WHKP News Director's note:
The future of a state law passed by the NC General Assembly this year which would strip control of Asheville's water system away from the City of Asheville and create a new regional water and sewer authority, which would include some parts of northern Henderson County, is in the hands of a Raleigh Superior Court judge...who says he'll make a decision on the case October 14.
Legislation creating the new authority was co-sponsored by Henderson County State Representative Chuck McGrady, and would specifically impact parts of both Fletcher and Mills River by merging Asheville's water system with the Metropolitan Sewage District (MSD), thereby creating the new "regional" authority. The City of Asheville started court proceedings to stop the new law...and the status of all that, and the latest court action, is covered in this report in the Asheville Citizen-Times:
The judge handling Asheville’s lawsuit seeking to block the loss of its water system focused on whether the law mandating the transfer is unconstitutional local legislation during arguments on procedural issues Friday September 5th.
Wake County Superior Court Judge Howard Manning Jr. heard from attorneys in the case for more than two hours in Raleigh. He issued no rulings Friday.The future of
Two people who were present said it seems unlikely that Manning would dismiss the city’s case at this point, although both conceded that predicting a decision based on a judge’s demeanor during oral arguments is not an exact science.
At issue Friday was whether Manning will grant a preliminary injunction to prevent the transfer while the city’s lawsuit works its way through the court system and whether he would grant a motion by the state to dismiss the city’s complaint.
Manning has given himself an Oct. 14 deadline to rule on those questions.
Even if Manning were to rule in the city’s favor on both points, the lawsuit would proceed until there is a decision on the merits of the case itself.
Local activist Barry Summers, who opposes the transfer, and Rob Schofield, director of research and policy development at left-leaning think tank N.C. Policy Watch, both said they do not expect Manning to let the transfer to the Metropolitan Sewerage District go ahead before the case is decided.
But Summers noted Manning had made comments sympathetic to Asheville’s position during a court battle a few years ago over other state laws affecting the water system only to ultimately rule against Asheville.
Stephen Petersen, a Raleigh attorney who was also present representing MSD, declined to speculate on what may happen.
“I have learned better than to guess what Judge Manning might do,” he said.
Petersen, Schofield and Summers said Manning focused much of his attention Friday on whether a state law passed earlier this year mandating the transfer is a “local” law.
The state Constitution says the General Assembly cannot pass laws that affect only a few parts of the state relating to health, sanitation and non-navigable streams.
The new law does not name Asheville, but was written in such a way that Asheville’s water system is the only one affected.
The city argues that means it is a prohibited local law. Attorneys for the state disagree, saying that the relationship of the law to health, sanitation and non-navigable streams is not strong enough to invoke the constitutional prohibition.
“Manning zeroed in right away (and said) that if he found that this is a local bill ... everything else would stop,” Schofield said. “He could find that the whole thing would be unconstitutional and everything would be null and void.”
Manning heard from attorneys representing the state and the city, but not MSD, which has not taken an official position on the water system transfer.
State Department of Justice attorneys typically do not comment on ongoing litigation.