WEBVTT 2 00:00:13.917 --> 00:00:19.524 proposed construction of compressor station may we please have appearances of counsel. 3 00:00:19.524 --> 00:00:24.410 RICHARD SCOTT: Richard Scott have -T Rutter & Roy representing Tennessee Gas 4 00:00:24.410 --> 00:00:30.609 Pipeline. DANIEL GREENHOUSE: Good morning. This is Daniel A. Greenhouse 5 00:00:30.609 --> 00:00:38.022 for eastern rental for. Wood water is New Jersey Highlands Coalition and see yours club. 6 00:00:38.022 --> 00:00:41.587 DANIEL GREENHOUSE: Giamo seize for representing the amicus party. 7 00:00:41.587 --> 00:00:57.092 CHIEF JUSTICE RABNER: Welcome, counsel, Mr. Scott, please go ahead. 8 00:00:57.092 --> 00:01:01.490 RICHARD SCOTT: If I may, Your Honor, I'd like to reserve two minutes -- I'm sorry. Skews 9 00:01:01.490 --> 00:01:08.168 me. If I may, Your Honor, I'd like to reserve two minute fors rebuttal. CHIEF 10 00:01:08.168 --> 00:01:10.804 JUSTICE RABNER: That's fine Unidentified speaker: '60 anything any May it please the 11 00:01:10.804 --> 00:01:15.697 court this raises a silk in fact due process question and that is is whether a permitee 12 00:01:15.697 --> 00:01:21.402 has the right to intervene in the appeal of its permit. The answer must be yes. Because 13 00:01:21.402 --> 00:01:26.661 in this case, Tennessee gas my client has a direct Substantial and protectable interest 14 00:01:26.661 --> 00:01:30.717 in its permit that is currently being challenged Before Appellate Division. And that 15 00:01:30.717 --> 00:01:37.138 permitting decision that's under attack by the appellants is a Highlands applicable 16 00:01:37.138 --> 00:01:41.050 accurately determination which is issued by the New Jersey Department of Environmental 17 00:01:41.050 --> 00:01:45.308 Protection and that was issued to Tennessee in connection with with its east 300 upgrade 18 00:01:45.308 --> 00:01:50.855 project. Just for some weigh yeah of background that project is a 246 million dollars 19 00:01:50.855 --> 00:01:57.424 expansion to its existing interstate that natural gas pipeline system and inclined canning 20 00:01:57.424 --> 00:02:00.641 existing facilities in Pennsylvania and New Jersey and at issue here is the construction 21 00:02:00.641 --> 00:02:06.727 of a new electric driven compressor station in West Milford township which is in the 22 00:02:06.727 --> 00:02:10.880 Highlands Preservation occasion area has defined identify Highlandses water and protection 23 00:02:10.880 --> 00:02:15.578 planning act. On June 23rd, 2021. The New Jersey Department of Environmental 24 00:02:15.578 --> 00:02:20.018 Protection. The department issued the had finding that Tennessee's project qualifies 25 00:02:20.018 --> 00:02:25.236 for exemption number 111 for a utility use within the preservation area. And that -- 26 00:02:25.236 --> 00:02:32.107 that issue or that permit was is what's currently being challenged below. 27 00:02:32.107 --> 00:02:34.742 JUSTICE ALBIN: Can you please keep your voice up? RICHARD SCOTT: I apologize. 28 00:02:34.742 --> 00:02:38.810 P there was no question that the applicable ability determination is a permitting 29 00:02:38.810 --> 00:02:43.063 decision under the administrative procedure act. And there's no dispute that its a final 30 00:02:43.063 --> 00:02:48.232 agency decision Appropriately before the Appellate Division. And while the decision 31 00:02:48.232 --> 00:02:53.468 to issue the permit is the department's, the permit itself is Tennessee's and 32 00:02:53.468 --> 00:03:00.124 Tennessee'sal lobe. The only objection to Tennessee's intervention below was that the 33 00:03:00.124 --> 00:03:04.193 not to my knowledge adequately represents Tennessee's interest. However, the agency 34 00:03:04.193 --> 00:03:09.858 regulates a permitee it does not advocate for it. The department's interest in this case 35 00:03:09.858 --> 00:03:17.085 and in the permit is to defend its decision and to administer and enforce the dictates 36 00:03:17.085 --> 00:03:20.519 of the Highlands water protection and planning act and its implementing regulations. 37 00:03:20.519 --> 00:03:27.413 Tennessee's interest is in constructing its project and ensuring that its able to meet 38 00:03:27.413 --> 00:03:32.843 its contractual obligations to bring natural gas to its customer in New Jersey. NJ DEP 39 00:03:32.843 --> 00:03:37.789 does not have an elect economic interest in the project and will not face financial hardship 40 00:03:37.789 --> 00:03:45.004 if the permit is revoked or if if Tennessee's project is it's delayed or put at risk. 41 00:03:45.004 --> 00:03:52.982 Nowhere is that clearer here than I think in this situation. The in this has hasn't 42 00:03:52.982 --> 00:03:57.901 has had several students to weigh in on this issue and has not taken a position and has 43 00:03:57.901 --> 00:04:02.399 been excused oral argument here today claiming its neutral in this position, I think 44 00:04:02.399 --> 00:04:06.025 it's clear the department cannot represent Tennessee's interest if it can't represent 45 00:04:06.025 --> 00:04:13.766 it in a threshold issue, you know, in determining whether or not Tennessee should even 46 00:04:13.766 --> 00:04:19.683 be in the case, then its -- I think its clear that it cannot represent it on the merits 47 00:04:19.683 --> 00:04:24.532 as well. So what is Tennessee asking this court to do. Tennessee is asking this court 48 00:04:24.532 --> 00:04:28.795 to determine three things, ultimately Tennessee is asking the court to determine that 49 00:04:28.795 --> 00:04:33.230 Tennessee may intervene as of right before the Appellate Division to protect its direct 50 00:04:33.230 --> 00:04:37.283 and substantial interest in the permit and to overturn the the Appellate Division's denial 51 00:04:37.283 --> 00:04:45.480 of its motions to intervene. However, to get to that pointer, Tennessee argues is 52 00:04:45.480 --> 00:04:49.112 respectfully requesting that the court determine that the appropriate standard for 53 00:04:49.112 --> 00:04:51.835 Intervention before the Appellate Division. There was no dispute below that the parties 54 00:04:51.835 --> 00:04:58.347 relied on rule 4:33. That's obviously a civil trial court rule it doesn't apply to the 55 00:04:58.347 --> 00:05:03.916 Appellate Division. Typically that is the rule that is relied upon by you know appellants 56 00:05:03.916 --> 00:05:09.376 or purported Have vein nors in these types of cases, but I think we're asking just for 57 00:05:09.376 --> 00:05:13.446 clarification on that point just to confirm that we apply the appropriate standard. I don't 58 00:05:13.446 --> 00:05:20.089 think there was a question below that we did. I would also note that the Appellate Division's 59 00:05:20.089 --> 00:05:25.043 decision to deny the motions to intervene is inconsistent with the way the Appellate 60 00:05:25.043 --> 00:05:29.339 Division has previously handled these types of interventions and we've cited to a number 61 00:05:29.339 --> 00:05:34.786 of cases in our brief I'm not going to belabor the. In ray south Jersey City gas company 62 00:05:34.786 --> 00:05:39.395 and in ray New Jersey department of environmental protection conditional Highlands applicable 63 00:05:39.395 --> 00:05:44.647 ability determination. In those cases, the parties with a lesser interest in the permit 64 00:05:44.647 --> 00:05:49.463 than the permitees were able to intervene whether on behalf of the environmental groups 65 00:05:49.463 --> 00:05:56.746 that were challenging the permit or on behalf of in the one case, on behalf of the permitee 66 00:05:56.746 --> 00:06:01.592 in support of the issuance of the the permit. The only difference between 67 00:06:01.592 --> 00:06:05.874 -- and the latter case I referenced regarding the Highlands applicable ability determination 68 00:06:05.874 --> 00:06:10.783 that was in a case that involved Jersey central power and light company where it received 69 00:06:10.783 --> 00:06:17.575 a Highlands applicable ability determination from the NJDEP for the construction of a 70 00:06:17.575 --> 00:06:21.175 sub station project which is similar to Tennessee's project here we're proposing as 71 00:06:21.175 --> 00:06:24.807 part of the compressor station project and electric sub station. The only difference 72 00:06:24.807 --> 00:06:31.675 procedurally between that case and this was that the -- that JCP&L, the utility was named 73 00:06:31.675 --> 00:06:38.680 in the notice of appeal. That did not happen here. And we believe that it's necessary 74 00:06:38.680 --> 00:06:43.722 for the court to confirm the standard for interventions so as to ensure consistency and 75 00:06:43.722 --> 00:06:49.406 consideration for motions of intervene and to prevent any -- any, upping, mischief going 76 00:06:49.406 --> 00:06:53.465 forward in terms of parties being admitted. There has to be away for us to get in the 77 00:06:53.465 --> 00:06:59.596 case. You You know, Tennessee's ability to protect its interest in its permit cannot 78 00:06:59.596 --> 00:07:06.010 depend solely on whether or not its named in the notice of appeal. I will note -- the 79 00:07:06.010 --> 00:07:11.381 Court may be a weir of this, but the appellants in this case did file after briefing the 80 00:07:11.381 --> 00:07:15.279 appellant in this case did file an amended notice of -P a peel naming Tennessee gas as 81 00:07:15.279 --> 00:07:21.114 a respondent. And I'll just note that the Appellate Division rejected that filing. 82 00:07:21.114 --> 00:07:27.782 And basically indicated that it will not -- it cannot add Tennessee as a party until this 83 00:07:27.782 --> 00:07:34.254 court weighs in and overturns the Appellate Division's decision. The 84 00:07:34.254 --> 00:07:37.856 appellants cannot be the ultimate estimate arbiters of who can or cannot get in the case 85 00:07:37.856 --> 00:07:43.668 and the notice of appeal can't be used as a tool to were circumvent the court's order 86 00:07:43.668 --> 00:07:46.943 or to try to rest jurisdiction from this court. JUSTICE PATTERSON: Have 87 00:07:46.943 --> 00:07:50.045 you completed your preliminary statement? RICHARD SCOTT: I think so. 88 00:07:50.045 --> 00:07:56.385 I -- I think I'm out of -- I think I've passed the five minutes, but. JUSTICE 89 00:07:56.385 --> 00:08:03.493 PATTERSON: You mentioned in your second point that the -- that you operated under 433 90 00:08:03.493 --> 00:08:09.193 one, and that's the way they do this, the people do this seeking to intervene on the 91 00:08:09.193 --> 00:08:12.356 trial level. RICHARD SCOTT: Correct. JUSTICE PATTERSON: 92 00:08:12.356 --> 00:08:17.825 Generally, when we apply a sort of procedural standard on appeal, there's obviously a 93 00:08:17.825 --> 00:08:24.020 standard of review and appellate review, but, for example, for summary judgment we look 94 00:08:24.020 --> 00:08:27.265 to the summary judgment rule. RICHARD SCOTT: Right. JUSTICE 95 00:08:27.265 --> 00:08:32.612 PATTERSON: So I thought you were arguing that under 433 (1), you had made the showing 96 00:08:32.612 --> 00:08:38.609 that needed to be made and you should win under 433, just from your second point on your 97 00:08:38.609 --> 00:08:42.191 preliminary statement I'm wondering are you saying there should be a dirt rule on appeal. 