morning your honor as may please the court brian would signal for the department of environmental conservation your interest rates waiver order authorizes national fuel to construct a one hundred mile long pipeline at the department has concluded state water quality standards for found state waves right to deny certification because the department with national fuels express written agreement took an extra month to complete its review of national fuels voluminous section  that's a party have an option to just wait and let for granted self extensions illegally and then wait for a final and actual decision on the motion for reconsideration how can that  possible for a party to move for a rehearing and then decide after thirty days whether it wants to if for a hasn't acted on the merits of the request deem it denied or wait for her to issue a understand your position like ok thank you your honor i'm the st issue as i said the rules the statutory deadlines may be waived or modified but here for apply the opposite presumption concluding that because section forty one  silent on whether it can be wherever modified congress somehow precluded the parties from entering an agreement like the one and it isn't i mean you're you're in your you rely heavily on the line of authority about claims processing rules in those rules not exceed one year the certification requirement shall be waived it seems a different category of rule to me and then claims processing rules which are not don't seem to have an underlying substantive policy objective in the way this rule does your honor i agree it's somewhat different than on a typical claims processing room such as a stash of occasions but courts  modification agreements or waiver situations the one case that's most on point is millennium pipeline company b gutierrez and in that case the district of columbia district court applied these straightforward well under the for one scheme a are a party could could simply wait until three hundred and sixty days had a lapsed agreements these processes on a case by case basis to determine whether that's happened and that's not the case here we have a thirty six day extension to complete review of a very large scale infrastructure project i see there on  other constituencies besides the applicant for the permit and the d e c here that there may be other people and or other interests that are affected  by an agreement or waiver is also a challenge that agreement that's what happened in hoopa valley i mean here you have the party that agreed to the extension trying to get out of it and i got out of the bargain the earth justice on behalf of petitioner sierra club but to make a couple of points additionally st the text of section forty one does not actually give us a clear answer to the question that the court needs to grapple with here the statute sa only that the clock starts upon the date of receipt and as this court has already had to do you had to question the statute does not actually define receipt and it doesn't say that a new date of receipt cannot be selected this court has has concluded only that receipt does not mean receipt of a complete application because in that situation it would up and the steam congress had created under for one to give all the power to a subject that we  as and in that same decision the court also directed d e c that it was allowed to ask the applicant to withdraw an resubmit its application there is no difference between that and what happened here and the bright line rule is that the purpose of the statute cannot be investigated to the point where there is absolutely nothing happening the state's time for action and hooper valley tribe in fact gives us a sample it's not necessarily about a bright line rule it is about a tally of the circumstances where you have an applicant in a state conspiring to indefinitely shelved for a decade and counting an application do absolutely nothing on it and thereby not only shut out rd party as judge lynch was referring to earlier but also to completely hijack the st amendment process that isn't what happened here it's nothing close to what happened here and on the flip side what we also have to be mindful of are the consequences of st entirely rigid interpretation which is to create a set of incentives to have applicants gamed the system so that if the state is a mere hour late in it determination the entire structure congress has created which is fundamental purpose is to empower the states to make these decisions gets up and it won't be what do you think congress had in mind when it said six months you and so it is a year but you also have to read it in connection with a year from what from the trigger in those six months doesn't really mean i mean our year doesn't really mean a year urrea a year might not mean year but there is still an intense by congress chew in the words in the congressional record it's clear to not allow indefinite to life because if you're hearing event the triggering event that you're referred to is a receipt i mean i understand your argument understand your argument that it's kind of a formalis if there are other ways of doing any of asian one year time limit to rely on the particular way that new york chose to do it here but at the same time new york chose to do it here in a way that says let's pretend something happened that didn't happen and let's create a triggering date that is not in fact the date of receipt i mean that you're on the wrong side of the formalism it seems to me you know maybe that the act of withdrawing resubmit by itself allows which this court sanctioned in that case does allow for a new receipt to be created and therefore there's nothing in the statute that suggests that the form in which that every time this issue comes up we have to have some sort of plenary proceeding to figure out what's in the minds of these qualities that reach the agreement that doesn't seem workable to me  the tribe case looking at how long has this been going on has there been any action on the permitting and with that has the state taken any action whatsoever processing the permit is there a complete and total shelving of the application has the state has this