Another step forward
for property rights

By Henry Lamb

It went completely unnoticed in the press amid the hoopla surrounding the swiftboat ads and the Republican National Convention. Nevertheless, on Aug. 26, President Bush issued an executive order which could significantly change the way federal agencies do business.

Federal agencies charged with the responsibility of implementing environmental laws and regulations are now required to cooperate with state and local government, for-profit, and not-for-profit organizations, and individuals who may be affected by federal action.

It’s a small step, long overdue, but welcome nonetheless. Existing law already requires cooperation with local governments under certain circumstances, but federal agencies long ago devised procedures to bypass this requirement. During the Clinton/Gore era, vast stretches of land were put off-limits to human activity, with virtually no communication with local governments or the individuals who were dramatically affected.

The new order not only requires cooperation, but also requires the agencies to report to the Council on Environmental Quality the actions taken by each agency to comply with the order. Moreover, the order requires the CEQ to convene a White House conference within one year to exchange information related to achieving the goals of this order.

Significantly, the order specifically requires the CEQ to:

Ensure that the conference obtains information in a manner that seeks from conference participants their individual advice and does not involve collective judgment or consensus advice or deliberation.

This requirement is a dramatic departure from the “consensus building” technique developed during the Clinton/Gore years, which was designed to meet the “public input” requirements of the law, while assuring that information obtained from the “consensus” process supported the conclusions already decided upon by the agencies.

This order is important because it recognizes the “public input process” currently used by the agencies fails to reflect the opinion and advice of the affected people. In fact, the process currently used was designed to avoid the opinion and advice of affected people.

The process developed during the Clinton/Gore years, for example, would schedule a “public meeting” to meet the regulatory requirements, but the meeting would be facilitated by professional consensus builders who would first divide the group into sections where the government’s ideas were presented separately. Typically, whenever participants were allowed to speak, it would be for no more than two minutes to present statements that were pre-screened. The agency could then say it had met the “public input” requirements of the National Environmental Policy Act, without ever even hearing the real concerns of the affected people.

This new executive order will not automatically cure all the ills in the “public input” process, but it is a start. Local governments, organizations and individuals must take the initiative to see that the agencies comply with the new order. At the very next meeting scheduled by a federal agency participants should demand that the format of the meeting exclude the professional consensus builders and provide adequate time to hear and record the advice provided by the affected individuals.

Property-rights organizations across the country are gearing up to monitor these meetings – much to the chagrin of environmental organizations who denounce the new order as another way the Bush administration is undoing the “good work” of the Clinton/Gore years.

The League of Conservation Voters, whose leader, Bruce Babbitt, became Clinton’s Secretary of the Interior, is spending millions to defeat President Bush, as is the Sierra Club, whose vice president was a member of Clinton’s Council on Sustainable Development. Environmental organizations are going all out to get John Kerry into the White House so he can repeal this new executive order and reverse the other initiatives the Bush administration has taken to undo the so-called “good work” of the Clinton/Gore years.

Property-rights organizations do not have the millions of dollars that are provided to environmental organizations from foundations such as those headed by John Kerry’s wife, Teresa Heinz Kerry. Property-rights advocates have little more to work with than determination and the certain knowledge that both freedom and the U.S. Constitution require that government respect the rights of private-property owners.

President Bush understands this fundamental requirement and has taken several small steps to restore respect for private property in his administration. Whether the federal government will continue this welcome direction or will once again return to an era of trampling property rights will be determined when America goes to the polls in November.