Protecting the Environment: 

Politics, Pollution, and Federal Policy 

AOVISORY COYM,SS,ON 0” INTll.ROOUCRNYENTAL RElA110116 

Warhinglon. D.C. 20575. March 1PB1 

A-83 

Preface 

T he Adwsory Commission on Intergovernmental 

Relations was established by P.L. 380, which was passed 

by the first session of the 86th Congress and approved 

by the President on September 24, 1959. (Section 2 of 

the act] sets forth the following declaration of purpose 

and specific responsibilities for the Commission: 

Sec. 2. Because the complexity of modern life 

intensifies the need in a federal form of go&~- 

merit for the fullest cooperation and coordination of,acrivities between the levels of government, and because population growth and 

scientific developmenrs portend an increasingly complex society in future years, it is 

essential that an appropriate agency be 

established to give continuing attention to intergovernmental problems. 

It is intended that rhe Commission, in performanceof its duties, will: 

(1) bring together representatives of the federal, state, and local governments for the consideration of common problems 

(5) encourage discussion and study at an 

early stage of emerging public problems that 

are likely to require intergovernmental cooperation. 

(6) recommend, within the framework of the 

Constitution, the most desirable allocation of 

governmental functions, responsibilities, and 

revenues among the several levels of govern- 

“lent.. 

iii 
Pursuant to its statutory responsibilities, the Commission has from time to time been requested by the Congress or the President to examine particular problems 

impeding the effectiveness of the federal system. Section 

145 of the 1976 extension legislation for General Revenue Sharing (F.L. 94488) mandated that the Commission: 

. . . study and evaluate the American federal 

fiscal system in terms of the allocation and coordination of public resources among federal, 

state, and local governments, including, but 

not limited to, a study and evaluation of: (1) 

the allocation and coordination of taxing and 

spending authorities between levels of government, including a comparison of other federal 

government system (5) forces likely to 

affect the nature of the American federal 

system in the short-term and km&term future 

and possible adjustments to such system, if 

any, which may be desirable, in light of future 

developments. 

The study, 7%e Federal Role in the Federal System: The 

Dynamics of Gwrh, of which the present volume is one 

component, is part of the Commission’s response to 

this mandate. Staff were directed to: (a) examine the 

present role of the federal government in the American 

federal system; (b) review theoretical perspectives on 

American federalism, the assignment of functions, and 

governmental growth; and (c) identify historical and 

political patterns in the development and expansion of 

national governmental domestic activities. This case 

study on the federal role in environmental protection is 

one of seven prepared by Commission staff pursuant to 

this assignment. 

Abraham D. Beame 

Chairman 

iv 
Acknowledgments 

T his volume was prepared by the Governmental 

Structure and Functions section of the Commission 

staff, Cynthia Cates Colella had responsibility for the 

research and preparation of this case study. Other 

members of the Governmental Structure and Functions 

section-including David R. Beam, project manager, 

Timothy Conlan, Bruce D. McDowell, Carol Monical, 

Mavis Mann Reeves, and Albert J. Richter-reviewed 

the manuscript and made helpful suggestions. Delores 

Dawson assumed the enormous task of’$reparing the 

manuscript. 

The following people also reviewed the volume and 

offered valuable advice: Michael A. Colella, J. Clarence 

Davies III, Charles 0. Jones, Raymond Shapek, Lettie 

M. Wenner, and Joseph V. Yance. 

The report would not have been possible without the 

cooperation and assistance of the persons identified 

above, and the Commission gratefully acknowledges 

their contribution. 

Full responsibility for content and accuracy rests, of 

course, with the Commission and its staff. 

Wayne F. Anderson 

Executive Director 

David B. Walker 

Assistant Director 

CONTENTS 

Chapter 1. Preventing Waterborne Diseases and Smoky Skies: 

Early State and Local Pollution Control. .................... 

Chapter 2. Federal Entrance Into Environmental Protection: An 

Inconspicuous Beginning, 194&55 ......................... 

The Water Pollution Control Act of 1948 .......................... 

The Air Pollution Control Act of 1955 ............................ 

Chapter 3. Congress as Environmental Protector: The 

Enforcement Debate, 195667 ............................ 

Federal Water Pollution Legislation. .............................. 

The Water Pollution Control Act Amendments of 1956 ........... 

The Federal Water Pollution Control Act Amendments of 1961. ..... 

TheWaterQualityActof1965.. ............................ 

The Clean Water Restoration Act of 1966. ..................... 

Federal Air Pollution Legislation. ................................ 

TheCleanAirActof1963.. ............................... 

The Motor Vehicle Pollution Control Act of 1965. ............... 

TheAirQualityActof1967.. .............................. 

Chapter 4: The Federal Role Comes of Age, 1969-80 .................... 

Earth Day and the Rise m Envronmental Consciousness ............... 

The National Environmental Policy Act ........................... 

The Council on Environmental Quality ........................... 

The Environmental Protection Agency ............................ 

The Big Amendments: Air and Water Legislation in the 1970s ........... 

The Clean Air Act Amendments of 1970 ...................... 

The Water Pollution Control Act Amendments of 1972 ........... 

The Role of the Courts in Environmental Protection .................. 

Solid Waste, Noise, Chemicals, Ad Infinitum ....................... 

Juggling Extensions with Deadlines: The Newest Air and Water 

Amendments ............................................... 

The Changing Shape of Environmental Policy: The Effects of the New 

Antiregulatory Mood and State Department Turnover ................ 

