
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: FRIDAY, September 29, 1995                   TAG: 9509290060
SECTION: VIRGINIA                    PAGE: B-2   EDITION: NEW RIVER VALLEY 
SOURCE: Associated Press
DATELINE: RICHMOND                                LENGTH: Medium

APPEALS PANEL HEARS CHALLENGE

Virginia took its challenge of federal clean-air rules to an appeals court Thursday, arguing that a federal judge should be ordered to hear the case.

Gov. George Allen sued the Environmental Protection Agency over the agency's threat to withhold federal highway money if Virginia did not adopt a federally approved vehicle emissions testing program for its urban areas.

The lawsuit filed in January also challenges the EPA's actions as a violation of the 10th Amendment, which gives the states powers that the Constitution does not specifically grant to Congress.

U.S. District Judge James Spencer ruled in June that the lawsuit should have been filed directly with the 4th U.S. Circuit Court of Appeals, which hears complaints about actions by federal agencies.

A three-judge panel of the appeals court heard arguments Thursday from the EPA and the state about whether Spencer should be ordered to hear the case.

``The district court has basically slammed the door in the face of the commonwealth,'' said Roger L. Chaffe, a senior assistant attorney general.

``We need some guidance from this court,'' Chaffe said. ``We're not sure which court to bring it in.''

Jeff Kehne, a Justice Department lawyer arguing for the EPA, said Spencer's ruling should be upheld.

``At this stage, it's really just about which court they should file it in,'' Kehne said afterward.

The three judges did not indicate when they would rule.

In February, the state did win assurances from the EPA that Virginia's federal highway funds would not be withheld in the near future. Attorney General Jim Gilmore said that should protect the money for about a year.

Virginia also has another environmental lawsuit awaiting arguments before the 4th Circuit. That case, filed directly with the appeals court, challenges the EPA's rejection of the state plan for issuing air pollution permits for businesses.

by CNB