98 00:08:42.191 --> 00:08:45.177 RICHARD SCOTT: No. I apologize if there was any confusion, that is exactly 99 00:08:45.177 --> 00:08:49.327 what we're saying, we argued below that we met the standard to her Intervention as of 100 00:08:49.327 --> 00:08:54.900 right and that by meeting those factors, we should -- we should be in the case. Unlike 101 00:08:54.900 --> 00:09:03.348 permissive intervention 4:33-1 if you meet factors you're in the case. 102 00:09:03.348 --> 00:09:06.030 JUSTICE PIERRE-LOUIS: You're just looking for clarification that's the appropriate -- 103 00:09:06.030 --> 00:09:08.450 RICHARD SCOTT: I want to confirm it. JUSTICE PIERRE-LOUIS: 104 00:09:08.450 --> 00:09:11.458 There was no argument below that this was not the appropriate standard? RICHARD 105 00:09:11.458 --> 00:09:15.194 SCOTT: Correct, I think just as a starting point. I want to make -- honestly I don't 106 00:09:15.194 --> 00:09:20.287 know why -- I don't -- I don't know why I'm here. I don't know why the Appellate Division 107 00:09:20.287 --> 00:09:24.330 denied the motion to intervene. There was no standard reasons, the Appellate Division 108 00:09:24.330 --> 00:09:29.918 wasn't required. JUSTICE PATTERSON: You're absolutely delighted to be 109 00:09:29.918 --> 00:09:33.341 here. RICHARD SCOTT: I'm stocked, I'm stocked to be here thanks for 110 00:09:33.341 --> 00:09:38.123 having me. And to that point, to your point, Your Honor, about meeting the standards, 111 00:09:38.123 --> 00:09:42.275 since I don't know -- since I don't know why the court denied our motion to intervene 112 00:09:42.275 --> 00:09:47.895 I feel compelled to go through that standard. So under 4:33-1, you know, there's -- there 113 00:09:47.895 --> 00:09:51.702 was no dispute that Tennessee has a substantial interest in the permit or any interest 114 00:09:51.702 --> 00:09:56.213 in the permit. Its their permit. We have an interest in the appeal and the outcome of 115 00:09:56.213 --> 00:10:02.546 that appeal and not only will our interests be impaired -- that may be impaired at the 116 00:10:02.546 --> 00:10:06.967 outcome of that appeal, but if -- if the appellants in the Appellate Division are 117 00:10:06.967 --> 00:10:11.782 successful, that permit could be revoked and it could prevent Tennessee from constructing 118 00:10:11.782 --> 00:10:16.814 its project. Not only will its interest be impaired, it will ever viessted essentially. 119 00:10:16.814 --> 00:10:20.761 There was no question that we timely intervened once we got the notice of -P a peel, 120 00:10:20.761 --> 00:10:24.667 we filed the motion for intervention I think it was within two weeks. The like I said 121 00:10:24.667 --> 00:10:34.045 before, the only issue before that was objected to was whether or not NJ DEP adequately 122 00:10:34.045 --> 00:10:41.396 represents our interest and that brings me to the next request for this court and that 123 00:10:41.396 --> 00:10:50.376 is what is the burden that a party that seeks to intervene needs to meet to show inadequacy 124 00:10:50.376 --> 00:10:54.173 of representation. JUSTICE ALBIN: Can I ask a question? RICHARD 125 00:10:54.173 --> 00:10:58.381 SCOTT: Yes,es of. JUSTICE ALBIN: You have fall back you have 4:33-2 that 126 00:10:58.381 --> 00:11:03.192 last clause unless the Applicant's interest is adequately represented by existing parties. 127 00:11:03.192 --> 00:11:08.865 That -- it's that clause seems to be the subject of a lot of debate. RICHARD 128 00:11:08.865 --> 00:11:13.900 SCOTT: Yes. JUSTICE ALBIN: Is it your argument that even if we weren't 129 00:11:13.900 --> 00:11:23.143 looking at 4:33-1, that you should not in this case under 4:33-2. RICHARD 130 00:11:23.143 --> 00:11:26.841 SCOTT: Could yes that's correct Your Honor we made both arguments and we filed an initial 131 00:11:26.841 --> 00:11:30.442 motion as of right, and then, you know, when that was denied we sought reconsideration 132 00:11:30.442 --> 00:11:35.504 but also sought as a back up 4:33 -- JUSTICE ALBIN: I'm looking at the 133 00:11:35.504 --> 00:11:37.859 two statutes together. RICHARD SCOTT: Yes. JUSTICE ALBIN: I 134 00:11:37.859 --> 00:11:44.233 wanted about that last clause. The unless the Applicant's interest is adequately 135 00:11:44.233 --> 00:11:49.035 represented by existing parties because you're saying dashing dash I have a property 136 00:11:49.035 --> 00:11:50.576 interest in this case. RICHARD SCOTT: Correct. JUSTICE 137 00:11:50.576 --> 00:11:53.844 ALBIN: That stands to be taken away by this particular. RICHARD SCOTT: We 138 00:11:53.844 --> 00:12:00.167 have a particular operating interest in the -- in the permit its our permit it seems -- 139 00:12:00.167 --> 00:12:04.161 JUSTICE ALBIN: You don't even care whether or not whether DEP seems to 140 00:12:04.161 --> 00:12:07.549 represent your interest. You want to protect your own interest. RICHARD 141 00:12:07.549 --> 00:12:16.941 SCOTT: Correct, correct, that's absolutely correct, Your Honor. I'm -- you know, I 142 00:12:16.941 --> 00:12:24.595 apologize. And to that point, though, what is the burden that we have to show to prove 143 00:12:24.595 --> 00:12:29.511 that our interest is not adequately represented? I don't think we've addressed it, but 144 00:12:29.511 --> 00:12:34.122 it was that was the debate below before the Appellate Division. The appellants argued 145 00:12:34.122 --> 00:12:39.294 and I thought this was an interesting argument, that the Appellate Division should follow 146 00:12:39.294 --> 00:12:44.193 federal case law and I thought that was really interesting because it's kind of old hat 147 00:12:44.193 --> 00:12:48.786 in the federal courts of appeals as to whether a permitee can intervene in the challenge 148 00:12:48.786 --> 00:12:54.005 to its it permit. I mean it's -- it's something that I've done before on behalf of Another 149 00:12:54.005 --> 00:12:58.782 pipeline client, the third circuit cut I know this is anecdotal. Tennessee has done it 150 00:12:58.782 --> 00:13:04.027 previously regularly before the DC circuit court of apiece, the first circuit the third 151 00:13:04.027 --> 00:13:09.411 circuit. Any time these permits issued -- it's a little different, the fell rare court 152 00:13:09.411 --> 00:13:14.454 rule 15 specifically says, you know, the agency is the respondent. Everyone else has 153 00:13:14.454 --> 00:13:19.610 to file a motion to intervene so it's a little different than from our rule ear. 154 00:13:19.610 --> 00:13:22.354 JUSTICE ALBIN: Is not your position as simple as this we have an economic interest 155 00:13:22.354 --> 00:13:29.578 they have an environmental interest and that's good enough to if to make this point. 156 00:13:29.578 --> 00:13:34.117 RICHARD SCOTT: Yes, I think so. I think the Berman is a minimal one, 157 00:13:34.117 --> 00:13:40.125 we have an economic interest, the department ck can't represent our interest, the department 158 00:13:40.125 --> 00:13:46.326 has an ocean obligation to uphold to protect the environment. To administer, you know, 159 00:13:46.326 --> 00:13:52.024 the Highlands water protection planning act and its implementing rules. It has an 160 00:13:52.024 --> 00:13:55.533 enforcement rule as well under the act and the regulations, it issues the permit but it 161 00:13:55.533 --> 00:14:01.889 doesn't -- it regulates -- I'm quoting this from the 7th circuit decision. I know we 162 00:14:01.889 --> 00:14:06.697 quoted to it in a lot of our briefs below but I think that court really analyzed this 163 00:14:06.697 --> 00:14:12.973 issue as to adequacy of a representation and how it applies in this context where you 164 00:14:12.973 --> 00:14:17.314 have a permit and permitee. JUSTICE PATTERSON: Bearing in mind whatever rule 165 00:14:17.314 --> 00:14:23.483 this court adopts in this case could affect cases outside of the environmental area. 166 00:14:23.483 --> 00:14:25.036 RICHARD SCOTT: Absolutely. JUSTICE PATTERSON: What is your -- what 167 00:14:25.036 --> 00:14:30.741 is your principal statement of what the burden should be that would not lower the bar 168 00:14:30.741 --> 00:14:36.642 so much as anyone who -- who can say my interest is not quite as aligned with these other 169 00:14:36.642 --> 00:14:40.949 people who are perhaps, you know, I'm a nonprofit, they have a slightly dirt take on 170 00:14:40.949 --> 00:14:46.192 it. The ones that are parties are in there. And therefore I should have a right to intervene. 171 00:14:46.192 --> 00:14:54.312 Obviously, the -- the respect to her of a a 100 parties in a couldn't bed visual issue 172 00:14:54.312 --> 00:14:57.047 of some kind. RICHARD SCOTT: Right. JUSTICE PATTERSON: 173 00:14:57.047 --> 00:15:01.070 Could overcome judicial resources, so what's the test, what's the standard you would have 174 00:15:01.070 --> 00:15:10.066 us apply that could apply beyond environmental permitting that you think is the fair 175 00:15:10.066 --> 00:15:19.547 one? RICHARD SCOTT: I guess I would -- direct E the court to the way the 176 00:15:19.547 --> 00:15:23.421 federal courts have vice presidented this rule. Obviously the way the federal courts 177 00:15:23.421 --> 00:15:28.031 have interpreted the rule is not binding on this court but I think it is highly persuasive 178 00:15:28.031 --> 00:15:36.004 since you know our rule is substantially verbatim, you know, the federal court rule 179 00:15:36.004 --> 00:15:40.862 24. JUSTICE PATTERSON: So what is the burden that federal courts generally 180 00:15:40.862 --> 00:15:44.065 impose in this situation? RICHARD SCOTT: The burden imposed by the Supreme 181 00:15:44.065 --> 00:15:50.720 Court and has been taken and run with with the lower courts is that the burden is a minimal 182 00:15:50.720 --> 00:15:56.891 one, the party seeking to intervene must only show that its interest may be -- may not 183 00:15:56.891 --> 00:16:01.969 be adequately represented by the existing party and the burden of establishing that is 184 00:16:01.969 --> 00:16:07.533 a main million one. JUSTICE FUENTES: That's not consistent true 185 00:16:07.533 --> 00:16:10.620 throughout the circuits is it. RICHARD SCOTT: No, it's not consistent 186 00:16:10.620 --> 00:16:14.320 and there are certain I'll say ratcheting standards. JUSTICE FUENTES: 187 00:16:14.320 --> 00:16:19.686 For example,, the first circuit adopted a standard said to overcome this presumption it 188 00:16:19.686 --> 00:16:28.654 provides that person seeking to intervene seeks to appear alongside a governmental agency 189 00:16:28.654 --> 00:16:34.918 in defense of the validity of some official action. There's a rebuttal presumption 190 00:16:34.918 --> 00:16:39.626 arises that the government adequately represents the interest of the would be intervenor 191 00:16:39.626 --> 00:16:47.519 and to overcome the presumption, the Were intervenor would have to forward a strong 192 00:16:47.519 --> 00:16:54.300 affirmative showing that the public agency doesn't adequately represent their interest. 