Lecture #20: Regulation to the Rescue

Suggested Readings:

Richard J. Lazarus, The Making of Environmental Law (2004)

Karl Boyd Brooks, Before Earth Day: The Origins of American Environmental Law, 1945-1970 (2009)

J. Brooks Flippen, Nixon and the Environment (2000)

Bruce A. Ackerman & William T. Hassler, Clean Coal, Dirty Air (1981)


I. Bricks in Toilets: The Fisherman's Problem as Tragedy of the Commons

I emphasized last time the apparent absurdity of putting a brick in your toilet to help save the world...but what if it could?

The optimism of Earth Day flowed from the premise that changing values would change actions...and that doing both would change the world.

The connection of individual values and actions to large-scale social consequences seems important for historical understanding, moral responsibility, and political engagement alike: surely this is a valuable insight that we should dismiss out of hand? (All great religious movements, for instance, take this as their most foundational belief.)

The difficulty is applying insight to action. One might think of this as the Fisherman's Problem leading to a Tragedy of Commons: the benefits from polluting accrue to individuals, but the overall costs accrue to society, so there's little incentive not to pollute. If the gains from spending time, money, and effort to control pollution go mainly to other people, why should any of us bother?

Notice: Garrett Hardin's "Tragedy of the Commons" (1968) could also apply to bricks in toilets: that extra water in the tank is part of the commons, and the money we save by displacing a little bit of that water with a brick saves us just a few pennies, even if the gains to society at large might be enormous.

So what about one of the possible solutions we first encountered when thinking about the Fisherman's Problem? Don't rely on voluntarism. Instead, use the coercive power of government to force action. If people won't do the right thing on their own, why not make them do it?

If people won't put bricks in their toilets, how about passing a law requiring them to do so?

But this then leads to other questions: what kinds of bricks? What kinds of toilets? Who should pay for the costs of those toilets? Do we incentivize good behavior with tax rebates, or with government subsidies? Do we create unfunded mandates so that government doesn't have to internalize the costs of these laws? And so on and on and on.

Just so did a new set of questions enter the policy arena and set up the terms of future controversies over the proper role of governmental regulation in environmental protection, especially at federal level.

II. Up the Ladder of Federalism: Clean Air as Case Study

1960s saw an extraordinary wave of new laws relevant to environment:

  • Motor Vehicle Air Pollution Control Act, 1965
  • Water Quality Act, 1965; Air Quality Act, 1967
  • Clean Air Act Amendments, 1970
  • Federal Water Pollution Control Act, 1972
  • Endangered Species Act, 1973

The National Environmental Policy Act of 1970 (NEPA) was perhaps the most important of these, at least symbolically. We'll talk about it toward the end of the lecture.

One of the most interesting but least noticed aspects of these laws was how many of them came into existence before the widespread upsurge in popular environmental concerns that occurred in 1969-70. These laws were not responses to Earth Day or grass-roots organizing; at least until the end of the decade, environmental issues were not that high on public agenda compared with economy, foreign policy (Vietnam), civil rights, urban disorder.

These laws often had other sources: industry politics, for instance, were as important as grass-roots environmental protests.

The sequence of government responses to air pollution can serve as a useful case study here.

For the first half of the twentieth century, air pollution was mainly perceived as a problem at the local level rather than the national; there was essential no federal action addressing air pollution until the 1950s.

Government action was pioneered instead at the local level: St. Louis passed an air pollution ordinance in 1940; Pittsburgh in 1941 (which would become a national model). On the West Coast, Los Angeles and the State of California took a series of legal steps to address the special smog problems that characterized the Los Angeles Basin.

Initial reactions to air pollution during the Progressive Era and through mid-century treated it as a "smoke" problem. Pittsburgh's ordinance used the "Ringelmann Chart" for simple eyeball measurement of smoke density, outlawing "dense smoke" as a nuisance. The technical apparatus for measuring and understanding air pollution very weak until the science of analytical chemistry and the instruments for studying it became ever more refined across the middle decades of the century.

Pittsburgh's efforts involved active cooperation between industrialists and city government.

