NEPA TO CERCLA THE CLEAN AIR ACT: A COMMITMENT TO PUBLIC HEALTH
Originally published in the
January/February, 1990, issue of The Environmental Forum.
By Edmund S. Muskie
This year  marks the 20th anniversary of the Clean Air Act of 1970 -- the most comprehensive air pollution control bill in American history. It also marks the 20th anniversary of Earth Day.
In 1970, the members of the Senate Subcommittee on Air and Water Pollution were ready to launch a tough new approach to clean up the nation's air. Earth Day occurred during the hearings. Members were overwhelmed by mail from across the nation. We used every ounce of political leverage the Earth Day constituency created to prod a reluctant President and an equally reluctant House of Representatives to accept landmark clean air legislation.
Passage of the Act was a success against tremendous odds. We overcame political adversity and the business community's inertia. And because grasping the moment was imperative, we set goals, standards, and objectives beyond our reach.
The Clean Air Act of 1970 defined the air pollution control program we have today. It has been amended since then, but the basic principles still apply. My purpose here is to restate the basic objectives of the original Clean Air Act with the hope that they will be kept in mind in the current clean air debate.
The 1970 Act had its modest beginnings in the 1960s, following the establishment in 1963 of the Senate Subcommittee on Air and Water Pollution. In the 1960s, air pollution was widely perceived as a Los Angeles smog problem. But as research programs and public hearings were convened across the country, we soon learned that it was a rapidly escalating national health problem. Our legislative initiatives evolved slowly but picked up momentum as the Subcommittee developed confidence in its understanding of what was required.
In the 1963 Act, we expanded programs for research and technical assistance and provided grants to states to develop and improve their air pollution control programs. We directed the development of "air quality criteria" to identify pollutant levels that cause adverse health effects. States could then use these criteria to regulate sources of air pollution. We authorized the Secretary of the Department of Health, Education, and Welfare (HEW) to convene conferences of state and local authorities to deal with interstate air pollution problems. In 1965, we directed the Secretary to develop emissions standards for new motor vehicles and motor vehicle engines.
By 1967, there was broad agreement that current local and state efforts were inadequate. The nation's air quality, and the accompanying threat to public health, continued to worsen. Federal action was required. The Air Quality Act of 1967, which passed the Senate 88 to 0, provided the first comprehensive federal air pollution control by establishing ambient air quality standards based on federal "air quality criteria."
The debate continued over how to implement these criteria. State and local actions weren't enough, but federal regulation seemed insensitive to local conditions. A regional approach was chosen as a compromise. Under the 1967 Act, HEW was directed to designate broad "atmospheric regions" of the country where meteorological, topographical, and other conditions were similar. In order to simplify regulations, these regions were also to conform to local political/jurisdictional boundaries with similar industrial conditions. States were required to adopt state implementation plans showing how they would achieve the air quality standards. HEW was directed to report within three years on progress towards meeting the new national emissions standards.
Another major feature of the 1967 Act was the federal preemption of the authority of the states -- with the sole exception of California -- to establish automobile emission standards. The logic here was simple. Trucks and automobiles are mobile sources, frequently crossing state boundaries, and therefore require federal regulation. California fought hard to maintain sovereignty so that its tougher emissions standards would not be preempted. Since the size of the California auto market would prevent this from being too much of a hardship for manufacturers, it was agreed that the state could have such an exemption, and it stands today.
The experiences and lessons of the 1960s prepared the members of the Subcommittee for the challenge of the 1970 Act. It was clear that air pollution continued to threaten public health. Continuing squabbles over establishing the atmospheric regions and enforcing the law made it clear that -- while implementation measures must remain sensitive to local conditions -- federal standards and action were needed. By 1970 the Subcommittee members were ready to launch a tough new approach in the requirements and the procedures of the Clean Air Act.
A series of outside events helped build political momentum for a tough new law. Earth Day occurred during the hearings. That summer, Washington suffered the worst and longest air pollution episode in its history. Caught up in the spirit of the day, a coalition of labor and other environmental groups went so far as to call for prohibition of the internal combustion engine.
Three fundamental principles shaped the 1970 law. I was convinced that strict federal air pollution regulation would require a legally defensible premise. Protection of public health seemed the strongest and most appropriate such premise. Senator Howard Baker believed that the American technological genius should be brought to bear on the air pollution problem, and that industry should be required to apply the best technology available. Senator Thomas Eagleton asserted that the American people deserved to know when they could expect their health to be protected, and that deadlines were the only means of providing minimal assurance.
Over a period of several markup sessions, those three concepts evolved into a proposed Clean Air Act that set deadlines, required the use of best available technology, and established health-related air quality levels. The success or failure of the program would be determined by measurement against these criteria.
