may please the court means benjamin lockett and i represent the petitioners this case comes down to whether the virginia department of environmental quality and the state water control board adequately consider the water quality impacts of the mountain valley pipeline and rationally concluded that the project would not lead to violations of the commonwealth's water quality standards the m v p as the pipeline is known is a truly unprecedented constraint project never before has a pipeline of this and blasting required to lead lay the pipe would lead to substantial and long term increases in erosion and sedimentation particularly in areas of steep slopes and the state agencies failed to assess the combined impacts of all of the pipelines discharges and fail to support their conclusion that mountain valleys general non site specific erosion and sedimentation control measures would prevent any lowering of water quality the record does not support the board and the finding of reasonable assurance that the project would not lead to violations of water quality standards including anti degradation requirements and the courts should just vacate the certification and remand it to the agency for further review as an initial matter plaintiffs have article three standing to challenge the state certification the state does not dispute the petitioners members property recreational and aesthetic interest  water quality would be harmed by construction of the n d p rather they argue that petitioners lack standing because even if petitioners prevail in this action the state could alternately choose to waive its authority on remand such that petitioners injuries would remain and that argument was foreclosed by the supreme court's decision in f e c akins which holds that those adversely affected by a discretionary agency decision generally have standing to complain that the agency based its decision on an improper legal ground this court followed akins in the two thousand and nine case of towns b jarvis where it explained that a plaintiff can challenge a discretionary agency action for failure to properly apply the law even though the agency might reach the same result on remand or explain that the hold otherwise would involve courts in the speculative if not impossible task of predicting how an agency might exercise its discretion and here the state has not claimed that it would certainly affirmatively waive its certification authority on remand only that it has the discretion to do so in the  project we would argue requiring additional conditions and protections or it could deny certification and thus the project could not go forward it would have to call that decision for for can not authorize the pipeline to proceed without the four one certification from the state section for one provides states a shield against its activities authorized by federal agencies that could adversely affect their water quality and as the second circuit recently upheld in the constitution pipeline case states states are allowed to deny certifications and that denial would prevent the construction of a  and so in this case either the state on remand would issue a new certification with additional protective conditions or it would deny the certification and indeed this certification should be vacated and remanded particularly in light of the state's fundamental failure to analyze the combined impact of all of the projects discharges state aired here by looking at the impacts associated with so called upland discharges completely in isolation of the impacts associated with the pipelines crossings of wetlands and water bodies and those crossings are authorized by the us army corps of engineers clean water act section four zero four nationwide permit wetlands and streams now with sufficient what's the standard review in terms of a standoff with standish who uses a court well the state here is making a legal determination about what is required by section four one so that particular question would be reviewed to novo by this court and sections no one to actually this is they have to be combined with really is a section for one speaks in terms of the state certifying that all discharges associated with an activity will be able to comply with the state's water quality standards and that is that is an activity that is authorized by a federal license the federal license at issue in this particular certification is the certificate of public convenience  discharge is that is what the state is certifying here the activity is the construction of the pipeline as authorized by the first certificate which is the the federal license here that requires a certification now even if the state were allowed to take these certifications of up and impacts and certifications of the crossing and packs in separate proceedings which petitioners do not necessarily argue was was improper once those discharges are certified and authorized by nationwide permits well those impacts on water quality become part of the environmental baseline the reality against which the state had to judge the upland impacts here what the state did was look at the upwind impacts and look at the crossing impacts as if neither neither of the others existed there looking at them totally in isolation when the reality is this pipeline will be constructed down very steep slopes in many cases that direct those slopes directly end at the stream crossings so during construction you're going to have significant sedimentation both coming off of the steep slopes and coming from the crossings themselves so even if they were not required to do one certification when certifying the upland impacts they cannot simply ignore the impacts that would occur as a result of the string work order and again without a valid section for one certification a clean water act prevents any activity subject to a federal license that would lead to a clean water act regulated discharge is there a statute or regulation that you can point me to authorize a type of action that a section for a one year on or section seven seventeen are of the natural gas act authorizes review of state actions implementing federal law which is which is what we're dealing with here and the remedy for that is a remand to the agency for further proceedings and so that this is certainly envisioned by for that  he process without a valid certification construction cannot construction that would lead to a discharge cannot proceed and so you know there are there are pipelines that mention the constitution pipeline in new york that for which first has issued certificates of public and being it's a necessity but for which the state denied the section for one hundred occasions and in that case for cannot and has not allowed construction of that pipeline that would lead to discharges and the same is true here and again i think i understand your answer but this is going to lead to discharge i mean going to cut trees down because it's going to rain we hope there's going to rain this point to an air i guess yes you're right it was so what what what what do they have to do what would they have to do other words to say that there won't be any discharge because it seems to me that there will be you want to mitigate obviously those things but it necessarily so you cut down a tree in the forest and when it rains you go expose salt to more erosion right