193 00:16:54.300 --> 00:17:02.296 That's the standard in the first circuit and that's similar one to when Appellate Division 194 00:17:02.296 --> 00:17:07.236 in this jurisdiction, the Appellate Division adopted one addressing an issue of an appeal 195 00:17:07.236 --> 00:17:16.410 from a zoning board and action into prerogative writs, what would be in your opinion 196 00:17:16.410 --> 00:17:21.123 problematic with this standard? RICHARD SCOTT: I think the standard is 197 00:17:21.123 --> 00:17:26.088 to -- in that case would be too strict of a standard. It would keep out, I think, too 198 00:17:26.088 --> 00:17:32.668 many interested parties. I mean, in this case -- I'll put it this way. Permitees in 199 00:17:32.668 --> 00:17:37.744 this State are typically involved in their dash cash in the defense of their permits, 200 00:17:37.744 --> 00:17:46.500 they're just typically named at the outset. But -- so, the government -- in this instance 201 00:17:46.500 --> 00:17:53.523 -- and I don't know if I may, your attention. JUSTICE FUENTES: T-Mobile 202 00:17:53.523 --> 00:17:59.685 Verizon the Township of Benz Dale and it's 136 F third 197. RICHARD SCOTT: I 203 00:17:59.685 --> 00:18:08.681 apologize, I'm not familiar with the case, but in any event, I think -- I agree that it 204 00:18:08.681 --> 00:18:15.257 -- I think what the court -- in order to determine the standard or the burden, the court 205 00:18:15.257 --> 00:18:21.191 has to make a discerning analysis as to what the interests are, because it's not -- I 206 00:18:21.191 --> 00:18:26.359 think if I understand correctly and this is the way -- I'll go with the seven circuit 207 00:18:26.359 --> 00:18:30.730 the way they framed it it requires a discerning analysis of what the interest of the parties 208 00:18:30.730 --> 00:18:37.651 are. It's not justed you're Have veining on the same side of the V. It's not enough 209 00:18:37.651 --> 00:18:45.114 that -- so in this case, the appellants were arguing that because the -- because Tennessee 210 00:18:45.114 --> 00:18:51.406 and NJ DEP both want to uphold the permit, that -- that triggers that rebuttal presumption, 211 00:18:51.406 --> 00:18:56.326 the ultimate goal test, and I don't know if that's what -- I don't know if that's where 212 00:18:56.326 --> 00:18:59.978 the first circuit was going with that because I know a number of of the courts and the 213 00:18:59.978 --> 00:19:05.175 appellants referenced this below, a number of the courts do employ the ultimate goal 214 00:19:05.175 --> 00:19:10.731 test but the ultimate goal test which is -- like I said, it requires a more discerning 215 00:19:10.731 --> 00:19:14.936 analysis of the interest of the parties, it can't just be because we're intervening on 216 00:19:14.936 --> 00:19:20.668 the part of -- on the side of the government. I don't -- and I'm not familiar with the 217 00:19:20.668 --> 00:19:26.076 first circuit decision, but I do know that it requires a more discerning analysis than 218 00:19:26.076 --> 00:19:31.342 justed or not we're on the same side. JUSTICE ALBIN: It's hard to imagine 219 00:19:31.342 --> 00:19:38.056 an entity with a more substantial interest than the one that you present. You have a 220 00:19:38.056 --> 00:19:44.915 permit that has been conferred on you by the DEP and you're dependent upon that in order 221 00:19:44.915 --> 00:19:50.300 to do business, in order to continue with this particular project. So when you're talking 222 00:19:50.300 --> 00:19:57.020 about weighing interests, and the T-Mobile case, you're dealing with a Township that 223 00:19:57.020 --> 00:20:05.210 has issued a permit and the intervenors are citizens who want to have their interest and 224 00:20:05.210 --> 00:20:09.915 the argument is is that the Township is going to protect their interest. That's different 225 00:20:09.915 --> 00:20:19.878 from this particular case. You have a property interest that I can't imagine is more 226 00:20:19.878 --> 00:20:24.593 -- can be more Sig which is at stake in this case. RICHARD SCOTT: I agree, 227 00:20:24.593 --> 00:20:29.072 Your Honor, what the Appellate Division is asking us to do is by denying the motion to 228 00:20:29.072 --> 00:20:35.099 intervene, we are sitting on the sidelines while two parties that really don't have that 229 00:20:35.099 --> 00:20:40.579 particularized property interest in the permit are arguing over whether or not that decision 230 00:20:40.579 --> 00:20:46.821 and ultimately that permit should go away, and I just -- that seems patently unfair. 231 00:20:46.821 --> 00:20:49.701 JUSTICE PATTERSON: One of the things that the first circuit talked about 232 00:20:49.701 --> 00:20:55.616 in the barn substantial case was whether they observed, the Court observed that the town 233 00:20:55.616 --> 00:21:01.313 -- the proposed intervenors had not identified any argument that the town was unlikely 234 00:21:01.313 --> 00:21:08.443 to make, and that was all part of that -- that inquiry,. What arguments 235 00:21:08.443 --> 00:21:13.809 do you proffer here that the DEP is unlikely to make? You've already told us the DEP 236 00:21:13.809 --> 00:21:19.329 is not intervening here, not making any arguments but just in the entire substantive 237 00:21:19.329 --> 00:21:25.110 appeal? RICHARD SCOTT: Well, I think -- well, potentially, Your Honor,, 238 00:21:25.110 --> 00:21:30.268 you know, at this point, there may be a point in time where we maybe we want to make 239 00:21:30.268 --> 00:21:34.998 a muteness argument. There's going to come a point in time when my client is going to 240 00:21:34.998 --> 00:21:41.688 receive its ultimate approval from the FERC FERC and its nose to pro see and it's going 241 00:21:41.688 --> 00:21:46.152 to seek to begin construction on its project. I don't know where the appeal is going 242 00:21:46.152 --> 00:21:50.729 to be in that point, I don't know if muteness is even going to be successful but that 243 00:21:50.729 --> 00:21:56.482 may be one type of argument that we may want to raise, I mean, you know,. 244 00:21:56.482 --> 00:22:01.487 CHIEF JUSTICE RABNER: So rule 4:33-3 P from the trial court says submit a pleading that 245 00:22:01.487 --> 00:22:04.046 sets forth claims or defenses. RICHARD SCOTT: Correct. CHIEF 246 00:22:04.046 --> 00:22:09.728 JUSTICE RABNER: You submitted a certification but it's largely a fact laid in certification 247 00:22:09.728 --> 00:22:14.133 that doesn't identify legal theorieses or claims that Justice Patterson was just asking 248 00:22:14.133 --> 00:22:18.889 you for, why hasn't that already been presented. RICHARD SCOTT: Admittedly, 249 00:22:18.889 --> 00:22:24.257 Your Honor, and this is -- this is on me as the attorney, but I think when we -- when 250 00:22:24.257 --> 00:22:28.171 we spoke with the Appellate Division to confirm what we needed to file to get in the case, 251 00:22:28.171 --> 00:22:33.332 we were told that once the motion to intervene was approved, that we -- we can then file 252 00:22:33.332 --> 00:22:38.848 the CIS and set forth, you know, what's -- you know, what information is required by the 253 00:22:38.848 --> 00:22:45.963 rule. But typically in the Appellate Division, I don't think we're necessarily -- my 254 00:22:45.963 --> 00:22:51.116 understanding is we're not -- we wouldn't be -- we're not filing our briefs at the outset 255 00:22:51.116 --> 00:22:55.997 it would just be a CIS which the appellants argued they said we didn't file the CIS. 256 00:22:55.997 --> 00:23:00.547 The CIS is only going to Includ information about who my client is Tennessee Gas Pipeline 257 00:23:00.547 --> 00:23:05.162 Company, who their attorney is, me, and the statement of the -- you know the procedure 258 00:23:05.162 --> 00:23:08.386 with the factual background. It doesn't require. CHIEF JUSTICE RABNER: I'm 259 00:23:08.386 --> 00:23:10.459 looking at the rule. RICHARD SCOTT: Yes. CHIEF JUSTICE RABNER: 260 00:23:10.459 --> 00:23:14.832 Which is keyed towards having the party come forward with some statement of its claims 261 00:23:14.832 --> 00:23:20.489 or defenses. Not necessarily looking at the CIS. RICHARD SCOTT: Okay. 262 00:23:20.489 --> 00:23:23.722 CHIEF JUSTICE RABNER: As we give guidance in this opinion going forward 263 00:23:23.722 --> 00:23:28.218 what should be required, and then secondarily I'd like you to finish your answer to Justice 264 00:23:28.218 --> 00:23:34.486 Patterson's question and tell us what claims and theories you will be presenting? There's 265 00:23:34.486 --> 00:23:39.703 not a fair amount of time since the August 2021 certification, you should be able to tell us 266 00:23:39.703 --> 00:23:47.335 that. So what should be required and what would you bring to the case. RICHARD 267 00:23:47.335 --> 00:24:02.356 SCOTT: So in terms of what should be required -- I suppose a potentially a -- you know, 268 00:24:02.356 --> 00:24:08.276 I suppose we can provide some sort just a statement of how we would, you know, either 269 00:24:08.276 --> 00:24:15.758 support the DEP's decision, whether that's to support its argument that its decision 270 00:24:15.758 --> 00:24:22.663 to issue the permit was not arbitrary and capricious, but I think what's difficult is I 271 00:24:22.663 --> 00:24:26.940 don't know -- there's no -- right now there's no statement of issues -- nothing's been 272 00:24:26.940 --> 00:24:32.736 done at the Appellate Division. JUSTICE PATTERSON: May I follow up. 273 00:24:32.736 --> 00:24:33.672 CHIEF JUSTICE RABNER: Please. JUSTICE PATTERSON: When you're seeking to 274 00:24:33.672 --> 00:24:37.803 amend a complaint, you submit with your motion your proposed amended complaint. Would 275 00:24:37.803 --> 00:24:50.105 it make sense for someone in your situation to submit a complaint as an intervenor proposed 276 00:24:50.105 --> 00:24:52.081 complaint. RICHARD SCOTT: I don't know if that would make sense in this 277 00:24:52.081 --> 00:24:58.084 case, Your Honor, only because we're intervening on behalf -- as a respondent. 278 00:24:58.084 --> 00:25:01.743 JUSTICE PATTERSON: As respondent, whatever the pleading would be if ultimately you would 279 00:25:01.743 --> 00:25:06.677 be allowed to intervene as your initial pleading no matter what side you're on. 280 00:25:06.677 --> 00:25:09.104 RICHARD SCOTT: Right and I don't know that there is one in this case, I'm not sure what 281 00:25:09.104 --> 00:25:11.757 we would be filing as a pleading, that's what -- JUSTICE PATTERSON: Because 282 00:25:11.757 --> 00:25:14.799 you're going in on appeal. RICHARD SCOTT: Exactly, exactly. 283 00:25:14.799 --> 00:25:18.807 CHIEF JUSTICE RABNER: What about a merits based document of sorts. Whether it's akin 284 00:25:18.807 --> 00:25:23.433 of a merits brief or outline of the argument rather than simply a statement of facts 285 00:25:23.433 --> 00:25:26.113 because that seems to be what the rule was getting at. RICHARD SCOTT: Right. 286 00:25:26.113 --> 00:25:30.774 Unfortunately, Your Honor, I don't know what -- I have an idea of what the arguments are going 287 00:25:30.774 --> 00:25:38.070 to be. I mean I -- the appellants set forth their potential arguments in their CIS but 288 00:25:38.070 --> 00:25:42.908 that's all I have to go off of. I don't -- I don't know -- I don't have any rational 289 00:25:42.908 --> 00:25:49.953 to respond to. There's nothing that -- there's no legal concepts that I can really -- 290 00:25:49.953 --> 00:25:55.982 I'm not sure how else to respond to just an item U.S.ed list of the issues they're planning 291 00:25:55.982 --> 00:26:00.152 on raising, I will say in their CIS they do raise a number of issues about, you know, 292 00:26:00.152 --> 00:26:07.850 whether a fossil fuel project is consistent with, you know, the goals and objectives of 293 00:26:07.850 --> 00:26:13.367 the Highlands water -- water protection and planning act. You know, just generally 294 00:26:13.367 --> 00:26:18.510 arguing that Tennessee's project is not a routine upgrade and therefore it does not qualify 295 00:26:18.510 --> 00:26:27.539 for, you know, the exemption. You know, I guess I have something to go off of, I suppose. 296 00:26:27.539 --> 00:26:32.771 But. JUSTICE ALBIN: This is an unusual case. It's administrative appeal, 297 00:26:32.771 --> 00:26:38.125 this isn't -- this is as though a complaint has been filed and you would be filing as 298 00:26:38.125 --> 00:26:44.536 a pleading an answer. In response to the complaint. So this is a different creature. 