Congressional Record, Volume 147 Issue 12 (Tuesday, January 30, 2001)

[Congressional Record Volume 147, Number 12 (Tuesday, January 30, 2001)]
[Senate]
[Pages S660-S677]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

NOMINATION OF GALE ANN NORTON TO BE SECRETARY OF THE INTERIOR--RESUMED

The PRESIDING OFFICER. The time of the Senator has expired. Under the
previous order, the nomination of Governor Whitman is laid aside, and
the Senate will now resume consideration of the nomination of Gale Ann
Norton, which the clerk will report.
The legislative clerk read the nomination of Gale Ann Norton, of
Colorado, to be Secretary of the Interior.
Who yields time? The Senator from Minnesota.
Mr. WELLSTONE. Mr. President, I ask unanimous consent that the time
allotted to Senator Feingold with respect to the Norton nomination be
provided to Senator Kerry.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WELLSTONE. Mr. President, I believe I have 15 minutes to speak on
the Norton nomination.
The PRESIDING OFFICER. The Senator is correct.
Mr. WELLSTONE. Mr. President, I say to my colleague from New
Hampshire, I think there is a distinction between what I hope will be
substantive remarks on my part in opposition to Ms. Norton to be
Secretary of the Interior and personal attack.
I am a Senator from Minnesota. I am from a State where we love our
lakes and rivers and streams, the environment.
My opposition to Ms. Norton to be Secretary of the Interior does not
mean ipso facto that what I say represents any kind of personal attack.
It is simply a very different assessment of whether or not she should
in fact be the Secretary of the Interior for the United States of
America.
I have a lot of policy disagreements with Ms. Norton. I have a lot of
policy is agreements with any number of the President's nominees to
serve in our Cabinet, but almost all of them I will support because
there is a presumption that the President should be able to nominate
his or her people.
On the environmental front, as long as I have the floor of the
Senate--and I hope I am wrong--I say today that I believe the record of
this administration will amount to a rather direct assault on
environmental protection. I think that would be wrong for the country.
This is not a debate about ANWR, the Arctic National Wildlife Refuge,
not today. My disagreement with Ms. Norton or the President is not the
reason why I oppose her to be Secretary of the Interior.
Part of the debate we will have in this country has to do with this
nexus between the way we consume, the way we produce energy, and the
environment. I see an administration that is an oil interest
administration, and the focus will be more and more on oil, barreling
down a hard path energy policy, with fossil fuels, environmental
degradation getting lipservice but not investments in clean
technologies, renewables, safe energy.
The reason I oppose not Gale Norton as a person but Gale Norton to be
Secretary of the Interior is because I have doubts about her ability to
fairly enforce existing environmental and land use laws. That is why I
oppose this nomination.
The Secretary of the Interior is the principal steward of nearly one-
third of our Nation's land. The Secretary is the chief trustee of much
of our Nation's energy and mineral wealth.
The Secretary of the Interior is the principal guardian of our
national parks, our revered historic sites, and our fish and wildlife.
It is the job of the Secretary of the Interior to protect this precious
legacy and to pass it on to future generations. As Catholic bishops
said 15 or 20 years ago in their wonderful pastoral statement, we are
strangers in this land. We ought to make that better for our children
and our grandchildren.
Ms. Norton has had significant positions--government positions and in
the private sector. It is her record in these positions--both in
government and private sector roles--that are the most troubling to me.
In fact, her record indicates that she may not be able to enforce
environmental protections and ensure the preservation of our public
lands.
There is no doubt that Ms. Norton did a good job in the confirmation
hearings. She pledged her past views, and she is certainly committed to
enforcing the laws of the Interior Department. I commend her for her
testimony. It is my sincere hope that she will live up to these
commitments. However, I think the Senate and Senators are compelled to
view her record not in terms of 2 days of testimony but the totality of
her record.
The totality of her record is one that I believe points to her
inability to strike the very difficult and the very delicate balance
between conservation and development. As a private attorney, Ms. Norton
has taken positions that indicate a strong opposition to the very
environmental protections which, if confirmed, she would be asked to
defend.
For instance, she has argued that all or parts of the Clean Air Act
are unconstitutional--taking a State rights view. She has argued that
the Surface Mining Act, which is all about protecting workers' coal
dust level, which is all about occupational health and safety
protection, which is all about the problems of strip-mining and the
environmental degradation that it causes many communities in
Appalachia, again, unconstitutional.
She has argued that provisions of the Superfund law that require
polluting industries to pay for cleanup of waste sites should be
eliminated.
Ms. Norton has testified that implementation of the National
Environmental Policy Act--NEPA--is something that should be essentially
devolved to the State level, that she would prefer not to conduct
Federal land environmental reviews.
I am sorry; when it comes to this most precious heritage, when it
comes to the land, when it comes to our environment, when it comes to
something that is so precious for not just us but our children and
grandchildren, it is not just a matter of State options.
We are a national community, and we have made a commitment to
environmental protection. I believe the actions Ms. Norton has taken
and the positions she has taken in the past would make it impossible
for her not only to enforce these laws but to be a strong steward for
the environment.
In 1997, Ms. Norton argued that the global warming problem didn't
exist. That is, of course, in contradiction to the international
science community. I know in her testimony she essentially said she now
takes a different position--I appreciate that--as Colorado attorney
general.
But I also have questions in my own mind given the position she has
taken about what kind of steward for the environment she would be.
As Colorado attorney general, Ms. Norton argued against the
Endangered Species Act, saying it was unconstitutional. As attorney
general, Ms. Norton supported measures that would relax otherwise
applicable environmental safeguards if businesses volunteered to
regulate themselves. And regardless of the damage, regardless of the
effect on the public, regardless of the effect on people, these
companies would be shielded from any liability.
Her position is troubling to me because Ms. Norton might be willing
to permit private companies that operate

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on or near public lands to regulate themselves. As Colorado attorney
general, in the case of one mining company acting under self-
regulation, there were violations and massive contamination of the
Alamos River. My colleague from New Hampshire said she took action, but
it was only after the Federal Government was forced to step in and say
you must take action. Indeed, the Federal Government was forced to step
in and spend $150 million in emergency cleanup of the river.
In addition, there is a case of citizens living downwind from a mill
that had been emitting pollution for months. Again, the Secretary of
the Interior refused to take action, and again the Federal Government
was forced to intervene--again resulting in a record $37 million in
fines against the company.
Since leaving her job as AG in 1999, Ms. Norton has been lobbying
Congress and the Colorado State Legislature on lead paint issues in
behalf of the NL Industries, a Houston company formerly known as the
National Lead Company. This company has been named as a defendant
involving 75 Superfund or other toxic waste sites in addition to dozens
of lawsuits involving children allegedly poisoned by lead paint. The
only thing that I can say is I understand Ms. Norton's right to work
for whatever company she wants to, but it does not give me very much
confidence that she is the right person to be Secretary of the
Interior--a major position of environmental leadership in the U.S.
Government.
After reviewing her record of 20 years, I believe Ms. Norton has not
demonstrated the required balance needed to be a guardian of our
national heritage and a trustee of our national lands. Furthermore, she
has shown a career pattern of opposing environmental protection, which
I think speaks to her ability--or, I say to my colleague from
Massachusetts, her inability to carry out the requirements of Secretary
of the Interior.
I appreciate her testimony to the Energy Committee, and I take that
in good faith. However, I cannot ignore her resistance to prosecute the
industry in order to protect Colorado's land and people while serving
as attorney general. As Secretary of the Interior, Ms. Norton would be
charged with balancing the interests of industry against conservation.
In my view, her record strongly indicates she will heavily tilt that
balance away from conservation, away from preservation of the
environment, away from environmental protection, away from being the
trustee for the land, and away from understanding what a sacred duty we
have.
It is a value question to make this Earth a better Earth and hand it
on to our children and grandchildren. I find all of that unacceptable,
and that is why I oppose this nomination. I hope other Senators will
oppose this nomination as well.
Might I ask how much time I have remaining?
The PRESIDING OFFICER. Three minutes 43 seconds.
Mr. WELLSTONE. I yield the floor, and I also say to my colleague from
Massachusetts that I would be pleased to yield the additional time to
the Senator from Massachusetts.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KERRY. Mr. President, I thank the Senator from Minnesota not just
for his graciously yielding me additional time but, most importantly,
for the thoughtfulness and sensitivity expressed in his remarks. I
associate my remarks very much with his thinking and his approach on
this issue.
I think each and every one of us in the Senate feels an automatic
pressure to want to support the nominee of the President of the United
States. I think it is a national feeling that generally pretty good
people, with honest records of taking a position for something they
believe in in the course of a lifetime, have found their way to the top
of their profession in a sense, and the President of the United States,
for one reason or another, makes a decision to entrust them with
significant responsibilities.
There is a lot of goodwill here in the initial days of the
administration to want to give the President the person that the
President chooses. I think through the 16 years I have been here, and
the several Presidents I have had the privilege of giving advice and
consent to with respect to their nominations, that there are precious
few, a small percentage--very small--that I have chosen to cast my vote
against the President's choice.
As the Senator from Minnesota said, I think what we are looking for
in the person who comes to a job with that kind of responsibility,
being a Cabinet Secretary in charge of major responsibilities, is
somebody who brings not a series of denials, renunciations,
conversions, if you will, from a lifetime of effort, but somebody who
brings with them to the job their gut and their heart and their head
all linked together in concert with the fundamentals of the job they
are being asked to do.
In the case of the nominee Gale Norton, I don't find there is that
kind of connection, that there is a continuity of a lifetime of effort
that shows me with assurance where the stewardship of this department
will go. I regret to say to the Chair and to my colleagues that in the
course of the years I have been here and had the opportunity to provide
advice and consent on other nominees, we have seen people who came
without that connection, with that disconnect, and who subsequently
fell short in the job because the gut instinct was not to strike the
balance; it was to keep faith with who they were and what brought them
to the job.
I don't cast this vote lightly because I know Ms. Norton has a long
and even distinguished record of public and private service. I know her
friends and others say she is a decent and a capable professional. Some
have, in the course of this debate, labeled her an extremist or even
caricatured her as James Watt in a skirt. I think that is unfortunate.
I find those labels troubling and improper. They distract from honest
differences over principle and policy that have made this nomination
troubling for the Senator from Minnesota, for myself, and for others.
I oppose Gale Norton's nomination. For a Cabinet post that demands
that its occupant strike a very difficult and a very delicate balance--
the same word my colleague from Minnesota used--a balance between
conservation and development, President Bush has selected this
individual. I suppose one might ask the question, of all the people in
the country who have records with respect to the environment and
development and striking that balance, of all the attorneys general, of
all the people involved in conservation itself, of all the people in
the environmental movements of this country, of all the people who have
built up records of activism in an effort to try to strike that
balance, why is it that we are presented with an individual whose
philosophy over the past two decades has been singularly unbalanced?
The Secretary of the Interior is responsible for protecting the
almost 500 million acres of public land, including 383 parks, 530
wildlife refuges, and 138 wilderness areas. Among these are some of our
Nation's most valued lands: Yosemite, with its waterfalls, meadows, the
forests, and the giant Sequoias, the world's oldest living things; the
Everglades National Park, with its sea of sawgrass, mangroves, hardwood
hemlocks, stork, great blue heron, and egrets; Mount Rainier National
Park at Mount Rainier--a 14,410-foot-tall active volcano encased in 35
square miles of snow and ice and flanked with old-growth forests and
alpine meadows.
Some are sanguine to suggest, well, those areas will never be
threatened. But I know from talking to people in various parts of the
country I visit that there are huge movements where people are angry
that so much of their State is protected by the Federal Government;
where people believe more of these areas ought to be open to
development, not less; where people have witnessed, indeed, efforts to
try to stop finding that proper balance between mining and grazing, or
a host of other interests, and who would rather open the forests and
have the U.S. Government build more logging roads, without even
commenting on whether our logging practices are good or bad, after
fires that we had last year. Sure, we can improve, but these are
different movements, these are movements which disagree with these
setasides.
I remember what happened on the floor of the Senate just a very few
years ago, in 1995, with the House of Representatives and the Senate
first term in Republican control, and I remember standing here and by 1
vote

[[Page S662]]

only we managed to stop major destruction to 25 years' of efforts to
protect the environment of this country--by 1 vote only.

We happen to be a little stronger in the Senate today, but knowing
how close it was and watching how critical the discretion of a
Secretary is in what happens in terms of the regulations, what happens
in terms of efforts they take to court or don't take to court, or seek
to have protected or not protected, there is enormous discretion
exercised on a daily basis.
I believe we need to remember the history we have traveled here.
There was a period of time where some of the lands I just mentioned,
the very ones that are protected today that we think of as national
treasures, were not thought of in that way. In 1853, when the U.S.
Army's topographical engineers returned from a trip to what we would
later call the Grand Canyon, the party reported that it was ``the
first, and will doubtless be the last, party to visit this profit-less
locality.''
As each decade has passed since those early forays into the American
continent, the country's appreciation for its land has grown--I believe
it continues to grow among Americans today--the places to hike, canoe,
camp, to play, to learn, and to leave nature, except for a harmless
visit now and then. There were 273 million visits to our National Parks
alone in 1993, a clear sign of their value to the Nation.
At the same time, the Interior Secretary manages the development of
our public lands. Private companies, from multinational conglomerates
to small family businesses, use our Nation's water, minerals, timber,
oil, gas, and other public resources. Their industry, obviously,
contributes to the national economic growth, and it provides thousands
of jobs in regional communities. Our public lands have produced all of
the needs of this Nation, and the Department of the Interior has
managed hundreds of thousands of claims to mine gold, copper, and other
valuable metals; 34 million acres of commercial timberland and 164
million acres of rangelands that are open to grazing.
It is the Secretary of the Interior's job to strike the proper
balance between conservation and development. It is a tough job. The
Secretary is under enormous pressure from those who hope to profit from
these natural resources. Once a decision is made to develop land, the
impacts are often permanent. You can't turn back the clock and recreate
an old-growth forest. You can't return an extinct species of life. You
can't return polluted land to absolutely pristine condition.
There are many steps we can take to avoid unnecessary damage and
restore land, and nature has shown itself to be resilient, but the rate
of destruction today and the levels and the kinds of destruction too
often force us to lose natural resources forever. The numbers of
brownfields in cities around this country, the numbers of Superfund
sites that have been on the list for years and remain not cleaned up
are testimony to that tragedy.
In considering this vote, I have reviewed Ms. Norton's record as a
constitutional attorney, an activist, and as Colorado attorney general,
and her testimony before the Energy and Natural Resources Committee. It
is a record that in my view simply does not reflect the balance I
talked about that is necessary to serve as Secretary of the Interior.
I know she will be confirmed. Perhaps in the end we will see a
different exercise of that discretion. As a constitutional attorney,
Ms. Norton argued that bedrock Federal environmental, public health,
and other laws are unconstitutional.
The PRESIDING OFFICER (Mr. Enzi). The Senator has a minute and a half
remaining.
Mr. KERRY. Mr. President, Senator Boxer said that she would yield me
5 minutes. I ask unanimous consent I be afforded that time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KERRY. Mr. President, based on her legal views, which are,
thankfully, outside the opinion of most legal scholars and reflected in
decades of court decisions--the Clean Air Act, Endangered Species Act,
and Clean Water Act--and many other laws not directly related to the
job of Secretary of the Interior but certainly important to this
country, such as the Americans With Disabilities Act, Fair Labor
Standards Act, and the Violence Against Women Act--violate our
Constitution in one way or another. Indeed, if her convictions were the
basis for this new administration's actions, it would unravel most of
our Nation's environmental safeguards.
In addition to these writings and comments, Ms. Norton has been an
active participant in several lawsuits and other efforts to overturn
environmental protections. For example, she serves as an attorney to an
organization called the Defenders of Property Rights that has advocated
against endangered species protections in more than two dozen lawsuits.
Ms. Norton's writing and activism on these issues reaches far beyond
the few examples that I have outlined here. To her credit, she has been
a capable and dedicated advocate for more than two decades. The
problem, simply, is that she has advocated legal and policy positions
entirely at odds with the job of Secretary of the Interior.
In her testimony before the Energy and Natural Resources Committee,
Ms. Norton distanced herself from her legal and activist record. While
I certainly appreciate Ms. Norton's willingness to rethink and revise
here views, I remain greatly concerned. Too often absolutist views were
cast aside with little or no explanation. Too often the answers were
vague and incomplete. Do I expect Ms. Norton to have answers to every
issue she may encounter as Secretary? No. But my standard is higher for
a nominee who comes before us with a career's record of fighting the
laws the administration has now asked her to enforce.
History warns us to be concerned and cautious.
In 1981, Mr. James Watt was nominated to be the Secretary of the
Interior by President Ronald Reagan. Mr. Watt, like Ms. Norton, came to
the Senate with a record of anti-environmental legal activism. And like
Ms. Norton, Mr. Watt showed a willingness to rethink and revise his
views. A passage from the Congressional Record from 1981 is
enlightening. For example, Mr. Watt was asked how, in light of his
record, would he

carry out the Secretary's dual responsibility to permit
resource development on the public lands while preserving
natural values?

