Reflections on a Quarter Century of Environmental Activism: On Postponing Deadlines, Second-Guessing the Congress, and Ignoring Problems Until It Is Too Late

Edmund S. Muskie

Edmund S. Muskie is a partner in the Washington, D.C., office of Chadbourne & Parke. His career of public service has included service as Governor of Maine, United States Senator from Maine, and Secretary of State. Mr. Muskie served as the first chairman of the United States Senate Subcommittee on Air and Water Pollution, established in 1963. This Dialogue is adapted from Mr. Muskie's remarks upon accepting the Environmental Law Institute's 1987 award for outstanding contributions to environmental law and policy.

[18 ELR 10081]

Nineteen eighty-eight marks the 25th anniversary of the establishment in 1963 of the Senate Subcommittee on Air and Water Pollution. In the 1960s our effort was to learn as much as we could about environmental problems and the options for dealing with them. We undertook to arouse public awareness of the problems in order to generate political support for the policies and programs we were equipping ourselves to recommend. Our legislative initiatives, from today's perspective, evolved slowly, but they picked up momentum as we developed confidence in our perceptions of what was required.

How We Got Here: Towards a National Environmental Policy

As we began our work in 1963, we inherited a virtually undeveloped regulatory scene. There was in place a rudimentary waste treatment program authorized at $50 million a year. Enforcement against water pollution took the form of enforcement conferences, which were basically negotiated risk assessment and cooperation instruments — far too limited in their scope and resources. Air pollution was widely perceived as strictly a Los Angeles smog problem.

Our concerns for the environment did not touch toxics, hazardous wastes, acid rain, the greenhouse effect, or the vulnerability of the ozone layer. We did not focus on the deteriorating quality of the nation's groundwater, which furnishes the drinking water for one out of two Americans. Desertification, deforestation, resource exhaustion, species extinction, and climatic changes were not a part of our environmental agenda.

We began work on a limited environmental agenda, indeed. Yet when Senator Cale Boggs (R-Del.) and I, together with a few other not very visible members of Congress, began the environmental initiative, we encountered resistance from virtually every quarter. The Johnson Administration opposed our legislative proposals. The Chamber of Commerce opposed our legislative proposals (the staff person in charge was Jim Watt!). State and local governments opposed our legislative proposals, saying they would cost too much. Only a few groups — garden clubs, the League of Women Voters, and the National Wildlife Federation, for example — were there to support federal involvement in pollution control.

Avoiding the Conventional Divisions

To many, effective environmental protection was antagonistic to economic activity. Only a few shared the opposite view.

My colleagues on the subcommittee and I agreed that a policy that pitted local regulators against national industries, that posed a choice between jobs and environmental improvement, was doomed to failure.

With this common view, we set some rudimentary goals. First, we enacted a policy that said the existing quality of our air and water resources ought not be allowed to deteriorate. We knew we had a lot of cleanup to do. We didn't want to have to do the job twice.

Second, we had to establish the legal basis for insinuating the federal government into the environmental process. What business, we were asked, did Uncle Sam have in the regulation of air and water quality, which historically was the responsibility of state and local government? What business, we were asked, did the federal government have requiring the air to be clean or the water to be safe? For air pollution, we fixed on protection of public health. Our jurisdiction over water quality was asserted from a definition of "navigability," which we wrote.

An Intermediate Step: Regional Standards

With few experts and fewer organized constituents, those steps came slowly. The political battles were real, even if not front-page news.

We even compromised to avoid defeat. To satisfy our detractors, build coalitions, and assure that participation in basic environmental decisions would continue at the [18 ELR 10082] grassroots, we passed laws that required the establishment of air and water quality standards on an air shed and river basin basis.

We demanded and funded public participation and public hearings on regional environmental standards. The success of the regional process was remarkable. Throughout the country, the public demanded margins of air and water quality safety far stricter than industry thought reasonable. Those who had seen no federal control as a license to pollute quickly changed their tune.

It was in the area of air quality where this shift was most intriguing. Within months after those first regional air quality standards were adopted, the Nixon Administration proposed legislation establishing national air quality standards. And the business community, which had resisted federalization of environmental standards, supported that initiative. National air quality standards were finally mandated by the 1970 Clean Air Act.