299 00:26:44.536 --> 00:26:47.949 RICHARD SCOTT: Right. That's correct. I'm struggling here because there's 300 00:26:47.949 --> 00:26:55.110 not much for me to go off. I just have an itemized list of potential points. 301 00:26:55.110 --> 00:27:00.911 JUSTICE PATTERSON: Presumably, the bases for the DEP's decision you're gonna. 302 00:27:00.911 --> 00:27:06.294 RICHARD SCOTT: Yes, we're gonna support that decision. The exemption applies toilet 303 00:27:06.294 --> 00:27:12.292 uses upgrades to utility facilities within the Highlands preservation area so Tennessee 304 00:27:12.292 --> 00:27:16.739 is the one that's building the project, we submitted the application. Nobody knows our 305 00:27:16.739 --> 00:27:20.638 project better than Tennessee. And the department obviously reviewed our application 306 00:27:20.638 --> 00:27:25.791 and has that information available. JUSTICE PATTERSON: So you're basically 307 00:27:25.791 --> 00:27:29.514 unparole track with the DEP in that regard. Is there another argument following up on 308 00:27:29.514 --> 00:27:34.926 the chief's second question, is there another argument that you would raise that DEP 309 00:27:34.926 --> 00:27:39.193 might -- might not raise on appeal. RICHARD SCOTT: I mean, we did -- you 310 00:27:39.193 --> 00:27:45.096 know, obviously my client is a federally regulated interstate natural gas pipeline company, 311 00:27:45.096 --> 00:27:50.748 it's regulated by the FERC that comes with it certain, you know -- certain rights I'll 312 00:27:50.748 --> 00:27:57.904 say, but you know, there is an argument to be made that the Highlands water protection 313 00:27:57.904 --> 00:28:03.907 planning act is a State law and to the extent it could be used to prohibit or interfere 314 00:28:03.907 --> 00:28:10.307 with my client's project, that it is preempted by federal law, I mean, there's -- 315 00:28:10.307 --> 00:28:12.631 CHIEF JUSTICE RABNER: That's where I thought you might be going. RICHARD SCOTT: 316 00:28:12.631 --> 00:28:14.934 Yes. CHIEF JUSTICE RABNER: And begs the question, is the certification 317 00:28:14.934 --> 00:28:19.674 that just sets forth some basic facts without if it were a rough outline of the legal 318 00:28:19.674 --> 00:28:25.647 claims that you might be bringing to the case adequate. How should -- what's the best 319 00:28:25.647 --> 00:28:30.553 way for the Court to proceed if it needed to revise the rule in this regard. It would 320 00:28:30.553 --> 00:28:35.092 seem to me that some form of statement outlining the legal theories that you intend to 321 00:28:35.092 --> 00:28:43.766 bring into the case would certainly be helpful and could bear on the adequacy of representation 322 00:28:43.766 --> 00:28:49.628 from those in the case already. Not necessarily a fifty page brief but some form of 323 00:28:49.628 --> 00:28:52.614 document outlining your legal theories. RICHARD SCOTT: I understand what 324 00:28:52.614 --> 00:28:59.600 you're saying, Your Honor. I think it's still difficult for me to conceive in a situation 325 00:28:59.600 --> 00:29:05.785 like this. Because there are instances where -- I apologize, I'm trying to think through 326 00:29:05.785 --> 00:29:17.947 your question because it's -- I think -- again, I'm struggling with this one because 327 00:29:17.947 --> 00:29:23.413 I only have a limited amount of information -- I don't know -- there may be, you know, 328 00:29:23.413 --> 00:29:28.813 like I said. JUSTICE PATTERSON: How about a proposed CIS? 329 00:29:28.813 --> 00:29:31.119 RICHARD SCOTT: Yeah I mean that's -- if that was. JUSTICE PATTERSON: The 330 00:29:31.119 --> 00:29:35.458 attachments for legal arguments. RICHARD SCOTT: That would be -- that 331 00:29:35.458 --> 00:29:42.383 would work as well. But again, it's hard for me to make some of these legal arguments. 332 00:29:42.383 --> 00:29:46.654 The reservation ones but not every -- here's the thing. JUSTICE ALBIN: You 333 00:29:46.654 --> 00:29:54.125 mentioned reservation, so this is a simple question: Can you raise that preemption 334 00:29:54.125 --> 00:29:58.669 argument for the first time on appeal without exhausting your administrative remedies? 335 00:29:58.669 --> 00:30:01.495 Did you raise that before the DEP. RICHARD SCOTT: Yes. I mean, I think 336 00:30:01.495 --> 00:30:10.181 it's been through our filing, I mean, FERC requires us -- I shouldn't say requires, 337 00:30:10.181 --> 00:30:12.857 encourages interstate natural gas pipeline companies to apply for and work with State 338 00:30:12.857 --> 00:30:19.080 and local agencies but fought to the extent that State laws could prohibit or somehow 339 00:30:19.080 --> 00:30:24.143 interfere with those projects they be are considered pre-Sevened by federal law so we 340 00:30:24.143 --> 00:30:28.496 make clear in our application and certainly filings with the department that, you know, 341 00:30:28.496 --> 00:30:32.150 we're doing this. We're cooperating with the agency because we want to work with the 342 00:30:32.150 --> 00:30:38.452 agency, respecting its rules and regulations. But to the extent that this could be used 343 00:30:38.452 --> 00:30:42.720 to prevent the project, it's preempted. JUSTICE ALBIN: Did the commissioner 344 00:30:42.720 --> 00:30:47.273 pass on that issue? RICHARD SCOTT: Did the commission pass? 345 00:30:47.273 --> 00:30:50.117 JUSTICE ALBIN: Commissioner of the DEP on your preemption argument. RICHARD 346 00:30:50.117 --> 00:30:54.392 SCOTT: No, no, that was not -- they did not -- anything we have is the exemption they 347 00:30:54.392 --> 00:30:58.055 granted the exemption. JUSTICE FUENTES: So you would be making an argument 348 00:30:58.055 --> 00:31:07.393 as an intervenor attacking the write of the DEP to interfere with your project based 349 00:31:07.393 --> 00:31:12.664 on federal preemption. RICHARD SCOTT: Yes. JUSTICE FUENTES: 350 00:31:12.664 --> 00:31:20.737 So instead of defending the DEP, it would be there as another liable to the DEP. 351 00:31:20.737 --> 00:31:25.073 RICHARD SCOTT: I think our main goal is to defend the permit obviously. We want to support 352 00:31:25.073 --> 00:31:30.585 the department but we have our own perspective. Our own interest in this case. That's 353 00:31:30.585 --> 00:31:34.641 not the first argument that I want to make is that -- I don't want to burn the whole 354 00:31:34.641 --> 00:31:38.877 thing to the ground and say it's preempted. JUSTICE ALBIN: If you had 355 00:31:38.877 --> 00:31:47.528 no preemption argument. You'd be here saying my interest is at the center of this entire 356 00:31:47.528 --> 00:31:51.590 controversy over here and I have a right -- we have a right to be here. 357 00:31:51.590 --> 00:31:57.509 RICHARD SCOTT: Correct, correct. We have a substantial direct and protectable interest 358 00:31:57.509 --> 00:32:00.944 that we need to have a say, I think we need to have a seat at the table. 359 00:32:00.944 --> 00:32:07.115 JUSTICE ALBIN: Is it your argument that your due process rights would be violated if 360 00:32:07.115 --> 00:32:10.449 you are not permitted to be at the table here. RICHARD SCOTT: , that is 361 00:32:10.449 --> 00:32:15.586 the argument that we made. Due process requires notice and the opportunity to be heard 362 00:32:15.586 --> 00:32:19.563 and the process that, you know -- the way that this court has framed it in the past, you 363 00:32:19.563 --> 00:32:25.172 know, whether it's the particularized property interest or, you know, we relied -- we 364 00:32:25.172 --> 00:32:31.972 talk about Matthews, I know Matthews is Typically used in the context of hearing requests 365 00:32:31.972 --> 00:32:36.558 and evidentiary hearings but this court has looked at, the nature of the property 366 00:32:36.558 --> 00:32:41.440 interest and the extent -- JUSTICE ALBIN: But you want us to engage in 367 00:32:41.440 --> 00:32:46.853 constitutional avoidance to read the rules so that we don't have a potential constitutional 368 00:32:46.853 --> 00:32:51.037 conflict. RICHARD SCOTT: Correct. That's --, correct. JUSTICE 369 00:32:51.037 --> 00:32:55.020 SOLOMON: I take it from the very beginning your contention has been that the exemption 370 00:32:55.020 --> 00:33:00.508 number 11 was correctly granted by the DEP because you fit within those parameters. 371 00:33:00.508 --> 00:33:00.868 RICHARD SCOTT: Correct. JUSTICE SOLOMON: The chief was asking 372 00:33:00.868 --> 00:33:04.698 you, isn't that your legal argument? RICHARD SCOTT: Yes. JUSTICE 373 00:33:04.698 --> 00:33:09.805 SOLOMON: And is that contained anywhere in anything that you filed with the court to 374 00:33:09.805 --> 00:33:14.944 date? JUSTICE SOLOMON: It's a simple statement. RICHARD 375 00:33:14.944 --> 00:33:17.289 SCOTT: No, I don't believe -- JUSTICE SOLOMON: Owe in coming back to 376 00:33:17.289 --> 00:33:22.304 what the chief said, wouldn't were it be the chief justice said, wouldn't it be appropriate 377 00:33:22.304 --> 00:33:26.189 to simply attach to the motion that the reason that we have a right to be here and what 378 00:33:26.189 --> 00:33:30.540 we intend to argue is that -- first of all we have a right to be here because we have 379 00:33:30.540 --> 00:33:35.178 an interest. A property interest separate and apart from the DEP and the DEP was correct 380 00:33:35.178 --> 00:33:42.719 in grabbing exemption number 11 because we -- we are maintenance -- whatever. How difficult 381 00:33:42.719 --> 00:33:49.026 would that be? RICHARD SCOTT: I don't think it's difficult at all. 382 00:33:49.026 --> 00:33:52.300 JUSTICE SOLOMON: So if the out yom is that what should be provided it wouldn't be 383 00:33:52.300 --> 00:33:57.273 for hard for a intervenor such as your sale to provide that at the time of filing. 384 00:33:57.273 --> 00:34:01.170 RICHARD SCOTT: Right, that would not be an issue. JUSTICE SOLOMON: Just 385 00:34:01.170 --> 00:34:04.100 to be sure. CHIEF JUSTICE RABNER: Anything else you would like to add at this 386 00:34:04.100 --> 00:34:07.624 time. RICHARD SCOTT: I would just add as we mentioned in our brief and 387 00:34:07.624 --> 00:34:13.364 I think it was alluded to here, this is not -- it's not just about one permit, one permitee 388 00:34:13.364 --> 00:34:21.300 or one state agency, this case has implications for other -- other agencies that -- 389 00:34:21.300 --> 00:34:25.694 other State age Justice Pierre-Louiss that issue BPU depart of community affairs the NJ 390 00:34:25.694 --> 00:34:33.704 DEP, I think it's imperative that intervenors understand the standard that applies be 391 00:34:33.704 --> 00:34:39.310 able to show that their interests are not adequately represented, and to be able to 392 00:34:39.310 --> 00:34:41.641 protect their substantial interests in their permits. JUSTICE PATTERSON: 393 00:34:41.641 --> 00:34:47.580 One last question if I may, chief. You just referenced other agencies agency appeals to 394 00:34:47.580 --> 00:34:54.615 the Appellate Division, doesn't your argument potentially apply outside of administrative 395 00:34:54.615 --> 00:34:58.210 appeals? RICHARD SCOTT: Yes. JUSTICE PATTERSON: To court 396 00:34:58.210 --> 00:35:03.045 proceedings in which someone seeks to intervene. RICHARD SCOTT: Yes. 397 00:35:03.045 --> 00:35:05.918 JUSTICE PATTERSON: It really isn't just an issue of agency, so if that's 398 00:35:05.918 --> 00:35:12.098 so, what do we need to keep in mind about the distinction between an administrative appeal 399 00:35:12.098 --> 00:35:18.081 of the Appellate Division after an agency final determination and a court proceeding in which 400 00:35:18.081 --> 00:35:30.315 the trial court handles the matter as the court of initial jurisdiction? RICHARD 401 00:35:30.315 --> 00:35:36.376 SCOTT: I apologize for the delay, I'm thinking through that one. Well, I think maybe 402 00:35:36.376 --> 00:35:43.674 to your initial point which was, you know, how do we tongue in away that -- what's the 403 00:35:43.674 --> 00:35:50.081 line for, you know, allowing an intervenors and ensuring that, you know, it doesn't -- you 404 00:35:50.081 --> 00:35:54.280 know the interested parties are able to intervene and represent their interests but that, 405 00:35:54.280 --> 00:36:02.987 you know, it's not unwieldily and an agent -- in the agency context, you're -- you you 406 00:36:02.987 --> 00:36:06.889 Usually have a set number of parties that are parties to that administrative hearing. 