on the motion for a stay in case number seventeen thirty seven seventy this course i continue the current stay for a modest period of time while the parties brief the case expedited basis and this court resolves the merits of the department's petition to review first waiver order before millennium constructs the value lateral pipeline the department has met before requirements necessary to establish the need for a stay first the department has shown irreparable injury without a stay millennium will be begin constructing a pipeline immediately and will complete construction and six months or less i ask you it would be helpful to us and i think if you gave us in light august of this year first found that d c had waived its authority under clean water act section four a one to grant condition or deny a clean water act certification the department as it's required to do by the natural gas act immediately moved for a rehearing of that order or timely move a rehearing of that order until frank acted on that rehearing order the department could not seek judicial review of the underlying waiver order in october of tw seventeen or should it's disputed right i don't think there's any dispute of that particular procedural nuance is it within the natural gas act section fifteen u s c seven seventeen our party has to move for rehearing and for us act on rehearing before th granted on that right pending the action on the motion for reconsideration and that has now current so isn't that does not commute out that stay since the action which was premised is has occurred stay was granted until the petition in the repetition could be resolved and the petition remains pending before this court however we agree that in might a first acting on the rehearing denial there's no longer a need noel and in connection with that case which is seventeen thirty seven seventy we filed an emergency motion for a stay which would essentially extend the existing stay or create a new state depending how you want to look at it until this court could resolve the right of the waiver order and the rehearing denial which are the legal predicates for millennium to begin construction of the guy lateral pipeline before the department grants or denies or conditions for a one certification basically for one deep and putting a sixteen inch natural gas pipeline into this trench and trying to restore everything to previous condition state water bodies will either be trenched through or or drilled under a whichever technique is used there are certain risks to the environment all of this will be done without a section for one certification which would typically be used to mitigate or avoid violations of state water quality standards so let me ask you if it's a procedural matter we set down on the date of argument in january that would give give the parties opportunity to address the merits and impose in the meantime a temporary stay could we not in the your objectives we think this case can be briefed and argued on a very expedited basis we think it could be briefed by the end of january twenty twenty eighteen easily with a corner we could certainly brief it even faster than that the willing to proceed with expeditious briefing in this case and get this case before the court as soon as it as soon as it can hear it on the merits and on the merits we've established a likelihood of success here first conclusion that section four a one other bit you'll see begin to give me before you get to the merits of the intervenors have raised to do stiction question but i take it that neither you nor for nor anyone except the intervenors sees the jurisdictional flaw in the first ruling is that correct that's correct your honor the jurisdictional issue was resolved in a prior in a separate firm order that d c gazer did not see for hearing on that issue and cannot seek review of that issue whether the intervenors will pursue a separate case to challenge that i do not know and one other question before you get to the merits the likelihood of success if we were to disagree with you about the stay but expedite along the a more expedited hearing schedule we we would we think it would stay the same your honor because if the stay is lifted maloney will be out there tomorrow clearing trees digging trenches beginning the work to construct this pipeline essentially it does more damage to try to take the pipe back out than to just leave it there so we would be irreparably harmed by that and not only cause environmental harm but undermines the state role under section four a one court recently recognizing the constitution pipeline case section four one authorizes the states to conduct an independent environmental review of federally approved projects that may impact state water quality reserve time and rick you can be with the three please the court robert solomon for the federal energy regulatory commission the emergency motion for stay should be denied and the administrative stay should be our order and the waiver rehearing order which has been presented to the score there's also the certificate order and the certificate rehearing order which has not yet been presented to either the d c circuit or the second circuit the state of new york cannot petition for review of this certificate orders because it petition for a rehearing to be late and failed to satisfy jurisdictional prerequisite but the landowners bring up to on through consideration of some of the other case that well this court can certainly consolidate the two petitions the new york petition from the from the finding of waiver and the millennium petition from the state denial of the four a one certificate with respect to the third petition for review which has not yet been filed and may not be filed by the landowners the landowners ha statutory right under fifteen u s c seven seventeen or to either petition in the d c circuit or the second circuit the statute is drafted with with particularity petitions for review first orders arise under seven seventeen or subsection b petitions for review of the has not yet been filed do we know what the intentions of the relevant parties may be well i think we know what the arguments those relevant parties can make because they are bound by the arguments that they presented to the agency on rehearing and the arguments that were raised in the intervenor landowner brief to this court really do not go to the waiver orders themselves they go to the commission's decisions in the certificate orders i heard a reference to the jurisdictional issue that is not an issue that was addressed in the waiver orders that was an issue that was addressed in the certificate or let me put it in still a different way if we proceeded on an expedited schedule as the state would certainly agree to as we've heard this afternoon and assume for the argument on what effect would that process and that this and those decisions have on that on the case that's lurking or in kuwait at this point it would have little effect on either the in coate case or new york's alleged harm here i heard references to trench digging but for purposes of the clean water act the commission took measures working with the pipeline applicant to develop mitigating conditions those are found in the certificate order