frederick brody for new york the e c works decision rests on the legal premise that any application for however incomplete commences the one year period for state review under clean water act section four a one first interpretation would make section four a one dysfunctional first section for a want to expressly requires public notice allowing public notice to go forward without a complete application could deprive the process of meaning because important details could be withheld second ferguson turp or cation would allow applicants to game the system by submitting a fragmentary application to start the clock and then sandbagging d e c with a large supplement later in the process under first interpretation the clock starts running if you simply text a blank application form with a project's name on it that cannot be the law requiring d e c to deny incomplete applications without prejudice which is the alternative urged by ferk and millennium would make matters worse first it would prevent the e c from working with applicants constructively to cure deficiencies in the application instead to preserve it one year review period the e c would have to deny incomplete applications immediately second every denial would be reviewable in this court if this court finds an application complete  if the one year period elapses during judicial review which it well may that applicant will have successfully avoided the e c review on the merits as well as avoiding public notice and comment a state agencies interpretation of a federal statute when that interpretation has not been adopted or affirmed by the relevant better agency under in the city of bangor case five thirty two  issue and here d e c certainly has some expertise in conducting water quality review back in the issue of that doesn't that wasn't chevron deference that was a well it was deference i'll take any kind of deference but if the court doesn't defer to d e c s interpretation then it should construe section four a one day no vote and on a day novo review you look at the two interpretations and you find that first interpretation is subject to the to the fatal  calamities that i've been describing i'm having trouble understanding some of those calamities and why the i mean the department has the practice in certain circumstances of deeming an application withdrawn i understand from your brief agency is now clear that what would happen is that the applicant would wait until the day before the one year mark arrived at and then demand decision i don't understand why a denial at that point for you know on the merits or for not having had an opportunity to review the application would be seen by any court as arbitrary and capricious why that you i think you could i mean i don't understand why why you couldn't in fact i mean there are that's kind of what work out in other circumstances is you say where we're denying it and you may resubmit your denying without prejudice to  resubmission and to further conversations back and forth as you have done with other parties why is that not a reasonable way to proceed well we can't deny anything on the ground that well we haven't gotten around to reading the whole record there's nothing in the statute that allows that now with respect to the nihilists without prejudice again that regime number one you would have you wouldn't be able to work with the applicants because you just have to say there's an application if we want to year to look at this and it appears to be incomplete we just have to deny it right away otherwise that your is going to be running while we're sitting on the application and then every denial would be  that would but it doesn't mean that every denial would be in fact reviewed in the subject of litigation i mean that there are equitable principles at play as well and congress expressed itself fairly clearly that year was the outside period after  receipt of a request and in fact it wasn't even clear to me from the documents i've seen that the department considers the application to have ever become complete because the letter the berkman letter from  in november saying in august thirty thirty one guessed twenty seventeen we will treat it as complete said we have at least this period to review it and it was still ambiguous are you clear that the application was complete as of that time that is clear there is a notice of complete application in the record and i believe it is some time and in july of two thousand and seventeen that there is that notice now you may ask why why was there such a wait between the notice the the second notice of the i'm sorry the berkman letter in november of two thousand and sixteen and then the  notice of complete application well you have to look at the chronology shortly after the berkman letter in december of two thousand and sixteen millennium petition for review in the d c circuit so everything there went into litigation and we didn't get a decision from the d c circuit until june twenty third two thousand and seventeen and then promptly thereafter it was july fifth two thousand and seventeen we provided public notice the value our application was complete and you'll find that notice your honor on page six thirty nine of the joint appendix now a point i want to make additionally about denying incomplete application syriani and extensive information and that information often comes from the applicant in phases if anything serial denial of of repeated applications application comes in we look at it quickly it's missing something we say ok denied then they have to redo the application the application goes in again and then we have to look at it again it's denied again that would take at least the same amount of time as it does to sit down with the applicant and say ok let's discuss what we need and what you have and let's work on how you can get us what we need