Mr. Watt offered the following answer:

As Secretary of the Interior, I will fully and faithfully
execute the public land policy adopted by Congress requiring
such a balanced approach.

The record after this is clear. It was opposite to that very answer.
This year, Ms. Norton was asked a similar question in regard to her
views on the takings clause of the Constitution and environmental
enforcement. Ms. Norton answered that she:

will protect the federal government's interests in its lands
and enforce all environmental and land use laws that apply to
the lands and interest managed by the Department of the
Interior.

Sound familiar? My point is that we have been witness to
``confirmation conversions'' before, and the result--as in the case of
Mr. Watt--is sometimes regrettable. When a nominee's record is
overwhelmingly slanted in one direction and falls far outside of the
mainstream on a set of issues central to the job they will perform,
reversals and revision leave me concerned.
I looked to Ms. Norton's record as Colorado Attorney General to learn
how she performed at a job that required her to enforce environmental
laws--again she has argued are constitutionally flawed. I found that
record to be decidedly mixed and worrisome.
While Ms. Norton pursued two high profile cases against the federal
government, environmental organizations, environmental attorneys, and
the Denver Post report that in several major cases she failed to
enforce environmental law against private companies.
For example, in one case, neighbors of a Louisiana-Pacific mill were
forced to abandon their homes because the stench of pollution from the
facility was so great. Without assistance from the state of Colorado,
they hired attorneys and won a $2.3 million court against the company.
Although that civil trial uncovered criminal wrongdoing by the company,
the state still failed to prosecute. Finally, the federal government
interceded and assessed $37 million in fines for fraud and violating

[[Page S663]]

the Clean Air Act against Louisiana-Pacific.
The attorney who represented the citizens in that case, Kevin Hannon,
told the Denver Post.

I would have grave concerns about Gale Norton's
aggressiveness in enforcing environmental compliance and
protecting citizens from environmental damage.

And there are additional similar cases.
In her defense, Ms. Norton claims to have not acted because state
agencies did not ask her to prosecute. That answer is inadequate in my
view, Mr. President. In several instances Ms. Norton aggressively
pursued her legal agenda as attorney general. For example, Ms. Norton
proactively wrote state agencies declaring that a program to increase
minority enrollment at state schools was unconstitutional. Ms. Norton
refused to defend a state program to increase minority contracting from
legal challenge because it was unconstitutional. As Colorado Attorney
General, Ms. Norton filed a brief in an Endangered Species Act case in
Oregon arguing a provision of the law was unconstitutional. Clearly,
Ms. Norton was an aggressive and capable advocate when the legal agenda
matched her policy agenda. But when it came to enforcing environmental
law against polluting companies, she too often failed to act and seems
to have been uncharacteristically passive.

Arguably Ms. Norton's performance enforcing environmental law as
Colorado's attorney general is the most relevant portion of her resume
as she becomes the next Secretary of the Interior. One of her primary
responsibilities will be to protect the environment and public land by
enforcing the law against private companies. Unfortunately that record
is weak on environmental crime.
As I have said, Ms. Norton will not receive my vote today. I do not
cast this vote lightly. I believe that President Bush should be given
wide discretion in selecting a cabinet to advance his agenda. However,
there is a reason that the Constitution calls for the Senate to advise
and consent on nominations. I believe that policy, ideas and a
nominee's professional record matter. In many ways they matter more
than the personal issues that derailed other candidates. Each Senator
has the right--indeed an obligation--to vote their concerns and hope
and their consciences.
Ms. Norton will be entrusted with protecting our federal lands and
finding that difficult balance between conservation and development.
Not an easy job. I feel strongly that Ms. Norton can only do that job
properly if she sticks with the legal and policy philosophy she set
forth in the Energy Committee hearings and not the philosophy she has
advocated for 20 years. I feel strongly that Ms. Norton can only do
that job properly if she does a better job enforcing environment law
than she did in Colorado.
I yield the floor.
Mr. SCHUMER. Mr. President, I ask unanimous consent that 3 minutes of
the time allotted to Senator Stabenow with respect to the Norton
nomination be provided to the senior Senator from New York.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SCHUMER. Mr. President, first let me say I agree with many of my
colleagues that Gale Norton is clearly an experienced, capable public
servant with a distinguished record. I know the Senate confirmation
process can be an arduous one. I think she has handled herself very
well. She has made herself available to questions by those of us on the
committee and conducted and presented herself in a very able way.
That said, I am afraid Ms. Norton has not been able to erase all my
doubts and the doubts of many New Yorkers about her environmental
record and whether or not she will be a strong enough guardian of our
Nation's treasured public lands.
Although she is clearly an honorable person, I believe she does not
have a balanced enough view on the question of conservation versus
development to serve as Secretary of the Interior. To me, the key word
is ``balance.'' I reject those on either side.
There are some who say the conservation movement, the conservation of
our lands, is really not necessary, or, once you have one place
preserved, you have had enough and conservation should hold little
weight when we talk about the needs of development. I have always
philosophically rejected that view.
I must also tell you that I reject the view of some of my friends in
the environmental movement who believe in no development at all,
particularly at a time of scarce resources. There has to be a balance,
and that is what I think most Americans seek. Obviously, we all differ
on where that balance should be. I am worried that Ms. Norton does not
have enough of that balance.
She spoke very well at our committee. But if you look at her history
in both the public and private sectors, it is not one of balance. It is
one, rather, of almost instinctively saying that development should
take precedence over conservation. I do not think that is the right
person for the Secretary of the Interior, and therefore I must
reluctantly--although I generally believe in supporting the President
with his nominations and intend to support the President in all but two
of his Cabinet level nominees--I must reluctantly vote no on the
nomination of Gale Norton.
Mr. President, I yield.
The PRESIDING OFFICER. The Chair recognizes the Senator from
Illinois.
Mr. DURBIN. Mr. President, it is my understanding under the allotted
time I have 15 minutes to speak on the nomination of Gale Norton as
Secretary of the Interior.
The PRESIDING OFFICER. The Senator is correct.
Mr. DURBIN. Mr. President, today we are charged with the important
decision of considering Gale Norton for our next Secretary of the
Interior. This position is extremely important. As the Secretary of the
Interior, Ms. Norton would be the principal steward of nearly a third
of our Nation's land; the guardian for our national parks; and the
protector of our wildlife refuges.
The process of appointing and approving cabinet members is a curious
mix of politics and policy. I believe President Bush has every right to
exercise the same prerogative as Presidents before him, of choosing
members of his cabinet that share his point of view.
In proposing Ms. Norton, President Bush asks the Senate to entrust
her with our environmental heritage.
In sending me to the Senate, the people of Illinois have entrusted me
with the duty of deciding whether Ms. Norton will faithfully fulfill
the job that she has been asked to do.
Although Ms. Norton conducted herself well throughout the
confirmation hearings, I am left with many questions about her vision
for the future of our Nation's environment. I have no doubt that Ms.
Norton has the professional experience to be a capable Secretary of the
Interior. The question is not about her ability to lead, but whether
she will be a leader for the preservation of our public lands and
natural resources.
This is why I rise in opposition to her nomination today. I am
disturbed that not one respected conservation group in our Nation has
announced its support for Ms. Norton. Her strongest supporters hail
from the mining, drilling, logging, and grazing industries--industries
better known for exploiting public land than for protecting it.
My concerns were not allayed during her confirmation hearings.
Despite more than 20-years experience in dealing with environmental
issues, she often gave vague, uncertain answers to questions on how she
would enforce many of our significant environmental laws. Her answers
gave me little to reassure Americans who support conserving our natural
resources.
Let me be clear. I am not opposing her nomination based on her
ideology alone. Her documented public record speaks louder than her
words. Her career is filled with stands on environmental law and policy
that are incompatible with the Secretary of the Interior's role as
steward of our public lands. Her actions reflect her philosophy that
property rights are pre-eminent and Federal intervention should be
minimized. She has not addressed the concern that this approach will
interfere with her duty as Secretary of the Interior to aggressively
enforce compliance with Federal environmental laws.
By now, most of us know that Ms. Norton started her career at the
Mountain States Legal Foundation under

[[Page S664]]

the guidance of James Watt, the controversial former Secretary of the
Interior. During her time with Mr. Watt, she pursued cases opposing the
enforcement of the clean Air Act in Colorado and supported drilling and
mining in wilderness areas. She followed Mr. Watt to the Department of
the Interior in 1985 as an Assistant Solicitor where she worked to open
up the Arctic National Wildlife Refuge to oil drilling. But it was in
her capacity as attorney general for Colorado from 1991 to 1999 that we
find egregious examples of her tendency to side with private, pro-
development interests over those of preservation.
As attorney general of Colorado, Ms. Norton was an advocate of the
policy of self-auditing: a policy that allows polluting companies to
escape fines if they report the problem and correct it. Unfortunately,
this policy allowed Summitville mine, a large gold mine, to continue
operating even though it had serious environmental problems. It was
only after the mine spilled a mixture of cyanide and acidic water into
the Alamosa River, killing virtually every living thing for a 17-mile
stretch, that her office became involved.
The Summitville mine was considered Colorado's worst environmental
disaster and is now the poster child of bad mining practices. To her
credit, Ms. Norton vigorously pursued the mining company for repayment
to cover the cleanup. However, she sought no criminal charges, and her
office was criticized for being slow to act. The Federal Government had
to step in to prevent the disaster from worsening and later won felony
convictions against many of the corporate owners of the mine. In fact,
the Denver Post said: ``It's a shame that Colorado must rely on the
feds to pursue the case.'' This happened under the watch of attorney
general Gale Norton of Colorado.
As Secretary of the Interior, Ms. Norton will have enormous
discretion to unilaterally alter environmental policy. She could block
funding or enforcement of rules and regulations proposed by the
previous administration. For example, she could prevent a recent
proposal to limit snowmobile use in our national parks from taking
effect, a proposal that was supported by literally thousands of
citizens.
As a strong promoter of wilderness areas, I am concerned that Ms.
Norton's pro-development leaning will make it more difficult to
inventory areas for wilderness designation. I am concerned that she
will open more land to mineral and mining development leaving less for
wilderness areas. I am concerned that she won't stand strong and
protect existing and proposed wild areas from off-road vehicle damage.
I am especially concerned that the Interior Department headed by Ms.
Norton will parallel the Interior Department headed by her early
mentor, James Watt. Mr. Watt tried to overturn environmental
initiatives implemented by President Carter's administration. Ms.
Norton says she wants to review many of President Clinton's
environmental initiatives. Mr. Watt wanted to shift public land policy
towards development and resource exploration. Ms. Norton has indicated
she would like to do the same. Mr. Watt tried to make many of these
changes out of the congressional limelight by using budgetary
recommendations and administrative and regulatory actions. I am
concerned that with strong public support for protecting the
environment but an almost evenly divided Congress, Ms. Norton may be
tempted to try the same tactics.
The Secretary of the Interior has a significant distinction from that
of other Cabinet posts. That distinction is that no other Secretary's
decisions have such a long-range impact. Once the earth is disturbed to
start a mining operation, that land will never be the same. Once an
animal goes extinct, there is no replacing it. Once land has been
developed, it loses its character as a wilderness.
Mr. President, I believe that Ms. Norton's nomination sends the wrong
signal to the country: a signal that we are moving away from conserving
our natural resources and moving toward turning our public lands over
to private interests.
As a great Republican President and the father of our Nation's
conservation ethic, Theodore Roosevelt, said, ``It is not what we have
that will make us a great nation; it is the way in which we use it.''
Mr. James Watt echoed this statement during his nomination process in
1981 when he testified that he would seek balance in managing our
Nation's lands. Ms. Norton recently testified that she would also seek
to find this balance between using and preserving our natural
resources.
Unfortunately, Mr. Watt did not keep his word. If Ms. Norton should
be confirmed today, I urge her to learn a lesson from Mr. Watt's
experience and uphold her promise ``to enforce the laws as they are
written.''
The Interior Department is responsible for many of our Nation's most
valuable treasures--natural resources that belong not only to this
generation but also to generations to come. Americans will be counting
on Gale Norton, should she be confirmed, to protect these national
treasures so they can be handed on as an enduring legacy--to keep them
safe from those who would exploit and destroy them.
Mr. President, I ask unanimous consent that the remaining time under
the control of Senator Stabenow be allocated to Senator Boxer.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DURBIN. Mr. President, can you tell me how much time I consumed?
The PRESIDING OFFICER. The Senator has consumed 9\1/2\ of minutes of
his 15 minutes.
Mr. DURBIN. I reserve the remainder of my time, Mr. President.
At this time, I see Senator Boxer has come to the floor.
Mr. President, I suggest the absence of a quorum until she is
prepared to speak.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant bill clerk proceeded to call the roll.
Mrs. BOXER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from California.
Mrs. BOXER. Mr. President, how much time do I have for my
presentation this morning?
The PRESIDING OFFICER. Thirty-one minutes.
Mrs. BOXER. Thank you very much.
Mr. President, I rise to explain to my colleagues, and to my
constituents, why I will vote no on the nomination of Gale Norton to be
Secretary of the Interior.
It is very rare for me to oppose any Cabinet nominee because I
approach the whole subject of advise and consent on Cabinet nominations
with the presumption that the President has the right to pick his or
her own Cabinet. Having said that, you cannot walk away from a
constitutional responsibility to advise and consent if you feel that
nomination is way outside the mainstream of American thought, and if
you feel that nomination could harm our country in one way or another.
And I have many questions about this nominee which lead me to the
conclusion that it would be far better to have someone more mainstream
in this position. I will be explaining it through a series of charts
and through my comments.
I have supported all of President Bush's nominees but for two--this
one, and John Ashcroft, which we will be speaking about later this week
and perhaps into next week.
I will start by discussing why this position is so important. The
Secretary of the Interior is the primary steward of our Nation's
natural resources. One of the most incredible gifts that we have from
God is our natural resources, the beauty of our Nation. It seems to me
we have a God-given responsibility to protect those resources for
future generations.
Into the hands of the Secretary of the Interior we place a vast
amount of control over our parks, over our wildlife refuges, over
grasslands, over ranges, and over endangered fish and wildlife.
I will just show you a beautiful photograph. I have a few. This
particular one is Death Valley National Park. What you can see from
this photograph is the magnificent environment the Secretary of the
Interior will be protecting. If a decision is made, for example, to
extract minerals from a park such as this, you could certainly endanger
this beauty.
She will make decisions regarding grazing, mining, offshore oil and
gas

[[Page S665]]

development, habitat protection or habitat destruction, and American
Indian tribal concerns that will have far-reaching and long-lasting
consequences.
I asked her some questions about some of these areas in my State, and
I have to tell you, as I will in greater detail, that I was very
saddened; they were really no answers. There was no commitment that I
wanted to hear to protect these magnificent areas. I will go into some
of her comments that were put in writing.
We give the Secretary of the Interior the discretion, and we trust
her to balance the economic development of our rich natural resources
with the need to protect and conserve them. We are looking for a
balance, and in my view, we have not seen that balance, either in Gale
Norton's past or, frankly, in her answers, which I did not find to be
terribly believable. And again, I will get into that.