407 00:36:06.889 --> 00:36:14.381 I'm probably overgeneralizing this too much, but I'm just thinking, you know, like a 408 00:36:14.381 --> 00:36:19.675 BPU proceeding where you have a number of parties, the utility utility the division of 409 00:36:19.675 --> 00:36:24.817 ray counsel, maybe a few intervenes yours. JUSTICE PATTERSON: You're for 410 00:36:24.817 --> 00:36:29.190 leave other situations to another case. RICHARD SCOTT: It's hard for me 411 00:36:29.190 --> 00:36:42.373 to -- I mean, intervention 4 colon -- this case is -- I think this does have other 412 00:36:42.373 --> 00:36:50.594 implications for -- this case is analyzing, you know, the standard for intervention. I 413 00:36:50.594 --> 00:36:58.400 think it would have a broader reach than just the administrative appeal process. 414 00:36:58.400 --> 00:37:02.836 JUSTICE PATTERSON: Can I ask one more, chief. You have three environmental 415 00:37:02.836 --> 00:37:05.364 groups here. RICHARD SCOTT: Yes. JUSTICE PATTERSON: Under 416 00:37:05.364 --> 00:37:15.602 the -- you're asking for a minimal standard, it gets to appeal, your adversary colleagues 417 00:37:15.602 --> 00:37:20.741 in the environmental group WorldCom forward, a dozen of them, all saying we're interested 418 00:37:20.741 --> 00:37:27.739 in a particular part of the Highlands, we have water's our focus, we're concerned about 419 00:37:27.739 --> 00:37:33.298 about forestry, all the different interests, do they all come in as intervenors. 420 00:37:33.298 --> 00:37:36.410 RICHARD SCOTT: I think the court has to look at and have a discerning analysis as to 421 00:37:36.410 --> 00:37:40.671 what those interests are. Maybe there's a historic preservation group or maybe there's 422 00:37:40.671 --> 00:37:46.116 a group that focuses on wetlands issues, I think there has to be analysis of what those 423 00:37:46.116 --> 00:37:50.740 issues are and. JUSTICE PATTERSON: If they can -- if an individual group 424 00:37:50.740 --> 00:37:59.906 can say, well, the Sierra Club is focused on X but I go X Y and Z in my interest, a 425 00:37:59.906 --> 00:38:05.204 little bit broader are they in as intervenors, because the standard you articulated, is 426 00:38:05.204 --> 00:38:08.058 a low bar. RICHARD SCOTT: It is a low bar, yes. JUSTICE 427 00:38:08.058 --> 00:38:11.965 PATTERSON: It's just a slightly different interest. RICHARD SCOTT: It's 428 00:38:11.965 --> 00:38:18.339 -- yes, I mean, I think well, if -- you're saying the Sierra Club is already in the case 429 00:38:18.339 --> 00:38:21.364 if there was another -- JUSTICE PATTERSON: Sierra Club is in the case. 430 00:38:21.364 --> 00:38:25.152 RICHARD SCOTT: It is a low bar, but. JUSTICE PATTERSON: You 431 00:38:25.152 --> 00:38:30.644 said historic preservation were interested in the buildings, the historic buildings in 432 00:38:30.644 --> 00:38:35.079 in the Highlands we're not as interested as the Sierra -- in the natural resources as 433 00:38:35.079 --> 00:38:39.430 the Sierra Club, so we're in too. RICHARD SCOTT: Right, I think in those 434 00:38:39.430 --> 00:38:45.444 instances, I think they would be able to -- they should be able to intervene, in fact. 435 00:38:45.444 --> 00:38:50.971 In the one case that we cited to the JCP&L case, I think there was -- I think it was 436 00:38:50.971 --> 00:38:57.487 a historic preservation group and then there was another intervene for for the -- another 437 00:38:57.487 --> 00:39:02.046 environmental group intervened to challenge the permit. So that was -- that was permitted. 438 00:39:02.046 --> 00:39:07.064 I don't see necessarily an issue with that. It can't be just because we're on the same 439 00:39:07.064 --> 00:39:12.388 side of the V. That's -- you know, it can't be that. That's -- that's too high of a 440 00:39:12.388 --> 00:39:17.730 burden, it has to be something less than that I think that's what we're arguing. And 441 00:39:17.730 --> 00:39:24.640 should be minimal. Thank you. CHIEF JUSTICE RABNER: Thank you, Mr. 442 00:39:24.640 --> 00:39:35.088 CHIEF JUSTICE RABNER: MR. GROSS. MAY IT PLEASE THE COURT. SO WE REPRESENT SLIELT 443 00:39:35.088 --> 00:39:40.298 DIFFERENT INTEREST, WE REPRESENT THE NUMBER OF BUSINESS GROUPS WHO OBTAIN APPROVALS 444 00:39:40.298 --> 00:39:44.874 ADMINISTRATIVELY AND I THINK THE COURT IS GRAPPLING WITH THE STANDARD IN TERMS OF ENTER 445 00:39:44.874 --> 00:39:52.301 VENGS. WE DON'T THING THE COURT HAS TO GET THERE. THIS APPEAL SHOULD HAVE NAMED THE 446 00:39:52.301 --> 00:40:01.733 PERMITEE AS A PARTY UNDER RULE 251. IT'S CLEAR THAT IN EAT THE TRIAL COURT PERSPECTIVE 447 00:40:01.733 --> 00:40:08.629 OR THE ADMINISTRATIVE PERSPECTIVE, RULE 251 REQUIRES AN APPELLANT TO NAME THE PARTY 448 00:40:08.629 --> 00:40:13.068 BELOW, ALL THE PARTIES BELOW. JUSTICE ALBIN: WHICH IS THE LAST QUESTION 449 00:40:13.068 --> 00:40:20.834 I WAS GOING TO ASK THE APPELLANT HERE SO I'LL ASK YOU AND YOU'RE RIGHT ON IT. 450 00:40:20.834 --> 00:40:28.625 SHOULD EVERY PERMITEE AUTOMATICALLY HAVE A RIGHT TO INTERVENE? MICHAEL J. GROSS: 451 00:40:28.625 --> 00:40:33.231 YES. BUT I DON'T THINK, I THINK NIERS REASON TO BURDEN THE APPELLATE DIVISION WITH MOTIONS 452 00:40:33.231 --> 00:40:42.341 THAT ARE UNNECESSARY BECAUSE UNDER RULE 251, THAT PARTY, THAT PERMITEE, MUST BE NAMED 453 00:40:42.341 --> 00:40:47.363 IN THE APPEAL. AND IF YOU LOOK AT THE APPELLATE DIVISION CIS, THE CASE INFORMATION STATEMENT, 454 00:40:47.363 --> 00:40:54.932 THAT JUSTICE PATERSON ALLUDED TO, THAT REQUIRES IN ITEM 4 AND THE INSTRUCTIONS FOR ITEM 455 00:40:54.932 --> 00:41:03.038 4 FOR ALL PARTIES BELOW TO BE NAMED AS PARTIES IN THE APPEAL. SO WHY BURDEN THE APPELLATE 456 00:41:03.038 --> 00:41:13.393 DIVISION WITH THE MOTIONS TO INTERVENE BY A PARTY BELOW WHEN UNDER RULE RULE 251 IT'S 457 00:41:13.393 --> 00:41:22.607 A VIOLATION OF THE RULE, NOT TO NAME THEM AS A PARTY. AND AS AMICUS, NORM WE KNOW THAT 458 00:41:22.607 --> 00:41:27.899 THE COURT LIKES TO BE CONSTRAINED AND NARROW ITS DECISIONS -- JUSTICE PATTERSON: 459 00:41:27.899 --> 00:41:32.096 IN YOUR EXPERIENCE, IS THAT ROUTINELY DONE. MICHAEL J. GROSS: ABSOLUTELY. 460 00:41:32.096 --> 00:41:38.988 OUR FIRM REPRESENTS DEVELOPERS PRIMARILY, BUT I HAVE NEVER BEEN CONFRONTED WITH AN INSTANCE 461 00:41:38.988 --> 00:41:44.951 WHERE THERE'S BEEN AN APPEAL BY AN ENVIRONMENTAL GROUP OR ANOTHER FREFRTED PARTY THAT 462 00:41:44.951 --> 00:41:52.773 DID NOT NAME US AS A PARTY. I'VE NEVER HAD MOVED TO INTERVENE OR MOVED TO BE A PART OF THE 463 00:41:52.773 --> 00:41:57.906 CASE PURSUANT TO RULE 251 NEVER IN MY PRACTICE. JUSTICE SOLOMON: YOUR SUGGESTION 464 00:41:57.906 --> 00:42:05.692 IS SIMPLY FOR GETTING THE INTERVENTION ISSUE, UNDER 251, AS THE PERMITEE, THEY WERE 465 00:42:05.692 --> 00:42:11.114 REQUIRED TO BE DEEMED AS A PARTY IN THE NOTICE OF APPEAL AND SHOULD HAVE BEEN, SHOULD NOT 466 00:42:11.114 --> 00:42:14.267 HAVE HAD TO INTERVENE. MICHAEL J. GROSS: ABSOLUTELY. JUSTICE 467 00:42:14.267 --> 00:42:19.481 SOLOMON: THE FAILURE T NAME THEM WAS A FAIL GROERN THE PARTY OF THE APPELLATE GROSS GRO 468 00:42:19.481 --> 00:42:24.998 YES. JUSTICE SOLOMON: SO WE DON'T EVER GET TO 4:33. MICHAEL J. 469 00:42:24.998 --> 00:42:30.443 GROSS: THAT'S OUR R POIRNTHS IF YOU GET TO 433 IF YOU WANT TO OPINE AS TO 4:33, A PARTY 470 00:42:30.443 --> 00:42:37.140 BELOW BEING IT IN THE TRIAL COURT OR IN THE APPELLATE PRACTICE SHOULD BE AUTOMATICALLY 471 00:42:37.140 --> 00:42:41.840 BE ALLOWED TOIN TER VEEN. BUT I DON'T THINK YOU HAVE TO GET THERE. WHY BURDEN THE APPELLATE 472 00:42:41.840 --> 00:42:48.795 COURT WITH MOTIONS TO INTERVENE WHEN ORIGINALLY THE NOTICE OF APPEAL SHOULD HAVE INCLUDED 473 00:42:48.795 --> 00:42:54.253 THE PERMITEE. THE APPELLATE COURT, I'M SURE YOU'VE HEARD FROM APPELLATE DIVISION JUDGES, 474 00:42:54.253 --> 00:43:01.387 THEY HAVE A LOT OF WORK. WHY ADD TO THEIR WORK LOAD? CHIEF JUSTICE RABNER: 475 00:43:01.387 --> 00:43:05.283 THAT'S WHAT I HEAR. MICHAEL J. GROSS: BY MOTIONS THAT SHOULD NOT HAVE TO BE 476 00:43:05.283 --> 00:43:11.274 MADE BECAUSE THOSE PERMITEES UNDER RULE 251 SHOULD BE NAMED IN THE NOTICE OF APPEAL, AND 477 00:43:11.274 --> 00:43:18.061 THE CIS. IT WAS A VIOLATION OF THE RULES OF THE CIS NOT TO NAME TENNESSEE IN THIS MATTER. 478 00:43:18.061 --> 00:43:24.989 JUDGE FUENTES: BUT IS IT A APPELLANT PARTY IN THE ORIGINAL FORM WHERE 479 00:43:24.989 --> 00:43:32.376 THE APPEAL IS TAKEN FROM? I MEAN WERE THEY, WERE THE APPELLANT, WERE THE PUBLIC ENTITY, 480 00:43:32.376 --> 00:43:37.827 THE GROUPS THAT ARE NOW SEEKING TO CHALLENGE THE DECISION OF THE DEP, WERE THEY PARTS 481 00:43:37.827 --> 00:43:45.728 OF A PROCESS WHEN THE APPLICANT WAS MAKING ITS REQUEST FOR -- MICHAEL J. GROSS: 482 00:43:45.728 --> 00:43:50.573 I DON'T KNOW, YOUR HONOR. JUDGE FUENTES: USUALLY WHAT HAPPENS IS SOMEONE 483 00:43:50.573 --> 00:43:55.758 APPEALS SOMETHING BECAUSE THEY WERE A PARTY IN THE ORIGINAL FORUM. MICHAEL J. 484 00:43:55.758 --> 00:44:00.360 GROSS: THEY MAY HAVE SUBMITTED COMMENTS BUT THEY WEREN'T -- I MEAN THERE COULD BE HUNDREDS 485 00:44:00.360 --> 00:44:04.169 OF COMMENCE SUBMITTED THEY MAY HAVE SUBMITTED ONE OF THE COMMENTS. I DON'T THINK THAT 486 00:44:04.169 --> 00:44:09.354 MAKES THEM A PARTY BELOW JUST BECAUSE THEY SUBMITTED COMMENTS. JUSTICE 487 00:44:09.354 --> 00:44:14.755 PATTERSON: JUDGE FUENTES'S QUESTION RACES FOR ME AS WELL AS ADMINISTRATIVE APPEALS ARE 488 00:44:14.755 --> 00:44:20.765 DIFFERENT FROM COURT PROCEEDINGS IN THAT COURT PROCEEDINGS HAVE A SET NUMBER OF PARTIES 489 00:44:20.765 --> 00:44:25.715 THAT ARE DEFINED, SOMETIMES THEY, THEY'RE GONE BY THE TIME THERE'S AN APPEAL OR THEY'RE 490 00:44:25.715 --> 00:44:29.803 NOT INVOLVED WITH THE APPEAL, BUT YOU HAVE A FINITE GROUP OF PEOPLE, YOU HAVE A SITUATION 491 00:44:29.803 --> 00:44:34.235 LIKE THIS, YOU COULD HAVE MANY PEEBLG GOING TO THE AGENCY AND SAYING DON'T ALLOW THIS 492 00:44:34.235 --> 00:44:39.294 OR DO ALLOW IT. WHAT DEFINES A PARTY IN AN ADMINISTRATIVE PROCEEDING LIKE 493 00:44:39.294 --> 00:44:44.159 THIS? MICHAEL J. GROSS: WELL, BELOW THE ONLY PARTIES ARE THE APPLICANT 494 00:44:44.159 --> 00:44:53.719 AND THE AGENCY. NOW, THERE ARE SOME, THERE ARE SOME AGENCIES WHERE, FOR INSTANCE, AT THE 495 00:44:53.719 --> 00:45:02.503 B P U, THE RATE COUNCIL IS A PARTY TO THOSE RATE PROCEEDINGS. AND BY THE WAY, CAN YOU 496 00:45:02.503 --> 00:45:09.887 IMAGINE IMAGINE THE P. B P U RATE CASE WHERE THE B P U GRANTS ARE THE UTILITY RATE INCREASE, 497 00:45:09.887 --> 00:45:15.129 THERE'S A APPEAL AND THAT YOU'LL ISN'T NAMED AS A PARTY IN THE APPEAL SO THAT CASE GOATS 498 00:45:15.129 --> 00:45:21.545 APPELLATE DIVISION WITHOUT THE UTILITY, IT'S ANALOGOUS TO THIS SITUATION WHERE YOU VTD 499 00:45:21.545 --> 00:45:26.065 PERMITEE WHICH I AGREE WITH JUSTICE ALBIN HAS A PROPERTY RIGHT HERE. SO IF YOU DON'T, 500 00:45:26.065 --> 00:45:32.823 IF YOU DON'T AK CEMENT OUR ARGUMENT THAT UNDER 251, THE PERMITEE HAS TO BE NAMED IN THE 501 00:45:32.823 --> 00:45:40.706 APPEAL, AT LEAST IN TERMS OF 433, YOU SHOULD INDICATE THAT THE PERMITEE BELOW 502 00:45:40.706 --> 00:45:45.046 AUTOMATICALLY HAS THE RIGHT TO INTERVENE, BUT AGAIN I DON'T THINK -- JUSTICE 503 00:45:45.046 --> 00:45:47.955 PATTERSON: WHAT YOU'RE SAYING HERE IS THE 10 IS HE DIDN'T HAVE THE OPPORTUNITY TO MAKE 504 00:45:47.955 --> 00:45:53.785 THAT ARGUMENT BELOW BECAUSE IT ONLY, THE ISSUE ONLY AROSE WHEN THE APPELLANTS FILE THE 505 00:45:53.785 --> 00:45:56.976 APPEAL AND DIDN'T NAME THEM AS A PARTY? MICHAEL J. GROSS: CORRECT. BUT 506 00:45:56.976 --> 00:46:02.959 I THINK THE CORRECT MOTION SHOULD HAVE BEEN TOE THE APPELLATE DIVISION TO REQUIRE THIS, 507 00:46:02.959 --> 00:46:12.437 THE CIVIL INFORMATION STATEMENT TO BE AMENDED TO NAME TENNESSEE IN THE APPEAL, THAT'S 508 00:46:12.437 --> 00:46:16.883 HOW I WOULD HAVE HANDLED IT BELOW. I WOULD NOT HAVE, PROBABLY NOT HAVE MOVED TO INTERVENE, 509 00:46:16.883 --> 00:46:23.443 I WOULD HAVE INDICATED THAT AS A RIGHT UNDER 251, WE, YOU KNOW, TENNESSEE SHOULD HAVE BEEN 510 00:46:23.443 --> 00:46:26.894 A PARTY. CHIEF JUSTICE RABNER: TELL US GENERALLY FROM YOUR EXPERIENCE NTS 511 00:46:26.894 --> 00:46:30.764 CONSTRUCTION AREA WHO IS AT THE TABLE AT THE TRIAL COURT AND AT THE APPELLATE DIVISION? 