affected the federal permitting process so here by stark contrast you have a single month you have a state diligently looking at the application diligently going through public here the problem is that national fuel didn't get what it wants and so i see my time is up but i would be happy to answer the questions about oh thank you thank you very much well here i'm your adversar this is a bright line rule as your owners have observed if we accept the titian as argument then we're no longer applying the plain text of the statute and here the commission was being faithful to the text the bill what was it in your mind when you letter receipt agreement the commission actually feels that it should not be in the business of determining what's in the minds of the state agency and the private applicant if they choose to enter into  agreement your position is that whatever national hadn't smile whenever this city of new york had in its mind this is a bright line rule and you just can't extend it in the way the parties here attempted to that's a year on before you thought that you could extend a different deadline the congress acted for the same purpose that is to make sure that these things are done expeditious but your position we were just wrong well let let me let me explain a little bit more the alleghany decision that your honor is referring to from the d c circuit that involves the natural gas act and the commission act provision at issue here and without getting into the details of our katie i just want to point out that the d c circuit decision holds that an agency tollway order cannot delay judicial review however it also doubted that even after a petition for judicial review of a st order is filed the commission retains the authority to modify or set aside it initial order and so intil the agency record is filed in court the agency can modify or further explain its decisions in an order on rehearing and that is that exactly the same thing that new york state is claiming the right to do here to take a little bit more time to do an explanation of what happened rather than proceed immediately to judicial review which would be the alternative  ten said look we've got a deadline we've got to make a decision based on what's in front of us as best we can and we're just going to deny this if they did that the remedy for national fuel would be traditional review right talks about the ability of a curse and aggrieved by an order issued by the commission to apply for a hearing within thirty days and then says that unless the commission acts upon the application for a hearing within thirty days after right is filed such application may be deemed to ok i have to look i'm not i'm not on that anymore i'm worried about what i've seen i worry about what happened here and what happens under the clean water act what i'm d trying to get what's what's your position on withdrawal by the applicant if it gets close to the deadline near the end of the year and d national fuel gets a call from the d e c that says look we just want to give you a heads up next week we're going to issue  decision denying your application national fuel says why d c says well it's hopelessly inadequate in explaining factor x that matters very much to us and national fuel says oh ok look i get your point national fuel things way and if we let them deny it and then we seek judicial review they're going to win so how about we withdraw the application and will submit a new one that gives you what you think you want is that going to be ok with you and the d c says yes national fuel withdraws the application and files a new one same application with some extra stuff  right so i'm not sure there and i think that's where that's where there might be a factual determination to be made about how new that application is but that's that's all i've got to iron while the application is new and not that does that very clear the application remained the same it was an agreement to to set a fictional date of receipt which plainly contravened the statute but i pay i see and hear me can you please stick to the th away on what you've got but maybe you could give us some more and they say yeah rather than let you deny it and we'll see judicial review because we think you're wrong we think our application was good enough what we'd rather do is answer your questions and the answer is actually in this court's two thousand and eighteen decision that where the court observed that the d e c could just deny the application without prejudice i think in the circumstances you're outlining where it's just heard is submit a supplement to the application what is the deadline then if you were denied your honor and national feel submit it resubmitted the application when i supplement it and then the happen then i don't understand why it isn't a formalism to say if if they do it in a different way and you say they have to deny it without prejudice flows they don't the next step is we don't deny it if you want to withdraw your application and submit a new one with the supplement go ahead and do that and national field so that option in that case that would be different then denying it without prejudice and if they can do that why can't they do this it's these are all ways in which the e c can get some expert time with the consent and maybe even at the choice at the preference of the applicant right right right your honor in  event that application is denied it is possible than that that the applicant might take the option of seeking to dishful review at that point so that would be at the option of the opera can't that w submit a supplemental application so they withdraw their application you saying they're not allowed to withdraw the application and submit a new one or a supplemented one well i guess in that circumstance there is  can't you tell me whether that's allowed or not allowed it's the risk is what you have position is so i don't know what your position is that happens right your honor i can't speak on behalf of the commission for you know how  the commission with decide the case if it were presented to whether you're telling me you're telling me that you don't have a position on whether if these