THE VIRGINIAN-PILOT
Copyright (c) 1997, Landmark Communications, Inc.
DATE: Wednesday, February 5, 1997 TAG: 9702050477
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY KAREN WEINTRAUB, STAFF WRITER
DATELINE: WASHINGTON LENGTH: 105 lines
In a 90-minute hearing Tuesday, federal judges suggested that Virginia Beach offered the only arguments they could understand in North Carolina's continuing protest of the Lake Gaston pipeline.
Three U.S. Court of Appeals judges suggested Tuesday that Virginia Beach's legal arguments were the only ones in the Lake Gaston dispute that they could understand.
In a 90-minute hearing on North Carolina's latest pipeline appeal, the panel grilled lawyers from Carolina, the Roanoke River Basin Association and the Federal Energy Regulatory Commission about inconsistencies in their legal arguments.
Pipeline opponents defied logic, the judges said, by saying that taking water out of Lake Gaston has the same impact as putting pollutants in. And the energy commission's lawyer was trying to say two contradictory things at once, according to the court.
The judges seemed to accept Virginia Beach's legal arguments, although they did not indicate whether they agreed with them. The court will now take as long as half a year to render its decision.
Beach officials were upbeat Tuesday after the hearing, while pipeline opponents were a little more guarded.
North Carolina Special Deputy Attorney General Alan S. Hirsch said there's no way to guess a verdict from the questions a federal court asks.
``You're reading tea leaves,'' he said. ``You get a sense of what the judges think, but not what they're going to decide. . . . Experience has told us it's impossible to know, but we've got a lot of confidence in our case.''
Virginia Sen. Charles S. Robb, who attended the hearing to provide moral support for Virginia Beach, said he was confident the city would prevail on the ``arcane'' legal issue under dispute.
``I thought that all three of the judges seemed to understand what the issue was, so I expect that this will be another legal victory for the pipeline,'' Robb said.
A victory for North Carolina would probably not kill the pipeline, but would almost certainly add years of delay.
A victory for Virginia Beach would be a major blow to opponents' 14-year challenge and would vindicate the city's decision to move ahead with construction of the $150 million pipeline before the legal battles were resolved.
Both sides have said they would try to appeal a losing verdict to the U.S. Supreme Court.
North Carolina filed the appeal in late 1995, after the energy commission gave Virginia Beach a permit to build the pipeline. The project is now more than 80 percent complete, with about 65 of 76 miles of pipe laid.
North Carolina and its allies along the Roanoke River upstream of Lake Gaston in Virginia say that Virginia Beach should not have been allowed to build the project without their permission.
At the crux of the case is whether the federal Clean Water Act gives North Carolina permitting rights over the pipeline because the hydroelectric dam that creates Lake Gaston sits on the Carolina side of the state line.
Most of Tuesday's discussion centered on different definitions of the word ``discharge.'' The Clean Water Act says that the state ``in which a discharge originates'' has permitting power over a project like the pipeline.
North Carolina and the attorneys general of 40 states who filed a joint brief in the case argued that any alteration to the power plant's operation is a discharge.
The Environmental Protection Agency, in a letter it sent to the energy commission, said any alteration that ``may have'' an adverse impact on water quality is a discharge.
The Justice Department, the legal arm of the EPA, filed a brief saying that any alteration that ``has'' an adverse impact on water quality is a discharge.
The Federal Energy Regulatory Commission argued that an alteration must have a ``material'' adverse impact on water quality to be a discharge.
And Virginia Beach said there is no discharge in North Carolina in this case, because the pipeline would not add anything new to the water flowing over the Lake Gaston dam.
The court was clearly confused by all these different definitions. And frustrated.
``It doesn't make much sense to argue to a court that the argument the court is making makes no sense,'' Judge David B. Sentelle snapped at one point when Patrick McSweeney, lawyer for the Roanoke River Basin Association, tried to argue his position.
Judge Patricia M. Wald accused the energy commission's attorney of ``backing away considerably'' from the position his agency had argued in its brief.
The judges, however, seemed to appreciate the simplicity of Virginia Beach's position. They were far less confrontational toward Virginia Beach's counsel, M. Scott Hart, than to the other attorneys.
But even if Virginia Beach wins the appeal, its triumph could be short-lived.
In 2001, North Carolina will have permitting power over the entire hydroelectric project at Lake Gaston. The power plant and dam, owned by Virginia Power, are operating under a 50-year license that expires in 2001. The judges asked several times Tuesday what would happen during the relicensing.
``Suppose you prevail,'' Judge Laurence H. Silberman asked Hart. ``What's going to happen in year 2001?''
Hart agreed that North Carolina has permitting power then, but must consider the entire hydroelectric plant - which also serves Carolina power customers - not just the pipeline. Carolina cannot condition approval of the new license on the dismantling of the pipeline.
North Carolina says it will have the power it needs when the time comes.
``The only real question is whether North Carolina can shut the project down entirely or impose very severe restrictions,'' Special Deputy Attorney General Hirsch said Tuesday.
KEYWORDS: LAKE GASTON PIPELINE U.S. COURT OF APPEALS