The State of Pennsylvania stepped in after the Donora-Webster killer smog event of October 1948: sulfur dioxide accumulated in river valleys as a result of a temperature inversion. 5910 people, 42.7% of population, complained of significant symptoms, and 20 died. https://en.wikipedia.org/wiki/1948_Donora_smog

Far worse: the Great Smog in London (Dec. 5-9, 1952) killed an estimated 4000 people (recent estimates have revised this number upward to more than 12,000) in an atmospheric inversion event that trapped high-sulphur coal smoke, made driving impossible, leading to cancellation of film screenings because people in theatres couldn't make out the screen through the smoke. https://en.wikipedia.org/wiki/Great_Smog_of_London

Not until 1955 did the federal government pass a law budgeting $5 million per year for research on the causes and prevention of air pollution. The assumption was that air pollution was intrinsically a local problem, so the chief responsibility for addressing it belonged to other levels of government.

Representative Paul Schenck (Ohio Republican) tried three times in 1958, 1959, 1960 to get Congress to pass legislation investigating automobile emissions. His bills were resisted by the Public Health Service as too political. In 1960, a relatively modest law finally passed asking the Surgeon General to report on possible health effects of auto-related pollution.

Federal involvement would begin to expand in early 1960s: the Kennedy administration became interested, and a Division of Air Pollution now existed in the Public Health Service as a bureaucratic home with a vested interest in pursuing. Municipalities lobbied for federal support, with a growing sense that state and local governments couldn't tackle the problem on their own.

This was especially true if automobiles were significant contributors to the problem, since no one state (other than maybe California) had enough political clout to intervene on the design and manufacture of cars.) This meant that growing awareness of air pollution from automobiles led almost inevitably to growing federal involvement.

1962: Surgeon General released first report on Motor Vehicles, Air Pollution, and Health: its findings were still tentative, but influential in suggesting that cars really were significant contributors to air pollution.

1963: Senate creates a Subcommittee on Air and Water Pollution, chaired by Senator Edmund Muskie (Maine Democrat), creating an institutional home in Congress for addressing these issues. Muskie would become a key congressional leader on pollution questions for the next decade.

1963: Clean Air Act passed, becoming the basis for all subsequent air pollution law. It reaffirmed local/state responsibility, but recognized a new "leadership" and financial assistance role for the federal government. In particular, feds were empowered to enter abatement process if clear threats to human health existed. (Note the consistent focus on human health in early legislation.)

1967: Air Quality Act passed, authored by Muskie, setting "air quality control regions" with federally designated "criteria" for air quality requisite to health. The act represented a subtle shift from the federal government as a spnosor of research and a coordinator of action at the state level to the feds becoming policymakers and preempters of local authority.

1965: Motor Vehicle Air Pollution Control Act tied to auto companies' worries about increasing regulation of emissions at state level, especially in California, but also Pennsylvania, New York. A tangled mixture of different state standards might create nightmare for car company designs, so...

1967: National Emission Standards Act of 1967 preempted all but California's local auto emission standards.

Use of Federal regulatory apparatus to circumvent state regulation had occurred since the Interstate Commerce Act of 1887, which, standardized railroad regulation in response to the proliferation of state laws regulating railroads during the 1870s.

Hence: auto companies were willing to support federal legislation in return for federal preemption of state regulation.

Early air pollution laws had weak enforcement measures: complex conference procedures whereby federal, state, local officials met with interested parties to try to negotiate solutions.

III. Hopping on the Bandwagon

Note the rise of public interest in environment during 1969-70 as reflected in polls: May 1969, only 1% listed "pollution/ecology" among "most important problems" of US; 25% in May 1971; public concern over air/water pollution rose from 10th to 5th place (Vietnam War, inflation, taxes, economy always higher).

Rising public concern meant political opportunity, especially for Washington politicians seeking to identify themselves with a national issue that could serve as the springboard for becoming a candidate for the presidency.

Key figures:

  • Senator Edmund Muskie (Maine Democrat) had been a key figure in environmental politics since the Johnson administration;
  • Senator Henry "Scoop" Jackson (Washington Democrat) would author NEPA

Much rivalry between these two:, both saw themselves as presidential contenders for the 1972 election.

Their chief antagonist: President Richard Nixon, who underwent a sudden conversion to environmentalism in 1969 as polls began to indicate growing public concern. This shift in the White House was managed by John Ehrlichman, a former Seattle land-use attorney, who designed a series of policy moves to preempt environmental image-making of likely Democratic presidential contenders. (Ehrlichman would later be caught up in the Watergate scandal, but that was long after the events we explore in this lecture.)