to let the application go forward so but you have had have in fact used a dean denied mechanism in some circumstances isn't that correct well in in constitution pipeline it was agreed with the applicant that they would withdraw and then resubmit and they agreed to do that twice now both of those went forward in that manner by agreement of the parties we didn't have agreement of the parties here and was not willing to do at that's in the record in one of their submissions they say you know you don't determination that you haven't been able to complete the review that would satisfy you you can't in good conscience decide that it meets the requisites and you deny it well are your right you've got then is actually that's the same thing as a denial without prejudice because if you deny and you say you haven't got a say enough information obviously implicit in that even in constitution pipeline it was implicit that if you came in with the information that we needed then we'd have to consider not my concern is obviously that the statute doesn't say a complete application or request or a valid it doesn't use the language we find in other statute just just says upon receipt of a request well it's a beauty is implied yes it's ambiguous in two ways no it is a request for certification could mean either a complete request as we contend were an incomplete contends we think it's more reasonably read as a complete application and i just stopped there why is why is it so clear that that's the reasonable construction because it seems to me when you have this one year bright line rule that the statute on its space is saying we want to have the states participate and we've been the review of these projects under the clean water act but we want there to be an end point a definite end point and your interpretation seems to unreliable that completely by putting within the states discretion in new york's review here may have been very full and expeditious but in essence your interpretation puts in the hands of the states the power indefinitely to delay a project by deeming applications repeatedly to be incomplete or am i misunderstanding something well requiring a complete application would not extend the review period definitely and he first the applicant can still go defer for a declaration that the state has waived  the timing content and form of notices of incomplete application so if you get an incomplete application you have to tell them that it's an incomplete within a certain amount of time and in cases that don't involve natural gas if we can if we can step beyond the cordons of this case for a moment the application of the applicant and this was the legislative intent cited in our reply brief the applicant can challenge a failure to act in state court under article seventy eight in place to keep things moving this to bertie i've given you a more than enough time and i appreciate it we very much appreciate your human before he said down what remedy do you want from us if you prevail here where exactly does this litigation go in your view what happens next to borrow a phrase from someone one of the other arguments what happens next is this court finds there was no wa so then there was actually a denial that came down on august thirtieth august thirty first of last year so then that denial comes up for review millenni already challenge that denial it since number seventeen thirty is for that in this case what is it that you if you were in our place what would you do what would be who they create a language and what would be accomplished by any decree of said the application was complete as of august thirty one as of august thirty one then our decision on august thirtieth was timely and then and then number seven hundred thirty four sixty five good morning your honour's with one waiver ferk made six thousand public comments disappear that's one of the forgotten issues at stake in this case and the reason that that happened is because the commission acted too late on the waiver it's not mental review and so on yes absolutely your honor the residents did participate extensively in the commission proceedings they filed comments on issues related to water quality but one of the problems was that the application had changed which is one of the reasons why the department found that the application was incomplete so for example while that residents were able to comment on the impacts stated in the environmental assessment they were not able to  raise comments related to some of the changes that took place in in the in the application as it evolved in front of the e c and where there are other areas of substantive interest that they were not entitled to come in on in their interactions with the for no your honor they raised the residents raised a host of issues they raised environmental species act violations jurisdictional issues the issue of the way whether for acted too late on the clean water act that was one of the problems with the timing of this case and that's something that nobody here had control over is that the residents had filed their petition for a rehearing of the certificate order in december and sixteen the commission actually came out with this wayward decision in september of two thousand and seventeen and then it wasn't until the rehearing in november of two thousand and seventeen that they ruled on the rehearing requests that have been filed way before and so some of these issues were proceeding on different tracks where as if if some of these issues could have been decided earlier it might have clarified some of these things in the proceeding for the citizens so could you give a more concrete description of what kind of comment they were unable to make well as i said as i said there were many issues that came up in the context of the clean water act that would basically be related but i'm talking