Friday, September 09, 2016

Guest Post: Setting the Record Straight on the Clean Air Act

--by Leon G. Billings and Thomas C. Jorling

[Editor's note: a recent book by two academics, Struggling for Air, was critical of the content and process associated with the writing of the 1970 Clean Air Act.  The book has prompted the following open letter by two people intimately involved with the law's drafting.  I should note that I worked for Mr. Billings for about a decade, some years after his federal service.  He has never received sufficient credit for his service -- or for a law that has produced such dramatic success. (If it's so bad, why are the big polluters always trying to change it? See Dirty-AirBnB.)  But let the letter below speak for itself.]

Earlier this year, in a book entitled, Struggling for Air, the authors to whom this letter is addressed included observations, conclusions and innuendo that misrepresented the actions, questioned the motives and insulted the authors of the Clean Air Act of 1970. 
Their allegations appear to be based on publications by academics who were not involved in the legislative process and had no access to the debates which shaped the Clean Air Act.  The fundamental premise of Struggling for Air, that there was a “grandfather clause” in the law, has no basis in fact.  It is simply false. 
 As the principal staff authors of the 1970 Act, we believe it important to respond to set the record straight and to properly present the actions of the great men who we served.  Please feel free to share this and to respond.  Leon was the staff director for Senator Edmund S. Muskie from 1966-1978 and Tom was Minority Counsel for Senator John Sherman Cooper from 1968-1972. [Note: Jorling was later New York State Environmental Commissioner under Governor Mario Cuomo.] 
[The letter to Revesz and Lienke begins here:]
As staff authors of the legislation you discuss in Struggling for Air, we are writing this letter to correct some of the conclusions of your treatise. We appreciate the difficulty in trying to characterize the circumstances from which the Clean Air Act (CAA) evolved more than 40 years ago.  Unfortunately, your interpretation of those circumstances and your explanation of the law are neither factually correct nor do they accurately reflect what that law requires. Not only do you assign unsupported motives to the authors of the Clean Air Act, but you also inaccurately describe the legislation and its political history.  
Although you interviewed us prior to publishing your thesis, your thesis does not accurately present the content and perspective offered in that conversation.  And you apparently did not interview others who were involved in the development of the 1970 amendments, conversations that might have protected you from mistakes described below. Many of the key Senators and staff involved in the 1967, 1970 and 1977 amendments to the Clean Air Act are no longer with us. Therefore, it falls to us to correct the misrepresentations of their actions and their motivations.
Your paper reflects little understanding of the political dynamic of the period between 1967 and 1972 including the role of Congress and its relationship with the White House, the impact of the Viet Nam War on the Members of Congress, the relationship between environmental legislation and the 1968 Presidential contest, and the personal or partisan relationships between and among Democrats and Republicans in the Senate. It is unfortunate that these factors were not addressed before writing an unjustified indictment of the authors of the Clean Air Act.
You refer repeatedly to an alleged “grandfather clause” included in the 1970 legislation.  There is no such “grandfather clause” nor was any provision which exempts any stationary sources of air pollution was ever included, debated or proposed in that law. For the record, there are two “grandfather” provisions in the Clean Air Act both of which were included in the 1967 amendments.  When Congress preempted to the Federal government the authority to set auto emission standards, the California auto emissions program was “grandfathered.”  In that same legislation Congress “grandfathered” the right of states and localities to set more stringent air pollution control rules than those established by the Federal government.  Later, in 1977 the Senate adopted and the House accepted an amendment to allow a specific TVA coal-fired power plant to continue its use of tall stacks. 
 While it is convenient to allege that existing stationary sources of air pollution were somehow “grandfathered” in 1970, the allegation is simply false. We challenge you to identify any such provision or any debate or amendment that might have suggested consideration of “exempting” existing sources of air pollution from regulation.
