Libertarian Belle

Gale Norton Rings in an America Where Polluters Police Themselves and Environmentalists Go Extinct

With his quiet, reasoned speech, Leal puts a smiling face on what is often a cold-hearted philosophy. Behind statesmen like Leal stand hardass radicals like Ron Arnold of Washington State, leader of the Wise Use Movement, which has aggressively tried to boot the feds off local land. Arnold says he could care less about turning the public domain over to states and localities since the "federal government has no right to sell what they do not own.

"We don't care who's got the title," he adds, in a voice growing more forceful. "We want rights that were guaranteed to us. Don't take rights away from us. Don't commit cultural genocide against rural America. Honor our rights."

In her legal writings, Norton espouses views that are just as breathtaking. Her position on the doctrine of "takings"—the seizure of private property by the government, or any regulation that acts as a seizure by denying beneficial use—would effectively erase every vestige of environmental regulation. "Economic rights are clearly not protected today," she wrote in a paper presented at a Federalist Society Symposium in 1988, referring directly to the work of her mentor, the libertarian professor Richard Epstein.

illustration by Roberto Parada

In his book, Takings: Private Property and the Power of Eminent Domain, Epstein argues that the Fifth Amendment requires government to pay property owners compensation whenever regulations or zoning laws limited the value of their property. He goes on to suggest that along with environmental laws, labor codes, and building permits, even income taxes are a form of takings. Such a definition of takings, he wrote, "invalidates much of the 20th-century legislation."

While in theory libertarians are opposed to all takings, they often concede the government has a right to intervene when one's neighbor makes a public nuisance. "The strain of legal thought that Gale has written about is one that says, Look, if you are a private property owner and asked to provide a good, [you] ought to be compensated," says Lynn Scarlett, the president of the libertarian Reason Foundation and a longtime friend of Norton's. "It doesn't mean that one has the right to pollute. Quite the contrary." Pollution, she continues, is viewed as a trespass or nuisance. "No one has the right to pollute. If you do pollute and regulations are imposed to curtail that [pollution] . . . there is no right for compensation."

Despite its rhetoric of individual rights, the libertarian movement has sometimes simply provided cover for big business, especially in the instance of corporations hungry for Western resources. What begins as a principled defense of property rights quickly turns into an argument for states' rights, then local control. And right behind those come the mining companies with their cyanide-leaching operations. Norton's own record is testament to this process.

As Colorado attorney general she cut the funds of the state environmental agency by one third, the Natural Resources Defense Council reports. She supported a self-audit law, which waives penalties for polluters who turn themselves in. In the early 1990s, a Louisiana-Pacific plant emitted pollution for months without a required permit and with no objection from the state. When Colorado officials wouldn't act, citizens brought private lawsuits, winning a $2.3 million judgment against the company. Finally the federal government intervened, levying a $37 million fine for fraud and Clean Air Act violations.

In another pollution case, this one involving the metal smelter Asarco, Norton not only refused to prosecute the company on behalf of affected citizens, but when the despairing citizens themselves went to court, Norton testified against them.

When Norton was nominated for interior secretary, the Denver Post summed up her rule as the state A.G.: "[S]he sat out fights when a corporate power plant broke air pollution laws 19,000 times, a refinery leaked toxins into a creek, and a logging mill conducted illegal midnight burns."

Norton goes a lot further than just supporting individual companies. She believes the federal EPA can't override state law. Taking a dim view of national environmental laws, she has asserted that the Surface Mining Act and the Endangered Species Act are unconstitutional. In the past she favored the elimination of four federal agencies: Commerce, Energy, Education, and Housing and Urban Development. She has advocated turning federal facilities over to the private sector and selling off federal assets that "don't need to be run by the government."

As chief defender of the public domain, Norton could no longer argue these views in the abstract. The Endangered Species Act, for example, is perhaps the key statute for which the secretary of interior is responsible. And while Senate Democrats may be willing to roll over for the Bush appointments, environmentalists say weakening federal oversight for that and other laws is just too dangerous.

"We see a real threat in pushing to give states and localities a formal role in governance of federal land," says Jeff Ruch of Public Employees for Environmental Responsibility.

So far, environmentalists have focused mostly on blocking any Bush plan to open the Arctic Wildlife Refuge to oil and gas exploration. But Greenpeace director John Passacantando thinks the Bush administration's support for drilling there is a "feint," with the real attack coming elsewhere.

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