this time on behalf of petitioners sierra club as well as galveston bay for that and again i would like to reserve five minutes for rebuttal i'd like to begin by reviewing that the purpose of the projects are authorized by ferkin in freeport as well as into revise it is solely to enable the export of natural gas that these are not facilities that are being constructed that will have a nice a dental effect of enabling or facilitating future facility that serves no purpose other than enabling the export of natural gas that there's been a significant commitment of resources enabled by the the first decision here despite the fact that identified as being significant environmental effects we understood or our standing to be self  standing so the again i mentioned that this is a large infrastructure project whose souls are purpose is to enable the exports of natural gas and there is a large uncertainty as to how much of the gas will come from new gas production been the balance will need to be made up by a reduction in gas consumption and so will you know the precise ratio of new gasket action to increased police maybe  regional predictions provided by the national energy modeling system would provide an adequate basis for conducting an analysis of the ozone impacts of the additional production that would be induced by these projects i'd also mention pollution are going to come out of a project but what the impact those kinds of pollution are going to have and i don't believe that for disagrees with that in any way demonstrated by first environmental review of the local and direct impacts of these projects or for doing these projects  i'd like to return to the discussion of other cases concerning infrastructure projects and that again is the norm rather than the exception for agencies reviewing new infrastructure such as they building a bridge have to consider the  of induced growth but there will be very very few cases if any where the actions of the agency that is acting in a way that will induce growth also has direct regulatory what i would disagree in the regulations explicitly call for consideration of environmental effects by agencies before there's any action that causes a commitment of resources and i believe that the policy behind that is that once there has been a commitment resources it has the potential to influence the agency's later decision making and so the regulations themselves clearly require early and broad commitment of environmental impacts before any other decision making has the reasons given a formal it isn't looking documents that the agencies process of making decisions has the potential to be influenced by a commitment of resources that are even made or just somebody that simply by decision making momentum  possible time let me ask you and i may be incorrect in one of the case that department filed and then and a greenhouse gas saying you didn't need to do that so is that in this series or is it it's not in the administrative records and i are cases that the department energy didn't file that least it's taking a position on these issues already not that that's subject to challenge the final but they are for that shows the importance of trying to raise these what i'm getting at is that the department of energy reserves the right to reject what burke recommends to it and do whatever it thinks is  required it's already indicated that it doesn't think it is required to do certain things that's correct with the parliamentary has indicated that it does not believe any further analysis is required and that indication is  would it not consistent with this reservation for the energy department to do precisely the type of analysis you want i understand your argument is its first duty as i understand first argument they are now saying that because we did not anticipate the partial flaws in the way they presented their analysis in response to a comment that we can't challenge it please the court again i'll go immediately to the last issue that was addressed which is the air emissions issue the commission did exactly what sierra club asked us to do in its comments on the draft environmental impact statement their concern was with respect to the electric non emitting motors that power the critter ration compressors this is very technical stuff if you look at it and you don't have to do it now because it's very technical but if you turn to page ten forty five of the a freeport joint appendix you'll note that there are lines on the side indicating that the commission's mathematical analysis is entirely new because we were doing what we were asked to do and in particular we were comparing the environmental effects of electric motors driving these compressors  against the more standard natural gas fired compression so for purposes of the math and the numbers not only did we provide the numbers in a scientifically meaningful way in pounds per megawatt which sierra club never challenged in any edition for we hearing but we also compared the environmental facts of the electric emissions versus a hypothetical on site natural gas emissions we did what they asked and that was never again presented to the agency turning to the to the legal arguments concerning the indirect effects of induced production higher prices an effect on coal burning the the f ing or c thome is not on the scale as to what the department of energy can do i don't think the t firkin do we actually is relevant but to the extent the sierra club keeps arguing that the fur went first actually with respect to orders the department of energy issued t orders in two thousand and three conditionally approving the x court of ellen g from freeport that was conditional based upon a satisfactory environmental actual construction of facilities is a cooperating agency and participation what is that what does it mean for a need analysis and suggest to me and i'm not an expert in this you are it suggests to me that authorizations the congress in the two thousand and five act was very concerned about the timeliness of federal action and provided these additional  what what areas does it need to look at in terms of the need to review the we need to look at when it when it's just doing an environmental impact statement on its own is not not is that we need to see what are the added responsibilities areas do they need to investigate analyze as a lead agency that they wouldn't have to if it was just stand on the p r c is lead agency for purposes of putting together the environmental document i do want to differentiate again between environmental review of the facilities and environmental review of the exports the department of energy cooperates in the preparation of the environmental impact study in the case of freeport it was elsewhere that is correct but the agency is of course looking at a statutory authority in its focusing on the environmental effects of the facility the department of energy has a responsibility to supplement  prepared the life so i call the greenhouse gas study from the perspective of the importing countries what those two but but it took the position it had no obligation to do though yes and we agree with that i think of that where first is the lead agency on environmental matters and i'll focus on judgment let's free