After more than a century of untempered resource extraction, we have
learned we must restore some equilibrium to the management of our
public lands and wildlife resources. The American people understand
this. Poll after poll shows they overwhelmingly support environmental
protection and restoration. They understand we are living in the most
beautiful place and we have a responsibility to protect it.
They are willing, for example, to conserve a little energy in order
to spare pristine areas such as wildlife refuges. How people could say
you can drill in a wildlife refuge, to me, just on its face, there is
something that does not make sense about that. If it is a wildlife
refuge, it is a refuge; it is not oil-drilling land. Why would it be
called a refuge if it is not a refuge, a magnificent area where
wildlife can live?
So I think in this appointment President Bush, who for the most part
I think made good, moderate appointments, has gone off the reservation.
I also understand Ms. Norton will be confirmed. I hope she proves me
wrong. I hope she listens to this and proves me wrong. But I can say, I
am worried. And there is precedent for me to worry.
If her nomination is approved, Ms. Norton will have authority to make
decisions that determine the fate of some of California's treasures and
America's treasures, places such as Yosemite National Park, the
Presidio, Klamath National Wildlife Refuge, the San Diego National
Wildlife Refuge, Death Valley National Park--you can see from the
picture how beautiful this is--and the California Desert--and believe
me, it is a precious environment; I have been there; I have seen--Point
Reyes National Seashore--which is in my backyard; a magnificent area
that needs to be protected--and the Santa Barbara coastline. I will get
into that because there are 39 leases off the Santa Barbara coastline
that are under threat of development.
Ms. Norton's answer to that question leaves me very worried about
what will happen.
These unique ecological and cultural gems are fragile and vulnerable
places. If they are mismanaged, the damage is likely to be irreparable.
She will have responsibility for protection and recovery of
California's most imperiled wildlife and fish species. Those endangered
species, such as the California condor, will depend upon her for their
continued survival.
Taken in total, it is an awesome responsibility and one of great
importance to my constituents who treasure California's unique
environment.
Let me say something about that. Oftentimes, people come to the floor
and say: Well, you can't be an environmentalist because it means you
don't want economic growth. You can't be an environmentalist because it
means you will not have enough energy. We are going to hear this
argument over and over and over, particularly about energy. I will talk
a little bit about that. That is a false premise.
Our economy depends on our environment in California. People come to
our State and spend money to stay there because of our unique
environment. They come to our ocean not to look at offshore oil
drilling but to enjoy the beauty and the serenity of standing on that
shoreline and looking at the vastness God gave us. To say that being an
environmentalist is somehow not for a strong economy is a fact that is
wrong on its face.
The green industries that grow up around clean air and clean water, a
clean environment, are industries we are not exporting across the
world.
To the people of this country, take heart. There are many in this
body who understand this.
After Ms. Norton's confirmation hearings, her responses to over 200
written questions and an in-depth look at her long and detailed history
of work on these environmental issues--unfortunately, on the other side
of most of them--it is clear to me that her record is remarkably
consistent. One can say that about Ms. Norton; her record is remarkably
consistent.
She has spent her lifetime over the past 20 years focused on fighting
against our essential Federal environmental laws and fighting for
increased resource extraction from our public lands. That is her
history. That is her life. Indeed, it is striking how few examples
there are where Ms. Norton worked for the protection of the
environment, despite the fact that her positions as Associate Solicitor
at Interior and attorney general in Colorado required it.
Let us look at some of her statements. On mining she said:

The Surface Mining Control and Reclamation Act is not
constitutional.

This is the act that tries to at least repair the damage that is done
after there is mining.
On endangered species she said:

The federal government has interpreted its habitat
protection duties far too broadly.

In other words, she doesn't think the Federal Government should have
much say in habitat protection.
On takings compensation:

Compensation is desirable because it will have a chilling
effect on federal environmental regulations.

A chilling effect on Federal environmental regulations?
We have a lot of important Federal environmental regulations: the
Clean Air Act, the Clean Water Act, the Safe Drinking Water Act--all
Federal regulations--the Surface Mining Control and Reclamation Act,
the Endangered Species Act; these are important advances that our
country has made. They have strong support. She likes things that give
a chilling effect to Federal Government regulation. It gives me the
chills to think that someone who feels this way is in charge of a lot
of our laws.
We see recurring themes, deeply held philosophies. These include
vehement opposition to Federal environmental regulation, an unflagging
commitment to the supremacy of property rights even if those rights
lead to environmental destruction and harm everyone else.

Ms. Norton has argued that ``control of land use and of mining is a
traditional State function outside the scope of the commerce power.''
Thus, they are not activities that should be regulated by Federal land
managers. She went so far as to argue that the Surface Mining Control
and Reclamation Act is unconstitutional, as I have stated. Given these
beliefs, it is doubtful that she will apply this law and implement it
and make sure these conservation standards are applied in a meaningful
way.
Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. The Senator has 18 minutes remaining.
Mrs. BOXER. I thank the Chair.
She has raised strong complaints about the Endangered Species Act,
another one of our bedrock laws that the Interior Secretary must
implement. During her earlier tenure at the Department of the Interior,
she complained the courts were providing an overly broad interpretation
of the ESA's habitat provisions. She argued that the habitat protection
standard should be extremely narrow so that only habitat that was
immediately occupied by an endangered species would be protected. This
interpretation would have ignored everything we know about the
biological needs of species. It would have protected, for example, a
bald eagle's nesting tree but allowed the rest of its surrounding
habitat to be destroyed. With that kind of thinking, the bald eagle
would never have been saved because you save the tree and then right
around the tree you don't take any measures to protect the bald eagle.
Let us show a picture of some of our habitat. We are talking about
God's creations that we have a responsibility

[[Page S666]]

to protect. This is Mohave National Preserve Joshua trees. We have to
move to protect them.
Let us show some other habitat. Let us show the beautiful habitat of
Alaska.
Here we can see some of the magnificent caribou up in Alaska. We will
be arguing a lot about that issue. We can see, if we are going to
protect their habitat, we cannot just protect a small amount. It is as
if saying that we are going to protect the air in one State and not in
another one. We know the air moves; the animals move. We have to think
about their whole habitat if we are going to protect them and not have
this narrow view that Ms. Norton has articulated, which is that you
should apply it very narrowly.
She submitted an amicus brief in the Babbit v. Sweet Home case and
argued that the Department of the Interior's protection of habitat on
private lands was unconstitutional and constituted a taking. She argued
for such a restricted interpretation of the law that it would have
severely hindered our ability to protect habitat necessary for the
recovery of the Endangered Species Act. On that case, her side lost.
She is out of the mainstream of thought.
Is it possible she could forget her lifetime of work against these
things and suddenly become a fighter for the environment? I conclude
no. Over and over again, Ms. Norton has advocated for ``the devolution
of authority in the environmental area back to the States.'' In other
words, she doesn't really see the need for Federal laws such as the
National Environmental Policy Act, NEPA.
While working in Colorado, she wrote of having ``to do battle'' with
the Federal Government to wrestle control away from Washington and
spoke with pride of her challenges to the Environmental Protection
Agency regarding its interference in Colorado's air pollution programs.
Oddly, she lamented that the end of the Civil War meant that ``we lost
the idea that states were to stand against the Federal Government
gaining too much power over our lives.''
There are a lot of things you could bring up to drive home a point,
but to raise the Civil War is odd. She said that the end of the Civil
War meant that ``we lost the idea that states were to stand against the
Federal Government gaining too much power over our lives.''
She is way out there, in my opinion, because the people whom I
represent--I think the vast majority of people--want to have a Clean
Water Act, want to have a Safe Drinking Water Act, want to protect the
magnificent species from destruction, and believe we have a God-given
responsibility to do that. But she is way outside the mainstream.
President Bush, for the vast majority, in my opinion--all but a
couple--has chosen from the middle ground this time and reached over so
far that there isn't much room on the other side and put this
individual in the position where she can do harm.
As a matter of fact, given her statements about the inappropriate
role of the Federal Government in all of this protection, it is hard to
understand how she would want to be a part of the Interior Department,
much less be the head of it. It raises questions to me about her
ability to adequately serve as an advocate from the Federal perspective
in various environmental decision-making processes. Ms. Norton has a
long history of association with organizations that promote ideas such
as eliminating the Bureau of Land Management and selling off our
national parks. Not surprisingly, these views have sparked strong
opposition from the people of our country.
I want to show you some of the groups that have opposed her
nomination: the Natural Resources Defense Council, The Wilderness
Society, Sierra Club, League of Conservation Voters, Republicans for
Environmental Protection, Physicians for Social Responsibility, NAACP,
AFL-CIO, Childhood Lead Action Project--I understand why they oppose
her--Community Energy Project, the Network for Environmental and
Economic Responsibility for the United States Church of Christ.
This is a lightning rod nomination for people who care about
protecting the environment. Why do we have to see their kind of
nomination? We could have had a nomination for the President to ``unify
us'' and not divide us.
That is the reason I am against this nomination. Her lobbying to
dissuade States from holding the lead industry accountable for the
continued use of lead-based paint has brought criticism. I showed you
that. The Childhood Lead Action Project, why would they get involved in
this? Guess what we know. Lead-based paint causes mental retardation in
children. This isn't a theory; it is a fact, and she led the charge to
get the Federal Government out of regulating lead.
You have to stand up at some point in your life and be held
responsible and accountable. I think this is a moment when someone has
to be held accountable.
Everyone knows what a strong environmentalist I am and everyone knows
how strong I am for a woman's right to choose. They know I have
dedicated my life to do these two things. Suppose the laws were changed
and suddenly a woman's right to choose was outlawed and I was put up
for a position where I had to say enforce that law--put a woman in
jail, put a doctor in jail. If this were to happen, people should come
down to the floor and say Barbara Boxer is not the right person for
that job; her whole life has been dedicated to making sure that a woman
has a right to choose. Why would they give her this position? They
would be right. I don't care if I said I will do it; I will enforce it.
They know how strongly I feel.
We know how strongly she feels about the interference of the Federal
Government, what she considers to be interference in States rights in
terms of protecting the environment. Why is this a good appointment?
Again, you have to wonder why someone who has dedicated their adult
life to opposing the Federal Government's involvement would even take
this job. But we saw that happen before. His name was James Watt. We
will get down to when someone says they will fully enforce the Nation's
laws. Fine. But then when you ask her how she interprets those laws,
you have to wonder because it is not the same interpretation as most
people have.
When I asked her how she felt about priority issues for California,
if she would uphold the Bureau of Land Management's important decision
to deny a permit to a gold mine, which everyone agreed would destroy
Native American land and destroy the environment in California near the
San Diego area, she basically passed on an answer. I asked her about
how she felt about the much heralded new management plan for Yosemite
National Park. She basically passed on an answer. The Klamath Wildlife
Refuge, she passed on an answer. The Trinity River Restoration effort,
she passed on an answer. She said she wasn't familiar with the issue;
she had not taken a position. This troubles me since she worked at the
Department of the Interior before. Yosemite should not be unfamiliar to
someone who is to be head of the Department of the Interior and, yet,
she passed on an answer on Yosemite.
I would like to submit these answers for the Record at this time. I
ask unanimous consent to have them printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Questions From Senator Dianne Feinstein Submitted on Behalf of Senator
Barbara Boxer

Question. There are currently 36 undeveloped oil leases
situated on the Outer Continental Shelf off the coast of
California. Development of these leases has been strongly
opposed by the state of California and the associated local
coastal communities. This Administration has signaled its
intent to prioritize the development of domestic oil and gas
sources. Will you encourage development of offshore leases in
states like California where there is strong and persistent
opposition to the development of such leases? Past
administrations have used their executive authority to place
a moratorium on offshore oil and gas drilling in currently
undeveloped areas. Would you recommend that such a moratorium
be continued under this administration? Would you view such a
moratorium, or any other environmental regulation that
prevents development of a lease, to be a taking under the
Fifth Amendment of the Constitution?
Answer. President Bush pledged to support the existing
moratoria on OCS leases. He also committed to working with
California and Florida leaders and local affected communities
to determine on a case-by-case basis whether or not drilling
should occur on existing, but undeveloped leases. If
confirmed as Secretary of the Interior, I will

[[Page S667]]

honor these commitments and promise to work with all parties
to reach a consensus on how undeveloped leases should be
handled and the extension of existing moratoria.
Question. The Interior Department recently announced its
denial of a permit for the Glamis Imperial gold mine that was
proposed for development in Imperial County, California. This
mine was rejected on the grounds that it would have caused
undue degradation to the site's environmental and cultural
resources. Do you think it is appropriate under current
mining law for the Secretary to reject mines like the
proposed Glamis Imperial Mine on these grounds?
Answer. I am not familiar with the specifics of the Glamis
mine proposal or the basis on which the mine was rejected. I
look forward to learning more about the proposed Glamis
project and working with Congress to ensure that all new
mining projects maintain an appropriate balance between
legitimate mineral development activities and preservation of
important environmental and cultural resources.
Question. Recently, the National Park Service developed a
detailed plan for the future management of Yosemite National
Park. This plan was developed after considerable input from
all of the affected stakeholders and over 10,000 members of
the public submitted comments to the agency. Central to this
plan is the notion that visitors to the park should be
encouraged to leave their personal vehicles outside the park
and travel through the park on a park transit system. As
Secretary of Interior, will you actively support
implementation of the new Yosemite Valley Management Plan?
Will you be aggressive about developing similar management
plans for the many other national parks that are suffering
environmental degradation because their management
practices have not kept pace with the growing numbers of
visitors?
Answer. I am not familiar with the details of the Yosemite
Valley Management Plan. As a general matter, I support the
concept of management plans for our public lands and believe
that they represent an important decision-making tool for
land managers. For these plans to be successful, I believe it
is important that they be developed in consultation with the
affected States, local communities, affected stakeholders,
and environmental groups.
Question. In 1998, the U.S. Fish and Wildlife Service
adopted a policy for Tule Lake and Lower Klamath National
Wildlife Refuges in California and Oregon that prevents
irrigation on commercial farmland on the refuges unless
sufficient water is available to sustain the refuges'
marshes. Do you support this policy which gives priority to
the refuges' ecological resources over commercial farming?
The National Wildlife Refuge System Improvement Act of 1997
set new requirements for the management of refuges. In
response, the U.S. Fish and Wildlife Service issued
regulations establishing procedures for determining what uses
are compatible with the mission of the refuge system and the
mission of each individual refuge. Do you believe farming is
compatible with the mission of the Tule Lake and Lower
Klamath National Wildlife Refuges? What uses would you deem
to be incompatible with the mission of the national wildlife
refuge system?
Answer. I am not familiar with the details of the
Department's 1998 policy.
I have not yet had an opportunity to review the
Compatibility Policy, and am not in a position at this time
to assess how it might affect the Tule Lake and Lower Klamath
National Wildlife Refuges. I am also aware that the Fish and
Wildlife Service recently issued a draft Appropriate Uses
Policy that may impact activities on refuges such as Tule
Lake or the Lower Klamath. I look forward to learning more
about the Fish and Wildlife Service's policies implementing
the National Wildlife Refuge Improvement Act and about the
530 Refuges in the National Wildlife Refuge System.
Question. The Department of the Interior, with the
concurrence of the Hoopa Valley Tribe, announced on December
19, 2000, a plan to restore the Trinity River in California.
The decision is based on 20 years of scientific research and
public involvement. It completes a process supported by the
Carter, Reagan, Bush and Clinton Administrations and has
enjoyed bipartisan support in the Congress. Will you commit
your Department to follow through on the decision and
implement the Trinity River restoration program?
Answer. I am not familiar enough with this restoration plan
to respond to this question at this time. I look forward to
working with you to learn more about this plan and the
Department of Interior's role in implementing it.