very parties had done something slightly different it would or would not comply with the law but the agency did not resolve that issue in the orders that are on review i will say that it's it it's possible that that your position i thought is that this has to be a bright line rule now you're telling me it doesn't necessarily have to be a bright line rule we might or might not take a different position if they had chosen a different mechanism for in effect waving the bright line rule it's a private line rule where if the state agency and the app or can't sign an agreement to set a different date and the actual date of receipt yes and what i want to know is if you know what i want to know as i understand an argument that this is purely a formalism but it is an important formalism because they're just lying to us and they're not allowed to do that they're not allowed to create a fictional receipt i understand that but what i want to know is is that just a formalism and if they had chosen a different mechanism for extending the time period that would or would not be allowed is this a substantive position you're taking with us or just a formal position that you're taking well i think if both your honor and i think that there is a circumstance in which  national feel could have legitimately withdrawn its application if national feel for example changed the route of its pipeline and it has an alternative has a new route it's crossing different streams there's a different environmental impact analysis and i just as in first position then and i'm sorry to interrupt but i think i knew where your you were going so is it fair to position it as a part in implementing the the provision there's a difference between comparing one application that is withdrawn and a new application comes to make sure this is substantively a different application than the one submitted earlier and engaging in  a different thing preferred is that what you're is that the points you were you were making yes your honor thank you it is a fundamentally different thing to evaluate two separate applications that's well within the commission's ability for and it's it's experience to to compare two different environmental applications but i don't as it were clear that on that i understand your position your response to judge lunches question so in the case of application  so your honor if the applicant realizes on its own that its application is inadequate in some way then we would certainly you know i suspect that it would be permissible for that applicant to withdraw you because we think our application is good enough and stands that's different it's only if they spontaneously recognize a flaw in the laws d pointed out to them there is a difference yes your honor that's right i mean because the legislative history of the clean water act shows that congress was concerned about state delays that's that's evident in all of the legislative history of this provision so what where it becomes more complicated and difficult is where the state tells the applicant that there is insufficient information and that's you know that was the situation in the st new york state d e c case in two thousand and eighteen where the same state agency  the option you're suggesting is since d e c raised the objection in the st place what the applicant needs to do is to throw out that's hands let the e c deny seek your dish will review and  then after that presumably they could come back with a new application right and i am sorry i misspoke i didn't mean to indicate that in that situation the applicant would have to stop his hands and  traditional review but in that circumstance if the pipeline agrees that the state is right that the application is insufficient and it voluntarily submits a new application with additional information then that might restart the clock and if no party is seeking judicial review or even a determination  regarding any waiver then i think that the statute would accommodate that situation then they would get a whole new year not just thirty six dollars expert days right but that's not a good thing from the pipeline perspective because i'm sure it's not a good thing buying the pipeline for space not a good thing from anybody's perspective but i'm trying to get at is if there is a possibility for withdrawal and resubmission that does kind of make it more difficult to say you've got a bright line rule because the parties can work out an agreement of some sort that would permit an extension for in effect a full year by the device of that is the problem from the commission's perspective and i think that's the problem from the perspective of this court and the st new york state the e c case and also the hope as ali court that how can you how can you prevent an agreement are you saying because and then you're saying that everybody's just got to gamble that if the d e c thinks the application is insufficient it's only option is to deny and risk that a court w disagree and if the applicant thinks that maybe d e c is right it's only option is to withdraw or seek judicial review but the parties can't come to an agreement if there are clear omissions and if there are real substantive issues that the pipeline needs to work out then the pipeline will work that out with the state agency or on its own but it's in the interests of the pipeline to do it expeditious and there is always the possibility of judicial review this it's still a very tightly option of doing it expeditiously by rather than going through some additional process to submit more things that would give them an extra year because it's in their interest to do it expeditiously they said let's just create a thirty six dollars day extension and that is not permissible while withdrawing the application and submitting something that had an extra five pages and it would have effected a one year additional time period but your honor i do not agree i do not necessarily agree that submitting and you have occasion with just five additional pages would immediately trigger a new one year period said the opposite you told us the opposite five minutes ago honor when i meaning to say is that if it's just five pages of supplemental