1 

5 

5 

6 

9 

9 

9 

10 

11 

11 

12 

12 

13 

14 

17 

18 

18 

21 

22 

23 

23 

24 

25 

28 

30 

38 

vii 
Chapter 5. The Unequal Partnership: The Continuing Role of the States 

and Areawlde Plannmg 

Chapter 6. From Increments to Giant Steps: Analysis of the Growth 

of a Federal Functmn. 

Stage One: Policymaking by Incremental Adjustments. 

1. Forces Generating Greater Federal Involvement: 

P ro bl em R ecognirion. 

2. Policy Development: Entrepreneurs, Support Groups, 

and the Effect of Party. . , 

3. Constraints on Federal Expansion: Pollution Control 

as a State and Local Responsibility. , 

Stage Two: Speculative Augmentation 

1. Forces Generating Greater Federal Involvement 

2. Policy Development . 

3. Constraints on Federal Expansion: Policymaking 

“Without” Constraints t 

Stage Two: Epilogue, a New Realization of Constraints 

Speculations on the Future of the Federal Environmental Role 

Tables 

41 

45 

46 

46 

46 

50 

51 

51 

52 

54 

55 

56 

1. Most Important Domestic Problems 19 

2. Growth of Municipal Waste Water Treatment Construction 

Grants, 1957-77.. 26 

3. Percentage of Votes in Support of Water Pollution Control on 

Related Roll Calls in the House of Representatives, 1956-61, 

by Party of Representative . 49 

4. Escalation of Air Pollution Proposals, 1970 53 

5. Estimated Total Pollution Abatement and Environmental Quality 

Expenditures, 1978-87 57 

Charts 

1. Evolution of Policy Objectives, Incentives, and Conditions and 

Ensumg Problems m the Federal Water Pollutron Program . 

2. Biggest Problems Facing People, 1970-76 . 

3. Public Opinion Responses Indicating that the Federal Government 

is Spending “Too Little” on These Federal Programs, 1973.77 

Figures 

1. Major Federal Environmental Legislation 

2. Selected Data on Areawide Environmental Programs 

3. Stage One: Federal Pollution Policy Development and 

Implementation, 1948-68 

4. Stage Two: Federal Pollution Policy Development and 

Implementation, 1969.72 

5. Major Congressional Committees and Subcommittees 

Involved in Environmental Policy 

....... 

....... 

....... 

....... 

27 

36 

37 

31 

43 

47 

47 

58 

chapter 1 

Preventing Waterborne Diseases 

And Smoky Skies: Early State 

And Local Pollution Control 

T he nonon that environmental protection is a 

proper function of governments did not originate in 

Washington. Nor did a “get tough” attitude toward 

certain polluters first emanate from the wording or 

intent of the National Environmental Policy Act of 1969 

(NEPA). More than 600 years prior to NEPA’s 

enactment the King of England proclaimed a “no 

nonsense” pollution control law, complete with 

penalities for offenders. Unlike EPA administrators, the 

King did not consider it necessary to weigh the effectiveness of various deterrents such as fines or emissions fees. Instead, in 1308 he tried the simple and more 

straightforward strategy of executing the polluter. The 

effectiveness of this particular policy output was immediately apparent: The polluter in question never 

again burned coal in his furnace.’ 

Even in the United States, protection of the environment is no newcomer to the realm of legitimate 

government activities. Prior to independence, Massachusetts Bay Colony enacted regulations to prevent 

pollution in Boston Harbor2 and, following the Revslution, most coastal states took some action to ensure 

that no large floating debris would obstruct navigation 

ofthe waterways within their borders. 

Throughout the 18th and 19th centuries and well 

into the ZOth, local governments bore primary responsibility for the regulation of water and air pollution. 

Unfortunately, localities found themselves quite 

helpless to control water pollution coming from upstream and a shift in the prevailing winds was apt to 

make a sleepy little hamlet the unwilling recipient of 

smoky particles from a more industrialized village. Such 

inadvertent boundary violations offered municipalities 

1 
little incentive to control their own pollution ~ources.~ 

Early court actions against polluters were no more 

effective. Suits generally took the form of negligence, 

nuisance, and trespass actions and the parties involved 

were usually two individuals-the plaintiff and the 

defendant. Lawsuits were too costly for the average 

person to initiate and damages were seldom awarded 

since the burden of proving malicious negligence lay 

with the plaintiff. 

By the end of the 19th century the connection 

between dirty water and contagious diseases had stimulated most states to enact water pollution laws. Such 

legislation bore little resemblance to present water 

pollution control laws in that early state statutes were 

primarily concerned with the human health aspects of 

dirty water rather than with controlling or abating 

pollution.’ The result of the health emphasis which 

states placed upon pollution was a tendency for the 

issue to be buried in public health agencies that largely 

ignored the problem once a disease had been eradicated. 

States took even less interest in controlling air 

pollution which, despite its potential to travel, was considered a localized phenomenon. (The actual enforcement of air pollution regulations at the state level 

was an idea whose time did not come in even a single 

state until 195X5) Pollution meant smoke. And heavy 

industrial concentration and the lack of effective means 

to enforce antismoke ordinances resulted in more than 

one Pittsburgh--a city described early on by Charles 

Dickens as “hell with the lid lifted.‘16 

In the areas where smoke and other industrial 

pollutants were the most onerous, city leaders were 

faced with the difficult prospect of improving public 

health at the possible expense of the local economy. 

The problem was aptly stated by a barber in a Pennsylvania steel city: “When smoke is pouring, people get a 

haircut. When there isn’t any smoke, people don’t 

spend money.“’ Indeed, in many cities pollution meant 

jobs, and an industry pushed to clean up its smoke with 

costly pollution control devices might pack up and 

leave, taking tax revenues and jobs with it. While such 

threats were often more perceived than real, the 

decision to “push” a major industry did not come easily 

to city officials. 

