THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Saturday, September 14, 1996 TAG: 9609140213
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY KAREN WEINTRAUB, STAFF WRITER
LENGTH: 67 lines
A federal court said this week that it does not yet have enough information to decide the fate of the Lake Gaston pipeline.
Two days after hearing oral arguments on the case, the U.S. Court of Appeals said it couldn't conclude whether the Federal Energy Regulatory Commission had acted properly in issuing a permit for the pipeline because the agency hadn't addressed all the relevant issues.
The court asked the federal commission to decide within 60 days whether it thinks the federal Clean Water Act gives North Carolina veto power over the project.
``I guess I would describe it as a short detour in the court process,'' M. Scott Hart, Virginia Beach's counsel on the pipeline said Friday, the day he learned of the court's Wednesday decision. Hart said he was encouraged by the speed of the court's action and the 60-day time limit.
``They understand there's an important public issue involved here,'' Hart said.
North Carolina officials, who have tried to block the pipeline for 13 years, were upbeat Friday.
``We're very pleased with this decision,'' said Alan S. Hirsch, state special deputy attorney general. ``This case is a long way from over, and it's too early to make any real conclusions, but this is clearly a step in the right direction.''
The court withheld ruling on any issues in the case until the additional information is provided.
Under consideration is whether North Carolina should have a right to approve, deny or put conditions on the pipeline.
The court will also rule on whether the information the federal commission considered in issuing the license to Virginia Beach for the pipeline was accurate and up to date.
North Carolina asked the court to consider those two questions when it filed its appeal of the commission's permit last year.
The U.S. Court of Appeals for the District of Columbia Circuit, which is one step below the U.S. Supreme Court, could require the federal commission to reconsider its pipeline permit, or could allow Virginia Beach to proceed with the project.
A final decision on the case isn't expected until at least the end of the year - perhaps even longer now, several lawyers said, because the court has asked for more information.
On Monday, the three-judge panel suggested it was displeased with the federal commission's indecision on the North Carolina permit issue. The judges greeted the commission's lawyer by asking him if he was wearing a bulletproof vest to protect himself against their questions.
They grilled commission lawyer Edward S. Geldermann, asking him why the commission had failed to answer what they saw as an essential question. They hinted then that they would send that part of the case back to the commission for an answer.
At issue is whether section 401 of the Clean Water Act, which gives states control over projects affecting water quality in their area, applies to North Carolina or Virginia.
Virginia Beach has argued that Virginia is the only state that needs to issue a permit for the Lake Gaston project, because the pipeline takes water only north of the state line.
North Carolina says it is affected by the pipeline and deserves permit authority, because the project will reduce the flow of water across the Gaston Dam, which sits in North Carolina.
KEYWORDS: LAKE GASTON APPEAL by CNB