about the change you said there and so that they were able to come in yes so many of those issues were raised in the public comments to the hearing and there are some examples of what those comments are in the joint appendix for example there were additional issues related to the endangered species act the presence of the bald eagle the impacts on  the results of the survey for the bog turtles so there were those issues that were impacts to wetlands whether the proposed what measures d e c was going to take in order to address issues like to be in the water which is something that the commission had said in its certificate that their finding of no impact was dependent on what the d e c would decide so it revolves around those types of issues that they would have been able to go back into the commission and raise and the other thing they would have been able to do had for waive the certificate had they waived the four a one before the certificate issued if they could have urged for two to  adopt some of those conditions incorporate them into the license into the certificate notwithstanding the waiver they would have had the opportunity to do that as well and that's really one of the primary opportunities that they were denied because if they had known the certificate was waived before they could have gone back to for and said look these are water quality issues that came up we had anticipated they would be addressed by d e c and because they weren't it's imperative that you include additional conditions grant waiver the statute is also very clear the language of the statute refers to an applicant applying for section four a one certificate and then towards the end of section four a one a one the statute says that no federal license shall issue without a for a one certificate in less it's been waived or denied in respect to the previous sentence in the previous sentence says that the certification is denied can be waived with respect to a federal application later on in the statute in section four a one a five there's that there's a discussion in that provision about whether a certain a state that's issued a certificate can can later revise it once the federal license is issued and that provision for a one a five refers to a waiver with respect to a federal license not a federal applications of the statute itself takes you through a progression of the process in a one you're still getting the certificate there is provisions further down you know if you state issues the certificate but wants to change its mind and there are very different terms used in the statute to describe those two events and so we believe that the statute is also very clear on this issue now i do see my time has expired thank you it please the court robert solomon for the federal energy regulatory commission i would like to start with the new york arguments the commission's interpretation of the statutory language is faithful to the plain text of the statute and advances the legislative purpose which is to avoid indefinite delay it is in part of the legislative purpose also to ensure meaningful state participation and if the mere request is enough to trigger the review the state's obligation to begin reviewing where i mean there was material here but this is a complicated matter it's complicated environmentally it's complicated from any number of points of view why does it further congress purpose to allow the state to print dissipate to set a relatively short timeline and have it not tied to whether there is a meaningfully complete application well it's a balance between meaning full state  involvement and timely state involvement in the commission is trying to give effect to the one sentence waiver provision embedded in the middle of section four a one we agree that the states have a vital role in section four a one to ensure compliance with state water quality standards but the waiver provision is not a grant of state of authority rather it is a limitation on state authority and when it comes to that limitation it is the responsibility of the federal energy regulatory commission to ensure that the state has comported itself with all of its responsibilities under the statute judge carney you are correct the word complete does not appear in the statute it's the commission's responsibility to give meaning to request for certification and the  commission's interpretation is that the millennium application filed on november twenty third two thousand and fifteen was in fact a request for certification in trying to give meaning to those words instead of adding words to the statute as new york has done the commission's task was to give meaning to requests for certificate and provided dictionary definitions of application receipt and request and all the commission has required is that there be an application for certification or a written application for certification if the state is new of new york is concerned that the pipeline applicant has engaged in gaming or sandbagging i have no reason to understand why any pipeline would want to do that but if that is the concern of the state the state of course can simply deny their application they counsel for the state says that that actually isn't the case that they are bound to act substantively in a denial and he implies i guess that they would be subject to challenge for arbitrary and capricious activity if they were to deny what was maybe complete but they only had twenty four hours to look at what was your response to well as your honor was suggesting if in fact such an appeal were filed from a state denial it probably would not be a difficult burden for the state to overcome capricious standard of review as the state of new york successfully managed to do in the constitution pipeline decision of this court from last year but when it comes to waiver as we know from the the