In The Un-Politics of Air Pollution, Matthew Crenson 

illustrates the difficulties of initiating pollution control 

legislation in a city dominated not only by an industry 

but by one company within that industry.8 Gary, IN, is 

such a city. Founded by, built by, and economically dependent upon the U.S. Steel Corporation, Gary was 

unable to muster support for any air pollution ordinance until 1962. In the Gary pollution “debarc,” U.S. 

Steel was a powerful force, not because it actively 

participated in a movement to stop legislation but 

because its very presence kept the issue at a low-key, 

nondebate level. The quiet concern centered not upon 

what city officials could do about their heavily polluted 

city but rather upon what U.S. Steel might do if a 

pollution ordinance were enacted. 

even U.S. Steel could not afford to do 

anything it pleased: no one believed that the 

company would respond to the costs of a local 

pollution control program by closing down its 

Gary plant. There were other less drastic 

actions, however, that could still bring substantial hardship to Gary. It was feared that 

the corporation might seek to minimize the 

cost of pollution regulation by diverting production increases or plant expansion from its 

Gary mill to other installations subject to more 

lenient pollution control regulations. Or, 

when the company faced the need for production cutbacks, it might concentrate those reductions at the Gary works rather than at 

other mills where dirty air restrictions were less 

stringent.g 

Thus, steel officials did not have to become involved 

in overt political machinations even on those rare 

occasions when they were directly confronted with the 

issue. As one antipollution activist put it, “The company executives would just nod sympathetically and 

‘agree that air pollution was terrible and pat you on the 

head. But they never did anything one way or the 

other. If only there had been a fight, then something 

might have been accomplished.’ ‘w 

Gary did not even begin to consider the pollution 

issue until 1955-years after other cities had taken up 

the battle-and final legislation wac, not forthcoming 

for seven more years. When the ordinance finally 

passed it was fairly lenient toward U.S. Steel and the 

company wisely remained silent. The city ordinance 

was prompted by a state law which was to become effective in 1963 and which would allow state officials to 

proceed against any municipality which failed to deal 

appropriately with a pollution problem. In addition, 

the U.S. Department of Health, Education, and Welfare’s Public Health Service had begun to voice concern 

over Gary’s air-the worst in the nation, according to a 

1962 study. U.S. Steel’s silent acquiescence with the 

city ordinance, then, was certainly in its own best 

interest. In a particularly blunt statement, a member of 

2 
the Chamber of Commerce asserted that the steel 

industry preferred pollution legislation at the local level 

“because that’s where we can get at it.“” 

The Gary case is unusual only because the silent 

opposition to pollution control was such a unified entity. Other cities faced similar, if less extreme, dilemmas. 

While a single industry can overwhelm a locality. its 

influence becomes diluted as the pollution issue moves 

up the rungs of the local-state-federal “stepladder.” It is 

consistent with this dilemma of urban administrators 

that among the major initial supporters of pollution 

control legislation at the national level were the 

National League of Cities, U.S. Conference of Mayors, 

and the National Association of Counties. To these 

groups, national standards meant that one city could 

not undercut another with less stringent environmental 

standards.” 

The lack of effective pollution controls at the state 

and local levels and the early reticence of the federal 

government to become involved were not merely byproducts of industry intransigence. Very simply, pollution did not arouse a great deal of public interest.‘] 

Although the pollution problem was far more deadly in 

a literal and immediate sense in the 1940s and 1950s” 

than it was in the 197Os, it was not a visible political 

issue around which public opinion could coalesce. The 

first half of the 20th century was a period of war, 

followed by depression, followed by war, and, finally, 

rapid growth and prosperity. The good life was built, 

torn apart, and rebuilt economically and politically 

rather than environmentally. 

Further, relevant interest groups were small, catering 

to a narrow audience. The thrust tended to be conservationist rather than environmentalist and, thus, 

more limited in scope. Groups such as the Sierra Club 

and the Izaak Walton League were far mote concerned 

with conserving wildlife and preserving forests than 

with purifying polluted urban air and streams.‘~ In 

short, the conservation movement did not appeal to, 

nor did it attempt to appeal to, the Gary steelworker. 

Decisive environmental action was dependent upon a 

certain amount of public interest; the public interest 

needed a visible issue; and the issue was in need of a 

broader forum. 

FOOTNOTES Vbd, p. 78. 

“lbi& pp. K-77. 

3 

chapter 2 

Federal Entrance Into 

Environmental Protection: 

An Inconspicuous Beginning, 

1948-55 

F eden1 mvolvement in the environment during the 

first half of this century can be described as piecemeal at 

best. Prior to 1948, antipollution legislation was primarily aimed at keeping interstate and coastal waterways 

free from debris for the smooth flow of navigation. The 

Refuse An of 1899’ forbade dumping into navigable 

waters without a permit from the Chief of the Corps of 

Engineers and the Oil Pollution Act of 1924 banned oil 

discharges into coastal waters. In addition, the Public 

Health Act of 1912 provided the federal government 

with the authority to investigate waterways ,that could 

be sources of contagious diseases. Such acts frequently 

went unenforced and could only loosely be termed 

environmental legislation.2 

This early self-denial of federal powers is understandable since controlling the environment was 

traditionally interpreted as protecting the health, 

safety, and welfare of the people-a proper function for 

the states under their police powers.’ Actions such as 

those taken under the Refuse Act were justified as 

legitimate federal functions through strict interpretation of the commerce clause. 