yes you're on a so what could you do have a big tent along the whole i mean what would you do because obviously ferk is saying this project has been certified to go forward is a public need for natural gas and those things in the pipeline is they want to build so the question how do we protect the  minute just common sense and not only cutting down trees but also grabbing pulling out stumps clearing of all vegetation and digging of substantial trenches and we have expert evidence here in the record showing that that activity would lead to and we have in the record expert report showing that during construction sedimentation would increase by fifteen hundred percent and we don't have any contrary evidence offered up by the state and the state asked for deference to expertise to its expertise but it must demonstrate that expertise in order to be afforded deference of the court cannot simply to defer to avoid and here the state has not offered any countervailing evidence quantification of sedimentation with the  sediment station controls that it has imposed the general nonce but cite specific controls included in mountain valleys annual standards and specifications that they have not performed the analysis necessary to show that these would not violate methods it's supposed to undertake in order to consider whether there would be a lowering of water quality which requires establishing by what extent do these waters exceed the bare minimum standards this is all for the protection of water quality high quality waters what is the baseline conditions how much of that excess water quality would be taken up and does that constitute a lowering of water quality and if that's the case then a full socio economic justification is required here the state hasn't followed any of those procedures it hasn't established the baselines of the streams and hasn't calculated how much sediment would enter these streams without any imposition of sediment controls and i calculated how effective the particular controls that it is applied would be in controlling that sentiment you know without doing that analysis there is no way the state can rationally conclude that there would be no lowering of water quality and it that that that decision was would apply in the absence of information demonstrating otherwise here the record very clearly includes information demonstrating otherwise that is that construction of this process project will the morning your honour's please the court toby heightens on behalf of the state respondents i'd like to make three basic points this one first this petition for review involves a discrete challenge to an important but small portion of an almost exclusively federal process for authorizing the construction of an interstate national gas natural gas pipeline second it appears undisputed that in this case the state agencies subjected this particular project to both a level and a depth of scrutiny that was at the time unprecedented and involve looking at things that virginia regulators had never previously looked at and third the level of scrutiny applied here is all the more noteworthy because under federal law the state agencies were not required to take any action whatsoever in this case and even a delay even a delay on the part of the state agencies would have simply permitted this project to move forward without imposing any of the extensive additional requirements that were imposed in this case so i'd like to address first i guess judge tracks there's question about what would happen in this case and i think the question is quite right it is not entirely clear what would happen regardless of the outcome of this case because first has issued the final notice to proceed in this case and as i read the decisions that have that have addressed this question i think what would have to happen  there would have to be a request to folk to rescind the notice to proceed because i think it's critically important both to our standing argument and to the general argument that we're presenting here today is that it is not the state agencies that authorize the construction of the pipeline it's fur that authorizes the construction of the pipeline and so if there was a quest to firm to stop the construction of the pipeline there would be a number of questions about how procedurally that that would be done there would also be questions the court about the timeliness of this entire proceeding which which is an issue that we would certainly take the position has been timely but there are questions and under the decisions that i've read about the second circuit and the d c circuit it seems fairly clear that any questions about the timeliness issue here would be determined under the exclusive jurisdiction of the d c circuit rather than this court that was the decision of the second circuit constitution pipeline case and of the d c circuit so there are there are serious in addition to the injury in fact issue that we have identified there are serious redress ability issues as well that go to the issue of article three standing let me then go on just to talk about the standing issue very briefly and that fundamentally the issue is that akin's and towns simply  not the silver bullet that the petitioners think they are in response to our standing argument for wonder for two very simple reasons the first reason is that the language that they rely on from aiken's is swear lee and overtly about the second requirement of standing causation and the language from towns in which they rely is squarely and overtly about redress ability of the third requirement of standing the argument that we have made is about the first requirement of standing injury in fact and and town simply don't speak to that question the second reason that akin's and towns are not the silver bullet that they're portrayed as is because of a fundamental difference of the situation between those cases in this in both ends and towns if the if the  appealing party were to have prevailed there would have been a change in their legal relationship with the defendant in a kens if the plaintiffs had prevailed the plaintiffs would have been intitled to receive information from the f in towns if the prisoner had prevailed his legal status as eligible for discretionary parole would have by operation of this court's decision changed but that's not true here even if the petitioners prevailed in this case there would be no legal change whatsoever in their relationship to the state respondents because at the end of the day all they're asserting is a pure procedural injury which the supreme court has made very clear is insufficient to support article three standing but let me address the submit with respect that that is a simply incorrect argument because it is undisputed it is absolutely conceitedly undisputed that the state agencies would not be required legally speaking to do anything in response to a additional problem of course which is again raised there would be again in canada the court there would be a series there would be a question about the timeliness of the review because under section four a one there is a one year deadline now again it would be our view that the state agencies were fully complied but segue into the first issue that either you think of this is either the segmentation or the cumulative impact of the first argument that the petitioner