DC Confidential. David Schoenbrod

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       When the Five Tricks Began

       For too long, Washington has operated on the “something for nothing” principle. Both parties have promised their constituents the world.

      —FORMER NEW YORK CITY MAYOR MICHAEL BLOOMBERG (2011)¹

      In 1970, Senator Edmund Muskie of Maine had a problem. He had been the Democratic Party’s nominee for vice president in 1968 and was a leading contender for its nomination for president in the 1972 election. His hopes of taking the White House soared with the surprisingly large turnout for the first Earth Day on April 22, 1970. This surge in concern for the environment helped Muskie because he was known as “Mr. Environment” in Congress. This distinction came from his having authored key environmental legislation, especially on air pollution. Therein lay his problem.²

      Only three weeks after Earth Day, Ralph Nader charged that Muskie’s air pollution statute sold out the public’s health because of his “preoccupation with the 1972 election.” According to Nader’s study, Muskie’s statute shirked the “hard choices” needed to protect the public’s health by leaving them to bureaucrats under the control of the White House and members of Congress working in cahoots with industry. In Nader’s words, the government “starting with Senator Edmund Muskie” had failed to clean the air.³

      Muskie’s statute had neither defined the rights that people have to clean air nor the duties businesses have to emit less pollution. In it, Congress had left those critical choices to administrative officials. That is also what it had done in many previous statutes, saying to an agency, in essence, “Here’s a problem, solve it.” By shunting hard choices to an expert agency, such statutes often give legislators political cover,⁴ but Muskie stood exposed to Nader’s attack because it came at a time of escalating environmental concern and was directed against a leading candidate for president.

      To keep his title of Mr. Environment and his hopes for the presidency alive, Senator Muskie needed a statute that would give him credit for cleaning the air. Yet, a statute that actually imposed the burdens needed to deliver clean air would also bring him blame, and thereby cost him votes and campaign contributions in the 1972 election. Yes, the Civil Rights Act, for which he had voted in 1964, also imposed burdens that were unpopular with some voters. That vote, however, was an easy choice for him because the civil rights statute imposed duties to stop bigoted conduct, which voters in most parts of the country viewed as evil. In contrast, legislating clean air would require imposing burdens not only on reckless polluters but also on reasonably responsible businesses as well as city governments and ordinary citizens in their capacities as motorists, employees, and consumers of electricity and home heating fuel.

      To get credit but avoid blame, Muskie cleverly came up with a different sort of regulatory statute. While his earlier statute had said to the agency, “Here’s a problem, solve it,” the air pollution bill that he introduced in 1970 appeared to say, “Here’s our solution, implement it.” The new bill promised everyone healthy air in seemingly precise terms, but generally left an agency to define the duties needed to clean the air. In contrast, in the Civil Rights Act of 1964, it was members of Congress who imposed the duties to enforce the right against discrimination.

      Because President Richard Nixon didn’t want to leave the environmental glory to a potential rival in the 1972 general election, he, too, proposed a bill that promised benefits but shifted responsibility for imposing the commensurate burdens. Competition between Muskie, Nixon, and others who wanted to run for president in 1972 helped to produce a Clean Air Act that Muskie sponsored, both parties in Congress joined in passing with hardly a dissenting vote, and Nixon signed with fanfare on December 31, 1970.⁵

      The Clean Air Act would mean, according to Muskie, that “all Americans in all parts of the country shall have clean air to breathe within the 1970s.” The statute gave the job of deciding which duties to place on various pollution sources to a newly created administrative agency, the Environmental Protection Agency. Nonetheless, Muskie insisted that the statute “faces the air pollution crisis with urgency and in candor. It makes hard choices.”⁶

      Only on auto manufacturers did Congress directly impose a duty to clean the air. The Clean Air Act decreed that new cars sold from 1975 on must emit 90 percent less of three key pollutants. Because administrators had failed to impose significant duties on auto manufacturers under the pre-1970 legislation—a failure for which Nader gave Muskie particular grief—Congress itself had to impose a major duty on them. The legislators were able to impose this duty without shouldering too-much blame because auto manufacturers at the time were in bad repute for making unsafe as well as dirty cars.⁷ Voters would, of course, end up paying more for cars with effective pollution-control devices, but that would be years after the statute passed, and voters would get the bad news from auto manufacturers rather than legislators. They would also, of course, get cleaner cars.

      The cleaner new cars manufactured in the 1970s would, however, fall far short of producing the “clean air . . . within the 1970s” that Congress had promised. To meet the statute’s targets for clean air would have required cuts in emissions from power plants, steel mills, municipal incinerators, and dozens of other facilities including homes, as well as requiring motorists in some areas to use their cars less. None of this was made explicit in the statute.

      To bolster the legislators’ claim that they had made the hard choices needed to produce healthy air by the end of the 1970s, the statute

       • required the EPA to issue regulations sufficient to protect the public’s health from all pollutants everywhere in the United States;

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