Early Presidential concern with the environment 

tended to be conservationist in nature. Notable in this 

respect were the two Roosevelts--Theodore and Frank, 

lin. Both men were committed conservationists prior to 

taking offlice and this commitment was reflected in a 

number of resource and conservation policies initiated 

during their administrations.’ 

THE WATER POLLUTION CONTROL 

ACT OF 1948 

The first breakthrough in water pollution legislation 

at the national level was provided by Senators Alben 

5 
Barkley (D-KY) and Robert Taft (R-OH) in 1948. The 

Water Pollution Control Act of 1948 was significant not 

because of what it could accomplish but, rather, because it represented federal recognition of water 

pollution as a national problem.~ In fact, the act did little more than provide research and technical assistance 

to the states. In addition, although loans for individual 

projects were made available Congressional appropriations were scant and relatively useles~.~ The act, 

then, legitimized federal entrance into the realm of 

water pollution (no matter how inconspicuous) on the 

basis of its power to tax and spend for the general 

welfare.? This initial form of involvement was later to 

be replicated in the field of air pollution.s 

Congress was exceedingly careful to limit its own 

powers by asserting state authority: 

it is hereby declared to be the policy of 

Congress to recognize, preserve, and protect 

the primary responsibilities and rights of the 

states in controlling water pollution .9 

This Congressional assertion of state control over 

pollution matters was prompted as much by the preponderance of industrial lobbyists as it was by constitutional concerns. Barkley, the Democratic Senator from 

Kentucky, and his colleague, Kentucky Congressman 

Fred Vinson, pressed for legislation that would limit 

federal investigations and thereby protect Ohio Valley 

coal and industrial interests.“’ Thus, the act identified 

pollution as a national concern but chose not to attack 

it through a national effort.” Industry, though not as 

powerful at the national level as it was at the local level, 

was still able to maintain considerable influence 

through individual legislators from industrial regions. 

THE AIR POLLUTION CONTROL 

ACT OF 1955 

At all levels, the recognition of air pollution as a 

problem requiring governmental action followed belatedly on the footsteps of similar recognition in the 

field of water pollution. The first national legislation in 

air pollution did not come until 1955. The fact that 

Congress waited so long to act is even more surprising 

in light of “pollution events” which had been occurring 

since at least 1947. Between 1948 and 1953 killer smogs 

in Donora, PA, London, and New York reputedly took 

thousands of lives. Los Angeles was already suffering 

from its famous smogs and had begun an antipollution 

control program in 1947. Four years later, Dr. Arie 

Haagen-Smit of the California Institute of Technology 

first discovered that the more obvious forms of 

pollution, such as smoke, were far less damaging to 

health and the environment than the odorless, invisible 

exhaust fumes from automobiles.‘2 However, despite 

several attempts by individual legislators to turn these 

events into meaningful legislation, Congress as a whole 

turned B deaf ear. 

When the Air Pollution Control Act of 1955 finally 

materialized, it very much resembled the 1948 Water 

Pollution Control Act in both scope and thrust. The law 

authorized a federal program of research, training and 

demonstrations relating to air pollution control. In 

addition, the bill authorized grants-in-aid to states and 

localities and other public and private institutions for 

antipollution research and related activities.” (In authorizing these grants, the air pollution control law did 

differ from the 1948 water pollution control law, which 

had authorized only loans.) However, once again, the 

federal role was intentionally limited. A portion of the 

Senate report on this legislation illustrates 

Congressional self-denial: 

The committee recognized that it is primarily 

the responsibility of state and local governments to prevent air pollution. The bill does 

not propose any exercise of police power by the 

federal government and no provision in it 

invades the sovereignty of states, counties, or 

cities. There is no attempt to impose standards 

of purity.‘+ 

It is notable that the air act, unlike the water act, was 

generous in recognizing the responsibility of local governments to prevent air pollution. This could only be 

construed as a recognition of reality, for in 1955 few 

states had abrogated local hegemony in air pollution 

control. Likewise, most of the grant-in-aid funds which 

were authorized in the 1955 act were received by local 

governments. Not until 1963 did the focal point of 

federal air pollution legislation switch from the cities to 

the ~tates.‘~ 

FOOTNOTES 

‘The Re,h An (popularly known as the Aiumond HadmAo) was re. 

discovered by the Entironmenral Protection Agency (EPA, in ,971. 

Under rhe provisions of this act, the EPA began, for rbe first time, 

‘Cynthia H. E&e, The Politic> of Pdlurim in ~1 Cmnpmaiue Pm. 

s+ctive, New York, NY, David McKay Co., Inc., 1975, pp. 146147. 

‘Frank P. Grad. George W. Rathjens, and Albert J. Rosenthal. Envirmmentnl Control: Ptimirier, Policies, and rk Law. (NW York. NY, 

Columbia Univerisrv Press, 1971, p, 49. 

6 
7 

chaprm 3 

Congress As 

Environmental Protector: 

The Enforcement Debate, 1956-67 

W. hlle more stringent and comprehensive legislation has been introduced and enacted since 1968, the 

federal role in pollution control began to take shape 

during the 12-year period from 195647. The ideas and 

initiatives which provided the impetus for this formative period emanated from Congress-in particular 

from its Democratic membership. 

