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PPM 637: Intergovernmental Relations
A Lecture by Leon G. Billings

April 14, 2005

Last month I was asked to participate in a conference at the Howard Baker Center at the University of Tennessee. Some of you may recognize the name. He has been our Ambassador to Japan for the past several years. At an earlier time, he was Chief of Staff to then President Ronald Reagan. Karl and I knew him best as a ranking member of Senator Muskie's Air and Water Pollution Subcommittee when we wrote the 1970 Clean Air Act.

I helped Senator Baker with his remarks for that conference and also had an opportunity to speak.

I am going to incorporate some of Senator Baker's observations in this lecture. I'm going to incorporate my observations in this lecture. And I'm going to expand beyond clean air to talk about the history of federal clean water legislation and the evolution of our nation's environmental laws in general.

Ed Muskie became interested in conservation, in part because he was a hunter and a fisherman. As long as I can remember, he talked about hunting with dogs, which were kept by a dentist in Augusta. There were pictures of Senator Muskie hunting birds on Maryland's Eastern Shore when he was a candidate for Vice President of the United States.

I am told he was introduced to Maine forests, rural farms and mountains by his father. He grew up in Rumford and the stench of the polluted Androscoggin River, caused in large part by paper mills. He often said the Androscoggin had as much of an air pollution problem as a water pollution problem.

His conservation commitment and genius as a legislator was evidenced in creation of the Allagash Wilderness Waterway. He sorted out the conflicting forces and devised the solution with then Secretary of Interior Stewart Udall: federal land and conservation funds to support creation of a state protected waterway, coupled with redesign of the proposed hydroelectric developments on the St. John River to generate sufficient electrical energy without flooding the Allagash above Twin Brook Rapids. And he was a committed supporter of federal wild and scenic rivers legislation, wilderness legislation, parks and recreation and even fish and wildlife refuges.

Senator Muskie was personally responsible for the formation of the Roosevelt Campobello International Park Commission. He was so responsible, in fact, that he was the primary reason there is a bridge between Lubec, Maine and Campobello Island. Senator Muskie served as a member of the Roosevelt Campobello Commission from its inception until his death.

I mention the Senator's interest in conservation in part because it is an important part of his political history, but as much to help me make the distinction between conservation policy and environmental policy. Most media and in fact most people today lump conservation and environment together so that a conservationist has become an environmentalist and vice versa.

I have never succumbed to that lack of distinction. Environment is the natural world in which we live. It is the air we breathe, the water we drink, the land we despoil. Conservation is all about protecting things that nature gave us -- rivers, lakes, forests, species, etc.

That the working press is too lazy or, worse, too ignorant to make the distinction is an unfortunate fact of life which I have always assumed is primarily to aggravate me.

While Senator Muskie supported and advocated conservation laws, his primary area of influence, initiative and creativity in Congress was environmental protection.

As Governor of Maine, interested in trying to recover from the economic devastation of the movement of the textile industry from the Northeast to the South, he vigorously pursued economic development. He was angered and distressed when a manufacturing plant he had attracted to Maine changed its mind when they found that the assimilative capacity of the Saco River had been completely consumed and there was no waste treatment capacity available in the river.

He also knew that the older towns in Maine had inadequate sewage treatment and, in some cases, unhealthy drinking water supplies. He responded at two levels. First, he knew that changing the way America did business -- changing the national pollution ethic -- would require an unchallengeable scientific defense. And he determined that the United States Public Health Service and its laboratories were an appropriate venue to develop and articulate that science.

Thus, his very first adventure into clean air and clean water laws was to require the Public Health Service to develop criteria that defined the levels at which pollution concentrations adversely affected human health and welfare.

Parenthetically and interestingly, today the anti-environment forces are also hooked on science. They want the government to use "sound science," not "government science." They want science compromised by political judgments. Muskie wanted science that was reflective of the best information our research could support without economic or political interference.

Muskie anticipated the "sound science" argument, however, when he moved from the requirement that scientific criteria on the effects of pollutants be translated into standards. Air quality standards and water quality standards were to reflect the levels of pollution in the environment which adversely affected sensitive groups in the population. He did not deem it wise or useful to try to build a regulatory framework around protecting every individual, but rather to establish the standards at levels which were deemed sufficient to protect categories or groups of people.