1988: Time to Act, But Some Instead Would Hesitate and Postpone

It has been said that in the 1960s we asked for too little, and that in the 1970s we asked for too much. The truth is that we have not done enough.

Now, nearly a quarter of a century into the fight to achieve air quality standards adequate to protect public health, the Washington Post editorializes in favor of "differential" air quality standards.¹ In the future, according to the Post, the quality of the air we breathe should depend on where we live, not on those national public health related air quality standards.

Unlike our late 1960s regional approach, which permitted minimum levels of air quality protective of public health and cleaner air if deemed locally desirable, the Washington Post's proposed policy would set maximum levels of clean air, with dirtier air where the task of cleanup has been difficult.

And without saying so, a new Environmental Protection Agency policy released in November 1987² accomplishes the same objective by simply declaring that the 1970 Clean Air Act deadlines are illusory and sanctions won't be applied, thus guaranteeing "differential" air quality.

Just when it is finally time, after all these years, to insist on meeting the public health standards written into law, why do so many look instead for ways to postpone?

Public health protection is the critical ingredient of federal air pollution regulation. Without this fundamental purpose, the justification for rigorous federal involvement in air pollution control is diminished. The basic thrust of the Clean Air Act is diverted.

Without public health standards that establish a scientific basis for pollution controls, the credibility of the national environmental cleanup effort will be irreversibly impaired. After all, the entire toxics revolution is premised on a person's right to expect that the air we breathe, the water we drink, and the land we cultivate is free of poison. The toxics revolution is no more than an extension of the battle we began 25 years ago with known, common pollutants.

Moreover, a body of law based on health protection has evolved. These laws, unlike any other public policy, continue to enjoy overwhelming and increasing political support. More people are willing to pay more money today to achieve the protection these laws require than at any other time in my memory. And that must tell us something. It tells me that we have a credible basis for public support.

Even a cynic has to be impressed by the depth and breadth of support for tough pollution control laws. Moreover, that support seems actually to grow as political will appears to wane. The early Lou Harris polls in the Earth Day era showed generalized support for clean air and water of 70 to 80 percent. This increased to the 80 to 90 percent area in response to Reagan, Gorsuch, and Watt.

In the 1970s, when the public was tested directly on the trade-off between jobs and investing in more pollution control, the public was more evenly divided. For example, in 1977, the year the Clean Air Act was last amended, the Eagleton Institute asked the people of New Jersey, our most urbanized state, to choose between maintaining strict anti-pollution laws or relaxing those laws to create more jobs. The New Jersey public was divided 46 to 46 percent. In August of this year, the people of New Jersey responded to the same question by a resounding 69 to 19 percent in favor of strict laws!

Similar opinion samples for states from Texas to Maine and nationally indicate similar levels of public commitment.

Second-Guessing Congress as Deadlines Approach

So why, in the face of this support, do presidents and their appointees fail to aggressively pursue the initiatives Congress has taken? Why are compromises with health standards, timetables, and emission controls the rule rather than the exception?

One would think that if politicians on the firing line don't compromise on tough questions, unelected regulators — and editorial writers for that matter — wouldn't either. But for inexplicable reasons, EPA administrators seem determined to substitute their judgment for that of an elected Congress, to save those "misguided" politicians from their own constituents.

The draft preamble to EPA's newest deadline avoidance policy³ is filled with arguments justifying its policy choices as merely filling in "gaps" in the Clean Air Act. It contains this passage: "On its face … the 1977 Clean Air Act … requires EPA also to restrict Federal grants to a State's air pollution control program if the State is not implementing its plan." Despite this requirement, EPA proposes to use the cutoff only "as a last resort." Why? "The EPA believes that Congress would not have intended the cutoff to apply automatically" in the current circumstances.

Maybe. Maybe not. But it is this attitude, that Congress could not have intended what it so clearly said, that has thrown our national clean air program into neutral.