suppressed on the merits i think it's important to take a step back and realize that the only reason that this issue even arises at all is because in this case the state agencies made the then unprecedented decision to consider upland impacts as part of a four a one certification it appears undisputed that in prior projects before this one the state agencies did not even look at upland impacts under section four one and intel they do that there can't even be a question about combined impacts and to go back to a question that judge factor raised that i think is is quite germane here as well one will look invading in either section for a one or in any previous decision interpreted section four a one of which i am aware one will look in vain for any legal obligation under section four a one to perform the specific type of analysis that the petitioners are asserting is required here i have not seen such a requirement in any decision and that's in part because as i said in the past state regulators have not even considered upland impacts and the question of upland impact simply can't arise unless excuse me the question of segmentation or combined impact simply can't rise until you decide to consider upland impacts in the first place and the reason for that i think it's important to emphasize is the other the other challenge in returning to my first point is for one certification is critically important it is a vital part of ensuring that projects comply with environmental and water safety in particular but it is important to recognize and underscore that it is a portion and i comparatively small portion of the overall process there was an environmental impact statement that considered the environmental impacts of this entire project there was extensive analysis by the us army corps of engineers under section four of four of the clean water act and so the fact that one particular portion of the overall assessment didn't specifically consider one sort of issue does not mean that that issue was not considered at anyone at any point in this entire project and now the question might be why not simply do it here as well and i think that fundamentally would neglect the standard of review because it will always be the case in every case like this it will always be the case that it would be possible to identify some other additional step that the regulator could potentially have taken but if that's the standard then every decision would be arbitrary and capricious because you will always be able to identify something else that could have been done so the fact that they have been able to identify something that was not done is that in this case the virginia regulators once again use the full scope of their regulatory authority and chose to use the tried and true methods of addressing this specifically what they did is that's so to take a step back broadly speaking section four o two of the clean water act regulates construction regulates construction sites of larger than an acre virginia implemented those requirements versus something called the construction general permit that was the permit that was upheld against a challenge in the that cited on pages fifty two and fifty three of our brief the challenge for the virginia regulators perspective is that four o two of the clean water act says that it does not apply to interstate natural gas pipelines but the pipelines are in fact covered by virginia's annual standards and specifications which then in turn incorporate all of the requirements of the construction general permit and so the basic idea here is that this construction project through at admittedly somewhat multi stage level is subject to all of the traditional requirements for construction sites that virginia uses to protect water quality and we simply think that reliance on the tried and true method that has been upheld by the virginia courts cannot certainly be deemed arbitrary and capricious but hear to question think fundamentally the reason that that argument is in cracked is that for first and foremost this plan is put in place an extensive monitoring program where we will be monitoring where the water in the water is in these streams will be monitored on a continuous basis and that will help establish the very baseline that we're concerned about here this is mentioned at several different places in the joint appendix that the most successful accessible citation i think is at two forty two where in fact the state agencies entered into agreement with the u s geological survey to concoct continuous monitoring of these water qualities to see if it turns out that the prediction is that we're going to use the tried and true method to make sure that there are no significant negative impacts but we're not just going to assume that that's the case we're also going to use the tried interim at that of continuous monitoring and if they discover problems they will address them so i think that fundamentally addresses the baseline issue which is relying on the tried and true methods in combination with regular monitoring to see if those assumptions are holding true and if those  there was and you say with confidence that would listen to you and your doctor i said i want to be careful here as well as represent of the commonwealth of virginia state agencies we would certainly take the position that anything that we would do would be in accordance with law and we would vigorously defend our in title meant to do so i can't guarantee what the federal energy regulatory commission would do i think is is the most candid answer that i can give to that question we we certainly would not do anything that we were of the view that we were not legally entitled to do but i can i can't good morning trey sibley for the intervenor amount valley pipeline i'd like to start first with judge draxler the questions you posed to counsel for the petitioners regarding the legal obligation for her to do anything  in the event that the court were to vacate the for a one water quality certification mr lockett referred you to section four a one itself section four a one is only a condition on the granting of the federal license or authorization it does not that this issue is not as not come up in the context of of for one certification the reason why is because for one typically doesn't do the authorizing work it's not the it's not the thing that typically creates the injuries that would create standing me make make this observation the issue here mr heightens noted correctly that as part of a four zero one water quality certification process no pipeline project has ever had upland impacts assessed through the  four one process and the way they were assessed here that is not to say that those impacts are not addressed have not been addressed previously through the state law mechanisms that already exist the as we discussed at length in our brief the  p approved annual standard specifications is the result of that state law process the innovation here by the agency was to take that authorization and effectively incorporate it through the four a one water quality certification the curious the curious thing here would be if the court were to vacate the water quality certification those state controls would still stay in place as a function of state law all that is that issue here the this this certification under section four