Mrs. BOXER. Mr. President, she had a good answer on the Outer
Continental Self moratorium where she said she supported the States
rights not to drill. When I pressed her on 36 existing leases off Santa
Barbara, I didn't get the same answer. She said she would look at them
on a case-by-case basis. That is not good enough because the State
doesn't want any drilling there. Why wouldn't she just take it off the
table? She couldn't do that.
I am very troubled, and we will have a lot of debate over those 36
existing leases. It is one of the most pressing environmental issues in
California. We have unwavering opposition to the development of those
leases. Since she says she is for States rights, now she can't suddenly
say I'm for States rights on this one.
Finally, I want to address the Arctic National Wildlife Refuge. I am
not going to spend a lot of time on that. That will come at a later
date. I agree with President Bush. It is unfair to criticize her for
not wanting to drill in the Arctic. He says, I do; of course, my
Secretary would. I have no problem with that. However, Ms. Norton seems
to have enthusiasm about drilling there.
If you look at her historical role in pushing to open up the refuge,
and her links to the oil and gas industry through the Mountain States
Legal Foundation, and the oil companies that hire her current lobbying
firm, and the oil and gas interests that gave her significant
contributions during her Senate race, I think there are valid questions
we could raise about whether she can effectively serve the role that
the Secretary must fill in this type of decision-making.
What do I mean by that? Let me show you a picture of the Arctic
Wildlife Refuge. You already saw a picture of the caribou there. This
is just an open view of the Coastal Plain. By the way, this came from,
if Senator Murkowski is listening, the State biologists in Alaska. They
wanted us to show this Coastal Plain. Basically, we are going to have a
huge debate over whether to open up this refuge to drilling. This is
going to be a tough debate. I know that at best there is 6 months'
worth of oil there. If you just change the mileage on SUVs a few miles
you wouldn't have to do any of this. But we will have that debate. I
look forward to it.
But Ms. Norton, in her position, is going to have to be objective
about facts such as how much oil lies there, and what is the impact on
the caribou and the rest of the environment. I question whether she
would be objective given her strong stand in favor of oil drilling.
My State is suffering from energy problems. I want to put something
right out here right now. Outside of California, the people are saying
it is California's fault because it didn't build enough powerplants. I
want to explain something. It was explained very well in the New York
Times editorial. Our utilities did not want to build any powerplants
because they want to control the supply. The fact is, no new plants
were built in the 1990s because prices were low, supplies were
plentiful, and producers wanted to wait until they better understood
the new era of deregulation.
The State of California recognized back in the 1980s that generation
needs might increase, and they tried to move forward with building for
new generating plants. It was the utilities, not conservationists, who
blocked the efforts. They said we didn't need any new capacity until
2005, and they took their appeal to the State administrative law judge
in their efforts to stop the State's push for new generating plants.
The utilities lost that battle. The State said you have to build new
generating plants. Do you know what the utilities did? They ran to the
Federal Energy Regulatory Commission. And guess what the Federal Energy
Regulatory Commission did. they sided with the utilities over the
objections of the State, and therefore we did not have these plants go
on line. Finally, now they are coming on line, and that, along with
long-term contracts and energy conservation, will solve our needs.
I can assure you that rolling back environmental laws and making our
air dirty is the last thing my constituents want or need.
In Ms. Norton's testimony before the Energy Committee, she backed
away from her life's work. Call me simplistic--and you can, and I don't
mind it because I know I am a tough debater in this way. Call me
simplistic, but I do not believe that a lifetime commitment to
repealing environmental laws can be dissipated by nice, warm, fuzzy
statements made in front of a committee.
I was not born yesterday. I watched James Watt. He made nice, warm,
fuzzy statements in front of the committee. He said: I will fully and
faithfully execute the public land laws adopted by Congress. I believe
in balance. He said in his answers: Gee, I am unfamiliar with the
details.

[[Page S668]]

That is what Ms. Norton said. As a matter of fact, I find the
parallels chilling, looking at her answers and looking at his answers.
We remember Secretary Watt's tenure at the Department of the
Interior: Catastrophic impacts on the environment, opening up millions
of acres of protected Federal lands, blocking Federal land
acquisitions, making substantial changes in strip mining regulations
that weakened or directly repealed environmental law, new plans for oil
and gas drilling in the Arctic, et cetera.
In closing, let me say I cannot vote for someone for this important
position whose life record has been against every single law that she
says she will now protect. There is too much at stake for my State.
There is too much at stake for the Nation. I have laid out my reasons.
I take the Senate's responsibility of advice and consent seriously.
I would like to submit for the Record some of Ms. Norton's writing
which include the extreme statements I referred to in my comments. I
ask unanimous consent they be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

U.S. Department of the Interior, Office of the Solicitor,
Washington, DC, January 14, 1987.
Hon. F. Henry Habicht, II,
Assistant Attorney General, Division of Land and Natural
Resources.

Attention: Donald A. Carr, Esquire,
Chief, Wildlife and Marine Resources Section, Department of
Justice, Washington, DC.
Dear Mr. Habicht: In Palila v. Hawaii Department of Land
and Natural Resources, Civ. No. 78-0030 (D. Hawaii, Nov. 21,
1986), the United States District Court for the District of
Hawaii recently issued an opinion that interprets the scope
of the ``taking'' prohibition of Section 9 of the Endangered
Species Act, 16 U.S.C. Sec. 1538 (1982). The Interior
Department is concerned that the Palila court's discussion of
the concept of taking, or ``harming,'' endangered species by
habitat degradation is overbroad; therefore, should the
Palila decision be appealed, the Department requests the
opportunity to prepare or review an amicus curiae brief for
submission to the Ninth Circuit Court of Appeals.
In determining that the State of Hawaii's maintenance of
mouflon sheep on the Mauna Kea Game Management Area (which
includes most of the Palila's critical habitat) ``harms'' the
Palila, the district court held that: ``A finding of ``harm''
does not require death to individual members of the species,
nor does it require a finding that habitat degredation is
presently driving the species further toward extinction.
Habitat destruction that prevents the recovery of the species
by affecting essential behavioral patterns causes actual
injury to the species and effects a taking under section 9 of
the Act.'' Palila, supra, slip op. at 9. The district court's
analysis appears to improperly blend Section 7 concepts
(i.e., the prohibitions against jeopardy and the destruction
or adverse modification of critical habitat) into the
definition of ``harm,'' and, therefore, needlessly expands
that definition to include habitat destruction that does not
actually result in death or physical injury to an endangered
species, either directly or indirectly in the foreseeable
future. In order to show ``harm,'' there must be proof of a
causal connection between the habitat modifying activity and
foreseeable death or injury to an endangered species.
The scope of the holding in Palila runs counter to the
Interior Department's redefinition of the term ``harm'': Harm
in the definition of ``take'' in the Act means an act which
actually kills or injures wildlife * * * such act may include
significant habitat modification or degradation where it
actually kills or injures wildlife by significantly impairing
essential behavioral patterns, including breeding, feeding or
sheltering.'' 50 C.F.R. Sec. 17.3 (1985) (emphasis added). In
short, the department's definition of ``harm'' quite clearly
requires a showing of actual death or injury to wildlife,
even in the case of taking by habitat modification.
For those who would develop real estate near or within
endangered species habitat, the Palila decision could expand
their Section 9 liability if essential behavioral patterns of
the species are affected to the extent that recovery is
prevented. No proof of mortalities or actual physical injury
to endangered species would be required to sustain a
prosecution or civil injunctive action under the Palila
ruling. The Palila decision poses an equally serious concern
to federal land managing agencies.
Please contact Michael Young of my staff at 343-2172 if we
can be of assistance on this matter.
Sincerely,
Gale A. Norton,
Associate Solicitor, Conservation and Wildlife.
____

Takings Analysis of Regulations

(By Gale A. Norton)

Because the panel already has discussed why property is
both an enemy and an ally of regulation, I will move
immediately to a discussion of how to protect property from
excessive regulation. How do we restore a regime of property
rights? I would like to discuss a few things happening on
that front.
This Symposium occurs at an appropriate time: March 15,
1989, is the first anniversary of the issuance of President
Reagan's Executive Order 12,630 dealing with takings. It is
surprising that the Executive Order has received so little
publicity because it is a unique approach to the issue. It
asks the federal agencies to move beyond their environmental
and regulatory impact analyses, and to perform a takings
impact analysis. The agencies are asked to examine their
regulations and determine whether the regulations are likely
to cause takings of property and, if so, to estimate what
effect the regulations will have on the federal budget. As
might be expected, the agencies are not wildly enthusiastic
about performing takings impact analyses. The agencies tend
to believe that they are not taking anything and that they
should never have to pay compensation. Nevertheless, it
appears that the agencies are beginning to develop plans for
performing analyses in accordance with the Order.
Compensation is the key issue in any analysis under the
Takings Clause. First, of course, compensation provides
fairness to the person who is harmed by the regulation or
other government action. The classic rationale for
compensation is that, in fairness and justice, one individual
should not be forced to bear the burden that ought properly
to be borne by society as a whole. Second, compensation tends
to limit government action. Even though bureaucrats enjoy the
benefit of spending other people's money, their actions are
constrained by their agency's budget. If the government must
pay compensation when its actions interfere with private
property rights, then its regulatory actions must be limited.
This constraint also results in a limitation on transfer
activity. If compensation is paid, the political system must
take into account some financial costs. Therefore, some
brakes are applied on political redistribution as compared
with a system that puts everyone's property rights up for
grabs.
Finally, the payment of compensation helps encourage the
resolution of social problems by private, voluntary
contractual arrangements rather than by regulation. It may
appear cost-free to work out conflicts by regulation because
the costs are off-budget. But when regulations impose burdens
on private individuals, the costs are borne by the private
sector and are not considered in the democratic
decisionmaking process. As those costs are returned to the
budget by payment of compensation, we will start looking at
alternatives to regulations that may in the long run be more
beneficial.
President Reagan's Executive Order on takings has generated
significant disapproval from the environmental community,
including criticism from Jerry Jackson, a former attorney for
the National Wildlife Federation. He said the Executive Order
mandates an impossibility because it requires the agencies to
determine under the current takings law what actions might be
unconstitutional takings. I agree with him on this point. The
takings case law is currently such a mess that it is
difficult to ascertain what is and is not a taking. The
Supreme Court has provided clear guidance in this area.
I, however, disagree strongly with Mr. Jackson about the
role of the Constitution in executive agency decisionmaking.
He seems to believe that the only way the Constitution
figures into an executive agency's decision is that, long
after the fact, a court finally addresses the issue and
decides that there was indeed a taking. Before a court's
decision, the agency should be oblivious to the takings
implications. Mr. Jackson says, ``Whether a permit denial
might be construed by a court to effect a taking is not a
relevant factor in an agency's decision to grant or deny the
permit absent express legislative authority making it a
factor.'' I would be very interested to see that legislative
authority. It would have to say something like, ``In this
case, the Constitution applies.'' Mr. Jackson also notes that
the Executive Order on takings may have a chilling effect on
regulation. I view that as something positive.
I consider next the formulations that might be used in
deciding when an environmental regulation is a taking and
ought to result in compensation. An exception to the
compensation requirement has been recognized when the
government acts pursuant to the police power or restrains
public nuisances. The exact scope of this exception is not
clear. Because we are looking at alternatives. I will act
like a good bureaucrat and look at the extreme alternatives.
Let us first assume that there is absolutely no police
power or nuisance exception to the takings rule. The
government pays whenever it regulates in a way that
interferes with private property rights. In a way, this
regime would be easy to administer. One would simply look at
the property values before and after the regulation is
imposed to determine the amount of compensation. But under
this regime, the government would have to pay for all types
or regulations--even those that halt the worst criminal
offenses. (One wonders what the compensation to criminals
would be for closing down a crack house--probably mind-
boggling.) In such a case, we have little justification for
taking money from the taxpayers to pay someone not to engage
in socially inappropriate or criminal behavior. Such cases
also pose the danger of