millennium decision in phase one of this litigation in the d c circuit last year and as we know from the natural gas attack section fifteen seven seventeen and subsections in c the commission is the lead agency for purposes of coordinating all federal authorizations and set schedules to ensure expeditious completion of all federal authorizations judge livingston you start of the questioning with the question of standard of review we believe that the commission's interpretation is faithful to the pla found that the provision was ambiguous right in the sparrows point case to do we have to decide in conflict with that hers if we were to follow your argument or your sparrows point distinguishable sparrow's point is distinguishable first i'm not even sure how the fourth circuit even got to the issue because as we know from the constitution decision of this court last year when it comes to the issue of delay that is a matter that can only be heard by the d c circuit and we know that from section one thousand d of the natural gas x seven seventeen or subsection d subsection two but we believe that the better cases the ones that are more on point are the alcoa decision of the d c circuit and in particular the ninth circuit decision in california which provides for the one year state review period to start after the written application by the applicant and the ninth circuit said that our regulation our position which we are following here is fully consistent with the letter and intent of the statute the standard of review cases that new york cites turner versus versus dowling city of bangor in all of those cases either a federal agency was not involved or as in the case of perry versus dowling the federal government actually blessed the state interpretation i don't know if i'm just looking at a as sparrows and note that judge hamilton characterized the question or is as they were called on to review the denial of a request for water quality certification not the failure to act and then they go on and find the statute ambiguous in in this respect so it seems to me that a decision that this statute was an ambiguous would be in conflict with their ruling and am i overlooking something no i don't think you're overlooking anything the basis for the fourth circuits decision in a s of course was because there was a federal agency involved the army corps of engineers that had its own regulation under section four  four of the clean water act and all the courts all the fourth circuit did in the a t s case was to defer to the permissible reading of the army corps of its own regulation here the army corps has filed a letter indicating that it takes no position whatsoever in this litigation the army corps not even supporting the new york position in this case and for good reason because the word complete which new york is trying to add to the statute is a subjective word as new york concedes on the final two pages of its reply brief that is a matter of regulatory judgement new york makes the comparison between a complete application and a half of an apple on page twelve it's a reply brief but an apple or a half of an apple those are objective verifiable measurable concepts where as a complete application as the new york regulations themselves indicate six twenty one point two of title six of the new york regulations a complete application is whatever the state of new york deems to be a complete application for the purpose of commencing review and the subjectivity and the elusiveness of the concept of complete i think is demonstrated by the facts of this case here in new york is now claiming that the application was complete as of august thirty first two thousand and sixteen but three months later in the nov twenty sixth teen letter that new york referred to on page six eighteen of the j the  state of new york said that it was still determining whether in fact there is a valid application and that the state has at a minimum until august thirty first twenty all of the state to say listen we want to get the commission's environmental impact assessment or statement that we will and we're not going to duplicate that and our own environmental process is  preempted so so isn't that a very reasonable thing for them to want to have in hand before they rule i think so but by november twenty sixth hien the federal agency had already provided its nepa environmental assessment there is some matter of dispute between new york and the intervenor as to whether in fact a nepa document needs to be in the record before the state can definitively act  brodie's said the state of new york didn't deem the application complete until july twenty seventeen which is a levin months after what they now view the august twenty sixth teen application to be complete and again as we have explained in our orders and in our brief the appropriate remedy under the statute is both obvious and effect the state can just simply deny we know from the constitution case that the state can continue to work with the applicant and these issues of policy might be genuine but our task is to effectuate the language of the statute and judge livingston i think you referred to the waiver provision as providing a one year bright line rule and i think that is absolutely correct because the congress and enacting the waiver provision they wanted the state to exercise its authority it's a very vital authority within a period of one year different view and we believe ninety seven right and since then you feel it's been a uniform policy it has been a uniform policy and in fact it hasn't changed because of recent changes of  not in fact the commission orders recognise that this is been the consistent approach for the last thirty years with respect to our licensing of hydroelectric projects and on the natural gas side even though we're acting case by case as opposed to through