good morning your honor some may please the core and my name is kate stetson representing the petitioner millennium millennium submitted a twelve hundred page application to new york's department of environmental conservation for section four zero one water quality certificate on november twenty third twenty fifteen it is now march third two thousand and seventeen and the department has not yet acted so we have come to this court as the natural gas act provides for recourse that the natural gas not only supplies jurisdiction and commands expedited review in these circumstances it also dictates both the path to the remedy and the remedy itself so first the pass and i'm reading now from fifteen u s c seven seventeen r d two that is the section that says the failure of an agency here a state agency to take action on a permit required under federal law in accordance with the commission schedule shall be considered inconsistent with federal law for purposes of paragraph three taking to the remedy the failure to take action on a permit consistent with the commission's schedule here is the department's failure to take action by august seventh two thousand and sixteen that was the date established by the commission schedule now even if you take the most charitable reading of the deadlines under which the department was required to act and you extend that all the way to november twenty second twenty sixteen which is one year after the commission received the application that too is inconsistent with federal law because the department failed to act by that date as well so if the upshot of your argument is that heard in many ways this is a sui generis case first of all by the time that case was argued and i think importantly for jurisdictional purposes i think frankly the case could have gone off in a jurisdictional holding this court only has jurisdiction over failures of an agency to act if the agency has acted has denied or condition an application an expedited appeal from that action actually goes to the circuit in which the facility is located so there it would have been the first circuit in those circumstances by the time we've got to argument the agencies had acted there so one of the things that the weavers panel said is  because it has this paragraph it's on page thirteen it's on page thirteen thirty three where it says that yeah there was an action but that doesn't matter for purposes of standing because your argument is that they waived and the so once the one you last period had ended whatever they do after that doesn't matter you have a remedy that you can make use of which is you go to the agency and you say look they your head's gone they waived your condition on your permit in this case is absolute waiver that conditions exercised we get to go for right that that get that gets me to my second the difference here that was not the case and we've we've pushed cove you had a situation where if you look further down on thirteen thirty three to thirteen thirty four the passage pertaining to the army corps of engineers because you let the panel when we first coast says is what you petition are asking you to do is essentially declare asking us to do to clear waiver you're going to take that waiver declaration and you're going to shop it over to the army corps of engineers with respect to your four hundred four permit but the army corps of engineers has a paragraph i don't have it right in front of you but the paragraph begins the record in this case indicates essentially that the army corps of engineers has already made a determination about when or whether it's going to accept that application because the army corps had agreed to an extension that one of the states had requested there so the point that the court was making in weaver's cove is even if we were somehow to look past what i think are the jurisdictional defects and issue this declaration of waiver what good would it be because you're going to take that to the army corps in the army corps has already told us that it's not going to care about the waiver because it's already granted the extension so act nearly as quickly but second to judge titles i don't understand that point because for whatever timeframe for it takes the act they're going to take fact anyway what is this what is relief here have to do with that are our point is that we are entitled to relief here under the statute no but this is actually i should mention was was whether or not if you went to for confer rule for you that that is that there was a waiver we wouldn't  cleared the way for construction of this if it made clear the way for construction away the issue the issue judge taito would be that in addition to further notice to proceed you arguably would also need the determination from the army corps about the section four zero four permit what i mean getting back to the orders that are going to come from without the whole point of the waiver provision and your argument would be the states out of the state has an opportunity to stop things within a year once they don't after a year it's over for gets to go forward they greenlight the construction you get to go that's the argument you need to further quite well agree with that in which case you're made whole if they don't then there's judicial review of that that that that is our argument with respect her but first of all that judicial review is completely independent from the judicial review to which we're entitled here secondly if you look in condition nine of the conditions what it says is you need to supply evidence of all necessary federal permits or evidence of waiver thereof there is which you don't have then you have a redress ability problem i don't think you did for this reason that the first is we have asked for eight a menu of potential so great yes and that gets me to what the remained is to act that the statute directing the remedy instructs this court to remain to the agency for the agency to take the procreate action consistent with the court it's way can't even if i was away from there to that no good if if this were just to to back up two steps in the path what this court has to conclude in order to direct a remedy is that there has been a violation of the federal law so the question about waiver turns on whether this court concludes that the deadline established by the clean water act that outside one year deadline of november twenty second twenty sixteen  question is if this court concludes as it must in order to dictate the remedy that that one year deadline has passed then the question is what is that appropriate action judge haydel you may be right that the department is not in a position to grant an application at this point because it's waived that's why we've said either grant or declare way the waiver both we  because i think both in our prayer for relief in our brief in our reply brief we make both of those alternative arguments it's essentially a menu a stack of options you can either remain and and say nothing directly to the agency to take appropriate action or we submit you should put some teeth in the remained and you should say we have concluded that the deadlines were missed that november twenty second twenty