[[Page S669]]

someone coming back time and time again with, ``Well, last
time you paid me to close down a crack house. Now it's time
to pay me to close down the bordello, and next week you can
pay me to close down whatever I dream up next time.'' The
model is open to exploitation by repeat offenders.
At the other extreme, let us assume that the government
does not have to pay at all unless it chooses to label its
action condemnation. Again, such a regime would be easy to
administer. In fact, it would be facile. The government never
would have to worry about what it takes, but individual
rights clearly would not be protected.
One formulation that actually has been adopted by the
courts is a nuisance exception: No compensation is due if a
taking is performed pursuant to the police power in
regulating a nuisance. Unfortunately, this is often expressed
as a broad police power exception: Compensation need not be
paid for government actions undertaken pursuant to the police
power. The problem with this approach is defining the police
power. The police power may be interpreted very broadly, as
it was, for example, in the License Cases of 1847: ``nothing
more or less than the powers of government inherent in every
sovereignty to the extent of its dominions.'' This definition
covers far too much. No regulatory taking would ever be
compensated. Furthermore, there is no textual support in the
Constitution for an exception to the takings rule for police
powers. A further problem with a broad police-power exception
to the compensation requirement is that the public-use
requirement in the Takings Clause has been interpreted as
being ``coterminous'' with the police power. Combining a
police-power exception to the compensation requirement with a
police-power definition of what is a public use leaves an
empty box as to when compensation would be awarded. A taking
would be appropriate if performed pursuant to the police
power and pursuant to public use, but no compensation would
be necessary because it falls within the police-power
exception.
A much better formulation focuses on the extent of the
property rights involved, presumably, there is no actual
property right in maintaining a nuisance. Thus, government is
not involved in a taking when it halts a nuisance because
there is no property right to take. The Keystone decision
states this rule, but the analysis in the opinion proceeds to
ignore it. There was clearly a property right under state law
in that case, but the Supreme Court proceeded as if there
were no such right.
Another crucial step in the analysis is defining a
nuisance, including determining whether a nuisance is to be
interpreted by the common law, and deciding whether nuisance
is synonymous with a negative externality. If they are
synonymous, then aesthetic harms are problematic. Let me give
you an example. I am from Denver, I am a Broncos fan--at
least I watch about half of every Super Bowl game in which
they are involved. A few years ago, when we were in our fist
Super Bowl, there was a craze to paint one's house Bronco
orange. If I lived across the street from one of those
houses, I would view the aesthetic harm to myself as an
interference with my right to use my property, but I doubt
that we want to regulate such aesthetic harm.
A different way of identifying a nuisance is to require a
physical invasion of neighboring property. A physical
invasion test eliminates the problem of aesthetic harm. But
physical invasion standing alone is not necessarily a
nuisance. There must be some additional element of
harmfulness, undesirability, or inappropriateness.
Another alternative is to consider some kind of reasonable
right to use our property. In the Nollan case, Justice
Scalia, writing for the Court, noted that the right to build
on one's property was an actual right and not a government-
granted privilege. Regulation of this right may have very
significant repercussions in future land-use litigation.
Interestingly, we might even go so far as to recognize a
homesteading right to pollute or to make noise in an area.
This approach would eliminate some of the theoretical
problems with defining a nuisance.
Moving beyond the question of defining the nuisance
exception to the just compensation requirement. I would like
to summarize a few other key components of current takings
analysis. In evaluating regulatory takings, particularly in
the land-use context, the Court often employs a diminution in
value test. Under this test,if a regulation goes too far, it
is a taking. The question, as phrased by the courts, is
whether the regulation denies the owner all economically
viable use of the property. Under this test, the courts have
found that diminutions in value of seventy-five percent of
almost ninety percent are not sufficiently severe to
constitute takings.
Another question is whether a regulation substantially
advances a legitimate state interest. This is similar to the
requirement of having a public use for the taking under the
Fifth Amendment, and therefore it does not provide us with a
satisfactory test of what should and should not be
compensated. It focuses on what the government is properly
empowered to do, not at what it can do on the condition that
it pay compensation. Although this test has been frequently
reiterated by the Court, it has seldom been used to strike
down an uncompensated taking.
One other approach is the bundle of rights test. An
interference with a particularly important strand in the
bundle of rights may constitute a taking. This test has not
yielded particularly enlightening results. A right to exclude
others and a right to pass to one's heirs are significant and
denial of these rights will be deemed a taking. On the
other hand, ownership of a support estate as part of a
mineral interest or the right to sell property, are not
considered significant and compensable.
An emerging way of looking at the question is the nexus
requirement that is set forth in the Nollan decision and that
is discussed extensively in Executive Order 12,630. This
analysis requires that conditions put on permits have the
same health and safety objectives, and substantially advance
the same objectives, as the denial of a permit would serve. A
good example of such an approach is the case of wetlands
dredge and fill permits. The purpose of the wetlands
regulatory program is to protect water quality. Its
application has been judicially and administratively expanded
to protect wetlands values. Frequently, conditions are placed
on dredge and fill permits that have no relationship to the
overall purpose of the regulatory program, such as providing
recreational boat ramps and docks. It will be interesting to
watch how these issues are treated as the Executive Order
analysis develops.
In this discussion, I have not examined a number of other
formulations in the takings context--compensating benefits
and so forth--that further complicate the whole analysis. As
the preceding discussion indicates, the analysis at this
point is very confused and inconsistent. This confusion,
however, creates an opportunity for a major shift in takings
jurisprudence, toward a greater protection of property
rights.

[Panel II]

Economic Rights Provisions of the Constitution

(By Gale Norton)

I would like to explore some of the means by which I
believe the Constitution provides judges with standards for
the protection of economic liberties. Throughout the history
of the United States, the protection of economic rights has
been attempted through a variety of provisions: the ex post
facto clause, the contracts clause, the takings clause, the
privileges and immunities clause, and through theories of
natural rights and due process. While each of these
approaches has been largely rejected by the courts, litigants
are continually exploring new approaches for the protection
of economic rights.
Economic rights are clearly not protected today. Land is
owned subject to the whims of one's neighbors on the zoning
commission. Prices of goods and services are controlled by a
plethora of governmental and regulatory bodies. Selective
taxation hampers the growth and innovation of industry, and
subsidies enrich some sectors of society at the expense of
others.
There are substantial similarities between the takings and
contracts clauses. Both clauses limit the powers of
government, chiefly the police and eminent domain powers. The
eminent domain power is not explicitly provided in the
Constitution, but it has been upheld for many years as a
necessary and inherent power of government. The police power
is exercised by state governments; the federal government
exercises similar authority through the commerce power and
other delegated powers. The contracts clause applies by its
terms only to the states, the takings clause only to the
federal government. The requirement of just compensation has,
however, been applied to states through the fourteenth
amendment. Ellen Frankel Paul has noted the inconsistencies
between recognition of the eminent domain power and the
Lockean natural rights approach to property rights. An
extended discussion of these inconsistencies is beyond the
scope of today's discussion; however, I believe it is
instructive to explore briefly the character of these
governmental powers as they highlight the role and
importance of the takings and contracts clauses.
The police power is basically government regulation for the
promotion and protection of health, safety, morals, and the
general welfare. In a narrow sense, it is the government
attempting to enforce the maxim that one should use one's
property so as not to injure that of another. This narrow
view of the police power firmly prevailed in the early days
of the United States, but it has now been broadened to
include not only the protection of public safety, health, and
morals, but anything rationally related to these broad areas.
Indeed, Justice Brennan stated in his dissent in Nollan v.
California Coastal Commission that a review of the use of the
police power ``demands only that the state could rationally
have decided that the measure might achieve the state's
objective.'' Thus, the only practical limitation on this
power comes from specific constitutional provisions such as
the contracts and takings clauses.
The contracts clause is one of those provisions that has
been virtually written out of the Constitution in current
times. Even though James Madison eloquently discussed the
contracts clause in Federalist No. 44 in fairly modern terms,
modern jurisprudence has seemingly discarded the clause.
Essentially, Madison viewed the contracts clause as
discouraging transfer activities, keeping decisions out of
the hands of lobbyists, and providing the predictability
necessary for business planning.
Despite the soundness of the reasons behind the contracts
clause, its erosion began discouragingly early in our
history. In Ogden v. Saunders, the Supreme Court held that
only existing contracts were protected by

[[Page S670]]

the clause. The Court had previously held that the ex post
facto clause applied only to criminal activities, thereby
preventing its use for the protection of contracts. Thus, by
1827 the Court had already moved away from viewing the
contracts clause as a broad freedom of contract provision
that would protect contracts generally.
Today, the clause is so weakened that in the recent
Keystone Coal decision the Court stated, ``Unlike other
provisions in article 1, section 10, it is well settled that
the prohibition against impairing the obligation of contracts
is not to be read literally.'' The chief reason for this view
of the contracts clause is that the courts have clearly
stated that the clause does not supersede the police power.
This puts us in a ``catch 22'' position because the police
power (in the modern broad sense) is exactly what the
contracts clause should be limiting. Therefore, we have a
limitation that is superseded by the power it is intended
to restrain.
The takings clause is somewhat more alive than the
contracts clause, but it also suffers from some debilitating
restrictions. An encouraging note is the widespread interest
in Richard Epstein's analysis, which expands the takings
clause beyond simply eminent domain activities to encompass
limitations on the commerce power, taxing power, and so
forth. The analysis takes a simple political science
approach, i.e., that the takings clause was meant to operate
as a check preventing the majority from raiding the assets of
the other forty-nine percent of society. Compensation must be
paid when the burdens of society fall too heavily on an
individual or group, which presumably limits regulatory
excesses. The compensation may be monetary or implicit in-
kind compensation. Thus, those who are burdened or taxed for
the benefit of society are compensated for their special
sacrifices.
The current judicial interpretation of the takings clause,
however, falls far short of the role discussed by Richard
Epstein and intended by the Constitution. For instance, in
the public use cases of Hawaii Housing Authority v. Midkiff
and Ruckelshaus v. Monsanto the Supreme Court held that the
public use justification is coterminous with the police
powers. This interpretation can work to deprive individuals
of their economic rights. The transfer of property from
private party to private party, through the compulsion of the
state, will now be upheld when any rational basis can be put
forth. Moreover, the courts will only step in if the state's
public use determination involves an impossibility and
therefore has no rational justification.
In the case of a regulatory taking, the standard approach
has been that when regulation goes too far, it is a taking.
``Too far'' generally means that a regulation, under the
guise of the police power, does not advance a legitimate
state interest or that an owner has been deprived of all
economically viable use of his property. As stated earlier,
the courts will uphold any state action that is supported in
any fashion by some state interest. Moreover, the courts have
held that the loss of only one or several attributes of the
``bundle of sticks'' of property ownership is not equal to a
taking. The courts have often gone to ridiculous extremes to
find some remaining viable use. The only relief the courts
have granted property owners in this area in recent times has
been to hold that a deprivation of property need not be
permanent to bring into force the takings clause. This is a
minimal breakthrough since the property owner still has the
ominous burden of showing that a taking has occurred.
I believe that some changes are desperately needed in the
jurisprudence of economic liberties. The preceding analysis
suggests some specific overall changes. I think one important
change should be in the level of scrutiny applied to statutes
affecting economic liberties. An extreme proposal would be to
place the burden of proof on the government to justify its
regulations. Levels of scrutiny below this extreme, but
higher than the current minimal scrutiny, are realistic.
I would like to note that there are some grounds for
optimism in the recent Supreme Court decisions. Bernard
Siegan, in his Economic Liberties and the Constitution,
states: ``A change of one vote on the Supreme Court in Ogden
v. Saunders would have, in 1827, brought economic due process
into being through the contracts clause. One vote likewise
separated the majority and minority position on the
constitutional status of economic rights in the 1872
Slaughterhouse cases. * * * [E]conomic due process was
unanimously accepted in 1897 and it fell by one vote in
1937.''
Hopefully in the future these close calls will be resolved
in favor of freedom.

The PRESIDING OFFICER. The Chair recognizes the Senator from
Louisiana.
Ms. LANDRIEU. Mr. President, I yield myself such time as I may
consume of Senator Murkowski's time, I believe. I ask for 7 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. LANDRIEU. Mr. President, that is one of those remarkable things
about this body. We can come to the floor and debate vigorously many
different issues. In this case, we are making remarks about what I hope
will soon be our secretary of the environment, our Secretary of the
Department of the Interior, Gale Norton.
I come to the floor to give some words of support for her appointment
and with just the greatest amount of respect to my colleague who just
spoke, Senator Barbara Boxer.
Mrs. BOXER. I thank the Senator.
Ms. LANDRIEU. Thank you very much.
With all due respect to my colleague from California--and I have the
greatest respect for her as an environmental leader--I have carefully
considered the nomination of Gale Norton, former attorney general of
Colorado, to be our Secretary of the Interior and arrived at a
different conclusion.
Let me begin by saying that since the announcement for this position,
there has been much debate about positions she has taken throughout the
course of her career. Whether the topic has been protection of private
property rights, environmental self-audits, or certain provisions of
the Endangered Species Act, she has advocated for limits on Federal
power while arguing for more State and local authority.
In its core essence, that is not necessarily a bad thing. We need to
be very sensitive to local and State governments as we craft and
fashion and design environmental laws for this Nation. Frankly, I think
in some instances the Federal Government has gone, you might say,
overboard or has not had as much sensitivity to State and local
governments as perhaps we should. We are still a work in progress here.
I find her position, actually, for State and local authority,
refreshing and necessary, recognizing that one size does not fit all.
But I do not question her commitment to clean air, to clean water, and
to finding the right ways to pursue those goals.
As Secretary of the Interior, it would be her duty to manage public
lands on behalf of the Federal Government and also to represent its
interests in any dispute. So some legitimate concerns have been raised
as to whether she would fall on the side of State and local government
or Federal Government. I think she put those issues to rest clearly and
squarely in her testimony before the committee as she said she would
represent the interests of the Federal Government, using her
sensitivity to State and local governments as an asset, but not as a
barrier to fighting vigorously for and enforcing environmental laws
that are on the books.
One such example I would like to point out that should be in her
favor is her successful advocacy for the Rocky Mountain Arsenal
cleanup. When the Federal Government itself was standing in the way of
efficient and effective cleanup, Gale Norton challenged the Federal
Government to clean up its own hazardous waste sites and led the fight
successfully in that area, and that is a project that is still going
forward.
In her 2 days of testimony before our committee as well as her
answers to a few hundred written questions, I believe she has
sufficiently indicated her honest intention to enforce the Federal laws
as they are written and as the courts have interpreted them. Policy
differences from time to time between Ms. Norton and the Members of
this body are unavoidable. However, she has listened attentively to the
concerns expressed by members of the committee, and her pledges to work
with us seem genuine.

In addition, I am encouraged by her comments that she was willing to
give appropriate consideration to the impact of Federal laws on State
and local interests, which is something I mentioned before as very
important to me and many Members, Democrats and Republicans, in our
body. While there are certain instances where national policy on
environmental issues is necessary, as I said earlier, sometimes one
size does not fit all. We would be wise to recognize that and implement
different strategies for different regions and different States.
In fact, Ms. Norton and I had the opportunity to discuss such a
matter during her recent visit to my office--my favorite subject,
actually--the Conservation and Reinvestment Act, which is a
conservation program that will benefit all 50 States. She expressed an
interest to learn more about this. She expressed a very keen
understanding of the contribution made by coastal States, in terms of
the amount of