information that you know may not reflect a true belief by the that's where the circumstances of those five pages become important so in that situation that would be a factual determination for the commission is trying to collude or subvert isn't the only objective way to make a determination whether the supplemental information where the new application is addressing some real problem or a fake problem new application and determining whether whether it's new or not i mean that whether it's a new it or not in sydney either it's new or not doesn't that have to depend on an expertise about what's important to clean water because it may be  a paragraph and new york state so the commission would make a determination in the st instance as it is charged with doing under the statute and the court would have the opportunity to review the commission's decision in that case that this scenario has not presented itself to the court yet this scenario where there is a simple and new application that you know that the question is whether or not it's truly a new submission under the clean water act so this is an issue that the commission would address in the st instance it's a question that was left open by hooper valley but it wasn't it wasn't the case wasn't the issue in the new york state d c case and it's not the case here of course where the question is just the straightforward application of the the one year rule to the data for receipt of this one application to go to your comment josh livingston about claim processing rules the nd also goes judge ledge to your comment about the interests of other parties and the rd i think is to unpack the notion that  here that there's been improper gamesmanship in along the way response to a number of concerns that judges lynch and judge parker expressed on the st this just isn't the claims processing rule this reads like a jurisdictional statute it has all three jurisdictional statutes it it talks about the power of the adjudicator indeed for a one begins by literally talking about jurisdiction talks about geographic jurisdiction states have power to determine these issues where they fall within their borders d then it moves on and does the other two things that the supreme court's repeatedly says or or as a mandatory death by and has a consequence for that that's not what it was or what was in your mind when you agree to the extension issues that were resolved in millennium b c had repeatedly taken the view that receipt did not matter only a receipt of what it deemed a complete application matter not withstand and this is where destructor is import we submitted an application in march of two thousand and sixteen that d c has a document in the record saying that they had to make a determination on complete application and within fifteen days they never did that they never issued a notice of complete or incomplete application every step along the way national fuel said to d c we're done we've submitted a complete application why are you ruling in september of two thousand and sixteen it s eighty two dollars we submitted a supplement supplement to respond to additional questions and have this application is complete every step along the way you see foot drag here and then it's not surprising that it for track here the backdrop is that there are three major national get natural gas pipeline projects under st coraline review in recent years and every one for has found a way for everyone occurs against the backdrop of the governor saying that he was going to engage in a fight frack gas from neighboring states and block pipelines that's what was in our client's head as we got sent to an agreement with an endorsement line that said you better take a denial or give us this extension that's a they entered a denial you would have the opportunity for judicial review right right but a but if you so they're so their power is limited by whether they have a reasonable basis for denying the application at the is all about endless foot dragging but the extension that they asked for d and that you exceeded to was thirty six days it wasn't in the and it wasn't another year it wasn't forever it was thirty six dollars days and then they acted at the end of thirty six dollars days so whatever anyone might have thought at the time about this is the step one down the primrose path didn't turn out to be that did it but it very well may have and i think look that's the hoopa valley holding who didn't turn on the single application and we said it was complete and then you said but then we submitted a supplement and we said this is complete and then they asked for more information and you submitted another supplement and said this is it now this is complete so there was new information being presented to the agency that the agency presumably had to absorb and react to no so i disagree with the categorization of it as new information are you sure that it's what it's in the it's just categorizing it as you did as a supplement i would have thought that a supplement means new information if i'm wrong tell me what's wrong with the d c regulation issue here six hundred and twenty one point six refers to a complete application and it goes on to say that a complete application may be supplemental this application was complete from march on where it had information about all the stream crossings at issue and then it was you know was it in the supplement mr dry suits and he c d c expressly asked for more detail about the same stream crossings this isn't a situation as you know you that i am so i why is that somehow illegitimate a foot train might be i understand it if we want to look in people's motives we might conclude that this was bogus but d why is it different to if they ask for more information about the same stream crossing because that's something that's important to their process why why is that a problem i don't think it's necessarily illegitimates ask for more information i think the record here shows a history of foot dragging after march of two thousand and sixteen d e c and national fuel net about application and asked d c excuse me national fuel asked whether whether d c needed anything else d c sat on its hands