness and the remedy is you get to appeal as there is language and public service says.

[01:45:42] Speaker 03:
If you could be deemed a minute.

[01:45:46] Speaker 03:
intervener from the time of its application to intervene.

[01:45:49] Speaker 03:
And that under such view, it could be deemed to have been a party in the fullest sense throughout the proceeding.

[01:45:54] Speaker 03:
And thus it could be deemed to have been a party to the proceeding at the time of the final order.

[01:45:59] Speaker 03:
And on that conception, your petition to review the final order would be properly here.

[01:46:04] Speaker 03:
I think that chain of reasoning would support a finding potentially.

[01:46:10] Speaker 03:
If we will in your favor,

[01:46:15] Speaker 03:
It gets, again, this is hypothetical because you've asked that they have to, the agency would have to apply the rule and in whatever way we say they're supposed to, they would still have discretion to deny you.

[01:46:31] Speaker 03:
But theoretically, if you were supposed to be in, then I guess that would just mean you could appeal based on this reasoning.

[01:46:39] Speaker 03:
And it wouldn't necessarily have to get back into the sticky,

[01:46:43] Speaker 03:
Getting back before there were hearing and the arguments and et cetera, and the deadlines.

[01:46:50] Speaker 03:
Anyway, so it just struck me that there is a pathway to not being moved.

[01:46:55] Speaker 03:
If the only thing before us was whether or not you can appeal or not.

[01:47:03] Speaker 02:
That's correct.

[01:47:03] Speaker 02:
You're on the Public Service Commission case does support the ability for this case to go forward and for the petition for review in the related case.

[01:47:10] Speaker 03:
But you said there's something in addition to just the appellate rights.

[01:47:16] Speaker 02:
What I was what I believe you're referencing your honor is the statement that I made to Judge Malette about American White Waters members being able to recreate on this portion of the river.

[01:47:25] Speaker 03:
In response to a question I asked you when you were first before us, I said, is the only thing before us your right to appeal as an intervener?

[01:47:33] Speaker 03:
You said no, because they were comments you made on rehearing that weren't considered because you weren't a party.

[01:47:39] Speaker 02:
That issue, Your Honor, is wrapped up in the issue of appeal because whether or not FERC adequately addressed the environmental justice rationale switch up was something that was made in the request for rehearing as part of that appeal process for the surrender order decision.

[01:48:00] Speaker 03:
I'm just figuring if that's not available.

[01:48:04] Speaker 03:
And then my other question was just, and there have been some talks about the equities here.

[01:48:09] Speaker 03:
And I am wondering why you didn't move to expedite this appeal.

[01:48:12] Speaker 03:
Because I think we're in a little bit of a pickle because of the timing.

[01:48:15] Speaker 03:
And it seems that if that was your fault and as Judge Rogers said, you're asking us to bend over backwards to figure this all out for your benefit.

[01:48:25] Speaker 03:
And I just don't know why we should have to do that when you didn't

[01:48:29] Speaker 03:
Throughout this, I guess, throughout this case, you've not taken a bunch of procedural steps that you should have.

[01:48:35] Speaker 03:
And you're leaving it to us to kind of figure this all out for you.

[01:48:39] Speaker 02:
Your Honor, at the time that we were briefing this issue, we believed that the mootness issue was not going to be relevant because of this court's precedent in American Whitewater versus FERC and the Public Service Commission case.

[01:48:51] Speaker 02:
So at the time, we didn't believe that an expedition was necessary because of those particular proceedings.

[01:48:56] Speaker 06:
But you didn't know.

[01:48:57] Speaker 06:
Well, American Whitewater wasn't an intervention.

[01:48:59] Speaker 06:
Yes, right.

[01:49:00] Speaker 06:
No.

[01:49:01] Speaker 02:
That's correct, Your Honor.

[01:49:02] Speaker 02:
But in terms of how the related case and the mootness issues there of if American Whitewater can properly seek judicial review in that case relates to American Whitewater versus FERC, that is how that issue is relevant.

[01:49:14] Speaker 03:
But there would be a point at which they can't reopen the order anymore.

[01:49:17] Speaker 03:
There must be some timing problem moving there.

[01:49:22] Speaker 02:
Your Honor, it's not clear if there is.

[01:49:24] Speaker 02:
It's jurisdiction.