[[Page S671]]

money that is sent to the Federal Government from offshore oil and gas
production, that could be used more wisely to replenish and restore
some of our renewable resources while we are, in fact, depleting a
nonrenewable resource.
Based on the crisis that we are facing in our Nation today, our
energy crisis--as the chairman, Senator Murkowski, from the State of
Alaska, has so ably spoken about on this floor so many times--we can
really now recognize the value of producing States. Let's make sure the
billions of dollars we are sending to the Federal Treasury is used not
just for general government purposes but used to invest in our
environment to provide parks and recreation, wildlife and conservation,
and, yes, to extend help to coastal impact assistance and coastal
communities everywhere.
She says she understands it. Although she has not officially endorsed
the bill, she will work very closely with us to carry out our work on
CARA. Let me be quick to mention, though, that while she has not taken
an official position and did not do so in the hearings, President Bush
did in fact endorse, during the campaign, the CARA legislation. He did
remind us all as Americans that you just can't keep taking; that
sometimes you have to give back if you want your children and your
grandchildren to enjoy the same benefits of open spaces, wildlife, and
fisheries.
Mr. President, I ask unanimous consent for 2 more minutes to close.
Mr. MURKOWSKI. If I may, I dearly want to accommodate my good friend
from Louisiana, but Senator Landrieu asked for 7 minutes, Senator
Hutchison for 5, and Senator Baucus for a minute and a half. The two
Senators from Colorado need time, and we have to finish at 12:30. I
encourage colleagues to try to keep within their time limits.
Ms. LANDRIEU. I thank the Chair. I will take 1 minute to close.
President Bush endorsed this bill during the campaign, and I believe
with Ms. Norton's leadership, with President Bush's leadership, and
with bipartisan leadership in the Senate and House, it is an early
bipartisan victory we can achieve for the environment and for our
Nation. I look forward to working with her on that and many other
issues. I am proud to support her nomination as our new Secretary of
the Interior, and I look forward to working with her in the years
ahead.
I thank the Chair, and I yield back whatever time I have remaining.
Mr. MURKOWSKI. I thank the Senator from Louisiana.
I believe the Senator from Texas seeks recognition as the next in
order on the list, followed by Senator Baucus.
The PRESIDING OFFICER. The Senator from Texas.
Mrs. HUTCHISON. Mr. President, I thank the distinguished chairman of
the Energy Committee.
Mr. President, I rise today to speak on behalf of my friend Gale
Norton to be Secretary of the Interior.
I have watched Gale as the attorney general of Colorado. I worked
with her very closely on the lawsuit that the attorneys general of our
States filed against the tobacco companies. Gale was one of the key
leaders of the States' attorneys general in that effort and
successfully negotiated the lawsuit against the tobacco companies. We
worked very hard to make sure that that money stayed in the States,
that the Federal Government was not able to take part of the tobacco
settlement money away from the States. That has certainly helped all of
our States use that money mostly for the purpose of better health care
for the indigent people in their States and for all citizens who need
help with health care.
In my State of Texas, we added it to the CHIP program for children's
health insurance. I know this has added to the quality of health care
coverage in our country, and Gale Norton was one of those most
responsible for it.
As a former State official, she has also shown that she wants to
protect the environment, and she also wants balance in our
environmental laws. She believes the Federal Government should have the
same requirements to keep environmental standards high that our private
industries do.
As Colorado attorney general, she was able to get involved in
negotiations to make sure the Federal Government cleaned up hazardous
waste in the Rocky Mountain arsenal.
She is going to be the person who will improve public health and the
environment in an evenhanded and thoughtful way. I can think of no
person who would be better for this job as Secretary of the Interior
than Gale Norton.
Mr. President, we will also be voting on the nomination of Gov.
Christine Todd Whitman to be EPA Administrator, a Cabinet post. I
cannot think of a better person for EPA Administrator than this
wonderful Governor of New Jersey who has a very strong environmental
record and who also believes in balance to make sure that our economy
stays strong and we keep the environment clean for future generations.
I am proud to speak for Governor Whitman and for my friend Gale
Norton to join the Cabinet of President Bush, hopefully this afternoon,
because I think they will add immense experience, quality,
intelligence, and integrity to that Cabinet. I am pleased to support
them.
I thank Senator Murkowski for giving me this time.
Mr. MURKOWSKI. I thank Senator Kay Bailey Hutchison.
Senator Baucus is seeking recognition.
The PRESIDING OFFICER. The Senator from Montana.
Mr. BAUCUS. Mr. President, at the outset, I want to be clear that I
have reservations about Ms. Norton's ability to reconcile her history
of passionately battling Federal environmental and public health laws
with her duties as Interior Secretary, the public's voice in protecting
and managing the Nation's national parks, its endangered wildlife and
one-third of the nation's public lands.
Ms. Norton has stated she endorses the goals of our nation's land and
wildlife protection laws. She must do more. She must enforce and uphold
the spirit of those laws, the very laws she has tried in the past to
undermine. She must ensure balance in her and her Department's
decisions, listening to the concerns of all interested parties.
Because so many lands in Montana belong to the Federal Government and
will fall under Ms. Norton's jurisdiction, Ms. Norton's actions will
have an enormous impact on our way of life. Her actions will also
impact the many native American tribes in Montana. I hope we can work
together to ensure that those impacts are positive, both for Montana
and for the Nation. I know I will do my part, and I expect she will do
her part.
Despite these reservations, I believe that Ms. Norton is qualified
for this position, I believe that she is honest and that she has the
utmost integrity and that she will do her best to carry out her many
obligations. I believe that Ms. Norton should be confirmed as Secretary
of the Interior.
The PRESIDING OFFICER. The Senator from Alaska.
Mr. MURKOWSKI. Mr. President, I yield 10 minutes to the Senator from
Colorado.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. CAMPBELL. Mr. President, I take this opportunity to offer my
wholehearted support for Gale Norton's nomination.
After all the rhetoric about Ms. Norton for the last month, it only
took two appearances before the Energy Committee to get an 18-2 vote.
That may not be unanimous, but it is mighty close to it. It is
certainly overwhelming. I believe it is evidence that an overwhelming
majority of the committee knows she is an outstanding candidate for the
job.
She has proven she is knowledgeable, articulate, and capable of
enduring round after round of detailed questions while being the object
of pretty outrageous charges and mean-spirited ads paid for by her
extremist detractors. She handled it, as she does everything, by simply
focusing on the job at hand. The more she sat in those hearings, the
more she convinced our colleagues that she is the right person for the
job.
My Democrat colleagues on the committee saw, as with several other
Bush nominees, that getting through this nomination process is not
easy. The environmental groups that focused on her simply were wrong.
Her management direction and experience have been proven over and over,
and I was pleased to hear some very enthusiastic and

[[Page S672]]

commendable words from my colleagues on the other side of the aisle and
other side of the dais in our Energy Committee before we voted to send
her nomination to the floor.
My friend and colleague from California, Senator Dianne Feinstein,
stated:

Some of the things said about her are simply not correct.

That is absolutely true. Some of the articles in paid-for ads in the
Washington Post were simply distorted.
She certainly allayed, through her testimony and her answers to 227
written questions to the committee, the fears my colleagues had.
Senator Baucus, Senator Landrieu, and Senator Bingaman, all valued
Members of this body, questioned her at length and came away with the
same opinion I have: That she is going to be a very good Secretary of
the Interior. Directly after the vote, the same people who had attacked
her before did so again, and also sent kind of a warning shot to the
Senate Democrats on the committee. The President of the Friends of the
Earth, a prominent environmental group, said after the vote that Norton
is ``a wolf in sheep's clothing'' and that ``she pulled the wool over
the eyes of the Senators.'' That paragraph was in the Washington Post
on January 24. These are the types of fictional jabs that I believe led
to the vote for her overwhelmingly.

Contrary to the Friends of the Earth, she did not pull the wool over
anybody's eyes. In fact, if anything, she opened the eyes of many of
the committee members who had some questions about her qualifications
before she had a chance to be interviewed.
I have known Gale for many years both in a professional capacity and
as a friend, too. Let me state for the Record, she has a long and
distinguished career of doing the right thing--always. Her consensus-
building ability might be best illustrated by her 8 years as Colorado's
attorney general. There she served under a Democrat Governor and still
accomplished much for the betterment of Colorado, not the least of
which was the cleanup of Superfund sites.
For more than 20 years, she has provided leadership on environmental
and public lands and has demonstrated a responsible commonsense
approach to preserving our natural heritage.
I listened to some of the comments of her detractors on the floor
this morning, and I will tell you that is not the Gale Norton I know.
In fact, the Gale Norton I know represents a balanced approach to
public lands.
Another significant fact to know about Ms. Norton is she is committed
to enforcing the law as it is written. Throughout her questioning in
front of the Energy Committee, she repeatedly stated she will enforce
the letter of the law with which she is entrusted. I believed her. The
majority of the committee also believed her.
I think that is a novel approach. I say to the Presiding Officer,
coming from the West, you, as I, have seen a Secretary of the Interior
the last number of years who believes laws are passed by Congress, and
they are simply an extension of what the Secretary of the Interior
wants to do by rulemaking authority. Ms. Norton will follow the rule of
law.
She listens to common sense while she searches for common ground.
Unlike many in Washington, she understands that real environmental
solutions do not just come from beltway professionals or are driven by
ideological purists but come by including people whose lives are going
to be affected. They come from real people with honest concerns about
the land and the water.
She relayed this to all of the Senators she testified before and
visited around the time of her confirmation hearing. She proved to 18
of the 20 Senators of the committee that she is the right person for
the job. She is up to the task. She will be a very fine Secretary of
the Interior.
And probably above all, we have witnessed in the West in the last few
years a process which certainly locks out any local input whatsoever.
Ms. Norton is concerned about that. She knows that the people whose
lives are affected at the local level must also be included when we
talk about public lands policy.
Her record as a public servant demonstrates she will work with all
parties to craft reasonable solutions. That kind of evenhanded approach
to public land management has been missing, and the West is worse off
for it. I know she will bring to this office of Interior Secretary
decisive action in the land and resource issues where we have recently
seen too much photo-op and not enough solid demonstrable decisions.
I believe she should be confirmed by the full Senate quickly, and by
a large margin, and certainly would ask my colleagues to do so.
With that, I thank the Chair and yield the floor.
Mr. MURKOWSKI addressed the Chair.
The PRESIDING OFFICER. The Senator from Alaska.
Mr. MURKOWSKI. Mr. President, might I ask, how much time is remaining
for debate?
The PRESIDING OFFICER. Seventeen minutes 15 seconds.
Mr. MURKOWSKI. Seventeen minutes. I thank the Chair, and I thank my
colleague from Colorado.
Mr. President, virtually every newspaper in Colorado has endorsed Ms.
Norton. I cannot think of one that has not. The attorneys general
throughout the United States have rallied behind her, those who have
worked with her and know her. I cannot think of a greater tribute to
her than hearing from those who have worked with her and have respected
her over an extended period of time.
Mr. President, I ask unanimous consent that a letter from the
International Brotherhood of Teamsters, dated January 29, 2001, signed
by the general president, James P. Hoffa, be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:

International Brotherhood of

Teamsters,

January 29, 2001.
Dear Senator: On behalf of the 1.5 million members of the
International Brotherhood of Teamsters, I urge you to support
the nomination of Gale Norton for Secretary of Interior.
As you know, the United States finds itself facing an ever-
growing crisis in meeting its energy needs. As skyrocketing
gas prices hit the pocketbooks of working Americans and
rolling blackouts bring to a grinding halt the economic
engine of California, the citizens of this country look to
the federal government to address this program now.
Our first step must be to increase the United States'
energy independence. The Arctic National Wildlife Refuge
(ANWR) offers a realistic and immediate opportunity for
working toward this goal. Tapping the resources of ANWR in an
environmentally sensitive manner will provide 10.3 billion
gallons of oil, while at the same time creating an estimated
25,000 Teamster jobs and potentially 750,000 jobs nationwide.
Ms. Norton recognizes these facts. Her commitment to
finding real solutions, particularly with regard to ANWR,
demonstrates that she has the ability to balance the needs of
the environment with the needs of working Americans.
Admittedly, during her tenure as Colorado Attorney General,
Ms. Norton did oppose the labor community on some issues very
important to our members. However, I believe that her
commitment to energy independence and job creation portends a
welcome shift in priorities at the Department of the Interior
that will benefit Teamsters and other working families.
For these reasons, I ask you to vote to confirm Gale Norton
as Secretary of Interior.
Sincerely,
James P. Hoffa,
General President.

Mr. MURKOWSKI. Mr. President, I yield myself 7 minutes.
I will take the liberty of referring to the letter:

On behalf of the 1.5 million members of the International
Brotherhood of Teamsters, I urge you to support the
nomination of Gale Norton for Secretary of Interior.

The next paragraph reads as follows:

As you know, the United States finds itself facing an ever-
growing crisis in meeting its energy needs. . . .
Our first step must be to increase the United States'
energy independence. The Arctic National Wildlife Refuge
(ANWR) offers a realistic and immediate opportunity for
working toward this goal. Tapping the resources of ANWR in an
environmentally sensitive manner will provide 10.3 billion
gallons of oil, while at the same time creating an estimated
25,000 Teamster jobs and potentially 750,000 jobs nationwide.
It would be the largest construction project in the history
of North America.
Admittedly, during her tenure as Colorado Attorney General,
Ms. Norton did oppose the labor community on some issues very
important to our members. However, I believe that her
commitment to energy independence and job creation portends a
welcome shift in priorities at the Department of the Interior
that will benefit . . . working families.

Mr. President, we disagree in this body on a daily basis, and that is

[[Page S673]]

healthy, and it is a part of the process before us. But I think some in
the environmental community could learn from that model associated with
Ms. Norton's confirmation effort. She represents some of the western
values and approaches toward public lands and the environment.
People are free to disagree with her values and approaches; however,
in some cases, some have tried to portray her as an extremist.
Representatives of some special interests said that she has spent her
lifetime trying to undermine the mission of the agency she is nominated
to lead; that is, the Department of the Interior.
The disagreeable rhetoric used was never born out in fact. In her
entire testimony before the committee, of which I chair, the Energy and
Natural Resources Committee, where we have held 2 days of hearings, we
had her respond to about 224 questions. We voted her out with a mandate
vote of 18-2.
In any event, that rhetoric is without reality and has led to
questioning the goals of some in the environmental community. I do
question the goals, and I do question the effort to basically character
assassinate this nominee.
Let me quote from a January 19, 2001, guest editorial in the Chicago
Sun Times:

The Norton nomination exposes a growing schism within the
national environmental movement. An increasingly radical left
wing, funded by a small number of liberal foundations and
tens of millions of dollars each year from government grants,
will stop at nothing to shut down American manufacturing and
to ban all public access to public lands. These are the same
groups that rioted in Seattle in November 1999 and are
burning down resorts and new homes to protest sprawl.

Mr. President, it goes without saying that the Colorado newspapers
have supported Ms. Norton, but they go further than that. How about the
Tacoma News Tribune:

Norton has been described, even by some Democrats, as
bright, hard-working, highly ethical and willing to at least
listen to those with opposing views.

Washington State Attorney General Christine Gregoire said:

The Sierra Club asked me not to say positive things about
[Ms. Norton]. I told them to show me why she shouldn't be
confirmed. I am still waiting for them to show me the
evidence.