December 1969: the National Environmental Policy Act (NEPA) passed Congress, and Nixon signed it into law as his first presidential action in January 1970.

February 1970: Nixon delivered his Special Message on Environmental Quality to Congress, announcing a series of sweeping administrative actions to improve federal regulatory apparatus for intervening on environmental problems: http://www.presidency.ucsb.edu/ws/?pid=2757

This resulted in the creation of the Environmental Protection Agency (EPA), National Oceanic and Atmospheric Administration (NOAA). They were justified as ways to coordinate interdisciplinary interventions on multi-media pollution.

Political competition between White House and Congressional Democrats contributed to escalations of specific clauses of these laws: the rivalry resulted in legislation that was probably stronger than any individual politician might have chosen.

Nixon ignored Earth Day, and retreated from environmental initiatives by 1971 in the face of economic problems (mainly inflation and growing federal deficits resulting from Vietnam War and oil/energy crisis).

Air pollution was another case in point: in May 1970, Ralph Nader issued a task force report on clean air, attacking Muskie for passivity and being overly pro-industry; to prove his bona fides with environmentalists, Muskie became much more aggressive in authoring new clean air legislation.

Result: Clean Air Act, 1970, far more aggressive than previous such legislation, calling for a 90% decrease in car pollutants within 5 years, with the EPA charged with overseeing and specifically instructed to ignore questions of economic or technical feasibility. The new approach was less the result of environmental lobbying than of politicians anticipating and trying to get out in front of public concerns.

The irrational consequences of the new law helped provoke backlash against it during the 1970s: by ignoring technically feasible motor vehicle pollution controls, paying little attention to chemical realities or economic trade-offs, the law almost inevitably led to tactical retreats from initial standards. Los Angeles even joined auto manufacturers in resisting standards for fear that pollution-control devices might elevate smog-creating oxides of nitrogen.

This 1970 legislation began to introduce what would become a growing challenge in the closing decades of the twentieth century: hard choices, ambiguous trade-offs, as well as the increasingly technical nature of policy debates that would characterize environmental politics from here on.

NEPA, authored by Jackson, was one result of this complicated series of machinations: https://en.wikipedia.org/wiki/National_Environmental_Policy_Act
Much of it was very broad and essentially symbolic. Its preamble declared that its purpose was:

"To declare national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality."

NEPA's key operational clause, other than creation of Council on Environmental Quality (CEQ), required all Federal agencies henceforth to issue an environmental impact statements (EIS) before taking any major action. This became device whereby anyone could intervene in environmental policy processes.

The impact of NEPA's new EIS requirement was broadened by Judge J. Skelly Wright's decision in Calvert Cliffs v. AEC (Atomic Energy Commission), 1971, which ruled that the AEC had obligation to conduct EIS on thermal pollution from reactor. This became a precedent for the much more controversial Alaskan Pipeline EIS.

Also: broadening the notion of legal "standing" was suggested by Justice William O. Douglas's famous dissent in Sierra Club v. Morton: environmental organizations could sue for standing even when not directly involved in a case. This was part of a general expansion of tort law during this period, with many environmental ramifications. (Douglas, originally appointed by FDR, had long had a national reputation as a conservationist/environmentalist.) https://en.wikipedia.org/wiki/Sierra_Club_v._Morton

The new legal tools being created by White House, Congress, and the courts, all encouraged the creation of new environmental organizations specializing in their use to intervene on behalf of environmental causes:

  • Environmental Defense Fund (EDF, 1967) initially organized to oppose DDT spraying on Long Island;
  • Natural Resources Defense Council (NRDC, 1970) sought to litigate on a wide range of pollution and resource issues;
  • Sierra Club Legal Defense Fund (1971, later spun off in 1997 as Earthjustice) essentially became a non-profit legal organization representing other environmental groups when litigation and interventions in administrative legal proceedings were needed.

These powerful new tools and organizations, but they pointed toward an unintended consequence: professionalization of expert environmentalists (lawyers and scientists), potentially distancing themselves from grass roots and other members of the public, and possibly losing touch with underlying questions of values that had seemed so powerful at the time of the first Earth Day in 1970.

In the wake of these many changes, bricks in toilets could easily seem beside the point...but what of the values and impulses that had made those bricks feel powerful as acts of personal responsibility?