The way Muskie proposed to make that science "sound" -- to interject a political equation -- was through the establishment of timeframes for achievement of those standards. Muskie believed that the one economic concession politicians could and should make with respect to protecting public health and welfare from pollution was in the time given to achieve compliance. And those timeframes were intended to be based on the severity and the complexity of the problem.

Muskie also wanted the public involved in the decisional process. He wanted the public to speak to the question of what the standards ought to be and what the timeframe for compliance should be. He did not want bureaucrats to make decisions which compromised health protection because corporations and their organizations had more influence on the unelected than did the body politic.

Muskie toiled almost alone in this vineyard of criteria and standards until the late 1960's. The election of 1968 brought two new and creative individuals to the United States Senate -- Senator Howard Baker, to whom I previously referred, and Senator Tom Eagleton of Missouri -- one a Republican, one a Democrat. Both were assigned to Muskie's Environment Subcommittee. Both these young Senators brought intellect, drive and imagination to the process.

Howard Baker was an engineer turned lawyer and a protege of the technocrats at the Oak Ridge National Laboratory. He held a firm belief that the powers of invention in the United States were sufficient to overcome virtually any problem.

Tom Eagleton was of a different cut of cloth. His first exposure to federal legislation was a rather demoralizing process of trying to rewrite the nation's occupational safety and health laws. He had been frustrated by the unwillingness of his colleagues on the Labor Committee to write deadlines into the law and he repeatedly argued in our committee that government lacked credibility because it made promises that were hollow.

Baker and Eagleton joined Muskie in 1969. Even before the first Earth Day, they had crafted a law which made strict, joint and several liability the standards for clean up of spills of oil and toxic materials. Maine had already enacted such a law. This became the basis for the Superfund law enacted 10 years later.

This unique combination of individuals, together with important contributions from other Senators, created an opportunity for creativity not matched before or seen since.

Muskie was an opportunist. He had seen the outpouring of public support for environmental protection in the Earth Day celebrations. He knew that Walter Cronkite was nightly talking about protecting the environment as part of his "Living Planet" series.

He knew his colleagues were tired of the Vietnam War protests and welcomed the diversion to environmental initiatives.

And he believed that with the proper combination of public policy and political skill he could accomplish much more legislatively than had even been considered before.

Muskie took advantage of Eagleton's demand for deadlines and Baker's interest in technology forcing and his own commitment to a scientific basis for public health protection. He shaped laws which have largely survived to this day.

He made a deal with Baker that statutory auto emissions standards would be subject to Eagleton's deadlines with the understanding that Congress would review those standards and change them if technology failed to meet our timeline.

He accepted Eagleton's deadlines with the understanding that Congress could move them if the economic impact was unacceptable or the technology wasn't invented.

He advocated a generally held view of his Senate colleagues, many of whom, like him, were former Governors, that the primary responsibility for environmental protection should continue to rest with the states with the important addition of an 800 pound federal "gorilla in the closet."

He accepted the recommendations of his staff that these public policies ought not be subject to discretionary judgments of appointed bureaucrats and civil servants.

Muskie's skill as a legislative tactician, combined with his concept of intergovernmental relations and his political instincts, provided huge opportunity for the staff to be successfully creative.

This led to several key and critical elements of the clean air and clean water laws. First, the staff recommended (primarily Tom Jorling, minority counsel, and myself) that the regulatory responsibility of government agencies at whatever level be made mandatory rather than permissive. In other words, we wanted to deny bureaucrats and their political overseers the opportunity to ignore a particular regulatory requirement because the law gave them the discretion to do so.

Simply put, we proposed to convert the word "may" in the law to the word "shall." This alone was a radical and innovative departure from both federal and state law at the time. Bureaucrats expected to have the discretion to set priorities and within that discretion the flexibility to set and enforce whenever and wherever they saw fit without interference from the public, the Congress or the Courts.

Second, Tom and I were concerned with what we called the "weasel words." These were adjectives and adverbs which tended to imply discretion even though none was intended. We believed "none" ought to mean none. We believed that the statutory noun ought not be modified by the discretionary adverb. Thus, we proposed that all of the weasel words, like "significantly" or "significant" be removed from law. We also proposed, and the Members agreed, to remove the tests of "technological and economic feasibility" from the law.

