Libertarian Belle

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

 WASHINGTON, D.C.—As she sailed through her Senate confirmation hearing last week, interior secretary nominee Gale Norton played the classic moderate, draping herself with the dual mantles of "conservative" and "conservationist."

What bullshit.

A libertarian from the West, Norton has spent the last two decades railing against federal control of public lands and doing all she could to subject their water and energy resources to the bracing reality of the marketplace. "I hate government telling me what to do," she once said. "And I assume other people do."

illustration by Roberto Parada

As Colorado's attorney general in the mid '90s, she chalked up a scandalous record: looking the other way in the face of damaging pollution, dragging her feet on prosecuting big business, even challenging the Environmental Protection Agency's authority to override state law. When a gold mine spilled cyanide into a local river, killing all aquatic life along a 17-mile stretch, Norton declined to press criminal charges and stalled so badly the feds stepped in. In another spectacular case, she testified against her own citizens, siding with a big corporation that fouled the air.

After years of bouncing between libertarian think tanks and states' rights groups, Norton may finally get the authority to implement her freewheeling ideas on a large, large scale. If approved by the full Senate, she'll oversee one third of the nation's land, parcels which together are bigger than many countries. In addition to jewels like the Grand Canyon, her domain will include such places as the Fire Island National Seashore and the Statue of Liberty in New York, along with the national treasures of Yellowstone and Yosemite.


"Don't commit cultural genocide against rural America. Honor our rights."


On the eve of the biggest energy crisis since the 1970s, Norton will hold the key to a bin of rich resources, containing much of the world's untapped oil and gas and minerals from coal to iron ore. She'll control access to thousands upon thousands of acres of grazing lands, military bases, Indian reservations, fisheries, and forests, not to mention abandoned military test zones. Through a maze of waterworks, Norton would have at her fingertips the lifeblood of the Western desert: water from the Colorado to the Snake to the Columbia. The enormous dams that make electricity and the long lines that carry it to market are all within the secretary's purview.

And what will she do with that power? Liberal environmentalists fret that she'll sell out the country's natural heritage. Right-wing libertarians know she will. "Bush is about opening more access to resources on federal lands," says Jerry Taylor, who runs the libertarian Cato Institute's division of public lands. "That's what Norton will be doing."

Norton was trained for the role as interior secretary in the saber-rattling libertarian wing of the Republican Party. She climbed the ladder from former interior chief James Watts's Mountain States Legal Foundation through the Hoover Institution to the Reagan administration. Back in Colorado, she immersed herself in pure libertarian politics at the Political Economy Research Center. Along the way, she became ensconced in the property-rights network, from the Sagebrush Rebellion of the Reagan era to today's militant Wise Use Movement and the rock-ribbed Defenders of Property Rights.

There's little cause for wonder that Norton was drawn to libertarian thinking, since it's by far the most resourceful and imaginative strand of political conservatism extant today. Libertarians take offense at being called proponents of anarchy, but when it comes to the public domain, their long-range goal is just that. They want to auction the preserves off to private parties, selling the national parks and wilderness areas to environmental groups, the grazing lands to ranchers, the subsurface oil and gas rights to mining and oil companies.

Rather than relying on regulation to protect the environment, the new administration would like to let big business police its own. The arrival of Norton spells "huge emphasis on using incentive to achieve environmental objectives," says libertarian guru John Baden. "More reliance on market. Expect subsidies that foster development reduced or eliminated."

Libertarians believe their ideas are catching on; they've slowly been injecting market forces into management of the public domain by offering a carrot and not a stick. As an example, they cite a privately funded compensation fund for Western ranchers who lose cattle when wolves are reintroduced into national parks. Since its beginning in 1987, the fund has paid out more than $109 million to 111 ranchers around Yellowstone, according to Bush adviser Terry Anderson and libertarian colleague Don Leal, authors of Free Market Environmentalism.

Their book is the closest thing to a road map of where the new administration is headed. Leal, in an interview, says Bush is an admirer of market-based solutions, like setting up a brokerage in fishing rights along both coasts. These kinds of arrangements already exist for other resources, such as water, for which some federal rights have been passed along to local governments, which in turn can barter the supply to parched cities.

In the end, the Bush presidency will fall short of libertarian ideals, but it will continue the incremental march toward the privatization of the public domain. "I know Bush," says Leal. "He's not going to sell off land. That's just pie in the sky. But we are going to get more accountability."

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.

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.

Environmentalists expect Norton to take actions that don't require congressional approval—such as pulling the Interior Department away from efforts to break up the sweetheart deals between federal agencies and the energy companies who profit from national land. They think she'll deep-freeze the push by department scientists to study endangered species and work to bury the Surface Mining Act, giving a green light to strip miners. And don't be surprised, they say, if she grandfathers mining and drilling rights in the 11 new national monuments President Clinton created during his final hours in office.

Bush may be charming, and Norton may seem like a breath of fresh air, but environmentalists like Friends of the Earth's Brent Blackwelder think the nation faces a disaster in the making. "The nomination of Gale Norton," he says, "amounts to a declaration of war on the environment."


Additional reporting: Rouven Gueissaz and Adam Gray

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