but let me ask you about that actually because the i was struck by the commission's phrasing that were there  was temporary harm and there were mitigation measures in place but that was kind of outside the context those were relative judgments outside the context of any absolute statement about the gravity of the harm is reduced and minimal and in particular while there is concern about putting pipe in the ground pipe will not be placed in any sensitive water bodies working with the pipeline applicant and with the new york state department the commission in the certificate orders developed mitigation conditions that provide for trench lifts underground horizontal directional drilling and boring suction i understood this this was a network of water courses that were minor you know wetlands area as opposed to any major water body and so there's a factual dispute about whether the horizontal digging will impair that and again i was struck you know by the notion that there mitigation measures without kind of an yes meant overall of the the kind of impact one might fear well i think there was an assessment overall and for purposes of issuing the certificate the agency has a responsibility to balanc weigh public benefits versus any adverse unmitigated effects and what the commission found was with the conditions that millennium agreed to abide by and with additional conditions that the commission attached to it certificate order any effects would be minimal and insignificant again we're not dealing with writ large we're dealing with the clean water act we're dealing with water quality and the commission took measures to make sure that sensitive water bodies were avoided to the extent possible but where water bodies and wetlands can not be avoided and when those water bodies are sensitive that the pipeline undertakes construction techniques trench alyssa's techniques that minimize any adverse effect to water quality minimal and minimized minimal and minimize and including route modifications the new york state department was a participant in the first certificate proceeding provided comments on our environmental assessment worked with the pipeline and with the agency for purposes of developing  gation conditions and the state does not identify any deficiency with the conditions that the commission actually adopted in this case in the certificate orders as you know we have a couple of motions pending to intervene you have any objection to our granting those motions we do not the landowners were participants in both the certificate proceeding and the waiver proceeding so we will by granting those motions we would be granting millenniums motion to intervene in the movements motion that's sherif burns amanda king melody broun living trust primula malik malik and protect our injured county yes and no problem with including them no problem with including them but i do want to point out again as the commission said in the way of a rehearing order that the intervenor landowners are raising issues that go primarily to the commission's decision in the certificate proceeding not in the waiver proceeding and the appropriate venue for obtaining judicial review of the landowner issues is not on a review of the waiver orders rather it's on review of the certificate orders and this is to forget orders or where exactly they are no way or right now the petitioners have sixty days from the november sixteenth issuance of the certificate rehearing order sometimes this is complicated when you have multiple potential petitioners for review that's not a complication here new york cannot petition for review of the certificate order the land owners can and there are the only parties that can there are no other parties that can petition for review excess of the certificate allowing when with this with a few good order proceeding be concluded it would be concluded as quickly as either the second circuit or the d c circuit decided to conclude that proceeding i don't want to reread it is far as we're concerned well it hasn't been filed yet and i don't know if the landowners will file a petition for review i think they will because they filed an intervenors brief here raising the same issues they can and should raise on review of the certificate showing some sense their interests are adequately or fully represented in in these cases or at least their voice will be heard with respect to their interests yes definitely and the final thing i want to point out is seven seventeen or subsection b the judicial review provision of at the your  c orders they are typically not expedited this court can do whatever it wants to do whereas petitions for review that arise under seven seventeen or d from non f decisions are by statute expedited so congress actually did and to supinate a category of cases for which expedition is necessary those concerned review of state and other federal agency decisions not the first with respect to further review that arises in the normal course under subsection b thank you very much thank you runners may it please the court kate stetson representing millennium today judge cut brown a said like to start with your process question and then judge carney i also want to be sure to talk about your question on harms with respect to process he or is what we could agree to we've course could agree to expedited briefing but we would not be in a position to agree to continue the stay through january through decision so i think what we'll be looking at instead is i think judge livingston your formulation you accept a continued stay is because of the tiny exigencies that our opposition to the petition and to the motion describes one of the very narrow at the church that we are trying to fit construction with and has to do with a bald eagles nest and as we explained there's a there's a declaration by mr zimmer that is attached to our opposition and one of the things that mr zimmer explains if you look at paragraph three through seven he says the fish and wildlife service guidelines with respect to bald eagles for bidders for constructing or or having any operations within over six hundred feet of that next nest during breeding season which starts on january first so that after chosen the record and i understand that there is some reference in the record to the eagles being there now and so is the as a matter of fact the disruption would already be happening is that i think there is a reference in the intervenors briefing to the eagles being there now there hasn't been i think a confirmation from fish and wildlife for fish and wildlife purposes though the reason that the guidelines key off of breeding season is that that it is when the construction is prohibited so the presence of the eagles and the breeding season are actually two different questions but that is why we can't accept the idea of the stay continuing and to the legal point th reason that there's a stay in place now isn't because this court or emotions panel looked at mr le signons petition and declared it to satisfy the standard it's administrative stay it was put in place to make sure that nothing transpired until you were able to hear the motion so in order for that state to continue at this point it would no longer be an administrative stay