sixteen came and went that deadline is significant because the application was received on november twenty third twenty fifteen you have missed the clean water act deadline certain consequences follow from that if you want to stop there and send this back to the department for the agency to reach its conclusion that that point whether it should and the answer to that is no this court may feel they can stop short of making the waiver determination but it must make a finding about the timing and the timing has to do with that november twenty second deadline if that november twenty second deadline came and went without action which it did then there has been a violation of federal law that is the thing that is particularly within this court's jurisdiction to declare then as i said there are consequences that follow from that one of the good morning your honor as may please the court reilly signon with the new york state office of the attorney general representing respondents i'd like to start with the code issue and note that petitioner here is standing in the same position as the petition weaver's co they're asking this court for what amounts to a declaration that d c has waived its review under section for one and therefore must grant an unconditional permit so they can take that declaration to commission to begin construction however they still have they've always had an avenue to raise this argument with environmental conditions nine of the conditional certificate of public necessity allows them to submit federal as an exhaustion side see did you i did it we did not use those words in every failure to exhaust we argue that the issue was not properly before this court for a few different reasons but one of those reasons is that an avenue is provided and that conditional certificate under a condition nine kind of independent state law obstacle to going forward are you just saying that you you're reiterating your argument that the condition hasn't been exhausted because under your view of the statute the time clock doesn't start until there's a complete an application that's very right about here in d c was offered his interpretation of section four one arguing that it had not waived and therefore was still reviewing the application so you still buy into the notion that  brief you say that it's one that contains sufficient and for information for the department to review the requests right that's what you say in your brief here but the letter number twenty six letter the millennium didn't say that it sa said that it said that although millennium and fully respond the department would nonetheless continue its review so it's that that we have to review correct this standard that's fully response right that the application is not complete because because the department has to continue its determination quote to determine if a valid request for a certificate is incident that's what in your brief you defended the definition of complete application set forth in the member unless the definition of a complete application is set forth in d c regulations and i would like to clarify one factual point is in november so help the leader go ahead in november when d c said that it had received everything i needed to respond to the second notice of incomplete application i said it would if that case were determined to be complete the waiver period would run from the receipt of that final would not comply with these regulations that's that's correct your honor and d c s compliance with its own regulations is an issue that has been squarely to raise represented in this proceeding however d c did act within fifteen days of receiving that initial application and noted that it required additional information in the form of this environmental assessment that first was conducting you know your you definition doesn't i've looked at the statutes that are cited in the brief these new york statutes section seventy or one o five says it defines a complete application and it says a complete application is one that's in approved for becomes an approved form and is determined by the department to be complete for the purpose of commencing review even though you may need additional information that that's a perfect definition of what millennium in the department's letter to millennium about its first application is seems to me to be inconsistent with state law no that statute and these regulations and our position in our brief is that d c must make a determination that the exactly what millennium submitted to the park d c before turning up location to be complete which is in that statute d c determines when it's complete for purposes of commencing review and these enough information that it can be satisfied that the environmental effect minutes thank you three quick points if i could the first on completeness judge wilkins you asked a hypothetical of my opposing counsel i don't see any daylight between this case and that hypothetical and i'm not understanding his answer if i heard him correctly he would say that where you submit an application you hear the day after that an application is received and will get back to you and then you hear nothing for a year that will be a violation of the regulations here you had a series of your application has been received and we'll get back to use there's no difference between his statement that there was a violation of regulations there and here and in this case second completeness or consistency the department has been quintessentially inconsistent here if you look at both its brief and its treatment of this issue in other circumstances look for example to our rule twenty eight j letter the department understands what this statute says and what the statute says is that you have one year at the outside from receipt of an application not a completed application which is a phrase that actually get peters in the clean air act receipt of an application i would also point out that in the department's response to our rule twenty a j letter the department actually says we have not yet determined that millenniums application is complete it says that full stop as of january thirty first of this year finally on standing if this panel is struggling with the consequences to standing of our what i would say room i think the scaled back remedy your honor would be a moment lines that i was trying to sketch out in my first appearance here the the idea would be that the court has to make a determination about timing in order to find that violation of federal law if the court agrees with our argument that federal law has been violated because the clean water act one year deadline came and went then the solution is for this court to declare that that deadline was violated and for the department to essentially grapple with the consequences of that we think there is only one appropriate thing that follows from that but the court can stop short of declaring waiver if that's the thing that really is the sticking point between this and we and do exactly what the natural gas act suggests this court and only this court can do which is to bring into the agency for it to take appropriate action there are no further questions thank you thank you