Like the Washington State attorney general, I am still waiting to see
the evidence that Ms. Norton does not support the Endangered Species
Act.
She led the fight to save the California condor. In her appearance
before the committee, she repeatedly stated that she would enforce the
Endangered Species Act. I have heard television ads run about Ms.
Norton's, something they call, ``right to pollute.'' They did not
clarify that Ms. Norton used this phrase only in discussing emissions
trading, a concept later embodied in the Clean Air Act passed by the
Congress. It was a Democratic Congress.
These are two of the egregious misrepresentations of her record made
by special interest groups. I am almost ashamed of some of these
groups. I don't think any person in this body should repeat any of the
vicious personal attacks made in desperate attempts to derail this
nomination. I view some of the attacks as despicable, unworthy of the
space it took to print them. Such distortions and name calling really
reflect badly on the authors, not on Ms. Norton. I am also ashamed that
some of these D.C.-based groups use the word ``Alaska'' as part of
their name. The reputation of several of these environmental interest
groups is in tatters after this process. Ms. Norton's stature remains
upright and in one piece.
I know we have heard from a number of Senators expressing their views
today. The Senators who will close the debate--we have already heard
from Senator Campbell; Senator Wayne Allard from Colorado is next--have
worked under the tenure of the attorney general, and I commend their
statements to the Senate as a true picture of the nominee before us,
the nominee who will make an excellent Secretary of the Interior.
Finally, they try to rub out the messenger, but they can't rub out
her message; that is, that she will uphold and enforce the law.
I yield the remainder of the time to the Senator from Colorado.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. ALLARD. I thank the Senator from Alaska. I compliment him on a
fine job on the floor and in committee on the nomination of Gale Norton
to be Secretary of the Interior. I also recognize the diligent efforts
of my colleague, Senator Ben Campbell of Colorado, in carrying forward,
making sure we get a confirmation.
I rise today in strong support of President Bush's nomination of Gale
Norton to be the next Secretary of the Interior. I have known Gale
Norton for years and know her to be an individual with strong personal
convictions and the upmost professional integrity.
This past month, my colleagues in the Senate and our constituents
have had a chance to get to know Gale Norton. During that time they
learned that Gale was a member of the law school honor society at the
University of Denver; after law school she joined her alma mater as the
Interim Director of the Transportation Law program at the University of
Denver law school. Gale also worked at the U.S. Departments of
Agriculture and Interior serving as Associate Solicitor for
Conservation and Wildlife. This diverse background gave her a solid
foundation to run successfully for Colorado's Attorney General, a
position she was overwhelmingly reelected to in 1994. During her 20
years working on environmental and natural resource issues, Gale Norton
has gained a solid reputation defending the role of the State,
advocating sensible environmental cleanup and solving problems.
Now, I know that most western Senators support Gale Norton for
Secretary of the Interior. But for those of my Senate colleagues who
still have doubts, let me tell them some more about Gale and her career
and why she deserves their support.
I am a fifth generation Coloradan, and believe me, I know what it
means to represent such a beautiful and diverse State. Gale also grew
up in Colorado and she knows that Coloradans take environmental issues
seriously. Whether it's a farmer or rancher, small businessman, high
tech employee or new immigrant to the state, everyone recognizes and
appreciates the connection between our economy and our environment.
Colorado is not gaining a 7th congressional seat because our
environment has been neglected. If anything, Colorado has demonstrated
that there can be a balance between environmental protection and
economic prosperity. This balanced approach was utilized during Gale's
tenure as Attorney General.
Coloradans recognized Gale's ability and qualifications and entrusted
her to represent them on complex and diverse issues. As Colorado
Attorney General, Gale was committed to enforcing the law. She led
efforts to ensure that the federal government cleaned up its hazardous
and toxic wastes in Colorado and actively participated in the
settlement of complex water rights cases. Gale also testified before
Congress on implementation of the National Environmental Policy Act,
Superfund and Colorado wilderness legislation. Gale's input on these
issues was always based on the premise that we can improve the laws so
they protect the environment without imposing unnecessary burdens on
society. Contrary to some reports, commenting on the effectiveness of a
law does not equate to advocating repeal of the law.
We need to set the record straight on some of the outlandish
statements radical environmental groups have been generating. Radical
environmental groups are trying to tie Gale Norton to the Summitville
mine disaster, an event that didn't even happen on her watch. It
happened under former Colorado Governor Roy Romer, a Democrat, his head
of Department of Natural Resources Ken Salazar, and the attorney
general, also a democrat. No one denies the environmental abuses at
Summitville, but unfairly trying to link Gale to this is appalling.
Even Ken Salazar, who now serves as Colorado's Attorney General
believes she should have the opportunity to serve as Secretary of the
Interior.
During Gale's 8 years as attorney general, she never allowed free
reign for polluters to come in and destroy our environment.
At this point, I ask unanimous consent to print in the Record an
editorial entitled ``Summitville Gold Mine Is Cast As A Political
Boogeyman'' by Denver Post columnist and editorial writer Al Knight.

[[Page S674]]

There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the Denver Post, Jan. 30, 2001]

Summitville Gold Mine Is Cast as a Political Boogeyman

(By Al Knight)

January 10, 2001.--The New York Times, for reasons that
must be assumed to be political, has attempted to smear Gale
Norton, President-elect George W. Bush's choice for Secretary
of Interior.
In an article last Sunday, The Times essentially attempted
to make Norton, a former Colorado attorney general,
responsible for what is headlined as ``the death of a
river.''
The article, which relied on a series of factual
misrepresentations regarding the Summitville gold mine, also
made a hash of explaining applicable environmental law.
The writer, Timothy Egan, clearly doesn't understand the
history of Summitville, nor does he demonstrate any
understanding of the ongoing dispute between the
Environmental Protection Agency and various states, including
Colorado, that have passed environmental self-audit laws.
Egan's thesis was simple. Summitville was an environmental
disaster. Norton was attorney general when it happened, thus
she was partially responsible for it. Because Norton has
supported self-audit laws that allow companies to inventory
and report on environmental problems, she therefore must
somehow countenance the environmental damage at Summitville.
The problem with this thesis is that it is wrong on almost
every count.
Egan misrepresents the so-called death of the Alamosa
River. That river has for decades been anything but a prime
fishery. The watershed has long been affected by acid mine
drainage and by naturally occurring minerals and heavy metals
in the soil. It is simply irresponsible of The Times to
continue to repeat allegations that discharges from
Summitville killed the river.
A high-level EPA memo written in 1995 summarizing
``ecological data and risks at Summitville'' said there were
``uniquely high and variable levels of natural background
metals (in the Alamosa River) which can often exceed aquatic
lethality benchmarks independently of site contamination.''
Translation: Summitville contamination alone cannot account
for the absence of fish in the river.
That same memo, by the way, says that drainage from the
Summitville site at certain times of the year ``could
actually improve upstream Alamosa River water quality.''
Egan goes on to repeat the falsehood that cyanide releases
from the Summitville mine killed fish. It makes for a nice
scare story but it did not happen. No fish died of cyanide
poisoning.
Norton was attorney general when the state and federal
government filed suit in 1996 against financier Robert
Friedland--a former owner of the company who ran the mine in
the mid- and late 1980s--attempting to recover cleanup costs.
That suit was finally settled last month, with Friedland
agreeing to pay $27.5 million. There is no allegation in The
Times or elsewhere that Norton did less than quality work in
connection with that case, which was mostly dictated by
federal law. It's worth noting that Friedland paid much less
than the government originally sought and won some important
concessions as part of his settlement, which ends all U.S.
claims against him.
For one thing, most of his money will stay in Colorado to
help improve conditions in or near the Alamosa River.
Normally, under the Superfund law, recovery of cleanup costs
goes directly into the federal treasury. Friedland has long
claimed that the federal government wasted millions at
Summitville and said that he did not want his money to be
used to effectively finance what he believes is EPA waste.
This concession was almost certainly won because the EPA
had badly botched its legal case against Friedland. Friedland
had a important case pending against the United States before
the Canadian Supreme Court, and it is safe to assume the
United States was anxious to avoid having that case go
forward. Any mishandling of the Summitville litigation can be
directly traced to the EPA and to the Justice Department.
Norton was certainly not responsible.
Finally, there is the matter of the state's self-audit law.
Colorado's law was passed after Summitville went out of
business. The self-audit procedure has nothing whatsoever to
do with Summitville. What happened under Norton's watch
regarding self-audits was quite simple:
The EPA, in effect, declared war on the states that had
such a statute, and North--as attorney general--defended the
state law against what was clearly a federal over-reach.
Self-audits were never intended to trump or otherwise replace
all other federal or state regulation. The truth is that the
EPA didn't want to see its power diminished and decided to
fight the use of self-audit laws even though there was clear
and convincing proof they produced environmental benefits
that otherwise would not have been achieved.
The New York Times seems incapable of keeping its clearly
liberal political positions out of its news columns. It has
achieved something of a temporary new journalistic low in
trying to tie Norton to a mythical ``death'' of a river. The
state of Colorado may have made a number of mistakes relative
to Summitville, but they pale to insignificance compared with
the mistakes made since by the EPA, its waste of millions in
tax dollars and the federal government's mishandling of years
of litigation. That's the truth, whether The New York Times
knows it or not.

Mr. ALLARD. The Denver Post, which describes itself as a newspaper
with an active environmentalist agenda says that ``Norton should not be
slammed for other politicians' mistakes,'' also defends Norton as one
who tried to fix Summitville under nearly impossible circumstances. I
hope my colleagues read these editorials and help set the record
straight to end these vicious rumors.
With Gale as the Secretary of the Interior, we can begin the healing
process in our rural communities, of regaining their trust. You see,
when I was elected to the Senate, I made a commitment to all the
residents of Colorado, that I would visit their county every year for a
town meeting. I've held more than 250 town meetings, and whether I was
in the rural communities of Craig and Lamar or the larger communities
of Grand Junction and Pueblo, the message was the same--they were tired
of constant threats and assaults on their way of life, they don't trust
government. And how can they? When in the waning days of the Clinton
administration, some 2000 pages a day of new rules and regulations were
added to the Federal Register. How can this be good for the environment
and the economy?
Gale believes there is a role for local input in the public policy
process. It's one thing to say that you believe in local involvement,
but to actually use their input and listen is different. I know that
Gale adheres to this philosophy. I also know that Gale recognizes the
role of Congress in protecting our environment. I am confident that she
will work with all of us, as elected officials and our constituents to
address our complex environmental issues.
With Gale Norton and President Bush, we will restore the premise that
the public and Congress have a role in the decision making process,
especially as it relates to federal land management. Local input and
congressional support ensures that sound public policy prevails. I know
the new administration will work to protect the environment and restore
integrity to the public process.
Now that you know who Gale Norton is and what she represents, I hope
you too will give her your strong support and vote yes for her
confirmation.
Again, I thank Senator Murkowski and Senator Ben Campbell for their
efforts on Gale Norton's behalf.
The PRESIDING OFFICER. The Senator from Alaska.
Mr. MURKOWSKI. I thank my two colleagues from Colorado for their
statements in support of the nominee. I ask unanimous consent that I
may be allowed to simply recognize a group of supporters who I believe
should be entered into the Record at this time.
We have letters of support for Gale Norton from Indian tribes: the
Navajo Nation, the Nez Perce Tribe, Oneida Indian Nation, United South
and Eastern Tribes of Tennessee, Ute Mountain Tribe, the Southern Ute
Indian Tribe, and United South and Eastern Tribes.
I ask unanimous consent to print letters of support from those tribes
in the Record.
There being no objection, the letters were ordered to be printed in
the Record, as follows:

The Navajo Nation,

Window Rock, AZ, January 16, 2001.
Hon. Ben Nighthorse Campbell,
Russell Senate Office Building, Washington, DC.
Dear Senator Campbell: On behalf of the Navajo Nation, I
convey our support for Ms. Gale Norton, nominee for Secretary
of the Department of the Interior. The Navajo Nation, in its
government-to-government relationships, works with the
Department of the Interior on myriad issues affecting the
Nation. Although there are times when we disagree with one
another we continue to work together for the benefit of the
Navajo People. We wish to continue the working relationship
with the new administration and we look forward to working
with Ms. Norton.
The Navajo Nation's past experience with Gale Norton
involved issues with the Southern Ute Tribe during her term
as Attorney General for the State of Colorado. During that
time Ms. Norton approached the tribes and asked how she could
help. She provided testimony to the House (Natural Resources)
Committee on the Animas-LaPlata project which benefitted the
tribes. Her willingness to support the tribes demonstrates
her knowledge of Indian nations and their position within the
federal system.

[[Page S675]]

The Navajo Nation does have its concerns with regard to
Indian country policies and initiatives. We advise the new
administration to follow the basic goals and principles of
affirmation of the commitment to tribal sovereignty and self-
determination, protecting and sustaining treaty rights and
the federal trust responsibilities, and supporting
initiatives which promote sustainable economic development in
Indian country.
The Navajo Nation supports the nomination of Gale Norton
for Secretary of the Interior and we trust she will continue
to work with Indian country as she has done in the past. We
look forward to working with her in advancing Indian country
policies and Indian initiative for the Bush/Cheney
Administration.
Sincerely,
Kelsey A. Begaye,
President.
____

Resolution of the Intergovernmental Relations Committee of the Navajo
Nation Council

Supporting President-Elect George W. Bush's Cabinet Nominee for United
States Department of the Interior, Gale Norton

Whereas:
1. Pursuant to 2 N.N.C. Sec. 821, the Intergovernmental
Relations Committee of the Navajo Nation Council is
established and continued as a Standing Committee of the
Navajo Nation Council; and
2. Pursuant to 2 N.N.C. Sec. 822(B), the Intergovernmental
Relations Committee of the Navajo Nation Council ensures the
presence and voice of the Navajo Nation; and
3. Pursuant to 2 N.N.C. Sec. 824(A), the Intergovernmental
Relations Committee of the Navajo Nation Council shall have
all the powers necessary and proper to carry out said
purposes; and
4. Pursuant to the Treaty of 1868, the Navajo Nation and
the United States Government have a government-to-government
relationship; and
5. The United States Department of the Interior is charged
with maintaining the government-to-government relationship
between the United States and the Navajo Nation; and
6. President-Elect George W. Bush has nominated Ms. Gale
Norton as the Secretary of the Interior, United States
Department of the Interior; and
7. The Navajo Nation previously interacted with Ms. Gale
Norton, former Colorado State Attorney General, on issues,
which benefited the Southern Ute Nation and the Navajo
Nation. Now therefore be it resolved, that:
1. The Intergovernmental Relations Committee of the Navajo
Nation Council supports President-Elect Bush's Cabinet
nominee, Ms. Gale Norton, for Secretary of the Interior,
United States Department of the Interior.
2. The Intergovernmental Relations Committee of the Navajo
Nation Council authorizes and directs Navajo Nation President
Kelsey A. Begaye to deliver a letter of support for Ms. Gale
Norton to President-Elect George W. Bush, Senator Jeff
Bingaman, Senator Pete Domenici, Senator John McCain, Senator
John Kyl, Senator Daniel K. Inouye, Senator Ben Nighthorse
Campbell, Senator Orrin G. Hatch, and Senator Robert F.
Bennett, on behalf of the Navajo Nation.
____

Nez Perce,

Tribal Executive Committee,

Lapwai, ID, January 18, 2001.
Re: Secretary of the Interior Appointment
U.S. Senate:
With the recent George W. Bush election victory, a primary
interest of the Nez Perce Tribe in the transition process is
the appointment of Gale Norton as the Secretary of the
Interior. As you know, this Secretary's agency, the Bureau of
Indian Affairs, has the primary charge of maintaining the
federal government's trust relationship with Indian Tribes.
President-Elect Bush, in a letter to the Nez Perce Tribe
dated August 18, 2000, stated ``I will strengthen Indian
self-determination by respecting tribal sovereignty, which
has improved the quality of life for many Native Americans. I
recognize and reaffirm the unique government-to-government
relationship between Native American tribes and the federal
government. I will strengthen Indian self-determination by
respecting tribal sovereignty, which has improved the quality
of life for many Native Americans. I believe the federal
government should allow tribes greater control over their
lives, land, and destiny.'' He also stated that he would like
to work with Indian tribes to chart a course which
``recognizes the unique status of the tribes in our
constitutional framework...'' We urge you to ensure that when
making your decision to support the President-Elects'
appointee, Gale Norton, these principles underlie the
process.
In addition, the Republican Platform states that ``high
taxes and unreasonable regulations stifle new and expanded
businesses and thwart the creation of job opportunities and
prosperity [for Native Americans]. The federal government has
a special responsibility, ethical and legal, to make the
American dream accessible to Native Americans. We will
strengthen Native American self-determination by respecting
tribal sovereignty, encouraging economic development on
reservations. We uphold the unique government-to-government
relationship between the tribes and the United States and
honor our nation's trust obligations to them.''
We sincerely hope that all the President-Elect's
appointees, including Gale Norton, is not only aware of these
basic tenets of tribal sovereignty, but that such tenets are
upheld and enforced, rather than ignored or legislated out of
existence. In upholding these significant maxims, it is
essential that the Secretary of the Interior appointee
support the rights of Indian people. To Indian Tribes, this
position is extremely important so, again, we urge you to
take great care in the confirmation process of the appointed
Secretary of the Interior.
Thank you. Please give me a call if you have any questions.
Sincerely,
Samuel N. Penney,
Chairman.
____

