Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, April 10, 1994 TAG: 9404100024
SECTION: VIRGINIA PAGE: D10 EDITION: METRO
SOURCE: Associated Press
DATELINE: NORFOLK LENGTH: Medium
The city has filed a lawsuit in U.S. District Court in Norfolk seeking to nullify the U.S. Commerce Department's review of North Carolina's objection. The objection is based on protecting coastal waters under a federally approved plan.
The Commerce Department promised in December to complete the review within six months, but Virginia Beach wants Judge Rebecca Smith to rule the department doesn't have any right to make the review.
The judge heard oral arguments Friday. She did not say when she would make her decision, which is likely to be appealed by the losing party.
Virginia Beach seeks to build the 75-mile pipeline across Virginia to bring water from Lake Gaston, which straddles the Virginia-North Carolina border.
To allow North Carolina's objection to the pipeline would give them "extraordinary power," said Jack Kay, the city's lawyer.
North Carolina lawyers argue the state has the right to intervene because the coastline is a resource that doesn't stop at state lines.
Ten other states are backing North Carolina's position under the federally approved Coastal Zone Management Act, which was set up to protect coastal resources.
"If a nuclear power plant in West Virginia would affect the [Chesapeake] Bay in Maryland and Virginia, should Virginia have the right to object? Of course they should," said Kimberly Taylor, an attorney for the ten-state group.
Whether North Carolina can challenge the Lake Gaston project based on coastal protection is a question that has been bounced between the Commerce Department and the Justice Department since 1989.
Virginia Beach's lawsuit came after the Justice Department in December withdrew its longstanding opinion that environmental laws could not be used to fight the pipeline. That prompted Commerce Secretary Ron Brown to reverse his July decision and open the pipeline up to an environmental review.
Kay argued that the Commerce Department had abused its authority by its reversal, which had damaged the city's efforts to get the pipeline built. Brown's most recent decision didn't deserve to be heeded, Kay said.
"How deference can be accorded to a decision made in the manner of this one, I don't know," Kay said. "The facts didn't change, the project didn't change. The statute didn't change. Nothing changed, except the person making the call. That makes it a government of men, rather than laws."
by CNB