FEDERAL WATER POLLUTION 

LEGISLATION 

The Water Pollution Control 

Act Amendments of 1956 

The Water Pollurion Control An of I948 was to have 

expired for the second time in 1956. In the eight years 

since enactment of this first major water pollution bill, 

the condition of the nation’s rivers and lakes had not 

noticably improved and, in some cases, had deceriorated. The situation was beginning to elicit more active 

CO”CU” among conservationists and their 

Congressional allies, who felt that some permanent 

form of legislation was essential. A receptive vehicle for 

improved legislation was found in Congressman John 

A. Blatnik (D-MN), chairman of the House Public 

Works Committee’s Subcommittee on Rivers and Harbors.l 

As might have been expected, the 1956 debate 

centered on the expanding federal role in the realm of 

water pollution control. Less expected, however, was 

the focus of the debate. Seeking to strengthen a 

9 
previously passed Senate bill, Blatnik proposed $500 

million in grants-in-aid for the building of local sewage 

disposal plants over a ten-year period.2 This hardly 

seemed revolutionary since grants-in-aid were increasingly becoming a” intergovernmental way of life. 

Potentially more significant was a modest and seeming 

ly weak federal enforcement provision which laid the 

basis for more stringent federal sanctions and 

regulations in the future.’ Yet, when the battle lines 

were drawn, controversy erupted over the grant 

proposal while the enforcement clause glided by virtually unnoticed.4 

The ensuing debate was drawn along partisan lies 

since the Eisenhower Administration was basically op 

posed to major grant outlays. Nonetheless, a conference 

report containing most of Blatnik’s provisions emerged, 

was agreed to by both Senate and House, and was 

signed by the President onJuly 9, 1956.1 

Despite a considerable amount of rancor accompanying passage of the bill, Congress, once again, 

had moved cautiously. The primary responsibility of 

the states over water pollution was reaffirmed. The 

legislation expanded research and training and authorized grants to states and localities for waste treatment 

facilities. In addition, it allowed for grants to states and 

interstate agencies for expanded water pollution control 

projects.6 

While it was barely noticed during Congressional 

debate, the federal enforcement provision became the 

basic method of enforcement in water and air pollution 

for rhe next nine years. Extremely weak in what it could 

accomplish, its importance lay in opening the door to 

further federal dominance in the area of pollution 

control. The method of enforcement utilized was the 

conference technique. 

Under the new federal authority HEW was 

empowered to call conferences on pollution 

either on irs own initiative (whenever the 

health and welfare of people in different states 

were involved) or at the request of the Governor or poll”tio” control agency of any starenot necessarily the state from which the 

pollution was originaring. State agencies responsible for pollution in their areas would 

receive the recommendations from the conference; after six months of failure to act, the 

Secretary of HEW was then empowered to call 

a public hearing whose members could make 

recommendations for pollution abatement. If 

he chose to do so, the Secretary could send 

such findings to the alleged polluters and to 

state and interstate pollution control agencies. 

10 

A reasonable time for action was specified, not 

less than six months. After the second sixmonth period had elapsed, HEW could request 

the Justice Department to file suit in federal 

court against individual polluters.’ 

In fact, the conference technique, which applied only to 

interstate waters under the 1956 legislation, virtually 

tied the hands of potential federal enforcers because 

state consent was necessary before federal action could 

be taken. 

The Federal Water Pollution Control 

Act Amendments of 1961 

In 1958, just two years after the passage of his original 

bill, Blatnik began work on new water legislation. This 

rime, however, the Republican Administration was 

more adamant in its attacks on the grant provisions. 

The Administrarion request was not for a current level 

freeze or for fewer grants. Rather, President Eisenhower 

requested Congress to discontinue the grants altogether 

under the assumption that waste treatmenr was a 

purely local phenomenon and, therefore, a proper 

function for srates and municipalities, Congress, however, chose to counter the Administration opposition 

by increasing aurhorizations. The result was a decidedly 

partisan stalemate which lasted three years and included two Presidential ~etoes.~ 

When the Federal Water Pollution Conrml Act 

Amendments of 1961 finally emerged under a Democratic Administration, the conference technique remained intact but with significant new provisions regarding the federal role: The federal jurisdiction was expanded from interstate waters to all navigable waters. 

This expansion meant that the federal government 

could act on almost all waters in the United Stateseve” intrastate bodies, if pollution was damaging to ia 

terstate health or navigation. Further, the Secretary of 

Health, Education, and Welfare could request the Attorney General to bring a” abatement suit eve” without the consenr of state officials if pollution affected the 

health or welfare of people in another ~tate.~ 

Although these new provisions strengthened the 

federal hand, they hardly gave it free rein. In the first 

place, federal officials had to prove that pollution in 

one state was damaging to the health or welfare of people in another state. In the second place, the PHS, 

which was responsible for investigating water pollution 

problems, was slow to act and gave this function low 

priority.‘0 
The Water Quality Act of 1965 

The reluctance of the PHS to act decisively on water 

pollution, coupled with an inadequate state response, 

gave rise to a push for further Congressional action 

within a year of the passage of the 1961 amendments.‘l 

In the interim, the starring role had shifted from the 

House Subcommittee on Rivers and Harbors under 

John Blatnik to a newly created Senate Subcommittee 

on Air and Water Pollution under the leadership of 

Edmund S. Muskie (D-ME). Once again, debate 

focused on expanding the federal role, with both opponents and proponents becoming increasingly visible. 

Understandably, those most opposed to the Muskie 

proposals were the lobbying arms of the industrial 

polluters-notably, the National Association of 

Manufacturers, the Pulp and Paper Association, and 

the Manufacturing Chemists Association.‘z These 

groups had become particularly concerned about a 

provision which would allow the Secretary of HEW to. 

set water quality standards for interstate waters. Joining 

industry in its opposition to the proposed legislation 

were state water pollution control boards and similar 

agencies who viewed federal initiatives as an abrogation 

of their own powers.” 