Your apparent fixation with some non-existent “grandfather clause” seems to be essential to making the case that Congress should have adopted “national emission standards” for existing major pollution sources, at least for fossil fuel fired electric generation plants. We do not know why you allege that Congress did not adopt the Johnson/Nixon flawed proposal for national emission standards to “bribe opponents.”  Also, we are at a loss to explain why you ignore the role of State Implementation Plans which were to address every emission source, new or used, everywhere in the country to the extent they caused or contributed adverse effects on the health of persons.  
After reading your text, particularly the first five chapters, we reviewed the Clean Air Act legislative history which you say is the basis for your conclusions. Our review included a careful examination of the stenographic recordings of the markup sessions on environmental legislation.  Beginning in 1969 the Subcommittee on Air and Water Pollution decided to have all of its legislative markup sessions, which were conducted behind closed doors, transcribed.  We have reviewed those transcribed records which are available on the web site of Columbia University’s Earth Institute and at the Edmund S. Muskie Archives at Bates College.
As noted above, your book does not cite any specific provision of any bill or report language in 1970 which could be described as a “grandfathering” or a “grandfather clause” nor does it cite any language which would suggest an intention to exclude existing major sources of pollution generally or coal and oil fired power plants from emission reduction rules.
Somehow you have concluded that because the Congress did not adopt a national emission standards proposal of the Johnson Administration in 1967, the intentional effect was to exempt existing sources of air pollution from Federal emission reduction requirements.
You also concluded that Senator Muskie and his colleagues, again intentionally, “grandfathered” those same existing sources of pollution from Federal regulation in 1970 when they rejected the House Committee proposal for national emission standards for existing sources of air pollution. 
Your thesis completely ignores the fact that, starting in 1963, the Senate embarked on a policy directed at dealing with the health effects of air pollution, expanded that policy in 1965, reinforced it in 1966 and made it a regulatory policy in 1967.  Further, you ignore the fact that neither of the referenced “national emission standards” proposals would have achieved the significant reductions in urban air pollution essential to protect the health of people. 
As you must be aware, the Senate’s 1970 bill made major changes in the Clean Air Act’s regulatory structure.  Not only were most of the provisions requiring Federal administrative action made mandatory, removing regulatory discretion, but deadlines were established.  The Senate bill also eliminated virtually every opportunity for “cost of control” challenges to be brought against those regulations.  Not only were health standards and margin of safety to be based solely on health science (epidemiological evidence) but the constraining terms “economic and technical feasibility” were removed from the law.  Health of people, not affordability of pollution controls, became the basis for clean air regulation. 
Both the Johnson and the Nixon legislation proposed that “national emission standards” would be based on that feasibility test.  The Senate Committee, and particularly Senator Muskie, did not believe that minimal national emission standards so constrained would be adequate to achieve the health-based air pollution standards on which the CAA had been based.  You fail to note that, in addition to new source performance standards, the Senate’s 1970 bill provided that existing sources when modified, would have to achieve a national emission standard based on a “best available technology” standard.  These emission standards were not to be premised on either economic or technical feasibility as proposed by Johnson, Nixon and the House Committee but reductions available from the use of the best available technology. 
You give short shrift to the requirement that “modifications” of existing sources would be required to achieve emission national emission standards. The fact that EPA, under both Democrats and Republican Administrators, ignored or failed to implement this provision was not a failure of the law.  It is unclear to us why you would exonerate EPA for its 20 year failure to implement this critical provision of the 1970 amendments and then indict Senator Muskie and his colleagues for “missing the mark.”  
We also don’t understand your apparent advocacy of national emission standards based on “economical and technical feasibility” as proposed by the Johnson and Nixon Administrations.  To assume that such program would have resulted in meaningful emission controls is challenged by National Air Pollution Control Administration and EPA efforts to establish, by regulation, that “tall stacks, dispersion enhancement and operational controls” would be considered feasible even though there would be no measurable emission reductions. 
