President-elect George W. Bush's selection of former Colorado Attorney General Gale Norton to head the U.S. Department of the Interior promises to restore sanity to an environmental regulatory system that has been bereft of reason for far too long.
The Interior Department and other environmental agencies rely upon an outdated system of heavy-handed regulations that often fails to aid the environment and sometimes has the perverse consequence of inhibiting environmental progress.
Even the Clinton Administration acknowledged as much in a 1995 report which concluded that the "adversarial approach that has often characterized our environmental system precludes opportunities for creative solutions that a more collaborative system might encourage."1
Although the Clinton Administration ignored its own conclusions and perpetuated a regulatory scheme it knew to be flawed, Norton's environmental record in Colorado suggests that she will not simply preside over a broken, command-and-control system.
In 1994, then-Attorney General Norton - along with the former Democratic Governor Roy Romer - helped secure passage of the Environmental Audit Privilege and Voluntary Disclosure Act, an innovative law that encourages companies to voluntarily police their own compliance with environmental laws. Under the law, companies would get credit for investigating, disclosing and correcting violations that state environmental regulators would probably not discover. By granting limited immunity from fines for violations, the audit law encourages companies to be good corporate citizens and actually help environmental regulators do a better job.2
Norton and Romer were motivated into reforming environmental regulatory policy after state officials foolishly penalized the Coors Brewing Company for voluntarily doing a good environmental deed. In 1993, company officials discovered that fumes from spilled beer were more harmful than originally believed. Although Coors was in full compliance with Clean Air Act regulations and could have pretended nothing had happened, it spent $1.5 million on an 18-month environmental audit which found that the government's estimates on beer fumes underestimated their potency. Coors turned over its findings to the Colorado Department of Public Health and Environment. The Department's response was to fine the company $1.05 million despite the fact that Coors had alerted the government to its own mistake, and never would have been cited if it hadn't been trying to protect the environment.3
But thanks to the self-audit law, Colorado officials now have nothing but good things to say about their state's environmental policy. Current Attorney General Ken Salazar, a Democrat, says that "Colorado's self-evaluation law creates an incentive for companies to come into compliance with the environmental laws of our state and country."4
Colorado is not the only state re-inventing environmental regulation.
Since 1993, 21 states have passed auditing laws that make government
and the private sector partners and not adversaries in protecting
Unfortunately, the federal Environmental Protection Agency (EPA) and environmentalists oppose auditing laws, arguing that self-policing lets corporate polluters off the hook. This is not true. The Colorado audit law specifies that companies will only be immunized against fines if the violation is promptly disclosed to the EPA and immediately corrected. Deliberate polluters who may pose a threat to public health can not use the law to duck responsibility.6
Just as states took the lead in reforming a failed welfare
system, states are leading an attempted overhaul of a regulatory
system that dissuades people from being responsible environmental
stewards. President-elect Bush's choice of Gale Norton as Interior
Secretary could jumpstart this reform movement that, to date,
has been stymied by federal regulators more interested in protecting
their bureaucratic turf than in experimenting with bold new ideas.
1 Ken Smith, "Only EPA Knows," The
Washington Times, January 4, 2001.
2 Ben Lieberman, "Colorado Carrots Versus Federal Sticks in Environmental Enforcement," Issue Paper, Independence Institute, Golden, CO, 1998.
3 Valerie Richardson, "Punishment for Coor's Environmental Good Deed Sparks Public Outcry," The Washington Times, March 18, 1997.
John K. Carlisle is director of The National Center for Public
Policy Research's Environmental Policy Task Force. He can be reached