Having established Muskie's demand that achievement of health-based standards would be the basis for regulation and for federal intervention; having eliminated the test of economic and technological feasibility; having made compliance mandatory; and having removed the discretion with the bureaucrats as to the degree regulation would be required, we ended up with one dilemma: how to enforce the law against recalcitrant or reluctant administrators or political preferences.

As we debated this dilemma, Ed Muskie's closest friend, Senator Philip Hart of Michigan, proposed that federal law authorize class action suits against polluters. Because it was unlikely that the bureaucracy would have the political backbone to force environmental protection, Hart's theory was that the judiciary ought to have the authority to establish pollution standards with which individuals or groups of polluters would have to comply. In other words, ad hoc litigation would determine the degree of environmental protection.

Senator Muskie flatly rejected the idea that the Courts control the process of establishing environmental standards. By the same token, because Senator Hart was Senator Muskie's best friend, he badly wanted to give Hart a piece of the environmental action.

It was at this point that Jorling, ever the creative advocate, suggested that we give citizens standing, without regard to diversity of citizenship, to ask the Courts to force government officials to perform mandatory legal requirements and for them to provide direct action against polluters if the government failed to act.

Muskie quickly bought onto the idea and told Senator Hart that he could take credit for this as an alternative to his class action proposal. And then Muskie argued in committee that the only way to avoid a successful Hart "class action" amendment on the Senate floor would be to include this citizen suit provision. His colleagues agreed his threat was real.

Though challenged on the Senate floor that citizen suits would result in a "deluge of frivolous litigation by environmental extremists," the provision not only survived, but was included as boiler plate language in virtually every environmental statute subsequently written. It certainly was included in every one of the statutes for which Senator Muskie had responsibility.

While many look at the introduction of the concept of mandatory requirements, statutory standards, statutory deadlines, establishment of scientifically based public health standards or even the removal of economic and technical feasibility tests and other weasel words to be the singular most significant aspects of the Clean Air Act, in my view the thread that holds all of these provisions together is the right of citizens, even as pared back and defined by the current Supreme Court, to force government agencies to do the job the law requires. And this would not have occurred but for Senator Muskie's deft use of Phil Hart's proposed class action amendment which, in my view, would never have survived the legislative process had it been brought to a vote.

Muskie established specific standards for judicial review of governmental decisions with the strong support of his lawyer colleagues Eagleton and Baker. And, in a recognition of the impact of lost jobs as plants moved south from New England, he made a decision that new plants and new investment in old plants should require emission reductions based on best available technology.

Senator Muskie believed and convinced his colleagues that it was easier to do a better job cleaning up new plants than to force uneconomic investment in old plants. He believed that if management made decisions to modernize old plants, then that investment should be accompanied by a pollution control investment. But he did not want to have pollution control laws and the associated investment requirements to become the rallying point for the anti-pollution lobby.

He did not want his antagonists to be able to say, "Ed Muskie's laws closed our old plants down." He wanted them to say, "Because we are expanding or improving this old plant, the law says we have to clean it up too." He felt the latter was politically defensible and the former was not.

Today it is alleged that he "grandfathered" old power plants. That is not true. He simply agreed that these existing plants should be cleaned up based on local and state programs to meet air quality standards. Federal law would require cleanup when new investment was made. This was his way of forcing modern pollution control when those old plants escaped air quality based cleanup.

Interestingly, though, many, many, electric utilities have made major investments in their old power plants but they ignored the requirements of Muskie's law. And many of those utilities have found that to be an expensive mistake, not only having to retrofit cleanup technology after they made their investment in increased efficiency, but forced to pay significant penalties for their failure to comply with the law.

I earlier noted that the premise of federal environmental law was that the level of government most capable of its implementation should have the responsibility and the authority to execute that law. While more true in water pollution than in air pollution, it is generally accepted that EPA has turned over responsibility for implementation of these laws to the states. In most cases this has resulted in the development of strong state programs.

Unfortunately, because the Nixon Administration created an Environmental Protection Agency which itself was decentralized to artificial regions, the implementation has been spotty and in some cases very different depending on what part of the country you are in. That was not Muskie's intention.

Muskie intended that the states would have the authority to make the choices necessary to achieve the national standards, but they were mandated to make those choices and the choices had to achieve the standards.

It was not intended that the states or the regions could make compromises the effect of which was that water and air quality standards were not achieved or became dirtier.

This recitation of the legislative prowess of Maine's most important Senator needs to be viewed in the context of the time he served.