trade countries for saying it has no obligation to do these types of studies right we are saying that we then the what i'll call the complete environmental analysis required underneath it is not done unless for does the complete analysis underneath what was done by ferde for first responsibilities in the environmental what we're trying to get at is congress set up scene and the tricky part is this free trade country it just sort of passes energy and the whole point has been heretofore argued for has no obligation to do anything more than the impact of the facility itself as for interpreted its obligation in the way and in the sago mine case and here  the yes well and nobody ever gets to look at what everyone has been saying oh that would be addressed in a challenge to the department of energy and the department of energy will come back and say congress and the three three countries basically we have no role again it is difficult with respect energy department has already said it was obligated to do those that back right but the department of energy said it was an obligated not because of a lack of statutory a the legal obligation underneath her to look at these upstream impacts and do some production increase natural gas prices affect on fuel switching and coal burning was and i think this is quite to its credit it said that it had been receiving these arguments in its proceedings indeed from sierra club which is making exactly the same into wrecked the effects argument to the department of energy that it is making lot of the argument has been sierra club's in the wrong place it ought to be challenging the energy order when it when it issues but in fact started out your argument the other pays by giving us a lot of legislative history and in then said well say mines the first project to go forward and i think counsel for sierra club said he wasn't aware of any challenges because all this is new so everybody is trying to figure out what their role is in a new environment and so first saying we're going to do what we normally do we're not going to get into indirect effects i'm not going to get into a few of the things and your argument has been as i understand it what we have to separate out operational effects and  economic effects that's all for energy to look at and then as i understand your argument well actually congress has already looked at it has to retrain so no one there is no review on that role i think for purposes of dividing congress isn't and you need to look at the four provisions of the natural gas act that congress added in two thousand and five is that is that seven seventeen him it is not it that was the section that signed for the leave this really on environmental matters yes seven seventeen and is one of them where the firk is the is the lead agency for purposes of need in federal authorizations but we do not believe that that section can be construed to truong the limited statutory authority ability and in fact who has got this report for and he doesn't look at half of the relevant stuff so we have to hire experts scientists ok i'm just trying to understand the statutory scheme and i thought judge griffith questions about what does it mean to be a cooperating agency i mean congress added this section in there in this cont yes for the purposes of the n g a section three export and import reviews but to the extent the department of energy is unable to receive the full environmental impact statement that it informs not just simply t overseas review but also the do we use review of the export the parliament of energy has the ability as it has exercised to engage in supplemental review two thousand and five statute where you now have seven seventeen b that gives the commission exclusive authority over ellen g terminals which is actually a defined phrase in seven seventeen a  allowed whether that is still an authority to do we could withhold from the commission at this point but it doesn't matter because they've also delegated that authority to us as well we had me  extraction itself the production opportunities are not regulated by the federal energy regulatory commission those or state regulated authorities and this is something that actually comes into play in the public citizen case which looked at the jurisdiction of the federal motor carrier safety administration and said that that agency only has limited authority with respect to mexican trucks on discern which production areas will actually result in the delivery of natural gas to the are sitting here correct the commission said we do not have to have jurisdiction but the commission said it's it's relevant in trying to ascertain the when way or why of natural gas delivery for purposes of need the agency my agency is trying to that was necessary to meaningfully inform the guy for your city in its review of these particular facilities to the extent that environmental review did not discern additional information necessary to the department of energy's review know we're not saying there's anything wrong with developing a range of consequences but as the agency says the energy you can from a should the administration study in twenty twelve actually demonstrates the limitations of such statement we put it out there for a notice in comments and parties have the ability of these types of modeling that that are demonstrated in these other studies you all say we can't do it because this is just beyond the realm has the air of the speculative but it's possible and why isn't it required while we're certainly not stuff harm in doing that i say well we're certainly not doubting that it can be done and with respect to what's the harm in the car i guess the question is whether it's valuable know well it's a combination of both the agency has a responsibility to engage all arguments and to discern all reasonably forseeable consequences even if you can discern an increase in natural gas production and even if you can somehow tie that to the authorization of any one particular facility you still have the issue of the emissions effect and you still have the issue of writer jonathan franklin representing this time the report interveners i think there's been a fair amount of confusion about how the statutory authorities played interplay and how the cooperate agency process works that's not surprising because it free trade nations they need good analysis it's now or never in fact it's never congress has declared that these applications shall be approved without modification or delay so w to quote the usefulness of any new potential information to the decision making process so with regard to free trade status nations it's not useful because congress has said it's going to happen just like the mexican trucks  information would be useful to not discretionary decision it's an open question it may be but i don't know here's what i would say is public citizen controls now that's free trade with non the free trade deal we know he opens two different dockets so it's got the free trade dockets those go through but it does have the non free trade dockets and here judge rogers i'm going to try to explain i think maybe some confusion there with regard to the non free trade we did not say we just don't have a statutory authority to look at it meep meep