Worse, any fair or objective analysis of the national emission standards proposals by Presidents Johnson or Nixon would have to conclude, as did Senator Muskie and his colleagues, that little reduction in actual pollution emissions would be achieved as a result.  Repeatedly, in hearings and in the closed door legislative mark-up sessions Members, particularly Senator Muskie and the staff, raised questions about basing pollution reduction strategy on industry’s determination of what might be technically and economically feasible.  
Senator Muskie insisted on making the “health of persons” the standard for establishing emission reduction requirements. He and his colleagues did not believe an industry-dependent definition of “feasible” emission reductions would achieve air quality protective of the health of people.  Muskie and Republican Senator Howard Baker firmly believed and successfully argued that standards driven by the “health of persons” was the best way to force technology.  Moreover these Senators did not believe that States, motivated by protecting local economies, would require any emission reductions beyond the “minimal” national emission standards.
That view is corroborated by the myriad state laws that PROHIBT any State air quality or emission standards that are more stringent than those mandated by EPA and the Clean Air Act.
Your treatise also ignores nearly 50 years of history of the Clean Air Act and the fact that, but for the “health” standard, reductions in air pollution would have stopped long ago.  You make excuses for the repeated failures of the Environmental Protection Agency under both Democrat and Republican Presidents, to implement the national emission standards provisions, both NSPS and HAPS, that were included in the 1970 Act.  
You apparently find it easier to accuse the authors of the Clean Air Act of “caving in” to special interests.  Yet the only evidence you cite is hearing testimony from an industry representative and a United States Senator both of which the Committee ignored.   And then you apologize for EPA’s failure until 1995, to implement the very specific provisions of the law that authorized regulation of emissions from existing sources.  
While we do not challenge the view that an “economic and technical feasibility” based emission control program is an alternative to a “health of persons” basis for national clean air policy, it is maliciously incorrect to suggest that Senator Muskie and his colleagues chose a health-based regulatory policy because they were “bribing” their opponents.  Your language is doubly offensive because you cite Ralph Nader’s charge of capitulating to industry demands as your sole source.
The refusal of EPA to adopt strict rules applicable to “major modifications” of existing plants and the extent of lobbying and litigation to frustrate what little action EPA chose to take between 1970 and 1995 to require existing sources to meet new source performance standards would certainly be a more evidentiary basis for your case than a mere assertion of political corruption in the 1970 process.  
An added irony to the indictment presented in “Struggling for Air” is that the very focus in 1970 on “pollutants” rather than “sources” is the legally defensible basis for the President’s Clean Power Plan. (See the Amicus Brief we filed in the DC Circuit on the Clean Power Plan.)  It is also the focus on “pollutants” rather than “sources” that justifies the HAPS regulatory program which forced power plants to control mercury emissions.  
Frankly, we have no idea how many coal or oil fired power plants are, or were, located in areas where health standards are or were exceeded.  We have no statistics on how many, if any, were required to install pollution controls. We do know that many urban coal and oil fired power plants either closed down or switched fuels to meet SIP rules.
 We do know that EPA’s nearly 30 year failure to implement the law’s requirement to install best available technology on modified plants of all kinds missed huge opportunities to reduce emissions from existing sources. Whether that failure was the result of special interest intervention or just agency delinquency is a case for someone else to make. 
  Since enactment nearly fifty years ago we have experienced two oil embargoes, a huge dependency on foreign fossil fuels to feed our energy economy, the demise of nuclear power, the concerted effort by many in Congress and the Administration to convert domestic energy production from oil to coal, the explosion of domestic oil and natural gas production, the confrontation with climate change, and Citizens United.
You ignore those events and a decade’s long fight to frustrate implementation of the Clean Air Act but instead assign false and undocumented motives to the authors of the Clean Air Act.  There was no conspiratorial endeavor to protect existing power plants from pollution control nor did Senator Muskie and his colleagues “miss their mark”.  

Leon G. Billings and Thomas C. Jorling

No comments: