that there are there are some aspects of what i had intended to address that i believe were already covered in the argument with regard to in one thousand and sixty seven  address and obviously one of them is the review ability and we are talking about a policy statement but where i would propose to begin is the commission's pending motion to dismiss these petitions which the court carried along and i believe that's a propitious spot to start discussion because of some of the things that that evidence is  proceedings where this court with the aid of a only developed pipeline specific record will have the opportunity to review the commission's treatment of income tax allowance and then on page nine of the motion the commission stated that it would afford opportunities to address factual and legal issues in the specific case what are you reading from their brief what i didn't catch  apologize your honor it's it's the commission's motion to dismiss it's in the record of of the docket for the court the commitment to dismiss as a p p enables petitions on the basis that we were appealing a commission stated that we would be affording opportunities to the petitioners to address those factual legal issues in the specific cases what's important is to understand that this with the time that was and i'm blanking on exactly the timing of the exact when the motions filed and then sometime subsequent to those assurances to the court as to why the petitions could be dismissed twenty six which makes it clear that the commission's assurances one having you did important to assure the court that it was better to get pipeline specific records developed in the rape cases in order to address these issues those things didn't happen those assurances by the commission were in fact hollow what is clear is that having chosen not let either of the petitioners develop these argument out the tax allowance and the change in policy reflecting the revised policy as having chosen to not let the petitioners develop these matters in their rate case it reinforces the fundamental point that the commission is applied to revise policy as a binding rule without reference to the specific facts in either rape cases the either pipeline and affording no opportunity to address the policy with in the context of a specific back record that reinforces one the need for review the basis for review ability rather of the policy statement and it also i would submit reinforces why remain and is appropriate because it highlights the commission's recognition that a fully developed pipeline specific record would be appropriate in addressing the revised policy and at this point as it was discussed in the previous argument f a p piece admits that that has not been afforded to and i believe that enable would say life wise that it's attempt to develop in its underlying rate case dockets testimony on the question of how the policy would be applied to it were rejected out of hand and it stuck that also then i would say that that one that that's my as if he enables responses to the motions this it also brings back around to and i will be short about the other bases on which how these issues have been dealt with how the commissions chosen to approach the rafah its change in policy has created circumstances that warrant sending all of this back to the commission to take the united re man serious was one as i i will i won't elaborate on this i've spoken before about act that it left rate case record with the mismatched rate of return on equity a fundamental component of the cost of service which was derived on a different basis it predated the change in the commission's approach x allowance and then said p p has been provided no opportunity to address that in the record below and therefore has been forced to pay excessive refunds and set on the reasonably low rates in violation of it also as or close the ability to deal with the market reaction to the commission's change in policy which had happened simultaneously with the commissions of application of the revised policy and s t v enables rate cases nearly side imo anxiously were unable to the implication of that market data goes to the heart of the issue with regard to the change in policy and its application because the change the change the market changes evidence or arguably back to the chief judges question previously arguably presents a fact question as to whether or not those market changes indicated that the that there had been a tax recovery that was being eliminated unreasonably rather than that there had been a double recovery one of the strongest markers in that regard equity is those are measurable among the measurable bits of data that could go into this type of inquiry would be what happened not just in the market but what event what then happened to the return rate of return on equity did it change in a way to double recovery or rather that there hasn't been a double recovery but in fact instead a legitimate cost item had been a limited and the market reacted that those are questions on which facts could be developed a record  either as if you were unable to engage that change in policy with the facts presented a further component which i don't believe i've addressed of why it's important that these be reviewed together is that the commission has in other settings subsequent to a change in policy entertain the notion of a partial tax allowance with regard to the income generated by pipeline this then flows to the corporate parent the corporate parent and therefore arguably presents a basis for a partial tax allowance related to that corporate ownership  p s enable circumstances are significantly analogous to the situation in the trailblazer case where the commission indicated they would support the inclusion of a partial tax allowance that's not been permitted to be explored because record has been left as it is that's another reason why the way the commission is chosen to handle a change in policy supports  review review by the court and three man those are