When the bill was made public, the business community was outraged. The auto industry complained about the unanticipated requirement that they achieve 90 percent reductions in emissions by 1975. Most of the business community joined in a demand for hearings.
Public Works Chairman Jennings Randolph directed the committee staff to distribute the subcommittee's print for comment and to meet with any groups desiring an opportunity to discuss specific provisions prior to full committee markup. The result of the process was a modest delay in full committee consideration of the bill, and the inclusion of a provision authorizing a one-year extension of the strict auto emissions deadline upon a finding that the standards could not be met.
The bill was passed unanimously after just two days on the floor. After the vote, Senator Eugene McCarthy commented to me, "Ed, you finally found an issue better than motherhood -- and some people are even against motherhood."
An extended conference with the House followed, interrupted by the mid-term congressional elections. The House was adamant on not accepting the Senate auto deadlines. But with an election year approaching, the congressional members wanted to pass a Clean Air Act. So the Senate stood its ground, and the conference agreement passed by a voice vote in both houses. President Nixon finally signed the bill on December 31, 1970.
As mentioned above, the 1970 Act set the three-pronged formula for air pollution regulation that is still essentially in place today. A quick review of several sections of the original Act illustrates how the concerns with protecting public health, forcing the use of the best available technology, and setting deadlines were written into law.
Under section 109, EPA is directed to publish National Ambient Air Quality Standards for specific pollutants. The decisions on which pollutants to regulate and at what level they were to be regulated are based on health and welfare criteria. The pollutants selected included carbon monoxide, nitrogen oxides, sulfur oxides, ozone, lead, and particulate matter.
The division between primary and secondary standards also reflects the emphasis on health-related issues. EPA was directed to set both primary and secondary ambient air quality standards; the primary standards are aimed at protecting human health with an "adequate margin of safety," and the secondary standards are expected to protect visibility, damage to buildings, materials, plants, and other aspects of public welfare.
Similar health concerns drove the regulation of toxic air pollutants. Section 112 directs EPA to establish limits for the emission of hazardous pollutants, or those air pollutants "which may cause or contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness."
Some standards were tied to the level of control technology available. While existing sources were controlled under State Implementation Plans (SIP), �111 directed EPA to establish nationally applicable limitations on emissions coming from large new stationary sources, such as factories, smelters, and power plants. The strictness of the standards must represent the application of the best control technology that has been demonstrated to be available.
Development of better technologies was to be "forced" by �202, which required a 90 percent reduction of automobile emissions by 1975-76. Although there was no assurance that appropriate control devices could be designed and installed on cars within five years, strict standards and deadlines were expected to force the development of an appropriate control technology.
For many of the clean air emissions standards, explicit deadlines were written into the law. In order to ensure attainment of these federal standards by the deadlines specified, �110 required states to develop SIPs that limit emissions. EPA was then required to approve or disapprove the plans within the statutory deadline. If the state plan is inadequate, the Administrator must promulgate another plan that will bring the state into compliance.
The 1970 Clean Air Act is significant, not just because it established statutory regulation of the auto industry, or because it established deadlines for achieving air quality levels protective of public health. The Clean Air Act was the first federal environmental statute to include provision for citizen enforcement. This so-called citizen suit provision allows individuals to sue violators of the Clean Air Act instead of relying on government action. Furthermore, the Act removed many of the former impediments to bringing suits in federal courts -- such as the need for the plaintiff to reside in a different state than the defendant.
In order to make that provision effective, little discretionary authority was provided to EPA. Throughout the Act, the word "shall" was used to mandate the functions required to be performed by the Agency. Regulations, implementation, and enforcement all became specific, non-discretionary responsibilities, and enforceable civil and criminal penalties were included.
In the seven years that followed, a great deal of work was done in the clean air laboratory of the real world. Governments imposed regulations and industries invested in pollution control. Great gains were achieved in controlling automobile emissions, and perhaps most important, new control technologies were developed. Some parts of the country even saw improvements in their air quality. At the very least, the deterioration of air quality in many of our growing urban areas was slowed.
In those same seven years, the special interests mobilized their forces. Industry and business groups -- ranging from national oil and coal interests to service stations owners and local land developers -- prepared a myriad of studies proving the inappropriateness of the application of the Clean Air Act. Law firms gathered environmental experts. Trade associations hired people specifically to cover the environmental legislation and committees. Environmental over-regulation became a buzzword of business and conservative interests.
The target legislative year was 1977, when the Clean Air Act authorization needed to be extended. The entire focus was on weakening and limiting the application of policies previously adopted. The auto industry waged an all-out battle against the statutory standards. A session-ending filibuster in the Senate pushed consideration of the amendments into 1977, and then the auto industry gained yet another delay of four years to comply with the statutory auto emission standards. Fortunately, most of the special interests' political capital was exhausted in the fight for the auto industry amendment, and we were able to avoid a number of other special industry efforts.