Among the most vocal proponents of the Muskie bill 

were the traditional conservation groups. Associations 

such as the Audubon Society and the lraak Walton 

League were joined by the League of Women Voters 

and municipal interest groups. including the U.S. 

Conference ofMayors, in supporting the mea~ure.~’ 

The Warer Quality Act was not enacted until 1965. 

This time the point of contention was not the increased 

grant authorizations for sewage treatment facilities but, 

rather, three provisions which signalled a new overt 

leadership role for the federal government in the field of 

pollution control. 

For the first time, the stated purpose of a federal 

pollution biil was to establish “a national policy” for 

controlling pollution.15 In addition, this national policy 

proposed to keep interstate “waters as clean as possible.“” That particular phrase was especially offensive to 

industry which saw it increasing costs beyond all 

reasonable expectations. Because of the proposed industrial objection, the phrase was made more ambiguous. However, the Federal Water Pollution Conrrol 

Administration (FWPCA), created by the same legislation, subsequently issued guidelines based on the clean 

water approach. 

The clean water approach was a substantial departure 

from the “older regulatory philosophy based on the 

traditional notion of waste management, namely, to 

use the rivers so as to maximize the waste dilution and 

assimilative capacity of the nation’s waters.“” Instead, 

the thrust of the clean water approach was to disallow 

“treatable waste to be discharged without the best 

practicable treatment or control unless there is evidence 

that a lesser degree of control will still provide sufficiently high water quality.“‘8 

Foreshadowing the rancor which followed the 

issuance of guidelines, a second hotly contested portion 

of the Muskie bill was the creation of the FWPCA in 

HEW. The agency was charged with the task of coordinating water pollution activities within the govanmerit; and again, it was industry and state agencies pitted against the urban lobby and conservationists. Yet, 

while the anticontrol interests had prevailed for the 

time being in changing the wording of the statement of 

purpose, the procontrol forces won the FWFCA 

battle.‘P 

Finally, and most controversial. the legislation originally authorized the Secretary of HEW to apply water 

quality standards to interstate waters.‘0 In fact, this 

wording was altered to accommodate state interests. In 

final form, the bill made each state responsible for 

setting standards within its jurisdiction. If, after one 

year’s time a stare failed to file with HEW a letter of 

intent to set appropriate water quality regulations, the 

Secretary could then enforce federal standards.2’ 

The Clean Water Restoratiog 

Act of 1966 

On October 2, 1965, President Johnson signed the 

Water Quality Act into law, remarking that “additional 

bolder legislation will be needed in the yqars ahead.“12 

In fact. however, the President had to wait only one 

year before additional legislation emerged. 

The bill which created the Clean Water Restoration 

Act of I%6 was very much the handiwork of Senator 

Muskie. It was also substantially different from the bill 

the President had envisioned. Whereas the Administration wanted to establish a regional approach to 

water pollution contr01,~~ Muskie was committed to the 

pivotal role of the states as it existed under the 1965 

law. Muskie’s purpose in the new act was ro increase 

construction grants rather than to radically change 

previous legislation. The final product did exactly that 

and little else, authorizing $3.55 billion in grants-in-aid 

over five years. Despite his disappointment, the President signed the new bill on November 3. 1966.2’ 

The history of federal water pollution control 

initiatives from 1948 to 1966 is a vivid example of government action through incremental changes.25 More 

11 
specifically, the federal government increased its own 

powers and authority severalfold. through small but 

cumulatively meaningful alterations in legislative 

language and actions. Viewed year-by-year over a period of two decades, the changes seem small and piecemeal; but a different picture emerges upon comparing 

the federal “scorecard” at a single glance. 

From 1948 to 1966, federal spending for water 

pollution control increased from a small loan program 

funded at about $1 million per year to a grant-in-aid 

outlay of $3.55 billion over five years. In the same 

period, Congress moved from a posture of denying 

federal authorities any enforcement powers to requiring 

the enactment of national warer quality standards in 

the event that an individual state chose not to specify 

its own clean warer criteria. In order to rationalize its 

emerging enforcement powers, the federal government 

moved from timid reliance upon its powers to tax and 

spend for the general welfare as a basis for its intrusion 

into the area of water pollution control to increasingly 

broader interpretation of the interstate commerce 

clause. It institutionalized its role as protector of the 

nation’s waters by elevating a small administrative 

section buried within an agency within a department to 

agency status. Finally, the stated purpose of legislation 

underwent a significant metamorphasis, from 

protecting the rights and responsibilities of the states to 

establishing a national policy. During roughly the same 

period, though always one step behind, a similar scenario was occurring in the field of air pollution. 

FEDERAL AIR POLLUTION 

LEGISLATION 

If the causes of air pollution are simplified to the “nth 

degree,” they can be divided into two basic source 

types-those that are stationery (for example: industry, 

homes) and those that move (for example: cars, trucks). 

In fact, air pollution policy development from 1956 

until 1966 tended to evolve according to the assump 

tions of just such a division. 

The Clean Air Act of 1963 

The 1955 Air Pollution Control Act authorized a 

relatively modest $5 million annually for federal 

research and training and for state and local air 

pollution agencies. l6 It legislated little and, correspondingly, accomplished little. Yet, it was retained as the 

basic (and only) federal law dealing with air pollution 

for the next eight yeaw27 This was not to suggest that 

no one in government was considering the problem. 

Rather, as illustrated in the case of water pollution, a 

familiar argument developed over the extent of the 

federal role. 