the principal items i wanted to address i can also address for the basic question review ability which i started out with the motion i believe that the sorry your honor i don't have it i don't have to memorize is huge if you would if you could perhaps i could be more effective in responding just just just my money my question is for finality purposes oh yes by now review final orders what is the what is the legal effect yes this policy statement or your honor i point out there it's it is it is that's a  statement so was operative in the sense that it directly ordered s m t p to make a compliance filing all those things those occurred in five hundred and eleven but five hundred and eleven c did nothing to say anything beyond what the revised policy state the impact on this it was it was required to lower its rates on produce in the west line rate case it had to revised upward to refunds and had to pay those things  that outcome has been denied so there is no i would say that that strongly supports a finding of finality and that there's and and and also that it's right because all of those consequences flowed from the revised policy statement the carrier was given no opportunity to attempt to show that some other outcome was appropriate and its actual rape case and the consequences of it have flowed through and translated into that would be i would say is there any substantive challenge to the policy or any party pressing in these petitions that we won't resolve in the other case so in other words why isn't this then like the canadian shippers case right right  is that the course of conduct of the commission has really been to a degree to play a shell game with the petitioners having and that's why i referenced the motion to dismiss again is that the petitioners have sought the commission sought to dismiss these petitions as the policy statement on the basis that they were going to be afforded an opportunity in the rate case and yet that did not occur the records were not reopened enable was summarily dismissed in attempting to address those issues so i would say that the basis for why the officials have sought to proceed with their appeals to the revised policy statement is because they're trying to make sure they have some forum in which they can attempt to address these issues and so far the commission has sought to avoid dealing with them and i understand that point i guess much my question to you is is if we address all of your merits arguments in the other set of petitions is there anything that we will not have  it's a fair question your honor and what i would submit is that based on the track record the concern of the petitioner as to what would not be addressed is the potential that having sent us if we are provided issues directly and the facts of its case what would be left open is that does not in and of itself address the revised policy state one would hope that in such a remaining proceeding in rape cases the validity of the revised policy statement with inherently the issue concerned would be in resolving the rape cases in some fashion or another commission lead to revise policy in place and treats the two petitioners has one off so to speak situations and leave concerns the wider concerns of the industry which the association of oil pipelines briefing has addressed unaddressed and without any remedy that would be your honor what i would say is not covered but  if that were that's that sequence of events were to come to pass and obviously we're building in a lot of hypotheticals that at that sequence of events were to come to pass and it seems like that would go a long ways towards showing why the policy statement should be reviewable because the applying the principles to a particular set of circumstances that we depart from it well then that would just show that the policy statement isn't doing work in case the specific applications and so it's therefore not the type of thing that we normally review yes  effect petitioners or on any other entities it is anon in the wrestling non binding articulation of the commission's policy intentions as stated that rehearing order paragraph seven j seventy four to the court these two orders will not provide them with any redress there as applied cases will continue and the commission will continue to make rulings there as it already has and the court obviously will continue to make ruling the policy statement itself did not change any rate so it itself caused no injury i find some of the supporting pipeline associations don't allege any concrete particular harm to come straight from the policy statement itself moving on to the commissions process the commissions potential started where the court left off and united airlines with an understanding that double recovery was prohibited it investigated whether the income tax allowance could be used without producing such a double recovery and found that generically it appeared that it could not be the commission specifically left room for pipelines to support and justify the use of such an allowance in their own race that's explained in the rehearing order paragraph sixty eight j means that it's challenge to the commissions in policy will have to wait for another day in terms of and in terms of s s p p then the commission has completed that as applied rate case  do think this is why we didn't argue in our brief certainly is available and certainly the court relied on that in the canadian association case i would argue that the same is true with regard to finale because as judge welcome said to my friend earlier you can only review final orders to have legal effect and once again these petitions for if these these orders have no have no legal effect but only articulate the commission's policy to the evaluation of the benefits fear is that he would submit that the circumstances presented here are that the revised policy ne s minutes here because maybe the mandatory terminations are after its process that it was the revised policy is crystal clear as to its impact