| April 18, 2008
Guest Column….ORV rulemaking was out of public sight,
but the settlement is very visible
By MIKE BERRY
want to thank the Island Free Press for keeping this ORV regulation and
beach closure issue in full public view. I also want to thank
those citizens, attorneys, county officials, and civic leaders who
worked tirelessly these many weeks to preserve public access to the
shores of the Cape Hatteras National Seashore by way of motor vehicle.
No one ever said the law is fair, but all citizens have the right to
equal treatment and respect under the law and to the right of public
I have never seen anything like this in my 40-year career as a public
health environmental scientist, manager, and educator. I have
read the pending consent decree, which still must be approved by the
federal judge overseeing the case, three times and still cannot believe
that a federal court would consider such an order without public
This settlement is an environmental regulation ordered by the court
without public review and comment, with no consideration of economic
impact and with no hard look at the scientific basis for numerous
technically related requirements found in the document. Yet, this
agreement will significantly change our way of life and access to the
From my point of view, this is a classic example of how citizens in an
open, free society lose their rights to participate in the business of
their government. This is certainly not what I and others fought for in
Vietnam 40 years ago. In fact, it does not get much more
totalitarian than when a single federal court gives exclusive
decision-making rights to a small number of well-financed environmental
activists and special-interest lawyers to dictate how the general
public and local community will access public land, in this case Cape
Hatteras National Seashore, which has a tradition of usage rights,
including the right to access the beach with a motor vehicle.
The environmental activists’ lawyers do have privileges that most
citizens do not enjoy. They have a license to practice law,
participate, and be heard in court. As officers of the court they
have a special privilege of talking directly to a very powerful federal
judge who can cause significant events to occur, like a beach closure
that affects us all.
This litigation is less about species protection and more about ORV restriction.
There has been no opportunity for public participation, comment, and
input with regard to this new ORV regulation. For any environmental
regulation issued by the federal government, citizens have the right of
public review and comment as provided by the Federal Administrative
Procedures Act. Under the Federal Advisory Committee Act,
citizens also have a right to know about and attend federal government
meetings, especially when those meeting involve special-interest
organizations trying to influence the government. Under the
Freedom of Information Act, citizens have a right to obtain all
unclassified information, such as scientific information and
correspondence with special-interest parties, that is held by the
There has been no public discussion and review of economic impact with
regard to this settlement. The widely referenced 2003 Vogelsong
Study (Cape Hatteras National Seashore Visitor Use Study, August 2003)
has been used as the primary source of economic analysis for ORV
regulation these past few years. Only in recent months has the federal
government submitted that unpublished study for peer review. The
findings of that peer review have not been disclosed in advance of this
consent decree. Several months ago, the professional
economist James C. Luizer clearly and rigorously demonstrated in open
public comment that the study was greatly flawed in terms of its
analytical methods, and biased in its survey questions and ORV
counts. His comments, and those of many others, have been ignored
by the federal government.
Last year, the U.S. Fish and Wildlife Service submitted for
public review a draft economic analysis that relied heavily on the to
2003 Vogelsong study, along with out-of-date census information and
incomplete Small Business Administration data. That analysis was
little more than an insulting “paper study.” The
authors of that study, who reside in Cambridge, Mass., demonstrated no
first-hand knowledge of the economic structure of the region they were
hired to assess. There was no economic data collection field
work. The study failed to recognize that virtually all businesses
in the villages on Hatteras and Ocracoke islands are "small
businesses," which are affected to some degree by reduced visits and
The federal courts have time and again ruled that before environmental
regulations are promulgated by the government, there must be a hard
look at the scientific basis for those rules. This is called the Hard
Look Doctrine and is known to all students of environmental law. The
science is called "environmental criteria."
For the federal government to justify the need for the rulemaking such
as that found in the consent decree, there must be a basis in
recognized and published science. In this consent decree, there is a
clear and gross absence of scientific information underpinning all
technical aspects of the rule.
Particularly, there is no peer-reviewed science to support the claims
of species loss as the result of ORV traffic. That claim has not been
verified. Environmental activists have claimed the loss of species due
to ORV traffic on the beach through press releases. That is not the way
credible science is presented or reviewed.
Given the significant economic consequences and beach access loss to
the public prior to regulation, our federal government owes the public
an answer to the following questions about the factual and scientific
• What in totality are the
criteria—studies, science and protocols used as the basis for the
regulation and its technical content?
• Who are the specific authors of those
science-based materials and who do they work for and represent --
government, universities, environmental activists groups, etc.?
• What is the area of expertise and what are their qualifications as researchers?
• Where can the public acquire the raw or original data used to create the criteria or science base?
• Were the studies on which the criteria based peer reviewed or published?
• Who were the independent peer reviewers?
• What protocols were used to collect the data and were they ever peer reviewed?
• Where, when, and how were the data collected?
• What quality control system and statistical
analysis process was used in data collection and presentation?
Questions like these are always asked in open public science review
before an environmental regulation as significant as this one is
presented to the public.
Finally on top of all the insult delivered to the public by being
sidelined and ignored by our government, there is the matter regarding
legal fees. We, the hardworking, over-taxed citizens of this
nation now have the pleasure of paying otherwise well-financed
environmentalist lawyers our tax dollars for suing us. Their
organizations are tax exempt. Oh, how great does it get!
This old citizen soldier will have a lot more to say about this in the days to come.
(Dr. Michael A.
Berry served as any Army officer in Vietnam in the 1960s. After
returning to civilian life he earned a Doctorate in Public Health and
worked in the U.S. Environmental Protection Agency, where as a senior
manager and scientist, he served as the Deputy Director of National
Center for Environmental Assessment at Research Triangle Park, N.C.
During his 28-year career with EPA, he had extensive interactions with
environmental organizations, local governments, the federal courts,
U.S. Congress, universities world-wide, and institutions, such as the
National Academy of Sciences, the World Health Organization, and the
North Atlantic Treaty Organization. For more than 20 years, Berry
taught public health, environmental science, and business and
environment courses at the University of North Carolina. He is
currently a writer and part-time consultant, specializing in the
evaluation of environmental quality and human health effects,
environmental management strategies, and policy.)