THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Sunday, October 1, 1995 TAG: 9509300093
SECTION: VIRGINIA BEACH BEACON PAGE: 06 EDITION: FINAL
SOURCE: [Beth Barber]
LENGTH: Long : 205 lines
U.S. District Judge Thomas F. Hogan's ruling Wednesday regarding the Gaston pipeline is not only a victory for Virginia Beach. It is a rebuke of North Carolina, richly deserved, for frivolously questioning serious issues already decided. Several times.
Trial by weary is, however, part and parcel of our legal system. Complainants get to court-shop and judges must literally go through the motions. Judge Hogan does so in his decision, excerpted here, with a face that goes beyond straight to deadpan. ``The court finds puzzling North Carolina's reliance on . . .'' It not only ``finds ample evidence'' that the secretary of commerce made a rational decision, which is all the law required of him. It finds no evidence of capriciousness and arbitrariness on his part, so no grounds to overrule him. In fact, if forced to find a capricious and arbitrary party in this case, Judge Hogan sounds likelier to nominate North Carolina.
If they weren't the professionals they are, city staff's point men on the Gaston pipeline, Water Resources Engineer Tom Leahy and Public Utilities Director Clarence Warnstaff, might be moved to second that nomination. After a public hearing 14 months ago - and 10 years into the Gaston gamut - Mr. Leahy summed up the city's exasperation with pipeline opponents who've run out of logic into ludicrous. A speaker pitched the absence of short-nosed sturgeon from the Roanoke River Basin since recorded time as proof that they're endangered, and thus a bar to the pipeline. ``They haven't found any Bengal tigers in the Albemarle Sound,'' Leahy responded, ``but that doesn't mean our project will affect it.''
With Hogan's ruling, Virginia Beach finds some sanity in the system. With luck, that's the last phantom tiger.
BETH BARBER, editorial page editor Memorandum Opinion
. . . This action arises because the state of North Carolina challenges as arbitrary and capricious the findings (of the secretary of commerce) overruling the state's conclusion that the proposed pipeline is inconsistent with the Coastal Zone Management Act. . . . The CZMA creates a state ``consistency objection'' - effectively, a state veto - to federal licenses and permits. . . . If the state objects, then the license or permit can only be granted if the secretary of the Department of Commerce overrides the objection. . . .
On Sept. 9, 1991, the state of North Carolina . . . refused to certify that the (Gaston pipeline) project was consistent with several elements of its coastal management plan and objected to the project. . . .
On Oct. 3, 1991, Virginia Beach filed an appeal with the Department of Commerce asking that the secretary override the objection made by North Carolina. . . .
On May 19, 1994, the secretary . . . issued an opinion stating that the pipeline proj-ect was consistent with the CZMA. . . .
North Carolina challenged the decision issued by the secretary of commerce. its objection was arbitrary and capricious and unsupported by substantial ev-i-dence. . . .
Standard of Review
(T)he court can only set aside the secretary's decision to override North Carolina's conclusion if it finds that the secretary acted in a manner that was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. . . . Agency action should be upheld if the agency has ``considered the relevant factors and articulated a rational connection between facts found and the choice made.'' The arbitrary and capricious standard requires the reviewing court to verify that there was substantial evidence to support an agency decision. . . . As the parties know, mere disagreement with the result, even by this court, is not a sufficient basis to overturn an administrative de-ter-mi-na-tion. . . .
Arbitrary and Capricious Review
(C)lose inspection of the administrative rec-ord reveals that the secretary had substantial evidence to support his finding that the project was consistent with the CZMA. . . .
1. The furtherance of competing national objectives
North Carolina's argument centers on the secretary's focus on the benefit to the city, without considering the corresponding negative effect to North Carolina. . . . (T)his court is aware of no support for the (state's) proposition that the contribution to the national interest arising from the project's effect on economic development must result in a corresponding loss in economic development in North Carolina. . . . In this case, the secretary has made explicit findings as to the effects of the proj-ect within North Carolina. The secretary concluded that those impacts could be characterized as minimal. . . .
It is appropriate to remember that the question before this court is a limited one. It is not, as North Carolina would argue, whether the secretrary's decision was the only right decision, or whether that decision was clear-cut, but rather whether that decision was reasonable. That line of analysis would apply even if the court disagreed with the secretary's conclusions. In this case, there is sufficient evidence in the record to support the secretary's find-ings. . . .
2. Adverse effects on the natural resources of the coastal zone are not substantial enough to outweigh its contribution to the national interest.
. . . (T)he starting point . . . is assessing first, whether the secretary attempted to identify the adverse effects and quantify them. The court finds ample evidence in the record that the secretary did just that. . . .
An agency's failure to fully consider all relevant issues, or an abrupt departure from precedent, are examples of conduct which might lead a reviewing court to declare an agency's decision-making process arbitrary and capricious. North Carolina has simply not demonstrated that any of the secretary's decisions . . . rise to that level. . . . Even if this court agreed with North Carolina that the evidence was at best ``equivalent,'' nothing in the language of the regulation suggests that the secretary would not be free to find that the project was consistent with the objectives of the CZMA.