hundred one just for some not challenge as a matter of state law the underlying annual standards and specs in staying in that vein the judge gregory you  asked about what should the state have done here and i would answer that to in a question to mr locke and i would answer that question by saying that they they should do exactly what they did they took their existing approach to dealing with construction related destruction this is not the first construction project in the commonwealth of virginia this is not the first big construction project in the commonwealth of virginia the methods for dealing with construction related discharges from storm water runoff are tried and true the reflected in the virginia construction general permit that applies in most cases and that same approach has been incorporated through the mountain valley pipeline standards and specifications which are an acted under a different state law due to the curious carve out within the clean water for natural gas pipelines all of those measures are measures with which the d e q is well familiar they have a history of working with those they understand the efficacy and they have explained that with respect to anti degradation mr lockett referred to a measurement of the baseline and judge gregory you asked a question about the measurement of baselines in the context of construction related discharges the conclusion of the agency is that there would be no degradation of water quality if these steps are taken now they those steps are the imposition of what we refer to as best management practices the physical barriers that keep sediment from reaching water bodies and then more importantly than that the extensive requirement to monitor and make sure that those things are working and if they're not working the state has the ability to stop work and implement additional controls to protect that's the system that has been place it been in place for an extended period of time with respect to construction related discharges more generally the provisions in the guidance that mr walcot cited relate more narrowly to a really different type of scenario if you the court is inclined to look at that that that deals with instances where you have something like a pipe discharging into a conducting regular discharges into a water body and you're trying to set permit limits on the amount of bad stuff that could reach the water here the judgment of the agency is that there be no incremental increase in the sedimentation and to the extent there is it would not be sufficient to trigger a tear or two or two or three individualized review now that opinion on the part of the state is not novel it's not new it's not something they came up with for this case it's the same approach they've applied historically and it's the same approach that e p a applies with respect to its construction general permit that are issued under its own authority under the clean under the clean water  let me one moment to to refer to my notes  said that even if the court ordered on remand that that a particular group be classified as a political committee such that they would be required to make certain information disclosures that the plaintiffs request on remand they could exercise their discretion not to require those disclosures but as that is perfectly analogous with what we have here where they have taken an affirmative action let's say on remand they could size their discretion to waive their authority and again as as this court stated in townsville jarvis denying standing in that situation would be inviting the court to wade in to the difficult if not impossible task of trying to predict how an agency would exercise its discretion and use  denies that none of the parties deny that construction of this project could not go forward without a certification or affirmative waiver of that certification and that this construction would cause injury in fact to petitioners members now the state has made much of how this review level of review was unprecedented looking at these up and discharges but d e q in their certification and in their guidance clearly acknowledges that this level of scrutiny is required for a legally compliant or once certification these are discharges associated with the activity of constructing the mountain valley pipeline and here the state has made an affirmative statement that they have a reasonable assurance that this activity construction of the pipeline would not lead to violations of water quality standard and that is the decision that is under review was that a rational determination that this project would not lead to violations of water quality standards the fact that in previous proceedings they may have failed to account for all the discharges associated with a project when conducting a for one certification does not mean that they not required to do so here indeed they have said that these are just charges resulting from that activity and under four hundred one that is what a certification covers is all of the dish charges resulting from the fed activity authorized by the federal license and here the state failed to account for the combined discharges combined impacts of the upland discharges and the discharges associated with water body crossings  the state here and mountain valley as well have said that a real investigation of how effective these measures would be is not required because they are going to do monitoring after the project is already being built and they say if they're not working that that the state can require additional and different protections but not working means is a violation of water quality standards and that's specifically what the state here has said will not happen so on the one hand the state is saying there will be no violations of water quality standards on the other hand they're saying court don't worry that we haven't really assessed the effectiveness of these control measures because if they don't work and cause violations of water quality standards will require more and different ones now we don't know what more and different ones would in fact be protective of water quality in the future again the state has simply failed to undertake its  duty in this proceeding to make a determination whether it has reasonable assurance that this project can comply with water quality standards and they can't shift this burden off before for the army corps of engineers by arguing that they are only a small part of this decision neither for nor the army corps of engineers makes a determination that water quality standards will be protected during construction of this project and in terms of the effect of this court's order natural gas acts action seven hundred seven seventeen are states that these decisions are reviewable in the u s court of appeals and if a decision is found legally deficient it should be remanded to the agency for further proceedings out mr sibley for mountain valley basically argued that this this course the citizen would have no effect petitioners in that case would be left with a right without a remedy and that cannot be what congress intended in the natural gas attack because the state failed to rationally conclude that this project would not cause a violation of water quality standards the state should vacate the certification and remand to excuse me the court should vacate the certification