Clean air advocates are saying we need a new Clean Air Act that will outfox the regulators and revitalize the program. The fact is, the old law suffers mainly from a lack of regulatory courage.

What this EPA has done with deadlines isn't new. Congress [18 ELR 10083] anticipated bureaucratic interference with the 1970 Clean Air Act and incorporated public access to the courts in that law and virtually every other environmental statute since enacted. Today there are dozens of citizen suits pending at all levels of the judiciary. Some have been brought by just plain folks, others by prestigious environmental groups like the Natural Resources Defense Council and the Environmental Defense Fund.⁴

Congress has even anticipated the judicial disinclination to interfere with administrative discretion, enacting "hammer" provisions to force EPA to carry out congressional policy.⁵

Through all this, the basic laws have survived. The policy has moved ahead, albeit too often at an excruciating pace. The air is cleaner. The public is better educated. A body of law cloaked in circuit and Supreme Court interpretation has evolved.

Implementing the Popular Will, Even When It Costs

And people are still participating in the process. Because it is they, not we, who started it all 25 years ago.

It is this point that seems to miss the regulators. Environmental protection is fundamentally a political question that requires voters to sort out their priorities. It involves costs and disruption, as well as benefits. People who are elected to office understand this. Regulators are insulated from this reality.

Regulators are not insulated from the demands of their boss. If the people demand a more responsive Environmental Protection Agency, and hold the politicians accountable, the agency can and will respond.

We are already seeing signs of a new militancy among local voters on the environment. Local elections from Los Angeles to Long Island to Fairfax County have turned on quality of life questions. Statewide races from Washington to Florida to New Jersey have focused on environmental issues. Not even Ronald Reagan and Jim Watt publicly favor a dirty environment.

So, as was the case in the era of Earth Day, 1970, it is again time to ask the candidates to focus on the specifics. Acid rain, nonattainment, and toxic air pollution are tough problems. They are as good a test as any of the potential for leadership. Let's hear more about specific plans. Let's make sure the same message is being delivered in New Hampshire, Illinois, Minnesota, and Texas. Let's see how each candidate measures up.

Now is not the time to settle for vague generalities, to further postpone congressionally imposed deadlines or to blanch at hard consequences of implementing the environmental cleanup the public has mandated, through Congress. Environmental cleanup does involve a commitment of national resources, and it does disrupt some established routines in the way we live, but consider the alternative.

In a recent essay, Lester Brown recalled a French riddle used to teach students about the concept of exponential growth: "A lily pond, so the riddle goes, contains a single leaf. Each day the number of leaves doubles — two leaves the second day, four the third, eight the fourth and so on. 'If the pond is full on the thirtieth day,' the question goes, 'at what point is it half full?' Answer: 'On the twenty-ninth day.'"⁶

It is little comfort that we think we can put up with the level of environmental degradation existing today. "Limping along" and "muddling through" may not be possible indefinitely. This could well be the 29th day for us, the period just before the problems overwhelm us and it is too late.

The best course is to make the hard choices and implement the hard solutions now, while there is time. Delaying deadlines is only momentarily convenient. We need to accept the temporary costs of cleaning up the environment, and be thankful we still have that opportunity.

1. Clean Air and Cars, Washington Post, Nov. 20, 1987, at A18. ("Americans like the idea of purer air, but they don't like the idea of restrictions on driving. Since the present standards cannot in any case be reached by some cities, one part of a solution is differential standards — tighter in cities like Washington, less tight in cities like Los Angeles.")

2. 52 FR 45044 (Nov. 24, 1987), 18 ELR 10034 (Jan. 1988).

3. See supra note 1.

4. On citizen suits generally, see J. MILLER & ENVIRONMENTAL LAW INSTITUTE, CITIZEN SUITS: PRIVATE ENFORCEMENT OF FEDERAL POLLUTION CONTROL LAWS (1987).

5. Background and use of "hammer" provisions are described in C. HARRIS, W. WANT, & M. WARD, HAZARDOUS WASTE: CONFRONTING THE CHALLENGE (1987) at pp. 83-98.

6. See L. BROWN, THE TWENTY-NINTH DAY (1978) at p. 1.