512 00:46:30.764 --> 00:46:35.414 MICHAEL J. GROSS: WELL, THERE ARE VERY FEW TRIAL COURT CASES, IT'S MOSTLY, 513 00:46:35.414 --> 00:46:40.583 IT'S MOSTLY ADMINISTRATIVE. CHIEF JUSTICE RABNER: I'M SORRY. 514 00:46:40.583 --> 00:46:45.598 MICHAEL J. GROSS: AT THE SABLE ARE GENERALLY THE APPLICANT AND THE DEP. I HAVE BEEN 515 00:46:45.598 --> 00:46:51.980 INVOLVED IN SOME RARE CASES WHERE THERE'S AN ENVIRONMENTAL GROUP AND THE DEP WILL MEET 516 00:46:51.980 --> 00:46:57.948 WITH THEM SEPARATELY AND OF COURSE THEY'RE ENTITLED TO FILE COMMENTS ON THE APPLICATION. 517 00:46:57.948 --> 00:47:06.053 THERE IS A PUBLIC, A VIGOROUS PUBLIC COMMENT PROCESS AT THEED A STRAF AGENCIES. GENERALLY 518 00:47:06.053 --> 00:47:12.518 IT'S JUST THE APPLICANT AND THE DEP. AS A MATTER OF FACT, IF THE APPLICANT REQUEST AS 519 00:47:12.518 --> 00:47:17.787 MEETING WITH THE DEP AND ANOTHER GRUNT WANTS TO ATTEND THE DEP GENERALLY DOES NOT ALLOW 520 00:47:17.787 --> 00:47:23.140 THEM TO ATTEND THAT MEETING. CHIEF JUSTICE RABNER: ANYTHING ELSE YOU WOULD 521 00:47:23.140 --> 00:47:26.838 LIKE TO PRESENT. MICHAEL J. GROSS: LET ME JUST POSIT A HYPOTHETICAL HERE. 522 00:47:26.838 --> 00:47:36.036 THAT IF THE APPELLATE DIVISION'S DETERMINATION NOT TO ALLOW INTERVENTION WERE UPHELD, 523 00:47:36.036 --> 00:47:42.880 UNDER YOUR, THE CIVIL SET MENT PROCESS IN THE APPELLATE DIVISION, THERE COULD BE A 524 00:47:42.880 --> 00:47:48.961 SETTLEMENT CONFERENCE BETWEEN THESE ENVIRONMENTAL GROUPS AND DEP. THE CASE COULD BE SETTLED 525 00:47:48.961 --> 00:47:55.278 WITHOUT TENNESSEE'S INVOLVEMENT, TENNESSEE COULD APPEAL FROM THAT SETTLEMENT, NOT NAME 526 00:47:55.278 --> 00:48:01.561 THE EN VIERN GROUPS AS A PARTY, GO TO THE SETTLEMENT, GO THROUGH THE SETTLEMENT 527 00:48:01.561 --> 00:48:07.036 PROCESS, SETTLE ITS DEFERENCES WITH DEP AND THEN THE ENVIRONMENTAL GROUPS WOULD HAVE A 528 00:48:07.036 --> 00:48:14.197 RIGHT TO APPEAL. SO YOU WOULD HAVE THIS, YOU KNOW, CONTINUAL APPEAL PROCESS AND THERE'S 529 00:48:14.197 --> 00:48:18.033 NO REASON FOR IT. THERE'S NOT EVEN A REASON FOR A MOTION TO INTERVENE IN THIS CASE. 530 00:48:18.033 --> 00:48:27.141 THERE MAY BE CERTAINLY IN OTHER CASES WHERE THE, THERE'S NOT A PARTY BELOW THAT THAT IS 531 00:48:27.141 --> 00:48:32.849 INVOLVED THAT WANTS TO ENTER VEEN BUT HERE WHERE IS THE PARTIES, THE APPLICANT IS BELOW 532 00:48:32.849 --> 00:48:40.871 AND A TRIAL COURT WHERE ONE OF THE LITIGANTS IS A PARTY UNDER TWUL 251, I BELIEVE THAT 533 00:48:40.871 --> 00:48:46.966 THERE'S AN ABSOLUTE REQUIREMENT TO NAME THOSE PARTIES IN THE NOTICE OF APPEAL. 534 00:48:46.966 --> 00:48:50.310 JUSTICE ALBIN: YOU'VE BEEN AT THIS A WHILE. MICHAEL J. GROSS: A WHILE. 535 00:48:50.310 --> 00:48:55.752 I HAVE A LOT OF GRAY HAIR. JUSTICE ALBIN: ARE YOU AWARE OF A CASE WHERE 536 00:48:55.752 --> 00:49:01.052 THE PERMITEE HAS NOT BEEN A PARTY TO AN ACTION OF THIS TYPE? MICHAEL J. GROSS: 537 00:49:01.052 --> 00:49:05.770 NO, THAT'S WHAT THE GRIEF JUSTICE ASKED ME, NO. THIS IS THE FIRST TIME I'VE EVER SEEN 538 00:49:05.770 --> 00:49:14.714 A CASE WHERE THE PERMITEE WAS NOT NAMED AS A PARTY IN AN APPELLATE PROCEEDING. 539 00:49:14.714 --> 00:49:18.468 JUDGE FUENTES: IN THOSE CASES WHERE THE PERMITEE HAS BEEN A PARTY TO THE PROCEEDINGS, 540 00:49:18.468 --> 00:49:26.751 WHERE THE GROUPS LIKE WE HAVE HERE INVOLVED AT THE ADMINISTRATIVE LEVEL IN ANY WAY, EVEN 541 00:49:26.751 --> 00:49:32.503 IF IT WAS NOT COMPLETELY INVOLVED BUT THEIR PRESENCE WAS KNOWN, THEIR POSITION WAS KNOWN? 542 00:49:32.503 --> 00:49:37.252 MICHAEL J. GROSS: YES. YES. JUSTICE PATTERSON: MOSTLY IN 543 00:49:37.252 --> 00:49:42.134 XHNT COMMENTING? MICHAEL J. GROSS: YES, MOSTLY IN COMMENTING. ALMOST EX 544 00:49:42.134 --> 00:49:47.866 CLUSIVELY IN COMMENTING. JUDGE FUENTES: WITH THE ANALOGY OF A ZONING BOARD 545 00:49:47.866 --> 00:49:53.893 WHERE THE, THERE MAY BE PEOPLE OBJECTING TO THE APPLICANT'S APPLICATION, THE APPLICANT'S 546 00:49:53.893 --> 00:50:00.589 ZONING CHANGES OR THE RIGHT TO CONSTRUCT A BUILDING IN A PARTICULAR ZONE, WOULD THB A 547 00:50:00.589 --> 00:50:07.144 FAIR A NAL -- IS THAT ANALOGOUS TO WHAT WE HAVE HERE OR IS THAT NOT REALLY APPLICABLE? 548 00:50:07.144 --> 00:50:11.836 MICHAEL J. GROSS: IT'S SOMEWHAT ANALOGOUS BUT IN THAT SITUATION SOMETIMES 549 00:50:11.836 --> 00:50:15.270 THOSE OBJECTORS REPRESENTED BY COUNSEL. JUDGE FUENTES: THAT'S RIGHT. 550 00:50:15.270 --> 00:50:19.517 MICHAEL J. GROSS: SOMETIMES THERE'S A GROUP, AN ORGANIZED GROUP AND, YOU KNOW, TYPICALLY 551 00:50:19.517 --> 00:50:25.850 THEY MIGHT APPEAL. JUDGE FUENTES: THEY'RE PART OF THE RECORD THAT'S DEVELOPED. 552 00:50:25.850 --> 00:50:28.527 MICHAEL J. GROSS: THEY'RE PART OF THE ROAR, THEY CAN CROSS-EXAMINE WITNESSES. 553 00:50:28.527 --> 00:50:33.042 IN THE ADMINISTRATIVE CONTEXT, IT'S A LITTLE BIT DIFFERENT, THEY CAN JUST COMMENT, THAT'S 554 00:50:33.042 --> 00:50:37.499 REALLY ALL THEY CAN DOSHGS ONCE IN A WHILE AS I KANTS DZ THEY WILL REQUEST A MEETING WITH 555 00:50:37.499 --> 00:50:41.742 DEP, SOMETIMES THAT'S GRANTED, SOMETIME THS' NOT BUT GENERALLY THEY'RE JUST COMMENT TERSE. 556 00:50:41.742 --> 00:50:45.998 JUSTICE ALBIN: ACTION IN LIEU OF PREROGATIVE WRITS SO YOU'RE AT THE ZONING 557 00:50:45.998 --> 00:50:50.839 BOARD GROSS GROS RIGHT. JUSTICE ALBIN: AND A PERMIT IS GRANTED AND THEN 558 00:50:50.839 --> 00:50:56.034 SOME CITIZEN FILES AN ACTION IN LIEU OF PREROGATIVE WRIT AGAINST THE PLANNING BOARD. 559 00:50:56.034 --> 00:51:03.997 IS THE PERMITEE, THE PERSON WHO GOT THE PERMIT, INVOLVED IN THAT ACTION. 560 00:51:03.997 --> 00:51:07.939 MICHAEL J. GROSS: AGAIN I'VE NEVER SEEN A CASE INVOLVED IN THOSE KIND OF 561 00:51:07.939 --> 00:51:12.383 LAND USE APPROVALS ALSO, I'VE NEVER SEEN A CASE WHERE THE PERMITEE WAS NOT MENTIONED IN 562 00:51:12.383 --> 00:51:17.066 THE CASE INFORMATION STATEMENT. IN THE CIS. JUSTICE ALBIN: THANK YOU. 563 00:51:17.066 --> 00:51:20.220 JUSTICE PATTERSON: I'M SORRY, AS A PARTY OR AS, S. MICHAEL J. 564 00:51:20.220 --> 00:51:24.135 GROSS: AS A PARTY. JUSTICE PATTERSON: GETTING NOTICE AS A PARTY. 565 00:51:24.135 --> 00:51:28.430 MICHAEL J. GROSS: CORRECT. STANDARD PROCEDURE, YOU ALWAYS, YOU ALWAYS REFERENCE 566 00:51:28.430 --> 00:51:35.837 THE APPLICANT, IT'S ROLLY THE APPLICANT AS A PARTY. CHIEF JUSTICE RABNER: 567 00:51:35.837 --> 00:51:40.531 THANK YOU MR. GROSS. MICHAEL J. GROSS: THANK YOU. CHIEF 568 00:51:40.531 --> 00:51:45.560 JUSTICE RABNER: MR. GREENHOUSE. DANIEL A. GREENHOUSE: THANK YOU, MAY IT 569 00:51:45.560 --> 00:51:51.101 PLEASE THE COURT. YOUR HONOR, OODZ LIKE TO START WITH THE FACT THAT THIS COURT, THIS COURT'S 570 00:51:51.101 --> 00:51:58.226 MARCH 15TH ORDER OF THIS YEAR OF LIMITED AMICI, THE BUILDERS, THE PARTICIPATION TO THIS 571 00:51:58.226 --> 00:52:06.558 MATTER AS FILING A BRIEF. SO IT COMES AS A SURPRISE TO ME AND I WOULD ALSO ADD A 572 00:52:06.558 --> 00:52:12.956 PREJUDICE TO MY CLIENTS THAT THE BUILDERS HAVE PARTICIPATED AT ORAL ARGUMENT TODAY. THE 573 00:52:12.956 --> 00:52:18.634 ARGUMENTS THAT THE BUILDERS RAISED REGARDING ADEQUACY OF THE NOTICE OF APPEAL AND THE 574 00:52:18.634 --> 00:52:28.449 CIS WAS NOT RAISED BY THE TENNESSEE GAS PIPELINE COMPANY IN THE MOTIONS TO INTERVENE OR 575 00:52:28.449 --> 00:52:33.796 IN THE PAPERS TO THIS COURT AND SO I'LL DO MY BEST TO REBUT THOSE ARGUMENTS HERE BUT I 576 00:52:33.796 --> 00:52:40.590 WOULD, I'M GOING ON THE ASSUMPTION THAT THE COURT HAS ISSUED A DECISION IN THE INTERIM 577 00:52:40.590 --> 00:52:55.663 SINCE ITS MARCH 15TH ORDER. EEJ TO BE VERBALLY AND LEGALLY ACCURATE, WE 578 00:52:55.663 --> 00:53:06.550 CANNOT CALL FELONY SEE GAS PIPELINE A PERMITEE IN THIS CASE. THE DEPARTMENT OF ENVIRONMENTAL 579 00:53:06.550 --> 00:53:13.481 PROTECTION ISSUED HIGHLANDS APPLICABLE DERMENT NATION WHICH IS NOT A PERMIT. IT EX SECHTS 580 00:53:13.481 --> 00:53:19.585 TENNESSEE GAS PIPELINE COMPANY FROM GOING THROUGH THE PERMITTING PROCESS. SO IT WAS 581 00:53:19.585 --> 00:53:26.588 NOT A PERMIT REVIEW THAT RESULTED IN, IT WAS NOT A PERMIT APPLICATION WHICH RESULTED IN 582 00:53:26.588 --> 00:53:32.309 THE ADMINISTRATIVE DECISION WHICH IS AT ISSUE. PARAGRAPH. JUSTICE ALBIN: 583 00:53:32.309 --> 00:53:41.655 GIVE IT A NAME. WERE GROWN GREEN ISLAND, COMPANY LOCATION HAD NUMBER 1115 EXCEPTION 584 00:53:41.655 --> 00:53:44.728 SHUN S. JUSTICE ALBIN: RULED IN THEIR FAVOR AND THEY GAVE IT A RIGHT TO DO 585 00:53:44.728 --> 00:53:51.136 THIS CONSTRUCTION WHICH, RIGHT? DANIEL A. GREENHOUSE: THEY, THE DEPARTMENT 586 00:53:51.136 --> 00:53:59.528 DECIDED USING ITS AUTHOR READY GRANTED TO IT BY THE HIGHLANDS ACT DECIDED THAT THE PROPOSAL 587 00:53:59.528 --> 00:54:04.945 FIT WITHIN ONE OF THE EXEMPTIONS UNDER THE GRADUATE. JUSTICE ALBIN: THEY 588 00:54:04.945 --> 00:54:10.192 GAVE THEM PERMISSION TO GO FORWARD. WHATEVER NAME YOU CALL IT R GAVE THEM PERMISSION, 589 00:54:10.192 --> 00:54:15.993 THEY GRANTED THEM SOMETHING. DANIEL A. GREENHOUSE: YOUR HONOR I APPRECIATE 590 00:54:15.993 --> 00:54:20.402 THAT THERE ARE SIMILARITIES BUT I ALSO THINK THERE ARE DIFFERENCES. JUSTICE 591 00:54:20.402 --> 00:54:27.727 ALBIN: HE CAN 0. TELL WAUS THEY ARE. GREEN AN EXEMPTION IS THE LACK A PERMITTING REVIEW. 592 00:54:27.727 --> 00:54:34.657 SO UNDER THE -- JUSTICE PATTERSON: IS THERE SUCH A WORD AS EX SEFRM TEE, 593 00:54:34.657 --> 00:54:40.828 TIME TO INVENTS A WORD THAT DOESN'T EXIST? GREEN YOUR HONOR I DON'T THINK THERE IS A 594 00:54:40.828 --> 00:54:48.916 CASE IN NEW JERSEY OR THAT I'M AWARE OF WHICH DEFINES EXACTLY WHAT AN EXEMPTION WOULD BE 595 00:54:48.916 --> 00:54:54.648 CALLED. JUSTICE PATTERSON: BUT IF YOU WIN IN THE END, THEY CAN'T GO FORWARD. 