of eventually made a request in august for some a supplemental information we submitted that a supplement even if you want to treat that is a new application what with the d e c rules say what do you see it previously said that should make it incomplete complete determination within fifteen it didn't do that along as that reg ever provides to do the sixty it didn't do that instead it drag november of two thousand and sixteen look if they had issued the notice of complete application when they got the application all their concerns about their purported inability to notice a comment go by the wayside and then it looks even more pretextual after the fact when you look at when this case comes back on remand they don't sit on it forever they demand their welfare ever their foot dragging a mounted alternately in terms of what the bright line rule is to a month material omission india location do you see any legal impediment statutory impediment to your agreeing to thirty or sixty day extension i do your honor i think this goes to both of these claims processing points this one year period is supposed to be a one year period her outlook ation her receipt of an on i look i get i understand you were you know the frustration of dealing with governmental agencies particularly in the complicated environmental arena and there is relatively little we're going to we're just a court is relatively little we're going to be able to do about that are i'm just trying to fathom your thought process when you struck the deal sure i act i think i addressed this earlier but maybe you let me try it once more and and more pointedly unlike the equal parties cases the government or excuse me d c relies on this was a deal with one's own adjudicator it's like if you're in a speedy trial act case and the other side's asking for an extension and the judge says to you you know you can do what you want about this extension  running and the party says way way way i want to make a new presentation gentlemen i get the same deal no no no no i don't think it is because there is actually a big difference right in united states versus hill from the supreme court and other supreme court cases the supreme court in this court many times has recognized that the government in a in a criminal case stands in the shoes of the public interests and this takes us back to the earlier one judge lynch about doesn't this rule protect other party's interests yes it does and it protects interests including for one of the things that's really interesting here is waiver or not waiver agreement is all a red herring if you look at tennessee gas versus fur which for excite some peach twenty nine of its three that this is a scheme to protect the federal licensing interests this is a scheme to prevent for its responsibilities from being usurped it likewise could have done so to protect other public judge lynch we noted in our briefs the pennsylvania interests the interesting consumers and these are aren't things we made up if you look at the st certificate paragraphs twenty three and twenty four refer to the public benefit of that certificate her thirty two refers to the consumer interest in that agree paragraph ninety three refers to market conditions and market demand and that and that tennessee gas case is just one of the ways for it could've gotten there it constitution works twenty one thousand order finding a waiver constitution that's right and so let me come full circle look i i understand why the hoopa valley case struggled with these issues right because there there was a textual hook as our brief points out there was truly a new application an application everybody said was new whatever judgment you hypothesize about supplements e c never contended that we submitted a new application to the contrary it never objected when we said that those were supplements to the very same application and  the supplemental information  i'm going to try and make an argument on your behalf but maybe it's not a good one or not one you want to make but isn't the idea something like that the reason for the delay here was d e c s difficulties with its own process not that the new information was some kind of game changer is that what you're saying that it's not as if it's not as if some new whether or not to quote a new application or supplemental our i think that's a fair and and i think i can be fourteen and with ferk around the same time we had planned a route we had discussed with d c what that route what d e c had told us that when we submitted our application we had to have an analysis of all the stream crossing we did that  crossings and wetlands i think it's ninety some pages of stream crossing analysis then d c comes back after having application for months and says can you provide us more detail about these fifty five dollars process and we did and  look i think that's part and parcel of a regulatory back in feel that we may have engineering reports that summarize underlined got its at or so they say give us more information we do honest if i've crossed then it's it's again we say this is whether to answer their questions right wanted it it's i wish the record were that clean but i think if you look at ms layers affidavit in the record where she says she was repeatedly following up with d c asking if they needed anything more and i think it's an porton again to turn back to six hundred and twenty one point six this notice of complete outlook ation provision which this court affirming the decision millennium found found d c had abuse before the e c it was refusing to say whether it thought the application was complete or incomplete why because if it said it was complete then its notice and comment would have started and national feel it every time said this application is complete just tell us it's complete let's get notice and comment going and it refuse it refused to do either and the statute is mandatory shall issue a notice of complete application or incomplete at application so i think that is foot dragging and then coming back all the way around after this september submission e c says can you give us more information about these thirteen specific stream crossings a subset of fifty