[01:49:25] Speaker 02:
But this court in American Whitewater versus FERC found in a situation that if FERC happens to lose jurisdiction after a petition for review is filed, that doesn't move the case because this court can vacate the surrender order and then just- Because a party had moved.

[01:49:41] Speaker 04:
We're back at the beginning.

[01:49:44] Speaker 04:
Are you a party?

[01:49:46] Speaker 02:
Not yet.

[01:49:48] Speaker 02:
That's correct, Your Honor.

[01:49:49] Speaker 02:
And that's where the Public Service Commission case comes into being.

[01:49:51] Speaker 02:
No, you keep going back to that.

[01:49:53] Speaker 03:
And also, you didn't ask for any vacator of anything.

[01:49:55] Speaker 03:
I know there was no order at that point, but it was foreseeable it was going to happen.

[01:49:59] Speaker 03:
And all you asked for was a remand to reconsider your intervention motion.

[01:50:04] Speaker 03:
So again, we're trying to figure out what to do about this.

[01:50:08] Speaker 03:
And you didn't lay it out.

[01:50:10] Speaker 02:
It's my understanding, Your Honor, that 16 U.S.C.

[01:50:12] Speaker 02:
825 L.B.

[01:50:13] Speaker 02:
would prevent American Whitewater from seeking vacatur of the surrender order in this proceeding, because that's not something that was raised on record.

[01:50:20] Speaker 03:
But not seeking it, but at least saying that there was a path.

[01:50:24] Speaker 03:
I think it was just foreseeable that the surrender order would happen.

[01:50:29] Speaker 03:
There would be at least a mootness question to us, even if it wasn't clear to you.

[01:50:33] Speaker 03:
And if you have all these ideas about why we shouldn't be concerned about that, it would have been incumbent on you to

[01:50:39] Speaker 03:
let us know or somehow put it in your briefs because now we're in a little bit of a bind.

[01:50:46] Speaker 03:
And I'm not, you know, we don't love to ask for supplemental briefing, slows things down, etc.

[01:50:52] Speaker 03:
complicates things.

[01:50:54] Speaker 03:
But I'm not sure what to do about where we are.

[01:50:57] Speaker 03:
And it seems a lot of it is your fault, I guess is for lack of a better way to put it.

[01:51:03] Speaker 02:
Well, Your Honor, the burden to prove that a case is moot or the burden to prove that vacature is not necessary lies with the defendant or the respondent in this case.

[01:51:12] Speaker 02:
And FERC did not, at any point in time after the opening brief was filed, state that this case should be considered moot.

[01:51:19] Speaker 06:
You were denied the final FERC decision denying intervention was 11 months before the surrender decision.

[01:51:32] Speaker 06:
Right?

[01:51:32] Speaker 06:
January to December, is that right?

[01:51:34] Speaker 06:
I believe so, Your Honor.

[01:51:35] Speaker 06:
Okay.

[01:51:36] Speaker 06:
You never at any point asked for a stay of proceedings.

[01:51:39] Speaker 06:
Your reply brief notes that the surrender decision has been made.

[01:51:43] Speaker 06:
You didn't ask for a stay.

[01:51:44] Speaker 06:
No, Your Honor.

[01:51:46] Speaker 06:
I guess last Friday, probably as preparation for oral argument, you filed your administrative stay of request, but that was

[01:51:53] Speaker 06:
months after their surrender decision.

[01:51:56] Speaker 06:
And so when you were filing petitions for review but never asked for stays, never asked for expedition, had you moved promptly to ask FERC to stay this decision after it issued the surrender decision in December, then all of this could be, seems potentially at least an easier not to untie

[01:52:22] Speaker 06:
than it now is.

[01:52:24] Speaker 06:
And you didn't, in your reply brief, address mootness at all.

[01:52:29] Speaker 06:
You didn't cite Public Service Commission there and say, they've surrendered it, but it doesn't, you say, well, and we're going to file a petition for review.

[01:52:35] Speaker 06:
And you did it on the next to last possible day.

[01:52:41] Speaker 06:
You weren't acting expeditiously.

[01:52:45] Speaker 02:
Well, Your Honor, the mootness issue, as I stated previously in my answer to Judge Pan, it's the defendant's burden to raise these issues and to prove that mootness or that vacature is unnecessary.

[01:52:56] Speaker 06:
You're the one seeking action from this court.