3. There is no reasonable alternative available.
. . . The court finds that the secretary was not acting arbitrarily or capriciously when it concluded that there was no alternative reasonably available. . . . North Carolina disagrees with the secretary as to whether many of the alternatives proposed were specific enough, but as the court has previously stated, mere disagreement with the result does not constitute arbitrary and capricious action. . . . That this case presents more complicated issues than (past) cases cited by North Carolina is beyond legitimate challenge. That the secretary may have, in this complicated case, required more specificity than had been previously found sufficient is not surprising considering the issues presented. . . . The court believes that application of the specificity requirement demands a case-specific approach. .
North Carolina challenges the decision of the secretary to refuse to consider as a possible alternative either water conservation or supplemental water that might be available. It is North Carolina's position . . . that the secretary erred in not distinguishing between the city's ``base'' needs and its ``emergency'' needs. The court finds this argument to be, in reality, a challenge to the primary purpose of the project. North Carolina is simply attacking the legitimacy of the 60 (million gallons per day) figure as an accurate reflection of Virginia Beach's anticipated needs.
The secretary found that the primary purpose of the project was to provide southeastern Virginia with the quantity of water needed to alleviate its year 2030 water deficit. North Carolina argues that the secretary's decision to merely adopt the proponent's primary purpose without question or challenge is error on its face. Unfortunately . . . the premise of North Carolina's argument finds no support in the actual record. . . . Furthermore, this court believes that the 60 mgd figure is inextricably tied to the city's primary purpose of the project. . . .
North Carolina offers little support for the position that the secretary's reliance on the 60 mgd figure is arbitrary and capricious. It is clear to this court that implicit in the primary purpose of the project is a desire to avoid water rationing and restrictions. . . . Similarly treated should be North Carolina's suggestion that 60 mgd is an inflated figure which can be satisfactorily addressed through rationing and restrictions. The court will not disturb these conclusions in the absence of evidence that they were reached erroneously.
North Carolina next challenges the secretary's decision finding several of the proposed alternatives to be unreasonable. . . . The secretary found that (the Lake Chesdin and the seawater desalting) alternatives were unreasonable because neither presented an environmental advantage over the project. . . . North Carolina seizes this opportunity to again take issue with the finding that the proj-ect would have a minimal adverse environmental impact. North Carolina argues that because the project's environmental impact will be anything but minimal, both the Lake Chesdin and the seawater desalination proj-ects have environmental advantages over the project. As the court has previously discussed, it is within the secretary's discretionary authority to assess the environmental impact of the project. The secretary made detailed, significant findings on this issue. Moreover, those findings are supported by substantial evidence in the record.
In order for the secretary to find that a proposed alternative is available, the proponent of the project must be able to implement the alternative, and the alternative must achieve the primary or essential purpose of the project. Here, the secretary found that several of the alternatives presented by North Carolina were unavailable. . . .
As for the (aquifer storage and recovery) system, the court finds puzzling North Carolina's reliance on the fact that Chesapeake attempted to establish such a system. . . . There is little evidence in the record verifying the ASR's effectiveness or viability. In light of Chesapeake's problems with the system, and the fact that no ASR system exists in Virginia, this court cannot see how the secretary's decision that this system was unavailable can be considered arbitrary and capricious.
North Carolina next challenges the secretary's finding that the groundwater wells are unavailable. . . . The fact that permits (for a groundwater system) might not be issued would result in the alternative being speculative and thus unavailable.
The secretary also rejected as unavailazble those alternatives that required cooperation from other municipalities in the area, a finding which North Carolina challenges as arbitrary and capricious. The court agrees with the city's statement that North Carolina's position is essentially that ``the secretary should not consider regional benefits unless there is regional cooperation.'' It is readily apparent to this court, however, that the basis for the secretary's decision was not cooperation but legal unavailability. Theoretical availability of the alternative does not translate to availability in reality. Unavailability based on a lack of legal authority is not a novel concept. Merely because the secretary recognizes that southeastern Virginia suffers from a regional problem, and that the project will provide regional relief, does not mean that the party in this case will be able to secure such relief from other localities. If the history in this case has taught us anything, it is that assuming different governmental entities will cooperate is never a sure thing. Moreover, the secretary rejected both Norfolk and Portsmouth because the 60 mgd water deficit represented a regional water need. Merely shifting resources around southeastern Virginia would do nothing to solve the existing problem. . . .
North Carolina's final argument concerns the secretary's refusal to consider a ``building blocks'' approach. . . . It is clear to the court that the secretary fully considered all of the proposed alternatives individually and in combination with each other before reaching its conclusions. North Carolina offers no support from the record to buttress its conclusory argument on this point, and the court finds that none exists.
North Carolina believes that the secretary acted arbitrarily and capriciously in overriding North Carolina's objections to the pipeline project. The court, however, gives requisite deference to agencies when they make reasonable interpretation of statutes they must administer. Accordingly, the court denies North Carolina's motion . . .
KEYWORDS: LAKE GASTON PIPELINE by CNB