Norton began her career litigating on behalf of cattlemen, miners and oil companies at James Watt's Mountain States Legal Foundation. She followed Watt to the Department of Interior, where she advocated policies such as opening the Arctic National Wildlife Refuge to oil drilling. In the late 1980s, at the conservative Pacific Research Institute, she helped plan litigation strategy to enhance individual property rights at the expense of community interests. As Colorado's attorney general, Norton implemented a "self-auditing" procedure that allows polluters to evade environmental fines and promoted legislation that would have enshrined an extreme view of the "takings" clause of the U.S. Constitution.

Norton's absolutist views on property rights and her hostility to environmental protections place her far outside the mainstream of even conservative legal scholarship on these issues. Specifically, Norton promotes a radical interpretation, advanced by University of Chicago law professor Richard A. Epstein, of the U.S. Constitution's "takings clause," which bars government confiscation of private property without compensation. Epstein has argued that the takings clause "invalidates much of the 20th century legislation" by requiring compensation for any government interference with property rights "no matter how small the alteration and no matter how general its application."

Norton has actually chided the Rehnquist Supreme Court for interpreting the clause in a manner that "falls short of the role discussed by Richard Epstein." Norton further advocates an affirmative "right to build on one's property" and suggests, remarkably, that "we might even go so far as to recognize a homesteading right to pollute or make noise in an area."

Adoption of Norton's agenda would mean one of two things: Either the government would have to pay polluters not to pollute, and thus the Bush administration would have to set up a corporate welfare program so large that it would make a farm bureau lobbyist blush, or it would have to repeal most of our health, safety and environmental laws. The second alternative is the one Norton clearly prefers. She notes: "If the government must pay compensation when its actions interfere with property rights, then its regulatory actions must be limited." She views this "chilling effect on regulation" to be "something positive."

But long-standing court interpretations of the takings clause already offer important protections for property rights, and this country has also been governed by the competing notion that individual property rights cannot run roughshod over neighbors' rights or the community interest. That's why we have laws to minimize the effects of pollution on residential areas, keep adult bookstores away from schools, and maintain parks and wilderness areas for recreation. Norton's extreme property rights agenda would undermine this careful balance.

The Interior Department's primary mission is to manage nearly 500 million acres of the public domain, including our national parks, monuments and wildlife refuges. These lands are beset by pollution, eroded by a maintenance backlog and under encroachment from development. They already are encumbered with stale, frivolous or otherwise defective claims of property interests asserted by timber, oil and gas, mining and grazing lobbyists.

Interior also administers the Endangered Species Act and thus is entrusted to protect our wildlife and plants. A critical component of the act ensures that habitat modifications on private lands do not harm protected species. Given Norton's extreme views on property rights, landowners are sure to assert to the department that "Secretary Norton believes what you are doing is unconstitutional."

Finally, Interior is charged with holding polluters responsible when they harm publicly held natural resources. It is difficult to imagine Norton, with her antipathy to regulatory solutions and her advocacy of a "right to pollute," warming to this responsibility.

No choice for Interior secretary could have been more likely to divide and less likely to unite than Gale Norton. By nominating her, Bush has rewarded the corporate contributors who underwrote his White House run, but he risks alienating the vast majority of Americans who support strong environmental laws and protection of our public land.

Indeed, the more you learn about Norton, the more the label "James Watt in a skirt" seems unfair to Watt.

Doug Kendall is the founder and director of Community Rights Counsel, a nonprofit law firm

Copyright 2001 Los Angeles Times

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