five and we do more of that this is an instance like the one hypothesized by ms jew where you know  at supplement one we said we know we told you there are fifty five there's really fifty eight we've got these three new ones look at those that i think that's the harder type of question that that who is dealing with at least if they come in a truly new application and that it was complete such that that notice and comment would star and broke code that unreasonable in the decision that court affirmed and it's really trying to do the same thing here and so i think when we're talking about ease schemes this scheme is is certainly no better than the hoopa scheme and i'd argue it's worse because it just doesn't have even that textual hook which i understand judge lanch and judge parker why it gives you trouble i think it gave gave the d c circuit trouble but i think that's for a later day and i think her has started to work through those issues in the cases like p g and e i'm happy to answer any other questions i know in way over my time and i appreciate the courts  receipt in the case the supreme court held parties can modify the commencement what triggers the commencement of the statute of limitations as well as its length nd with respect to st concerns about getting into record disputes i'll have to do is to give effect to agreements entered into by the parties before it is not sure but is not this this date that was picked a totally artificial date it's not the date when some more information came in right that's right your honor that was the approach that the parties decided to take in this case the nationals they will they just chose to give an extension of thirty six days basically is what you're saying to establish a date certain that happened to be thirty six days later than it otherwise would have been and again all of the cases that's how the date was picked it's we want to thirty six day extension and so we calculate back and pick that day that's correct your honor that's the  that i had was to give the department thirty six days again to complete its public notice and comment process and again but this is this gets me to one other thing in all of the scenarios that i've been positing where there is a supplement or a new application or a withdrawal it's because there is some defect in the identifiable defect in the application i take it at least it seems to me that was not the case here in other words it wasn't the d e c a you're getting a denial because we need something new what d e c said was we have more process that we want to go through that's going to take us an additional time period and so we want an extension is that a misleading way of characterizing it that's that's a bit misleading your honor it was a process that d c had to go through that it must go through under for a one and the agency's regulations mr joyce has made a lot of arguments about the record here we're not here because st said d c engaged in foot dragging we're here because for it said as a legal matter this receipt permit each year it's denied maybe a total of eight in the last decade i think is the most recent number is approved natural gas projects such as the mantic bridge project and the eastern system upgrade proposed by millennium  these this particular case is a very large infrastructure project with a lot of stream crossings it took time for d c to review the application materials and to complete the public notice and comment process time happy answering the and we will take the matter under advisement take an ever greater step back and to understand what the purpose of section or one is which is not to let irk make decisions about clean water act it is to allow the states to make quick decisions about the clean water act and what the structure invites defect so i out of the goodness of my heart or but i'm going to allow for a withdrawal that puts the states in an absolutely untenable position because as this applicant did here you can have an applicant say one day sure we're withdrawing resubmit and then when a waiver comes or when a decision comes down from the state they don't like they flip the switch and say actually st we think there's a way for here and the consequence to go to mr joyce's point about what the public interest here is the public interest is not the consumers this is the clean water act this is not a decision under the natural gas this is about protecting the water of the state of new york so the interests of consumers and the interest of the pipeline company are not relevant that i'm sure it's not relevant to interpret in the clean water act as such but this is a combination case the reason why this application had to be submitted is to get a permission from  plea and the reason and this deadline is created at least and art to support that process as it the deadline it is your honor insofar as and perhaps the public interest could be in those requests become voluminous as they did in who valley which by the way was not about a new application it was very clear that the court repeatedly said it was a one page letter saying we resubmit if there are genuinely new materials going in and this is a fact intensive decision and one that you know should be given to state in terms of the state being able to say what it needs to see a point that needs to also be remembered is that congress expressly in section or a one put the burden on the applicant the applicant is not guaranteed a permit under section forty one is not entitled to a certification they have to prove that their project will comply with the clean water act and the state needs the time to do it and so  the touch should be examining what is reasonable just to suit the valley and looking at is this in an effort by the state and the applicant to coordinate to create indefinite delay and that kind of delay but the length matters i don't know but i can tell your honor that one year is not enough or exactly where that line is it will be a combination of case this of the factors going forward that need to be assessed but that has to be the you thank you all very nicely argued very helpful if we will take the matter under advisement and move on to the next case