Interestingly, major opposition to federal expansion 

through some type of enforcement provision came from 

within the federal bureaucracy itself and, within that 

bureaucracy, objection was loudest from the agency 

which potentially stood to gain the most in terms of 

jurisdictional expansion. In opposition to its own boss, 

the Secretary of HEW, rhe PHS stood steadfastly by the 

conservative notion that it was a professional researchoriented organization, which faced being tainted by 

politics if made to enforce standards. In addition, it 

claimed a positive working relationship with state 

agencies that would be ruined within the framework of 

a regulatory situation.*B Such a bureaucratic stance 

illustrates nor only the occurrence of government infighting but an impartant factor in intergovernmental 

relations as well. As the federal government increases 

its jurisdiction over a particular function, it seldom 

moves as one monolithic machine running rampant 

over states’ rights. Rather, the participants are multiple 

and frequently in conflict and the process is fluid and 

incremental. In the case noted above, PHS was able to 

gain Presidential approval of its views through 1961. 

However, in 1962 a surprise actor, Assistant Secretary 

of HEW for Legislation Wilbur Cohen, gait&access to 

President Kennedy and convinced him that federal enforcement was a key to doing something positive about 

air pollution. In a matter of two days the President 

abandoned the PHS “research-only” approach in favor 

of federal enforcemerxz9 

As had been true with water pollution legislation, the 

major arena for the development of air pollution policy 

was Congress. Of course, any bill that legislates increasing dollar amounts and a first step toward federal 

enforcement is never enacted without at least some opposition. Nonetheless, Congressional initiatives in the 

field of air pollution flowed somewhat more smoothly 

than those in the area ofwater pollution. 

This amenable situation was the result of three circumstances. In the first place, the Kennedy Administration was far less reticent regarding an expanded 

federal role than the Eisenhower Administration had 

beem30 Thus, despite division in the ranks (notably 

from PHS) Kennedy tended to support Congressional 

initiatives. Second, the industrial lobbyists, who 

strongly wanted air pollution control to be kept at the 

state and local levels, simply did not commit themselves 

fully to this particular battle because they were more 

12 
concerned with water pollution legislation being 

considered at the same time.” Finally, the urban lobby, 

dfectively led by Hugh Mields, associate director of the 

U.S. Conference of Mayors, stood firmly behind both 

increased grant-in-aid funds and intrastate enforcement 

by the Secretary of HEW.)’ 

Through the work of Abraham Ribicoff (D-0 and 

Edmund Muskie in the Senate and Kenneth Roberts 

(D-AL) in the House, a bill reflecting input from several 

lobby groups was introduced and signed into law by 

President Johnson on December 17, 1963. This legislation-the Clean Air Act of 1963-was significant in 

several respects. In the first place, it signalled an important change in the role of the federal government and 

in the pattern of federal-state-local relationships.” In 

regard to the federal role, the act authorized the 

Secretary of HEW to establish nonmandatory air 

quality criteria. In addition, the Secretary was authorized to intervene in the pollution problems of a state if 

the state could not itself deal appropriately with the 

problems. In terms of the changing pattern of federalstate-local relations, the act significantly altered the 

thrust of the 1955 legislation. Under the Air Pollution 

Control Act, grants-in-aid had primarily gone directly to 

local governments. However, the 1963 act made states 

the prime recipients. 

[IIn providing for grants-in-aid to the states 

for air pollution control, [the 1963 act] exerted 

an enormous influence in the development 

and enactment of the states’ own air pollution 

control legislation. Moreover, the 1963 act, 

departing considerably from the notion of 

strictly local control of air pollution, gave recognition to the need for regional planning 

and provided tangible incentives for regional 

cooperation in its grants-in-aid program-? 

larger portion of the costs establishing, developing and improving air pollution programs 

was to be reimbursed by the federal government if the grantee agency was an intermunicipal or interstate agency than if it 

served only a single city or other governmental 

unit.j’ 

Further, although the Conference of Mayors had 

desired direct federal enforcement upon the request of a 

local government, the legislation provided that the 

Governor of a state must approve local requests for 

federal intervention.‘s 

Another significant aspect of the act was what it did 

not contain. Except for a provision mandating a study 

on the effects of auto pollution, the legislation concerned itself almost exclusively with stationary source 

pollution. For the moment, Detroit was spared-but 

only for the moment. 

The Motor Vehicle Control 

Act of 1905 

Actually, federal control over moving pollutants was 

a far simpler matter in terms of Consititutional justification. Clearly, cars do move across interstate lines.‘6 In 

addition, California legislation provided federal policy 

makers with an example and impetus. The example was 

a 1961 law passed by the California legislature which 

required the addition of a crankcase control device on 

new cars sold in the state. This law was followed in 1963 

by another which required exhaust control devices.” 

The impetus for Congress to act was also provided by 

California initiatives. Illustrative of this was a 1964 

exchange between Senator Muskie and a representative 

of the Automobile Manufacturers Association: 

SENATOR MUSKIE. Let me ask you this. You told 

the Governor of California that your 1967 

model can incorporate some design changes 

which will effectively control exhaust emissions, as I understand your statement? 

MR. DELANEY. It will meet their specifications 

SENATOR Mus~e. It controls exhaust emissions 

in accordance with California’s standard? 

MR. DELANEY. Right. 

SENATOR Musm. Now what harm does it do co 

control the stun5 emissions in 49 other states? 