Oneida Indian Nation,

Oneida Nation Homelands,

Vernon, NY, January 19, 2001.
Hon. Frank Murkowski,
Chairman, Senate Committee on Energy and Natural Resources,
Dirksen Senate Office Building, Washington, DC.
Dear Chairman Murkowski: On behalf of the Oneida Indian
Nation of New York, I am writing to express support for Gale
Norton to be the next Secretary of Interior.
While our tribe does not have first hand experience with
Secretary-designate Norton, I am encouraged that she has
worked with Indian nations on a government-to-government
basis during her tenure as the Attorney General of the State
of Colorado. As Attorney General, Ms. Norton repeatedly
demonstrated respect for tribal sovereignty. For example, in
the wake of Colorado's settlement with the tobacco industry,
Ms. Norton worked to ensure that the tribal share of the
proceeds went directly to tribal governments rather than be
administered through state agencies.
As Secretary of Interior, Ms. Norton would preside over the
Bureau of Indian Affairs and help set the agenda for issues
that are of vital importance to Native Americans. These
issues, which include health care, education, sovereignty,
economic development, gaming, and taxation, have been
increasingly the subject of debate in Congress. Consequently,
we believe that it is imperative that the next Secretary of
Interior respect the role of tribal sovereignty, affirm a
government-to-government relationship between the federal
government and Indian nations, and provide the tools the
tribes need to further the goal of tribal self-advancement
and economic self-sufficiency.
Because of Ms. Norton's background and record on issues
relating to Native Americans, we offer our endorsement of her
nomination to become the next Secretary of Interior.
Na ki' wa,
Ray Halbritter,
Nation Representative.
____

United South and

Eastern Tribes, Inc.,

Nashville, TN, January 19, 2001.
Hon. Frank Murkowski,
Chairman, Senate Committee on Energy and Natural Resources,
Dirksen Senate Office Building, Washington, DC.
Dear Chairman Murkowski: As President of the United South
and Eastern Tribes, I am writing to express support for Gale
Norton to be the next Secretary of the Interior. USET is an
organization made up of 24 Federally recognized tribes that
extend from the State of Maine to the tip of Florida and over
to Texas.
In my role as President of USET, I have not had first hand
experience with Secretary-designate Norton, however, I am
encouraged that she has worked with Indian nations on a
government-to-government basis during her tenure as the
Attorney General of the State of Colorado. As attorney
general, Ms. Norton repeatedly demonstrated respect for
tribal sovereignty. For example, in the wake of Colorado's
settlement with the tobacco industry, Ms. Norton worked to
ensure that the tribal share of the proceeds went directly to
tribal governments rather than be administered through state
agencies.
As Secretary of the Interior, Ms. Norton would preside over
the Bureau of Indian Affairs and help set the agenda for
issues that are of vital importance to Native Americans.
These issues, which include health care, education,
sovereignty, economic development, gaming, and taxation, have
been increasingly the subjects of debate in Congress.
Consequently, we believe that it is imperative that the next
Secretary of the Interior respect the role of tribal
sovereignty, affirm a government-to-government relationship
between the federal government and Indian nations, and
provide the tools tribes need to further the goal of tribal
self-advancement and economic self-sufficiency.
Because of Ms. Norton's background and record on issues
relating to Native Americans, I offer my endorsement of her
nomination to become the next Secretary of the Interior.
Sincerely,
Keller George,
President of USET.
____

Ute Mountain Ute Tribe,

Southern Ute Indian Tribe,

January 8, 2001.
Hon. Frank Murkowski,
Senate Energy and Natural Resources Committee, Dirksen Senate
Office Building, Washington, DC.
Dear Chairman Murkowski, We are writing in support of the
nomination of Gale

[[Page S676]]

Norton to serve as Secretary of the Interior, and hope you
will share our remarks with members of the Committee who will
visit with her during her upcoming confirmation hearing.
Our Tribes have enjoyed a strong working relationship with
the State of Colorado for many years. As Attorney General,
Gale Norton furthered that relationship through her
commitment to resolving issues in a fair and thoughtful way.
She is an open-minded leader who listens and then works
toward a resolution. We were able to agree to a gaming
compact with the State of Colorado during her tenure as
Attorney General. In addition, her strong and adamant support
of the Colorado Ute Indian Water Rights Settlement Act was a
major factor in what ultimately became successful legislation
to modify the Animas-La Plata Project and still meet the
obligation to the Ute people of Colorado.
Ms. Norton is a very capable individual whose public
service is not based on a desire for accolade or credit, but
on a commitment to resolve issues, no matter how
controversial.
We proudly support her nomination and enthusiastically
encourage the Senate to approve her nomination.
Sincerely,

Ernest House,

Chairman, Ute Mountain Ute Tribe.

Vida Peabody,

Acting Chairman, Southern
Ute Indian Tribe.

Mr. MURKOWSKI. I also have letters from the Fraternal Order of
Police, United States Park Police Labor Committee endorsing Ms. Norton;
the Governor of Guam endorsing Ms. Norton; the Commonwealth of the
Northern Mariana Islands endorsing Ms. Norton, signed by Pedro Tenorio,
Governor; and a letter of January 17th from 21 State attorneys general
supporting the nomination of Ms. Norton.
I ask unanimous consent that these documents be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Fraternal Order of Police,

U.S. Park Police Labor Committee,

Washington, DC, January 15, 2001.
Hon. Frank Murkowski,
Chairman, Senate Energy and Natural Resources Committee,
Senate Dirksen Building, Washington, DC.
Dear Chairman Murkowski: On behalf of the Fraternal Order
of Police, United States Park Police Labor Committee, we are
writing to strongly endorse President-elect Bush's nomination
of Gale A. Norton for the office of Secretary of the
Interior. We feel Ms. Norton is extremely well qualified for
this position and possesses the knowledge, experience, and
leadership necessary to be a highly successful Secretary. We
urge the Committee to favorably report her nomination to the
full Senate as quickly as possible.
The United States Park Police Labor Committee is deeply
concerned with the current state of law enforcement within
the Department of the Interior. For this reason, we are
adding our voices to the many others who are supporting the
nomination of Mr. Norton. Our Committee does not customarily
write endorsements, but we feel that the importance of
confirming Ms. Norton justifies our participation.
During the past two years, three separate studies have been
conducted to examine law enforcement operations in the
Department. Two of these studies were conducted by outside
experts, namely Booz-Allen Hamilton and the International
Association of Chiefs of Police, while a third was an
Internal Departmental review mandated by the Senate. All
three studies concluded that the effectiveness of law
enforcement activities by the U.S. Park Police and the Law
Enforcement Rangers has been consistently declining. While
both organizations continue to successfully fulfill their
mission of protecting our parks and their visitors, a lack of
resources and emphasis on law enforcement in the Department
threatens our future ability to keep public lands safe.
Strong leadership and critical reforms are needed now.
From a law enforcement perspective, Ms. Norton is an
outstanding candidate for Secretary. Her background in law
enforcement as Attorney General of Colorado, coupled with her
previous service within the Department, gives her a unique
ability to understand and address the problems faced by its
law enforcement agencies. Throughout her career in public
service, she has consistently shown strong support for law
enforcement officers. Furthermore, she has repeatedly proven
her ability to work with diverse individuals and groups to
forge consensus and accomplish important tasks. We are
confident that Ms. Norton will exert this same vigorous
leadership as Secretary of the Interior to enact the reforms
necessary to strengthen agency law enforcement efforts and
ensure the safety of the visitors to our parks and monuments.
Once again, we strongly urge the Committee to favorably
report her nomination to the full Senate at the earliest
possible opportunity.
Sincerely,
Peter J. Ward,
Chair.
____

Office of the Governor,

Guam, January 18, 2001.
Chairman Jeff Bingaman,
Senate Committee on Energy and Natural Resources, Dirksen
Senate Office Building, Washington, DC.
Dear Mr. Chairman: I am writing in support of the
nomination of the Honorable Gale Norton as Secretary of the
Interior. The people of Guam look forward to Ms. Norton's
leadership of the executive department that has direct
responsibility for insular affairs. I am confident that as
Secretary of the Interior, Ms. Norton will continue progress
on the issues of great importance to Guam and that she will
be instrumental in resolving the land issues that have been
at the forefront of the Guam-United States relationship in
the past few years.
Ms. Norton has substantial experience in the Department of
the Interior, having previously served in the Solicitor's
Office. We believe that she has the necessary familiarity
with territorial issues to be an effective Secretary and that
she brings a broad understanding of the unique federal land
issues on Guam to her office.
Guam has had a contentious relationship with the Department
of the Interior in large measure due to the Fish and Wildlife
Service's acquisition of 370 acres of excess military lands
in 1993 for a wildlife refuge. The 370 acres at Ritidian have
become the focal point for Guam's dissatisfaction with
federal land policy on our island. Due to the historical
context of the military's acquisition of over one-third of
Guam's lands after World War II for national security
purposes, the Interior action has been harmful to the good
relationship between the people of Guam and the United
States. We hold the federal government to its commitment that
military lands no longer needed for defense purposes should
be returned to the people of Guam.
In an effort to resolve these issues, I have been engaged
in discussions for the past year with the previous Secretary
and his staff on possible solutions that would enhance the
level of environmental protection on Guam while addressing
the issue of Interior's acquisition of Ritidian. I was
willing to make the necessary compromises that would restore
the good relationship between the U.S. and Guam and that
would meet the needs of the Interior Department and the
Government of Guam. Regretfully, the Fish and Wildlife
Service was not.
We believe that Ms. Norton will restore a balance to
federal land policy on Guam that has been missing since 1993.
There is now an imbalance where the bureaucrats at the Fish
and Wildlife Service make policy without adequate regard for
local concerns. Environmental policy should not be a zero sum
game where the Fish and Wildlife Service wins and the people
of Guam lose. Environmental policy should be collaborative
process with respect for, and accommodation of, local needs.
On Guam, the respect we seek would recognize the patriotism
of the people of Guam and our support for the national
security interest, even when the national interest requires
the use of one-third of our island for military bases. And
the accommodation we seek would balance environmental policy
with the federal commitment to return excess military lands
to our people. We believe that Ms. Norton appreciates our
history and our culture, and that she will be fair in dealing
with us on these land issues.
We are also encouraged by Ms. Norton's commitment to the
devolution of federal power where local governments are more
appropriate to formulating public policy in response to local
needs. This is a bedrock principle of self-government that
Guam supports and encourages. We are confident that Ms.
Norton will appoint policy makers and senior staff at the
Department of the Interior that will reflect this view. Any
increase in local self-governance in the territories is
welcome and long overdue. We find Ms. Norton's views on
limiting the role of the federal government in our lives both
refreshing and promising for the resolution of the Guam's
political status issues.
Thank you for considering my support of Ms. Gale Norton as
Secretary of the Interior. I hope that the Senate Committee
on Energy and Natural Resources votes to recommend Ms. Norton
to the full Senate and that she is confirmed quickly. We look
forward to her new leadership and her initiatives for the
territories.
Sincerely,
Carl T.C. Gutierrez,
Governor of Guam.
____

Commonwealth of the

Northern Mariana Islands,

January 17, 2001.
Hon. Frank Murkowski,
Senate Committee on Energy and Natural Resources, Hart Senate
Office Building, Washington, DC.
Dear Senator Murkowski: This coming week Secretary
Designate Gale Norton will proceed through the hearings in
connection with consideration or her confirmation. I am
writing, on behalf of the people of the Commonwealth of the
Northern Mariana Islands, to express our support for her
confirmation as Secretary of the Interior.
The Department of the Interior, in particular its Office of
Insular Affairs, plays a central role in the relationship of
the Commonwealth with the United States Federal Government.
We were pleased by the announcement of her nomination to this
position. We believe that we could establish a positive and
fruitful working relationship with Secretary Designate Norton
should she be confirmed and wish her the best of luck.
Respectfully,
Pedro P. Tenorio.

[[Page S677]]

____
January 17, 2001.
Re nomination of Gale Norton for Secretary of the United
States Department of Interior.

Senator Jeff Bingaman,
Energy and Natural Resources Committee,
Washington DC.

Senator Frank Murkowski,
Energy and Natural Resources Committee,
Washington, DC.
Dear Senators: We, the undersigned state Attorneys General,
write to provide important information that will help you
evaluate Gale Norton's nomination for Secretary of the
Interior. These insights are based on our work with Gale
during her eight years as Attorney General for the State of
Colorado. While Gale provided numerous examples of her
leadership and ability as Colorado's Attorney General, there
are a few specific instances that truly demonstrate her skill
and experience.
First, in the early 1990's, Gale worked with Attorneys
General and Governors in an effort to force the United States
Department of Energy to comply with federal environmental
laws as its facilities around the nation. Gale helped lead
the fight to ensure that Energy would be responsive to the
states, comply with the law, and refocus on cleaning up Rocky
Flats in Colorado and other sites around the nation.
Gale served as the Chair of the Energy and Environment
Committee for the National Association of Attorneys General
from 1992 to 1994. As Chair of the Committee, Gale worked
with Attorneys General from both political parties to achieve
results for all states. Gale had the instinctive ability to
work for bipartisan solutions and she helped create consensus
on a number of sensitive issues.
Finally, Gale's work on the tobacco settlement was
significant. Gale was selected by her colleagues to be a
member of the settlement negotiating team. Gale's selection
was based on the fact that she is very bright, hard working,
and has extremely high ethical standards and integrity. She
was a valuable member of the team throughout the prolonged
and complicated negotiations.
We know that you are receiving extensive comments about
Gale's qualifications. We want to provide you with our views,
based on our years of experience working with Gale on
complex, sensitive issues. We know that Gale will do her best
to build coalitions and develop solutions to hard problems in
a way that creates broad-based support. It is our hope that
this information will be helpful as you consider Gale
Norton's nomination for Secretary of the Interior.
Alan G. Lance, Idaho Attorney General; Christine O.
Gregoire, Washington Attorney General; Bill Pryor,
Alabama Attorney General; Toetagata Albert Mailo,
American Samoa Attorney General; Ken Salazar, Colorado
Attorney General; Jane Brady, Delaware Attorney
General; Jim Ryan, Illinois Attorney General; Steve
Carter, Indiana Attorney General; Carla J. Stovall,
Kansas Attorney General; Mike Moore, Mississippi
Attorney General.
Don Stenberg, Nebraska Attorney General; Frankie Sue Del
Papa, Nevada Attorney General; Philip T. McLaughlin,
New Hampshire Attorney General; Betty D. Montgomery,
Ohio Attorney General; Hardy Myers, Oregon Attorney
General; Mike Fisher, Pennsylvania Attorney General;
Charlie Condon, South Carolina Attorney General; Mark
Barnett, South Dakota Attorney General; John Cornyn,
Texas Attorney General; Mark Shurtleff, Utah Attorney
General; Mark L. Earley, Virginia Attorney General; Gay
Woodhouse, Wyoming Attorney General.
____

Mr. MURKOWSKI. I thank all of my colleagues who have spoken on behalf
of the nominee. The action out of the committee on a vote of 18-2 is
certainly, in my opinion, a mandate for approval by this entire body. I
think she will represent our new President in a manner that attempts to
balance the delicate issue of concern over the environment and the
ecology.
Since there has been a lot of comment about ANWR during this entire
process and many pictures, for my colleagues, I show a picture of ANWR
as it exists for about 9 months of the year. This is what it looks
like. Do not be misinformed; it is a long, dark 9-month winter.
I thank the Chair for its indulgence.
It is my understanding that the vote will be scheduled for 2:45 on
two nominations and there will be separate votes. I wonder if the Chair
could identify those.
The PRESIDING OFFICER. There will be two separate votes occurring at
2:45. The first will be on the Norton nomination, and the second one
will be on the Whitman nomination.

____________________