[01:52:57] Speaker 06:
And the only thing your reply brief asks for, knowing that the surrender decision has now been made, again, is a remand of the intervention decision.

[01:53:06] Speaker 06:
And you don't, anywhere, argue the impact of the surrender decision on whether there's even a proceeding we could

[01:53:15] Speaker 06:
order them to let you intervene in.

[01:53:16] Speaker 02:
Your honor, not to sound like a broken record, but the Public Service Commission case does.

[01:53:22] Speaker 06:
I'm just wondering why you didn't do any of these other things.

[01:53:25] Speaker 06:
I mean, it's not uncommon when these things happen to say, hang on, stay that decision.

[01:53:31] Speaker 06:
We've got a serious intervention problem here.

[01:53:34] Speaker 06:
And rather than have everything go forward, let's put the brakes on this, sort out intervention.

[01:53:42] Speaker 06:
and then we can figure out what to do with the surrender order.

[01:53:45] Speaker 06:
But instead, time limits ran for everybody to petition.

[01:53:52] Speaker 06:
You know, you do a reopening, I don't know what, they have to let everybody back in in case, in case FERC were to say, yes, you should intervene, yes, we're reopening, yes, you're right.

[01:53:59] Speaker 06:
Does everyone else have to come back into that reopening proceeding?

[01:54:03] Speaker 06:
And they thought they were done.

[01:54:07] Speaker 02:
Your Honor, to answer the earlier part of your question first, it was unclear before briefing was issued in this case whether or not when the surrender order would be issued.

[01:54:16] Speaker 02:
It's my understanding.

[01:54:17] Speaker 02:
Not unclear in your reply brief.

[01:54:18] Speaker 02:
That's correct, Your Honor, and that's because the surrender order was issued the day before the reply brief was due.

[01:54:23] Speaker 06:
You can ask for an extension motion to address it.

[01:54:25] Speaker 06:
You can ask for supplemental briefing.

[01:54:27] Speaker 02:
I understand, Your Honor, but it was not clear when FERC would issue the surrender order because it's my understanding.

[01:54:34] Speaker 02:
Why didn't you reply brief?

[01:54:35] Speaker 06:
where it had been issued at that point.

[01:54:40] Speaker 06:
And I get it was last minute, and lawyers will say, hang on, we need another week on our reply brief.

[01:54:46] Speaker 06:
It's not an expedited case, because this important event has just happened.

[01:54:53] Speaker 02:
Your Honor, the reason for that is because it's the respondent's burden to raise these issues and to prove that mootness and vacatur are actually important.

[01:54:59] Speaker 02:
You want relief.

[01:55:01] Speaker 06:
You've got to keep the case alive.

[01:55:04] Speaker 06:
while it's in this court.

[01:55:06] Speaker 06:
I don't think you can slough all this off on the commission.

[01:55:09] Speaker 06:
The commission's brief was filed before the surrender decision.

[01:55:12] Speaker 06:
They had nothing to address in their brief on this issue.

[01:55:16] Speaker 06:
I understand, Your Honor, but the mere fact that American Whitewater didn't move to expedite briefing does not mean- What I'm saying is stay is, or address the consequences of the issue of surrender order in the reply brief, or ask for supplemental briefing there so they would just respond to the implications of the surrender order.

[01:55:34] Speaker 02:
That's correct, Your Honor, in part because, as I stated earlier, this court's precedent in American Whitewater versus FERC and the Public Service Commission made clear that FERC cannot moot the intervention denial petition for review in this case.

[01:55:46] Speaker 02:
So American Whitewater was under the impression that this court's precedent was clear.

[01:55:50] Speaker 02:
And so that particular issue, unless phrased by the defendant, did not need to be further clarified.

[01:55:55] Speaker 06:
In a 28-J letter on Public Service Commission?

[01:55:58] Speaker 02:
No, that opinion is cited in our briefs, Your Honor, for different propositions, including for the standing issue.

[01:56:05] Speaker 02:
OK.

[01:56:10] Speaker 06:
Any other questions?

[01:56:11] Speaker 06:
No.

[01:56:13] Speaker 06:
All right.

[01:56:14] Speaker 06:
Thanks to everyone.

[01:56:15] Speaker 06:
Thank you for a very long time on the complexities of this case.

[01:56:19] Speaker 06:
It is now submitted.