596 00:54:54.648 --> 00:54:58.800 DANIEL A. GREENHOUSE: NO, YOUR HONOR IF, THE HIGHLANDS APPLICABILITY 597 00:54:58.800 --> 00:55:02.199 DETERMINATION AT ISSUE IS OVERTURNED, THEN THEY WOULD HAVE TO GO THROUGH THE PERMITTING 598 00:55:02.199 --> 00:55:12.249 PROCESS AND APPLY FOR AND RECEIVE A HIGHLANDS PRESERVATION AREA APPROVAL, H P AA. 599 00:55:12.249 --> 00:55:15.117 CHIEF JUSTICE RABNER: THAT MATTERS A GRATES DEAL TO THEM. WHY SHOULDN'T THEY BE AT THE 600 00:55:15.117 --> 00:55:20.068 TABLE FOR THE APPEAL? DANIEL A. GREENHOUSE: YOUR HONOR, THE REASON, THE, 601 00:55:20.068 --> 00:55:31.191 I THINK THE THAT DISCUSSION WE JUST HEARD WAS CULMINATED REALLY AT THE POINT OF THE 602 00:55:31.191 --> 00:55:39.941 JUSTICE'S REMARK REGARDING WELL, HOW CAN YOU ARGUE THAT PREEMPTION, HOW CAN YOU RAISE A 603 00:55:39.941 --> 00:55:45.594 FEDERAL PREEMPTION ARGUE MANY AS AN INTR VEEN FLER TO SUPPORT THE DEPS SUPPORT OF THIS 604 00:55:45.594 --> 00:55:52.743 EXEMPTION. THAT'S WHAT WE WERE PHASED WITH IN THE MOTIONS TO INTERVENE. PARAGRAPH SO 605 00:55:52.743 --> 00:56:02.905 WE DIDN'T CHALLENGE THE INTEREST, AUM THOETS AN EXEMPTION VERSUS A PERMIT, THESE MIGHT BE 606 00:56:02.905 --> 00:56:08.492 CONSEQUENTIAL OR THE DISTINCTION MIGHT BE OF LITTLE CONSEQUENCE. I THINK IT'S MORE, IT'S 607 00:56:08.492 --> 00:56:14.359 OF MORE CONSEQUENCE TO THE BUILDER'S ARGUMENTS. JUSTICE PATTERSON: KEEP 608 00:56:14.359 --> 00:56:17.941 YOUR VOICE UP MROOSHS YOU'RE TRAILING OFF. DANIEL A. GREENHOUSE: YES, THANK YOU. 609 00:56:17.941 --> 00:56:26.159 SO WE DIDN'T ARGUE ABOUT THEIR INTERESTS. WE ARGUED THAT AS OF RIGHT, THE 610 00:56:26.159 --> 00:56:32.748 DEPARTMENT COULD BE PRESUMED TO ADEQUATELY DEFEND THE ADMINISTRATIVE ADDITION AT ISSUE. 611 00:56:32.748 --> 00:56:36.550 JUSTICE ALBIN: CAN I ASK YOU A VERY PRAGMATIC QUESTION. DANIEL A. 612 00:56:36.550 --> 00:56:42.169 GREENHOUSE: YES. JUSTICE ALBIN: WHY DO YOU CARE? TENNESSEE GT A FAVORABLE 613 00:56:42.169 --> 00:56:49.124 RULING, THEY WANTS TO PROTECT THEIR FAVORABLE RULING. YOUR ARGUMENT IS EITHER PERSUASIVE 614 00:56:49.124 --> 00:56:57.501 AND WILL WIN THE DAY OR IT WON'T. WHY ARE YOU AFRAID THAT TENNESSEE IS GOING 615 00:56:57.501 --> 00:57:00.717 TO MAKE AN ARGUMENT? DANIEL A. GREENHOUSE: THANK YOU FOR ASKING ME THAT, 616 00:57:00.717 --> 00:57:05.915 YOUR HONOR. THE REASON WE ARE OBJECTING IS BECAUSE THE TENNESSEE GAS PIPE LIENDZ 617 00:57:05.915 --> 00:57:10.895 THREATENED TO BRING THIS FEDERAL PRE EM SUN ARGUMENT TO THE CASE TO OUR APPEAL OF THE 618 00:57:10.895 --> 00:57:16.568 DEPARTMENT'S DECISION. SO WE CHALLENGED THE DEPARTMENT'S DECISION AND YOU CAN LOOK AT 619 00:57:16.568 --> 00:57:21.662 OUR CIS, WE LIST OUT WITH SPECIFICITY THE LEGAL ISSUES THAT WE RAISE THE. 620 00:57:21.662 --> 00:57:25.338 JUSTICE PATTERSON: YOU DIDN'T NAME THEM AS A PARTY IN ORDER TO KEEP THEM FROM MAKING THAT 621 00:57:25.338 --> 00:57:29.290 PREEMPTION ARGUMENT? DANIEL A. GREENHOUSE: NO, YOUR HONOR. I THINK THE, 622 00:57:29.290 --> 00:57:35.323 I THINK THAT THERE ARE TWO DIRECTIONS YOU CAN LOOK AT THIS FROM. I THINK YOU RECOGNIZED 623 00:57:35.323 --> 00:57:43.900 BASED UPON THE DISCUSSION THAT WE ALREADY HAD THIS MORNING THAT THE UNIVERSE OF POTENTIAL 624 00:57:43.900 --> 00:57:50.197 PARTIES TO THIS MATTER MIGHT BE LARGE. THERE MIGHT BE FURTHER PARTIES OUT THERE -- 625 00:57:50.197 --> 00:57:53.489 JUSTICE PIERRE-LOUIS: TENNESSEE IS THE CLEAR PHONE SHUL PARTY, CORRECT? AND COUNSEL FOR 626 00:57:53.489 --> 00:57:58.591 TENNESSEE GAS INDICATED THAT YOU HAVE FILED AN AMENDED NOTICE OF APPEAL ADDING THEM AS 627 00:57:58.591 --> 00:58:02.843 A PARTY AT THIS POINTS. GREEN THAT WAS REJECTED, YOUR HONOR. JUSTICE 628 00:58:02.843 --> 00:58:06.605 PIERRE-LOUIS: RIGHT, BUT YOU FILE IT. DANIEL A. GREENHOUSE: RIGHT. 629 00:58:06.605 --> 00:58:09.542 JUSTICE PIERRE-LOUIS: WHY. DANIEL A. GREENHOUSE: TO RESOLVE THE MATTER. 630 00:58:09.542 --> 00:58:11.713 JUSTICE PATTERSON: TO RESOLVE THIS MATTER. JUSTICE PIERRE-LOUIS: 631 00:58:11.713 --> 00:58:15.728 TO AVOID COMING HERE. GREEN Y. JUSTICE PATTERSON: I THINK EVER 1 WANTS 632 00:58:15.728 --> 00:58:19.464 TO AVOID MANY COULD GO HERE. GREEN I'LL HAPPY TO BE HERE. JUSTICE SOLOMON: 633 00:58:19.464 --> 00:58:24.774 YOU AGREE, THOUGH, THEREFORE, IN RESPONSE TO WHAT JUS STIS ALBIN SAID, TENNESSEE CLEARLY 634 00:58:24.774 --> 00:58:29.309 HAS AN INTEREST, THEY WERE INVOLVED IN THE INITIAL DEP PROEGD, CORRECT? 635 00:58:29.309 --> 00:58:31.417 DANIEL A. GREENHOUSE: CORRECT YOUR HONOR. JUSTICE SOLOMON: AND THEY CLEARLY 636 00:58:31.417 --> 00:58:33.876 HAVE AN INTEREST. DANIEL A. GREENHOUSE: YES YOUR HONOR. 637 00:58:33.876 --> 00:58:36.507 JUSTICE SOLOMON: AND SINCE THEY HAVE AN INTEREST AND THEY WERE INVOLVE IN THE ORIGINAL 638 00:58:36.507 --> 00:58:40.582 PROCEEDING COULD HAVE BEEN NAMED IN THE NOTICE OF APPEAL. DANIEL A. GREENHOUSE: 639 00:58:40.582 --> 00:58:44.197 IT COULD HAVE BEEN, BUT AGAIN WE DON'T KNOW THE WHOLE UNIVERSE. JUSTICE SOLOMON: 640 00:58:44.197 --> 00:58:51.485 AS I UNDERSTAND. WE'RE NOT BOERD ABOUT ANY ANYBODY ELSE, WE ONLY KNOW ABOUT YOU TWO 641 00:58:51.485 --> 00:58:54.889 PARTIES. THERE MAY BE MILLIONS BUT WE HAVE YOU BEFORE US AND YOU KNEW THEY WERE HERE, 642 00:58:54.889 --> 00:58:59.324 YOU DON'T KNOW WHO THE OTHERS ARE BUT YOU KNEW THEY WERE HERE, YOU COULD HAVE NAMED THEM 643 00:58:59.324 --> 00:59:07.597 IN THE NOTICE OF APPEAL. YOU DID NOT BECAUSE OF THE PREEMPTION ISSUE. SO THAT PUT PREEMPTION 644 00:59:07.597 --> 00:59:14.785 A SIDE S BASED ON HIR ARGUMENT TODAY RN I THINK COUNSEL WAS, YOU KNOW, REALLY SFRUG R 645 00:59:14.785 --> 00:59:19.417 STRUG AGAIN WITH THE PREEMPTION QUESTION IS THAT SOMETHING THEY SHOULD BE RAISING IN THIS 646 00:59:19.417 --> 00:59:24.685 CONTEXT, BUT WITH RESPECT TO THE ARGUMENT THEY HAVE AN INTEREST, SEPARATE AND APART, 647 00:59:24.685 --> 00:59:30.116 CERTAINLY ADVERSE TO YOUR INTEREST, THEY SHOULD BE A PARTY. YOU AGREE TO THAT? PUT PRE 648 00:59:30.116 --> 00:59:34.818 EM SUN APART. DANIEL A. GREENHOUSE: SEPARATE AND APART SOL SOLG NOT INCLUDED, 649 00:59:34.818 --> 00:59:40.408 EXCLUDED. DANIEL A. GREENHOUSE: MAYBE NOT DIFFERENT. THE RECORD IS 650 00:59:40.408 --> 00:59:45.390 CLOEFSHGSD IT'S AN ADMINISTRATIVE DECISION, THE RECORD IS CLOSED, THERE COULD BE MOTIONS 651 00:59:45.390 --> 00:59:52.979 TO SUP MENLT OR OPEN THE REPORT BUT NOW THE ADMINISTRATIVE RECORD HAS BEEN SET AND 652 00:59:52.979 --> 00:59:59.020 THERE'S ONLY, YOU KNOW -- THERE ARE ONLY LEGAL ARGUMENTS TO MAKE AND THE DEPARTMENT OF 653 00:59:59.020 --> 01:00:03.649 ENVIRONMENTAL PROTECTION IS REPRESENTED BY THE DIVISION OF LAW IN THE ATTORNEY JEN WRUL'S 654 01:00:03.649 --> 01:00:06.931 OFFICE. JUSTICE SOLOMON: YOU'RE SAYING THE ONLY ARGUMENT IN THE RECORD 655 01:00:06.931 --> 01:00:11.943 BELOW IS PRE SEM SHUN? DANIEL A. GREENHOUSE: NO, YOUR HONOR R IN FACT WE 656 01:00:11.943 --> 01:00:15.927 HAVEN'T SEEN THE RECORD YET SO I'M NOT AWARE OF THE CONTENTS. JUSTICE SOLOMON: 657 01:00:15.927 --> 01:00:19.754 LET ME GET BACK TO MY QUESTION MENT YOU'RE SITTING HERE AGREEING THEY HAVE AN INTEREST. 658 01:00:19.754 --> 01:00:22.292 DANIEL A. GREENHOUSE: YES. JUSTICE SOLOMON: TENNESSEE HERE 659 01:00:22.292 --> 01:00:27.400 BECAUSE THEY HAVE AN INTEREST. YOUR TERN CONCERN IS YOU DON'T WANT TO CONCEDE OR IN ANY 660 01:00:27.400 --> 01:00:32.286 WAY FURTHER THE PREEMPTION ARGUMENT BECAUSE THEN THERE'S A PROBLEM GOING FORWARD WITH 661 01:00:32.286 --> 01:00:40.419 ALL THE APPLICATIONS FOR PERMITS, WHAT DID YOU CALL IT, H HAD 11 EXCEPTION SHUN, THEY 662 01:00:40.419 --> 01:00:45.057 WOULD ALL BE EXEMPT, WHATEVER, YOUR ARGUE SMENT YOU'RE TRYING TO STOP THIS PREEMPTION 663 01:00:45.057 --> 01:00:50.830 ARGUMENT. WE'RE HERE TODAY. THEY'RE NOT, THEY'RE SAYING THUS WE HAVE AN INTEREST, IT'S 664 01:00:50.830 --> 01:00:56.917 A FINANCIAL PROPERTY PROPERTY THEFT, WE'RE A PARTY BELOW WE SHOULD HAVE BEEN NAMED IN THE 665 01:00:56.917 --> 01:01:02.144 NOTICE OF APPEAL FOR THAT REASON. LIMITED SOLELY TO THAT ISSUE. DO YOU HAVE ANY DISPUTE? 666 01:01:02.144 --> 01:01:05.585 DANIEL A. GREENHOUSE: NO, YOUR HONOR. JUSTICE PATTERSON: 667 01:01:05.585 --> 01:01:11.714 IN THE OTHER LIEU SUITS THAT YOUR GROUPS BRING DO THEY NAME THE PERMITEE OR IN A CASE 668 01:01:11.714 --> 01:01:16.448 WHERE THERE'S AN EXEMPTION FROM GOING THROUGH THE PERMIT PROCESS, THE PERSON WHO OR ENTITY 669 01:01:16.448 --> 01:01:19.395 THAT HAS THE EXEMPTION. DANIEL A. GREENHOUSE: I THINK SO, YOUR HONOR. 670 01:01:19.395 --> 01:01:24.640 POT. JUSTICE PATTERSON: SO YOUR CLIERNTS TAKING A SPECIAL POSITION HERE BASED 671 01:01:24.640 --> 01:01:28.737 ON A CONCERN AND I UNDERSTAND THE STRATEGIC CONCERN BUT BASED ON SAYING WE'RE NOT GOING 672 01:01:28.737 --> 01:01:34.865 TO NAME THEM AS A PARTY BECAUSE THE SCARY ARGUMENT OUT THERE IS PREEMPTION AND WE DON'T 673 01:01:34.865 --> 01:01:39.100 WANT ANYBODY IN THE CASE MAKING THAT ARGUMENT. IS THAT WHAT WE'RE DEALING WITH HERE? 674 01:01:39.100 --> 01:01:43.006 DANIEL A. GREENHOUSE: YOUR HONOR I DON'T THINK THAT QUESTION CAN REALLY 675 01:01:43.006 --> 01:01:48.628 BE ANSWERED WITHOUT GOING BACK IN TIME. I DON'T REMEMBER EXACTLY. JUSTICE 676 01:01:48.628 --> 01:01:52.262 PATTERSON: OKAY. GREEN YOU KNOW, WHAT TRANSPIRED. I THINK WHAT'S RELEVANT TO THE 677 01:01:52.262 --> 01:01:54.656 COURT. JUSTICE PATTERSON: I'M NOT ASKING YOU IN ANY WAY TESTIFY, THAT'S NOT 678 01:01:54.656 --> 01:02:02.109 WE'RE WE'RE HERE FOR, BUT IT IS OF INTEREST THAT OF OTHER GROUPS WHO YOU ABLY REPRESENT 679 01:02:02.109 --> 01:02:07.849 ROUTINELY WOULD PUT SOMEONE IN TENNESSEE'S POSITION ON THE CIS AS A PARTY. AND HERE WE 680 01:02:07.849 --> 01:02:11.283 HAVE A CASE BEING HANDLED DIFFERENTLY. DANIEL A. GREENHOUSE: I UNDERSTAND 681 01:02:11.283 --> 01:02:19.885 YOUR CONCERN. I UNDERSTAND THE COURT'S CONCERN IN THAT REGARD AND I THINK THAT THERE 682 01:02:19.885 --> 01:02:31.342 IS NOT A REQUIREMENT IN THE RULE THAT REQUIRES A SEARCHING IN AN ADMINISTRATIVE PROCEED 683 01:02:31.342 --> 01:02:37.482 ING LIKE THIS WHERE THERE MAY BE PARTIES WITH EQUAL PROPERTY INTEREST AT STACK. THERE 684 01:02:37.482 --> 01:02:41.889 MIGHT BE SOMEBODY WHO LIVES NEXT DOOR WHO -- JUSTICE PATTERSON: OBVIOUSLY 685 01:02:41.889 --> 01:02:47.451 THERE'S NOTIFICATION RULES ON HOW CLOSE SOMEONE MIGHT LIVE, BUT DO YOU DISPUTE THAT A 686 01:02:47.451 --> 01:02:53.373 PARTY WHO EITHER DID OR DID NOT IN THIS CASE DID GET AN EXEMPTION FROM GOING THROUGH THE 687 01:02:53.373 --> 01:03:00.339 PERMITTING PROCESS SHOULD BE A PARTY WHEN THAT IS CHALLENGED ON APPEAL? DANIEL A. 688 01:03:00.339 --> 01:03:04.645 GREENHOUSE: YOUR HONOR, OOJ THE MOTION T INTERVENE WAS APPROPRIATE. I DON'T, I THINK 689 01:03:04.645 --> 01:03:12.929 THAT WE OPPOSED IT IN A NONFRIVOLOUS WAY AND THAT THE COURT, THE APPELLATE DIVISION DECIDED 690 01:03:12.929 --> 01:03:19.626 CORRECTLY WITHOUT ABUSING ITS DISCRETION TO DENY BOTH MOTIONS TO INTERVENE. 691 01:03:19.626 --> 01:03:23.553 JUSTICE ALBIN: THE 251 D, YOU HEARD THAT. DANIEL A. GREENHOUSE: YES. 692 01:03:23.553 --> 01:03:27.937 JUSTICE ALBIN: YOU CONCEDE THAT TENNESSEE IS AN INTERESTED PARTY. LET'S 693 01:03:27.937 --> 01:03:34.844 NOT, WE DON'T HAVE TO TALK ABOUT AMORPHOUS OTHER ORGANIZATIONS OR PEOPLE WHO COULD BE 694 01:03:34.844 --> 01:03:41.622 AN INTERESTED PARTY. THEY'RE AN INTERESTED PARTY, YOU CONSEED THAT, CORRECT? YOU 695 01:03:41.622 --> 01:03:46.452 CONCEDE SUNDAY 251 D THEY SHOULD HAVE BEEN NOTICED AND YOU ACTUALLY FILED AN AMENDED NOTICE 696 01:03:46.452 --> 01:03:49.802 WITH THENL AS AN INTERESTED PEAR, CORRECT? DANIEL A. GREENHOUSE: YOUR HONOR, 697 01:03:49.802 --> 01:03:57.790 I DON'T CONCEDE THAT THERE WERE ANY ERRORS AT THE OUTSET. JUSTICE ALBIN: 698 01:03:57.790 --> 01:04:01.898 YOU FILED AN AMEND THE NOTICE THAT WAS NONFRIVOLOUS GREEN YES. JUSTICE 699 01:04:01.898 --> 01:04:03.926 ALBIN: YOU DID IT FOR A REASON. DANIEL A. GREENHOUSE: YES, YOUR HONOR. 