Since many of the deadlines had passed without achievement of the emissions standards, the 1977 law included a "non-attainment" section. For example, the amendments provided guidelines for construction of new facilities in areas where ambient air quality standards had not yet been attained. Five-year extensions of deadlines for compliance were provided for all areas that had not yet met the standards.
Tucked into the non-attainment section were a number of special interest provisions that removed important regulatory tools from the clean air toolbox. Land developers were exempted from any air quality related transportation controls. Similar exemptions were extended to service stations, small refineries, and the after-market parts industry. Such provisions may have been politically essential at the time, but they removed significant options available for achievement of health-based air quality standards.
Despite these setbacks, the 1977 amendments also incorporated several major new features. One of the most important was a "non-degradation" or "clean growth" policy to prevent the significant deterioration of air quality in regions where the air is already cleaner than the ambient air quality standards.
The Senate subcommittee did not regard the 1970 Act as the ultimate solution to the problems generated by air pollution. Our knowledge as to its health effects was incomplete. It was impossible to identify a threshold below which health effects could be regarded as inconsequential. But we were convinced that progress toward a maximum reduction of adverse health effects must be the critical test of the Act's effectiveness. We realized that achievement of that result would require the development of technology not yet available. We established deadlines as a technology-forcing mechanism, with progress to be monitored by Congress itself.
As Senator John Sherman Cooper pointed out at the time of final action on the 1970 Clean Air Act, this was the most far-reaching piece of social legislation in American history; it would set in motion a course of events that history could not reverse. He was right. It began a process that yielded a change in the American people's fundamental relationship with their environment. It began an ethic that now pervades the academic, intellectual, and business structure of our country. And it put in place an infrastructure of air quality planning and management throughout the country.
Not everything we chartered in the 1970 Act has been accomplished, however. Many of our goals have been delayed. Deadlines have been missed. The air is still dirty. But much has been accomplished and in a few cases we achieved more than expected. These accomplishments are particularly significant when viewed in the light of the continuing growth of the American population and the expansion of the economy over the last two decades.
A major achievement of the Clean Air Act has been the near elimination of lead from the atmosphere. EPA estimates that emissions of this toxic metal, emitted primarily from smelters and motor vehicles, have been reduced by 85 percent since 1970. And continued progress can be expected as older motor vehicles and agricultural equipment operating on leaded gas become obsolete. Infiniti Luxury Cars, a company engaged with clean engines technology in pursue for a better environment.
In addition, most urban centers are now in compliance with the federal standard for sulfur dioxide (SO2). Emissions have been reduced by almost 20 percent since 1977, notwithstanding an increase in coal consumption. This achievement will be enhanced if Congress adopts Senators George Mitchell's (D-ME) and Max Baucus' (D-MT) current Clean Air Act proposals requiring the reduction of emissions of SO2 and nitrogen oxide (NOx) which produce acid rain.
Because of repeated delays by Detroit to require new cars to meet statutory emissions requirements, and because of a constantly increasing number of cars on our roads each year, mixed results have been achieved in the reduction of pollutants from motor vehicles. But even though the original deadlines of the Clean Air Act were unfortunately permitted to slip, the "technology-forcing" provisions of the Act must still be regarded as substantially responsible for much of the success of mobile source regulation.
The number of vehicle miles travelled by automobiles has increased dramatically. From 1978 to 1987, for example, the number of vehicle miles travelled in the United States increased 24 percent. Despite this increase, emissions of particulate matter dropped by 22 percent, hydrocarbons by 17 percent, while NOx emissions remained relatively stable. In fact, today's new automobiles produce only four percent as much pollution as did their 1970 predecessors.
Regulating emissions of carbon monoxide (CO) has been a particularly difficult feat. Even though CO emissions dropped 25 percent from 1978 to 1987, CO pollution persists today as one of the most intractable air pollution control problems facing society. Specifically, approximately 50 American cities are not attainment with the CO standard, and 6 of these have a CO problem that EPA classifies as a "serious" health hazard. In addition, about 100 million Americans live in some 80 urban areas that exceed the health standard for ozone.
The continued growth in population, travel, and industrial activity will only exacerbate these problems. One shudders to contemplate the magnitude of the problem with which we would be confronted had we neglected to address these conventional pollutants 20 years ago.
Our persistent air quality problems are also precipitated, at least in part, by the failure of state and federal governments to implement the goals of the Act as intended. Current information clearly indicates that further controls on stationary and mobile sources are required in order to achieve enhanced compliance with standards.