generic rulemaking we have had this position for at least the last twelve years on the question of completeness let me just draw your attention to the intervenors brief at page thirty how would you respond to the fact that the e p a s handbook sections for one says that review that the review time frame begins once a certification has been made and itself but the e p a it has no legal way to store as yet has no legal weight but i believe the handbook also says that it's for the commission itself to determine timeliness not the state which makes sense because that entirely with the waiver provision being something that the f d r see as opposed to the state actually administers and if there is any deference to be afforded to any agency whether it's chevron or skidmore or something else when it comes to the waiver provision that is not a section that the state implements ineffectually it's that is the responsibility of the federal government let me ask you the same question i asked m the effect of such a disposition on not only the litigation but whatever is going on in the real world i think the effect would be that well one there'd be the issue of whether the matter would be remanded back to my agency or just vacated there is another appeal filed by millennium of the state denial in three four six five and if the commission is upheld and the waiver is affirmed then you have the case concerning the certificate orders themselves which is filed by of three nine six six and three six four five i believe three four six five is the abeyance waiting resolution of this case all allow my intervenor to speak more on that topic with respect to three nine six six that was a petition for review that was filed in early december immediately after the stay was extinguished in this case three seven seven zero and that case is not started briefing on the merits yet and as was discussed with respect to ms elephants the argument all of those issues or better suited for review of the certificate orders those are the orders where we addressed not just simply the jurisdiction of my agency under the natural gas act but all of these other issues concerning water quality and endangered species and segmentation  and the like i want to draw the distinction between our jurisdictional arguments and our jurisprudential arguments with respect to two of the three arguments being raised by the intervenor group timeliness of commission decision making their argument that our waiver order was too late and their argument that in fact new york did act within the meaning of section four a one those are issues that were not presented to my agency on rehearing of the waiver decision and that in fact is a flat out jurisdictional bar to appellate review under the natural gas act fifteen u s c seven seventeen or subsection b those issues have to be presented with particularities so the commission can address those issues so that the appellate court can act as a true appellate court with respect to the arguments concerning whether intervenors can raise issues that the petitioners themselves did not raise that is more of a prudential matter i do want to point out that the jurisdictional issue that they raise has ramifications if they were to be successful far beyond this particular case and from a prudential perspective the jurisdictional issue was not injected into this case until the december twenty second filing right before christmas in an expedited case where the answering briefs were d generally eleventh i assume other pipelines other potential intervenors and amicus participants would also want to be heard if in fact this case this court were to entertain the jurisdictional issue thank you very much and i'll be giving points if i could without going over any old ground the first on bright lines the second on judge carney what you called calamities and then the third on your deference and sparrows point judge living to livingston the statute does establish a bright line in the thesis is equally bright line which is a statutory clock that runs from receipt of an application runs from receipt of an application and i reiterate this because even the d e c in its first letter to millennium on december seventh of two thousand and fifteen you'll find this a joint appendix one twenty eight the d e c in that letter says on november twenty third two thousand and fifteen we received your application a water quality certification now judge carney you asked mr solomon the question about meaningful participation that's why there is the one year permitted there is simply no credible argument that there came out in early may what about the intervenors comment that there were six thousand comments that were consideration was precluded because of the sequence of events here i think that is somewhat of an overstatement your honor the intervenors or at least some of them did fully participate in the first proceeding and more to the point to d e c s own comments resulted in as the commission said both in its certificate order and the rehearing order significant modifications and you can see that a joint appendix five fifty seven seven seven nine i think sort of the argument was that they were precluded also from commenting on the revised plan after the after the  project had been modified possibly in response to some earlier comments the revisions that were submitted to into the d e c after the may twenty sixth teen environmental assessment permitted time for further commentary there as well on your calamities question if i could there is a pipeline applicant has precisely zero incentive to game the system in the way that mr brody is hypothesizing because if a pipeline applicant which is sophisticated and knows how these things work if that applicant were to do something along the lines of mr brody was suggesting texting an application filing a blank it