700 01:04:03.926 --> 01:04:07.044 JUSTICE ALBIN: YOU DID IT BECAUSE YOU THOUGHT THEY WERE AN INTERESTED PARTY, 701 01:04:07.044 --> 01:04:09.293 CORRECT. DANIEL A. GREENHOUSE: YES YOUR HONOR. JUSTICE ALBIN: 702 01:04:09.293 --> 01:04:13.207 I'M ASSUME YOU FILED THAT NOTICE BECAUSE YOU THOUGHT THEY SHOULD HAVE BEEN REASON YOU'VE 703 01:04:13.207 --> 01:04:16.487 BEEN THIS TERM ITS TABLE, A PARTY TO THE APPEAL, CORRECT? DANIEL A. GREENHOUSE: 704 01:04:16.487 --> 01:04:21.295 YES, YOUR HONOR. JUSTICE ALBIN: SO IF THAT'S THE CASE, WE DON'T EVEN HAVE 705 01:04:21.295 --> 01:04:26.125 TO GET TO THOSE OTHER RULES, DO WE? DANIEL A. GREENHOUSE: I THOUGHT THAT 706 01:04:26.125 --> 01:04:29.977 WOULD HAVE RESOLVED THIS ISSUE, YES, YOUR HONOR. JUSTICE ALBIN: SO WE DON'T 707 01:04:29.977 --> 01:04:35.100 HAVE TO GO ANY FURTHER THAN 251 D. TO RESOLVE THIS CASE. DANIEL A. 708 01:04:35.100 --> 01:04:38.786 GREENHOUSE: YOUR HONOR I WOULD NOTE THAT WITH REGARD TO THE COURT'S CONCERNS ABOUT SETTING 709 01:04:38.786 --> 01:04:44.907 A PRECEDENTS AND REQUIRING A PLEADING, THERE WAS, I DO BELIEVE A PROCEDURAL DEFECT IN THE 710 01:04:44.907 --> 01:04:49.949 MOTIONS TO INTERVENE AND I THINK THAT THE COURT, THE APPELLATE DIVISION WAS PROPERLY KERNDZ 711 01:04:49.949 --> 01:04:56.710 WITH THE SDOEP SCOPE OF THE APPEAL AND POTENTIALLY BECOMING UNDULY COMPLICATED BY A 712 01:04:56.710 --> 01:04:59.995 PREEMPTION ARGUMENT. JUSTICE PATTERSON: THAT'S NOT QUITE WHAT WE'RE 713 01:04:59.995 --> 01:05:03.170 TALKING ABOUT HERE. WE'RE TALKING K ABOUT WHETHER THEY SHOULD HAVE BEEN NAMED AS A PARTY 714 01:05:03.170 --> 01:05:10.794 IN YOUR CIS. AND BY SMITH ANOTHER ONE, ALBEIT, IT WAS REJECTED BUT BY SMITH A CIS WERE 715 01:05:10.794 --> 01:05:16.021 WITH THEM ON IT, PRESUMABLY, YOU'RE SAYING THEY'RE A PARTY. KIND OF A SIMPLE YES-OR-NO 716 01:05:16.021 --> 01:05:22.203 QUESTION. THEY'RE A PARTY TO THIS APPEAL. SO I THINK WE MAY HAVE AN AGREEMENT IN THIS 717 01:05:22.203 --> 01:05:29.202 COURTROOM AMONG COUNSEL THAT THEY ARE A PARTY TO THE APPEAL. CORRECT? DANIEL A. 718 01:05:29.202 --> 01:05:33.113 GREENHOUSE: YES, YOUR HONOR. CHIEF JUSTICE RABNER: YOU'VE PUT M YOUR BRIEFS 719 01:05:33.113 --> 01:05:38.764 THAT THEY WOULD BE ABLE TO SEEK REVIEW OF AN APPELLATE RULING EVEN IF THEY WERE OUT OF THE 720 01:05:38.764 --> 01:05:47.553 CASE, THAT THEY COULD SEEK RELIEF FROM THIS COURT. WHICH SUGGESTS THEY SHOULD HAVE THAT 721 01:05:47.553 --> 01:05:51.874 SAME RIGHT IN FRONT OF THE APPELLATE DIVISION, NO? ISN'T THERE A TENSION BETWEEN THE 722 01:05:51.874 --> 01:05:59.789 ARGUE MG ARGUMENTS? DANIEL A. GREENHOUSE: I AGREE THE PROCEDURAL POSTURE 723 01:05:59.789 --> 01:06:04.093 IS A BIT CONFUSING, YES, YOUR HONOR. CHIEF JUSTICE RABNER: SO WHAT SHOULD 724 01:06:04.093 --> 01:06:08.769 WE DO AT THIS POINT. DANIEL A. GREENHOUSE: YOUR HONOR, I DON'T THINK THERE 725 01:06:08.769 --> 01:06:16.542 IS ANYTHING THAT NEEDS TO BE FIXED IN THE PROCESS. I DON'T BELIEVE THAT THE APPELLATE 726 01:06:16.542 --> 01:06:22.209 DIVISION ABUSED ITS DISCRETION TO DENY THE MOTION TO INTERVENE. I BELIEVE THAT -- 727 01:06:22.209 --> 01:06:26.063 JUSTICE ALBIN: WHY WAS YOUR AMENDED NOTICE REJECTED? WHO REJECTED THAT? 728 01:06:26.063 --> 01:06:29.344 DANIEL A. GREENHOUSE: I RECEIVED A COMMUNICATION FROM THE CASE MANAGER IN THE APPELLATE 729 01:06:29.344 --> 01:06:35.978 DIVISION THAT THE COURTS ORDERS ON THE MOTION TO INTERVENE WERE WITHIN THIS COURT'S 730 01:06:35.978 --> 01:06:39.912 JURISDICTION AND THAT THEY COULD NOT BE CHANGED. JUSTICE PATTERSON: THIS 731 01:06:39.912 --> 01:06:47.506 WAS AFTER THIS COURT. DANIEL A. GREENHOUSE: AK SENED. JUSTICE 732 01:06:47.506 --> 01:06:53.827 ALBIN: YOU'RE BASICALLY, TELL ME IF I'M MISTAKEN, ADMITTING THAT THE ORIGINAL NOTICE SHOULD 733 01:06:53.827 --> 01:06:58.469 HAVE HAD TENNESSEE ON IT. DANIEL A. GREENHOUSE: NOT EXACTLY, NO. IT COULD HAVE 734 01:06:58.469 --> 01:07:04.269 BUT AGAIN I WOULD HAVE, WITHOUT BENEFIT OF SEEING THE RECORD BEFORE THE AGENCY AND KNOW 735 01:07:04.269 --> 01:07:08.073 ING ALL OF THE PARTIES THAT PARTICIPATED BELOW -- JUSTICE ALBIN: ALL OF THE 736 01:07:08.073 --> 01:07:16.655 PARTIES. WHAT WERE YOU INTER -- LIKE WHAT WOULD YOU BE PEALING OF A DECISION OF THE D 737 01:07:16.655 --> 01:07:24.543 EP FIT WEREN'T FOR THE FACT THAT TENNESSEE WAS GIVEN THE EXEMPTION TO GO FORWARD WITH 738 01:07:24.543 --> 01:07:29.147 THIS PROCH? FOR GET ABOUT ANYONE ELSE. TENNESSEE. YOU DIDN'T KNOW TENNESSEE GOT THE 739 01:07:29.147 --> 01:07:34.673 PROJECT? GREEN YOUR HONOR, AGAIN I THINK COULD YOU GO IN BOTH DIRECTIONS, I THINK YOU 740 01:07:34.673 --> 01:07:39.185 COULD GO NTS DIRECTIONS OF LOOKING AT THE PARTIES BESIDES TENNESSEE OR GO IN THE DIRECTION 741 01:07:39.185 --> 01:07:45.943 OF OH, WELL, MAYBE I SHOULD HAVE NAMED MORE BEGAN BECAUSE THEY OWNED TENNESSEE GAS PIPELINE. 742 01:07:45.943 --> 01:07:51.272 I DON'T THINK THAT'S ON THE PLATE WHEN YOU FILE A NOTICE OF APPEAL, THEY WERE NOTICED 743 01:07:51.272 --> 01:07:58.709 OF OUR NOTICE OF APPEAL RELATIVELY KWIBLG YOU YOU MIGHT NOTICE THEY FILED THE NOTICE TO 744 01:07:58.709 --> 01:08:03.927 INT ARE VEEN ABOUT TWO WEEKS LATER. SO IT REALLY ISN'T A QUESTION OF WHETHER THEY HAD BEEN 745 01:08:03.927 --> 01:08:08.481 PROVIDED WITH NOTICE WHICH IS REEL THE UNDERLYING QUESTION REGARDING ALL OF THESE DUE 746 01:08:08.481 --> 01:08:13.731 PROCESS CONCERNS, THEY WERE ON NOTICE, THEY KNEW, THEY FILED A MOWS TO INTERVENE S. 747 01:08:13.731 --> 01:08:19.761 JUSTICE ALBIN: FORGIVE ME FOR HARPING ON 25 WITHIN D, IT'S A RULE AND IT'S A RULE THAT 748 01:08:19.761 --> 01:08:27.481 REQUIRES THAT A NOTICE OF APPEAL BE GIVEN TO AN INTERESTED PARTY, CORRECT? GREEN I DON'T 749 01:08:27.481 --> 01:08:30.979 HAVE THE RULE OPEN IN FRONT OF ME, YOUR HONOR, BUT I BELIEVE. JUSTICE ALBIN: 750 01:08:30.979 --> 01:08:35.976 COPES OF APPEAL ON THE AGENCY OR OFFICER, THE ATTORNEY GENERAL AND ALL OTHER INTERESTED 751 01:08:35.976 --> 01:08:40.309 PARTIES. TAKE IT FROM ME, THAT'S THE RULE. GREEN Y. JUSTICE ALBIN: YOU 752 01:08:40.309 --> 01:08:43.750 CONCEDE TENNESSEE WAS AN TREFRTD PARTY, CORRECT? DANIEL A. GREENHOUSE: YES. 753 01:08:43.750 --> 01:08:47.011 JUSTICE ALBIN: SO THEREFORE THEY SHOULD HAVE BEEN NOTICED? GREEN GROON 754 01:08:47.011 --> 01:08:50.747 THEY WERE NOTICED, YOU WERE. JUSTICE PATTERSON: SHOULD HAVE BEEN NAMED 755 01:08:50.747 --> 01:08:54.242 GREEN NAMED HAL AL AND THAT WOULD HAVE GIVEN THEM A RIGHT TO PARTICIPATE IN THE APPEAL, 756 01:08:54.242 --> 01:08:57.347 CORRECT? DANIEL A. GREENHOUSE: YES, YOUR HONOR. JUSTICE ALBIN: 757 01:08:57.347 --> 01:09:04.795 AND STLFR THEREFORE THERE'S NO NEED TO LOOK AT THE INTERVENTION RULE BECAUSE IF YOU'RE 758 01:09:04.795 --> 01:09:08.901 NAME AS A PARTY AND YOU'RE IN THE APPEAL, YOU DON'T HAVE TO INTERVENE, CORRECT? 759 01:09:08.901 --> 01:09:13.126 DANIEL A. GREENHOUSE: THAT LINE OF REASONING WAS EXACTLY WHAT I WAS THINKING WHEN I 760 01:09:13.126 --> 01:09:18.668 FILE THE NOTICE, THE AMENDED NOTICE OF APPEAL. CHIEF JUSTICE RABNER: ANYTHING 761 01:09:18.668 --> 01:09:23.398 LGS WOULD YOU LOIK TO ADD? GREEN NO, YOUR HONOR, THANK YOU VERY MUCH FOR THE. 762 01:09:23.398 --> 01:09:29.459 CHIEF JUSTICE RABNER: THANK YOU MR. MR. SKOTS ANY REBUTTAL. RICHARD G. SCOTT: 763 01:09:29.459 --> 01:09:37.730 I JUST WANT TO ADDRESS THE POINT REALLY TWO POINTS, AND WE KIND OF TALKED ABOUT THIS IN 764 01:09:37.730 --> 01:09:43.040 THE FIRST GO AROUND, THERE'S NO DISPUTE THAT THE THE HAD IS A PERMITTING DECISION AS THAT 765 01:09:43.040 --> 01:09:46.745 TERM IS DEFINED UNDER THE ADMINISTRATIVE PROCEDURE ACT. JUSTICE 766 01:09:46.745 --> 01:09:54.466 PATTERSON: THE WHAT IS A SKOTS SCOTT HIGHLAND APPLICABLE DETERMINATION. UNDER THE 767 01:09:54.466 --> 01:10:00.196 ADMINISTRATIVE PROCEDURES ACT. IT'S APPROVAL AS YOU? TIS ALBIN NOTED IT ALLOWS US TO 768 01:10:00.196 --> 01:10:06.576 GO FORWARD AND TO -- SO LET ME PUT I THIS WAY THERE ARE TWO ROUTES THAT A DEVELOPER CAN 769 01:10:06.576 --> 01:10:12.368 GO, EITHER APPLY FOR A HIGHLANDS APPLICABLE DETERMINATION SEEKING AN EXEMPTION FRTS AKTS 770 01:10:12.368 --> 01:10:17.031 AND IMPLEMENTING REGULATIONS OR HE IT CAN SMET TO JURISDICTION AND BAFSHLG APPLY FOR A 771 01:10:17.031 --> 01:10:22.919 HIGHLANDS PRESERVATION AREAS APPROVAL AND BE SUB TO THE AULT SUB STAN STIFF STANDARDS. 772 01:10:22.919 --> 01:10:28.290 IN THIS INSTANCE AS TENNESSEE HAS DONE ON ITS PAST TWO PROJECTS IN THE HIGHLANDS 773 01:10:28.290 --> 01:10:33.402 PRESERVATION AESHGS IT SOUGHT THE EXEMPTION AND RECEIVED IT, THAT ALLOWS BY HAVING THAT 774 01:10:33.402 --> 01:10:39.601 EXEMPTION IN HAND, THAT ALLOWS UNDER DEP'S REGULATIONS FOR THE DEVELOPER TO ESSENTIALLY 775 01:10:39.601 --> 01:10:45.122 APPLY FOR OTHER PERMITS AND GO FORWARD WITH OTHER PERMITTING NEEDS. THERE'S NO, I DON'T THINK 776 01:10:45.122 --> 01:10:50.633 THERE'S ANY DISPUTE, AETS A PERMIT, ALLOW US US TO, IT'S A RIGHT THAT WE HAVE TO GO FORWARD 777 01:10:50.633 --> 01:10:57.419 AND TO APPLY FR OTHER PERMITS AND TO CONSTRUCT OUR FACILITIES SUBJECT TO OBTAIN ALL OTHER 778 01:10:57.419 --> 01:11:00.643 NECESSARY FEDERAL STATE AND LOCAL APPROVALS, ETCETERA. JUSTICE PATTERSON: 779 01:11:00.643 --> 01:11:05.309 YOU'RE SAYING YOUR CLIENT SHOULD BE CONSIDERED A PERMITEE? RICHARD G. SCOTT: 780 01:11:05.309 --> 01:11:11.063 CORRECT. I JUST WANT TO TALK ABOUT NOTICE BECAUSE THE ONLY REASON WE RECEIVE NOTICE OF 781 01:11:11.063 --> 01:11:16.436 THIS APPEAL WAS BECAUSE MY OFFICE WAS STALKING THE APPELLATE DIVISION'S DOCKET AND SAW 782 01:11:16.436 --> 01:11:21.902 THAT SOMETHING WAS FILED. WE CALENDAR THE IT, WE KNEW WHAT 45 DAYS WAS AND WE JUST ROUTINELY 783 01:11:21.902 --> 01:11:27.328 CHECKED IT AND WE EVENTUALLY SAW THAT THERE WAS THIS APPEAL, WE SPOKE TO THE CLERK, WE 784 01:11:27.328 --> 01:11:31.686 FOUND OUT WHO THE ATTORNEYS WERE, WE REACHED OUT TO THE ATTORNEYS, I REQUESTED A COPY 785 01:11:31.686 --> 01:11:37.614 FROM MR. GREENHOUSE, I REQUESTED THE INFORMATION FROM THE DAG'S OFFICE AND FROM THE DEP 786 01:11:37.614 --> 01:11:44.244 ITSELF AND EVENTUALLY I DID GET IT FROM THE PARTIES, BUT I SHOULDN'T HAVE TO GO AROUND 787 01:11:44.244 --> 01:11:49.422 BEGGING FOR IT. PAT THEY DIDN'T, THE MRANTSS DID NOT PROVIDE YOU WERE YOU NOTICE (THE 788 01:11:49.422 --> 01:11:55.808 APPELLANTS SCOTT SDOT SEVERAL DAYS AFTER THAT IT TOOK THEM A FEW DAYS TO GET BUT THEY 789 01:11:55.808 --> 01:12:01.475 GOT IT TO ME EVENTUALLY AND WE WERE ABLE TOIN TER VEEN. AND I WILL NOTE AS TO THE RULE 790 01:12:01.475 --> 01:12:11.397 251 DISCUSSION, IF THAT IS THE WAY -- I DON'T KNOW THAT I WOULD HAVE DONE IT ANY 791 01:12:11.397 --> 01:12:16.161 DIFFERENTLY. I THINK WE WOULD HAVE STILL HAVE TO FILE, EITHER IT'S A MOTION TO INTERVENE 792 01:12:16.161 --> 01:12:21.082 BASED OON THE RULE IELT NOT EXACTLY SURE PROCEDURALLY WHAT IT IS, BULTS I AGREE IT 793 01:12:21.082 --> 01:12:24.809 WOULD OBVIATE THE NEED, WE WOULD HAVE TO FILE SOME SORT OF MOTION BEFORE THE APPELLATE 794 01:12:24.809 --> 01:12:27.575 DIVISION TO, YOU KNOW, TO ARGUE THAT WE SHOULD HAVE -- JUSTICE PATTERSON: 795 01:12:27.575 --> 01:12:32.942 WHEN YOU'RE NOT NANLD AS A PARTY UKTS BE DEMAND TO BE NAMED AS A PARTY, RIGHT? 796 01:12:32.942 --> 01:12:35.214 RICHARD G. SCOTT: RIGHT. JUSTICE PATTERSON: I REALLY WANT TO BE IN THIS 797 01:12:35.214 --> 01:12:39.273 LITS GAGS, THAT'S UP TO THE PERSON FILING THE APPEAL. RICHARD G. SCOTT: 798 01:12:39.273 --> 01:12:45.713 RIGHT. JUSTICE PATTERSON: SO INTERVENTION WAS THE OPTION YOU HAD. 799 01:12:45.713 --> 01:12:49.347 RICHARD G. SCOTT: IT DOESN'T OBVIATE THE NEED TO SEEK INTERVENTION. THAT IS ALL 800 01:12:49.347 --> 01:12:52.347 I HAVE. I APPRECIATE THE COURT'S OPPORTUNITY TO THE ARGUE THIS MORPTS CASE.