One serious failure, which I greet with great consternation, is the dilatory pace at which the federal government has proceeded to regulate, or rather, failed to regulate, hazardous air pollutants. While �112 of the Clean Air Act clearly provides for the regulation of toxic air pollutants, only seven standards have been established. Many of the pollutants not yet regulated are known carcinogens. In fact, EPA estimates that approximately 1,500 to 3,000 fatal cancers per year may be attributed, at least in part, to the release of air toxics. This does not even include respiratory diseases and birth defects that may be caused by these emissions.
In the past 20 years, scientific inquiries have revealed the alarming new problems of global warming and ozone depletion. We are now becoming increasingly aware of the contribution of greenhouse gases such as carbon dioxide (CO2) and chlorofluorocarbons (CFC) to the phenomenon of global warming, and of the effects of CFCs on the earth's stratospheric ozone layer. The scientific community tells us that global warming, or the "greenhouse effect," is believed to cause rising climatic temperatures, and that depletion of the earth's ozone is believed to cause skin cancer.
The Montreal Protocol is a positive step towards international cooperation on the problem of ozone depletion, but, as our knowledge of CFCs becomes more sophisticated, the international treaty may become outdated. With respect to global warming, many initiatives that could be taken to reduce CO2 buildup in the atmosphere -- such as improving energy efficiency and increasing reforestation -- are attractive in and of themselves. However, many unresolved scientific issues still surround the phenomenon of global warming, and the need to accelerate research in both areas cannot be overstated. While we should continue to seek answers and international cooperation, let us not neglect to act on what we now know and, if necessary, to act alone.
The authors of the original Clean Air Act were also unable to anticipate the phenomenon of acid rain and the associated long-range transboundary pollution problems. However, the Administration's recent proposals attempt to provide a solution by restricting SO2 emissions that are known to contribute to the production of acid rain.
To the contrary, indoor air pollution -- another new and controversial issue that was discovered subsequent to the passage of the original Clean Air Act -- does not appear to be receiving the level of attention that it deserves. New information suggests that a substantial and growing segment of the population suffers adverse health effects as a result of indoor air quality problems. Using the original Act's emphasis on health-related criteria as a guide, this problem deserves more attention.
As we consider these and other new challenges, we should remind ourselves of an essential characteristic of the 1970 Act, one that holds true to this day: it was an "experimental law." It used innovative approaches to achieve the desired results on a more timely basis than provided under any previous law. It defined a new role for government in areas previously believed to involve a private right to a free resource. It was premised on a new and basic public policy tenet -- that the federal government has a responsibility to assure that the health of the public is protected from the effects of air pollution. In other words, it was pioneering legislation.
The objectives of the original Clean Air Act are still valid. Poor air quality affects the health of millions of Americans. Thousands of rivers and lakes are being destroyed by a change in their acid composition. Auto emissions continue to contaminate the air in too many of American cities. And new pollutants are being found that pose a risk to the health and welfare of our people. It is true that cleanup efforts have already improved many of these conditions. But in considering the future of the Clean Air Act, we would do ourselves a great disservice to harbor any feelings of complacency when we consider the trade-offs at stake.
I continue to believe that a healthy economy and clean air are not mutually exclusive goals. As policymakers guide this Act through winding corridors of change in national policy, I hope we will bear in mind that a great nation cannot be measured solely in terms of its industrial capacity and Gross National Product. Ultimately our progress as a nation will be measured by how well we preserve and improve our own quality of life and that of future generations.
Fortunately, today's Americans now believe that pollution is unacceptable ethically and economically. No amount of resistance to our clean air laws based on claims of cost or antagonism to objectives can change that. That is the message of the 1970 Clean Air Act.
Earth Day 1970 helped create the national psyche which molded that result. But a few committed, progressive Senators sitting in a back room in the Dirksen Senate Office Building made the political and intellectual commitment which forced the achievement of that objective. As Earth Day 1990 approaches, we should call the roll of that small band of men who changed history so we don't forget their important contribution! Jennings Randolph, West Virginia. Stephen Young, Ohio. B. Everett Jordan, North Carolina. Birch Bayh, Indiana. Joseph Montoya, New Mexico. William Spong, Virginia. Thomas Eagleton, Missouri. Mike Gravel, Alaska. John Sherman Cooper, Kentucky. J. Caleb Boggs, Delaware. Howard Baker, Tennessee. Robert Dole, Kansas. Edward Gurney, Florida. And Robert Packwood, Oregon.
The American people owe a great deal to Earth Day, as does much of my success in writing environmental laws. Without the political momentum created by this event, we might not have been able to pass such pioneering legislation. Nor would people the world over be rallying to the global warming issue without the spirit captured in classrooms, auditoriums, and amphitheaters across the country in 1970. Earth Day 1990 -- and today's Senators and Congressmen -- have a similar opportunity. We must renew that spirit so that our legislators can tackle the 1990 Clean Air Amendments with the same energy and innovative thinking.