it doesn't apply they do not say that north shore could they have thought why doesn't anybody say yes no but when they said we're not looking at the induced production effects it wasn't because they didn't the cooperating agency process the reason they use the term lead agency is because that is the term that is used in the c e q regulations and i apologize i do not have the citations at hand on this but there is a series of c e q regulations that discuss lead and cooperating agencies and this is alternately an internal government matter so the way it works in practice is the lead agency will participate all of the cooperating agencies will provide their comments so d o e thinks that first should consider some effect that isn't considering the way that works is deal he tells her pay her we think you should consider and here's where i think we have to explain when you get to court when you're when we somebodies petitioning for a review as they are here that is limited to determine whether the agency that made the decision here for from a deal we order you'd be looking to see whether or not the need but analysis that dio eve did which could incorporate a person in fact in this case did complies with if statutory authority and here are when they get a court order man i guess you going back to the free trade you know dear we has determined not even had to make that determination because congress that it had to that there will be exports from this facility we know that there will be the can't be stopped congress and said there will be site specific that's why they haven't raised that issue the reason they haven't is because the impacts they're talking about are not occurring at any site this site another site they're occurring thousands of miles away and in case of global issues maybe twenty thousand miles away this way this case in fact different from any case that i'm aware of where they're saying that the environment reasonably perceive all environmental impacts from this facility could actually occur in north dakota that's their point and that's what the agency said is not reasonably foreseeable but just getting back to the this information on whether or not exports generally are good or bad that is not useful the purpose of this is how it's not a question of good or bad congress has made that decision as right now but the question is how well there's nothing better that information could could contribute to first process the hypothetical would be that if the facility is located in the state of louisiana right the indirect effects and the cumulative effects will be one hundred on the other hand syllabi is located in aren't the effects will be five so fur has a responsibility to consider environmental impact public interest and the facility would still carry out congress's purpose the speak it would be on but it would be in a different place it's going to go deal we does have the say on the non free trade and we do have several proceedings before india we regard specifically to non free trade nations those are the ones that sierra club in one instance call diplomatic questions are you know what kinds of questions are being addressed to those see the public interest analysis of the oh he does it's public interest analysis with regard to non free trade ok that's what i call foreign relations no i mean seriously it's that kind of they're not into the details about the syllable know all this out no they don't there really aren't a lot of details but they're more concerned again with the exports themselves freeport project that was issued on leave it was december this is them for a lesson november fourteenth two thousand and fourteen that's the one in part not entirely on that that that sierra club has sought rehearing on that one has an extensive environmental analysis and i think it includes an analysis and i going to have to go back and look to see what they think that they did so but not again i want to be clear deal we has agreed with her that those don't need to be considered underneath but deal we consider them under its own separate public interest determination which is with regard to not printed name pretty take nations required to undergo on the public interest of allowing exports so we definitely consider all of that ultimately it concluded on balance that this was in the public interest new you can't meaningfully and analyze this in terms of trying to figure out what the impacts are going to be because with regard to colonial impacts you have to look at the whole world and nobody is arguing that you can write that  maybe it was silly but i mean people there are people think they can model the stock market and they'll tell you they can that the fact that you try to make a model they don't model really good is good is that what's happening i don't put it in that but the study that i'm familiar the construction we have a tremendous amount of work and there's somewhere around eight hundred workers that are working on the project right now there's and it was mentioned before there is fourteen around fourteen billion dollars of investment in this so i was going to say to  workers to somehow lose but having said that ultimately here did what it was required to do and that is to look at the reasonably forseeable impacts from the siting determination that is going to go through nine hundred forty eight pages of environmental analysis but the next part that sierra club is asking is just too speculative for it to matter to what it's doing it's not just a paperwork that you could not just let's look at it because somebody thinks you could look at it it has to be something that is meaningful that contributes to the agency's process whereas here hasn't is what i would argue no authority to say no speak it at all and only limited authority with  spigot influence the deal we've proceedings and we've actually seen that in a very clear way in this particular case where one of the project applicants free trade not free trade agreement applications the department of energy  and you can see that discussion in the department of energy order or image of dr appendix page thirteen seventy seven so to that plainly indicates that the nature of the scope the determination of the first proceeding that additional capacity of gas the second point i'd like to make is that there's nothing in the record here that suggests that gas from this facility will actually be exported if the only available license is to free trade agreement countries  there is a list of fourteen countries that had a lead it's working on that have the particular kind of free trade agreement at issue not a dry gas area where the agreements pacifically requires national treatment for natural gas the only one of those countries contracts from a number of the currently proposed export facilities in the united states and i don't believe any of the contracts that are available to the public that have been filed with apartment energy for any of these facilities indicate any that any united states exports are  currently intended to go to south korea so there is nothing in the record that indicates that the exports would actually occur if the only authorization was to free trade agreement countries those are the two points i have a bit obviously happy that