you would have to find that those factors that mr lew signon began to outline were satisfied here and we saying that the factors fall down on our side for all for the reason that the a reparable harm argument cannot carry the day here has to do with the measures that mr solomon was referring to mr lu signons a referable harm argument if you look at pages four and five of his reply what he says is we are going to be irreparable harm because we didn't get a chance to issue a for a one certification the problem though is that and this goes to your question judge carney about the sort of absoluteness of the statement if you look at paragraph one thirty three of the certificate or what for says at that paragraph is that we conclude that if constructed in operated and i'm quoting now so i'm reading in accordance with millenniums application and it supplements and in compliance with the environmental conditions  appendix b to this order which is that exhibit x f of the cross declaration our approval of this proposal will not constitute a major federal action significantly affecting the quality of the human environment that is the statement that first made and the reason that they made that statement is because of the lengthy list of environmental conditions that you can find at appendix b so with respect to each of the arguments that the harms the possibility of harm the issues to wetlands the issues to streams each of those have received with d e c s comments actually motivating some changes in the way that millennium was approaching these each of those received a very detailed treatment by the commission in the certificate orders for example if you look at paragraph forty eight of the certificate order one of the things you'll find there is that frank says in response to d e c s comments millennium made some changes to the way that it was approaching some of these wetlands issues in the way that it was going to drill under and around so affected streams paragraph twenty of the waiver denial order makes a similar point so with respect to each of these harms i think the problem that the t t c runs up against is they are speculating about harm while not taking into account the fact that all of their speculative harms and they decision potentially down down the road that is correct is that right that is correct and that's that is a risk that i think my client would have to take into account when deciding how to move forward the representations that you have in front of you  or that the urgency of the need to complete construction particularly around that area surrounding the eagle's nest is such that it must be completed before december thirty first which as we explain in our opposition means that we must commence around december seventh that's the urgency that we're feeling here but yes we would at that point be proceeding in our risk that on the merits if we have an expedited consideration that if this court rule against us on the merits that that construction would have to stop and pratt going to be reversed depending on how far along we work but the reason it's important for us now is because of the eagle's nest because of the tree clearing window that we've also discussed that is the reason argument that there's a state granted pending this expedited briefing you know argument in late january and perhaps of the solution as best we can at that time that was satisfy you completely right that would satisfy the department that's right you are now having heard opposing counsel raise the problem of the eagle as well as other issues what's your response to their concern for their interest in proceeding expeditiously pending the expedited appeal issue with the eagle's nest is that  requires them to get another basically another permit authorization from the u s fish and wildlife service there's no reason to think that that authorization would be denied by the u s fish and wildlife service and there's no reason to think it would take them more than a few months to process it speculative and at worst the allegations are that it will delay construction of the pipeline until next year sometime and you know we think that doesn't contravene the permanent environmental impact which will occur immediately when construction begins again without a stay millennium may be willing to proceed at their own risk but they're also creating a risk to the state that once they start cutting down trees once they start excavating excavating trenches to put th pipeline in those damages are going to be reparable that's a very different definition of irreparable harm in millennium also rely a lot on for certificate and environmental assessment  searching for one is a separate authorization for the state to conduct its own review and impose its own conditions or grant and or deny a section for one certifications do you agree that some of the state's concerns and comments have been taken into account in for a certificate some of them have your honor however first environmental assessment and certificate both proceeded on the assumption that millennium would obtain a section for one certification and comply with the conditions and that sort of occasion in the in the environmental project and throughout the environmental assessment millennium complying with the section for one conditions maybe you could take a moment also and just address where you go earlier about the likelihood of success on the merits because the you know statute says one year says one year from receipt of a request for a for a one certification for counterparts request to mean written application but that's language is not in the statute in fact elsewhere in the statue congress use the word application is there an earlier request an oral request or some i mean is there really any dispute that we're talking about a written application which is what you receive longer than a year ago while the department interprets request as required requiring a complete request a request that the department can process  questions until you decide that it's completely why didn't you just deny it when you came close to a year deadline and then you know without prejudice to renewable the issue is that if force is the department to deny an application where the department might prefer to work with the applicant to continue to develop the application that it was of course required for since you from doing that it's essentially just this is a friendly denial you know because the congress i mean there is some suggestion  that congress intended to keep these moving and give the state adequate time to do this to keep moving while the issue is one that actually rises from for one as well which is that section for one also requires the state to create public notice and comment procedures for these applications the department requires a complete application before can run through the notice and comment procedures so it creates a situation where the party might be faced with an application that was insufficient when submitted was developed slowly over the course of a year kind of on the last day of that three hundred sixty five day period the applicant cements a bunch of materials and at that point then there may be a technically complete application but the department can't do i