would get denied and it might get denied with prejudice and the pipeline applicant i would venture would have a steep uphill battle convincing this court or any court that that decision was somehow an abuse of the d e c s discretion the gamesmanship to the extent there was unfortunately in this case occurred with the way that the d e c went about treating the application for the reason that mr solomon mentioned those long legs of time in between responses and then the backward july seventh twenty seventeen notice that in fact millenniums application was complete back in august one last point on deference on a sparrow's arguably this court has already created a split with a sparrow's for the reason that mr solomon adverted to that court purported to exercise jurisdiction over a waiver argument also in the context of a denial it was but that was exactly the same thing and constitution the same arguments were made it was a denial there and they argued waiver and the court of appeals in the fourth circuit took jurisdiction over that question and answered it the second circuit in the same context denial argument of waiver decided that it did not have jurisdiction over that question but more to the point the way i think to reconcile sparrow's in this case is two ways really the first is you can't bind yourself to a single decision of another court in a circumstance where multiple agencies are interpreting a statute because otherwise the first agency in the first court to reach that question would somehow dictate the answer to that question but more substantive the fourth circuit when it decided that the course interpretation was appropriate it said we're going to find the same big us albeit in a sentence we're going to defer to the course interpretation because the core is the agency charged with administ situation is that you would accord some deference even if not full chevron deference to first because firk is the entity that is specifically charged with making the waiver determination that i think is how you reconcile those two decisions if there are no further questions you tell us something about what's going on in the real world on the ground what is happening with this pipeline at this moment at this moment my understanding and the there are regular filings that go into the docket update progress the most recent filing said that most or all of the of the tree felling is complete i think the next phase will be the laying of the pipeline my understanding is that c p v is expected to start testing its facility next month or the month after that and what's your view on what would happen if if the petitioners prevail here is that i what's the procedure in which we would find ourselves i think i agree i think i heard both mr brody and mr solomon say that the the next step if the petitioners and intervenors prevail here that would mean that ex waiver determination was essentially would be vacated that in turn would sort of reinvigorate the department's august thirty first twenty seventeen denial that  going through the pile of the appendix i've come to j six five seven and what is it that i'm supposed to understand i believe that may have been my mistake you're on at five five seven five five seven is the point in the certificate order where for points out that in response to the d e c s comments that were submitted in december of two thousand and fifteen march in june of two thousand and sixteen that millennium made broder instead of one that was given four minutes thank you your honor mr solomon says that he is given a dictionary definition of receipt and indeed he has a receipt is the act or process of receiving and we agree with that receipt could be a process here the process starts when you get that initial application but it continues until the application is complete mr solomon asks why would a pipeline company sandbag and miss that's an s the same thing two reasons one you avoid public notice and comment to you avoid substantive review by the e c instead the whole record goes up to a court and the court has to decide well was the record enough and maybe the court is not going to have environmental experts there who are going to give the record as searching a review as d e c does with respect to alcoa and the ninth circuit california case they were cited by mr solomon neither of those decision discusses when under the terms of the statute not in the terms under terms of an implementing regulation under the terms of a  statute the period the one year period starts and it's important the distinction between a statute and implement implementing regulation the reason you have implementing regulations here is that the statutes ambiguous  mr solomon says that saying that the any statute that has implementing regulations is thereby demonstrated to been ambiguous no and but but in this case certainly with with that now what was the first few impermissible know both fuse within the ambiguous language of the statute mr solomon is incorrect to say you're saying that because there was the agency itself changed its interpretation although very long time ago as these things go that that on the scores the fact that there is more than one interpretation possible for this language  chevron deference to which they're not in pleydell even under chevron for sixty seven us at eight forty five that case says that if the interpretation is not what congress would have intended the court should reject it so chevron deference is not an automatic win for for for here congress definitely says in the statute they want public notice they definitely say in the statute that they want substantive state input on does this project comply with the state's water quality standards and although missteps is correct that we gave subset of input we were not able to answer the crucial question that that statue puts on our shoulders