It is important, as we review the Muskie legacy, to understand several things:

First, as I noted before, there were no federal laws of any kind on any subject which had deadlines, statutory standards, mandatory requirements or citizen enforcement rights. There was very little opportunity for the public to participate in policy decisions. There was very little government outreach. There was very little sunshine, a lot of darkness, and most public policy was at the discretion of the political appointees or bureaucrats.

Second, consensus was a more effective tool for advancing public policy than was a confrontation. Members of Congress, House and Senate, actually got things done by working with their colleagues across the aisle. It was commonplace to have major policies cosponsored by members of both parties.

Third, before 1973, the Committees of the Congress met behind closed doors. The concept of open decisions openly arrived at simply didn't exist.

Fourth, there were very few "lobbyists" -- people who plied the trade of influencing Members of Congress on behalf of specific clients. That is not to say they didn't exist. There just weren't that many.

Fifth, campaigns were financed very differently. Senator Muskie's last campaign for United States Senate, in 1976, cost less than $160,000. Senator Muskie spent virtually none of his time raising money or calling contributors. He literally hated asking for money. While he had done that to a degree when he was a candidate for President, even then most of the fundraising was done by third parties.

Sixth, political action committees, as we now know them, didn't exist. Business contributions to Members of Congress came from the pockets of the businessmen themselves, not their political committees. Corporate money could not be spent to create PACs and corporations could not contribute to federal campaigns (or to state campaigns in 22 states).

It was the philosophy of elected Members of the Senate and the House which dictated the nature of the legislative initiative rather than the influence of the special interests who had endeared themselves to a Member through campaign largesse.

Seventh, there were very few staff. The initial work by the Air and Water Pollution Subcommittee was done with personal staff assisted by bureaucrats seconded from the Public Health Service. The contributions of the Senator's Administrative Assistant Don Nicoll and his colleague Caleb Boggs' (R-DE) legislative assistant Bill Hildenbrand was critical to his early success.

The 1970 Clean Air Act was the product of staff work of no more than 15 people and most of the staff recommendations were the responsibility of four key staff. Members were Members; staff were staff. And we were frequently reminded if we forgot the distinction.

I recall on one occasion there was an article in the Washington Post, the headline of which read "Power in Washington." This is an article that the Washington Post writes every year, usually while Congress is out of session. In this particular case, the Washington Post reporter had called me and had asked for a photograph.

I said that, not only would I not provide a photograph, I wouldn't sit for a photograph and I didn't want my name in the paper because Senator Muskie was my boss and he didn't want my name in the paper.

The reporter ignored my wishes and, while there was no picture of me in an article which highlighted five or six key staff people, the lead in the article went something like, "You have never heard of Leon Billings, but...."

That day the Committee had a meeting. Senator Muskie came in and I, as usual, sat on his left. He opened the meeting by asking, "Why don't we ask Power in Washington what he has to say about this?" For the next two hours I was referred to as "Power in Washington."

The blood dripped from my body. Indeed, if I was powerful, I was powerful only because Senator Muskie was powerful. If I was influential, it was because Senator Muskie was influential. If I was effective, it was because Senator Muskie was effective. While I had influence on his thought process and I was able to bring ideas which he adopted as his own, there was never a Leon Billings amendment.

Muskie had an incredible work ethic. He did not spend much time on the Capital social circuit. Rather, he did his homework. Every night and on weekends he would take home briefing books, often three inch binders. And he would have read them before hearings, voting sessions or debate.

His formidable work ethic and mastery of obscure issues plus his insistence that his endless questions be answered before he engaged in debate made him truly an awesome force in the United States Senate. However his colleagues may have felt about him personally, they all respected his attention to detail and mastery of subject matter.

Today that has all changed. Today Members of Congress spend most of their time raising money, developing relations with the interests who have that money and attending events required to rake in that money. Today a Member is known more for fund raising prowess than for the power of ideas.

We managed, though, during that brief window when the Democrats had almost a filibuster-proof majority in the Congress to craft a whole new area of public policy. But we did it with true consensus and real bipartisan initiative.

Rather than flex the muscle of a veto- (and often filibuster-) proof majority, we built a body of law which had near unanimous support. And what we did became a model for similar initiatives in every developed country in the world and now even in the developing world. That is the Muskie legacy.

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