MR DELANEY. There would be no harm, but it 

is an economic burden on the- -it may be an 

economic burden on the rest of the country.‘s 

Despite seemingly airtight justification and exemplary 

sfate legislation, enactment of a national auto pollution 

control law was hardly an example of legislative smooth 

sailing for Senator Muskie. Throughout the hearings 

on the matter, Muskie’s subcommittee was caught between two contradictory screams of thought. On the 

one hand, HEW and Bureau of the Budget representatives acknowledged the serious nature of the problem 

but felt more data were needed before enactment of 

major legislation. On the other hand, auto industry 

spokesmen and women maintained that they could 

speed up technology but that auto pollution was not a 

serious environmental hazard and, thus, did not warrant sophisticated control devices. The perplexity of the 

situation was summed up in a tongue-in-cheek statement by Muskie: 

13 
1 must say that we find ourselves in a curious 

situation the Department of Health, Education, and Welfare indicated that although 

we have a problem that needs to be dealt with 

we don’t have the know-how to deal with it 

now. 

Yesterday in Detroit the testimony of the 

automobile industry was that there is no problem that needs this kind of action now, but 

that if there is, the industry does have the 

know-how to deal with it. If we can get the two 

together, we can get some action.j9 

In spite of these conflicting positions, enactment of 

auto pollution control legislation was forthcoming. 

Administration objections were cooled somewhat by 

increased interest in air pollution by the press. Thus, 

when an assistant secretary of HEW voiced President 

Johnson’s opinion that the Administration would 

prefer to seek voluntary cooperation from the auto 

industry, The New York Times, The Wall Street low&, 

TL wd.i -gvrr. PQq ax.hThr Ln tk+LT-k,ws -es A. 

tori&red strenuously against the President’s decisioni 

The event proved politically embarrassing to Johnson 

who sent the beleaguered assistant secretary back to 

Congress to testify that his remarks had been “completely misunderstood.“” 

In addition to the change in the Administration’s position, Congressional action was made easier by relative 

industrial quiescence. By 1965 the auto industry had 

decided that one uniform federal standard would be far 

less difficult to implement than 50 different state 

standards.‘2 

In deference to the auto industry and earlier HEW 

objections regarding the availability of technical experrise, the Secretary of HEW was authorized by Congress 

to prescribe “practicable” emissions standards “as soon 

as possible.“‘) (Subsequent to the enactment of the law, 

HEW agreed to establish regulations for 1968 model 

cars-the same regulations which California had established for its 1967 autos.)+‘In addition, the Secretary 

was given authority to enforce emissions standards on 

new automobiles without necessarily receiving input 

from state or local agencies.45 The federal government 

had taken another giant step. 

The Air Quality Act of 1967 

A series of events beginning in the mid-1960s made 

passage of stricter. more comprehensive air legislation 

imminent. In 1965 the auto industry suffered an exrreme public relarions setback following a monumental 

faux pas involving Ralph Nader. After Nader published 

Uma/e at Any Speed, a stinging indictment of auto 

industry safety standards, General Motors decided to 

investigate Nader’s personal life. Unfortunatley, the investigation included an attempt to add spice to Nader’s 

life without Nader’s permission. General Motors found 

out the hard way that “you don’t mess around with 

Ralph”- the president of GM was forced to apologize 

to Nader in front of Congress and on national 

television.‘6 The event seriously weakened the auto 

industry’s public image and, subsequently, its objections to stronger legislation. 

In 1966 New York City WBS again visited by air inversion conditions. The four-day inversion reportedly 

caused 80 deaths and heightened public concern over 

dirty air-a concern which had been growing steadily 

since 1963.” 

Th e N ew Y or k’ l”CL ‘d en t w asfollowedinDecemberby 

the Third National Conference on Air Pollution in 

Washington, DC. The conference was attended by 

4,000 people and prompted Muskie and Administraium spokesmen anh women to promise rapid government action.‘e These were not empty promises, since 

both Muskie’s subcommittee and HEW personnel had 

already begun shaping legislation. In January of 1967, 

President Johnson submitted to Congress a proposal for 

broad new legislation to be known as the “Air Quality 

Act:” 

The proposed act was to include nati&al 

emissions standards for major industrial 

sources of pollution and the establishment of 

regional air quality commissions to enforce 

pollution control measures in “regional aitsheds” which cut across state and local boundaries. The President also called for federal 

assistance to initiate state automobile pollution inspection systems, a major increase in the 

federal air patiution research effort, and federal 

registration of motor fuel additives such as 

tetraethyl lead.+g 

In addition, HEW had been examining sulfur oxides 

as a major pollutant and, as a result, was recommending stringent standards which industry claimed 

might eliminate the use of coal in major metropolitan 

centers.50 

Although Muskie was in favor of stronger legislation, 

he had several reservations regarding the Administration stance. In the first place, the President’s proposals 

envisioned a dominant role for the federal government 

in setting stationary source emissions standards-a 

14 
function which Muskie believed to be a state prerogative. 

In the second place, the sulfur oxide issue threatened 

coal-producing states. This was especially significant in 

veiw of the position of Muskie’s subcommittee. The Air 

and Water Pollution Subcommittee was part of the 

Public Works Committee-a committee chaired by 

Senator Jennings Randolph of West Virginia. This 

clearly placed Randolph in a position of influence over 

pending legislation which he exerted by inserting in the 

legislation a requirement that HEW reconsider its sulfur 

oxides criteria.” 

A final point of contention centered on California. 

Aher passage in the Senate on July 15, the bill arrived 

in the House and immediately caused friction between 

the Michigan and California delegations. Rep. John 

Dir&l of Michigan sought to delete Senate language 

which allowed California to retain its stricter-thannational standards. Reacting to public outburst on the 

part of its citizens, the California delegation acted 

swiftly to reverse Ding&s proposed amendments. The 

success of this action became apparent when the House 

voted 152-58 to retain the original Senate language.5z 

The Air Quality Act of I%7 continued grants-in-aid at 

a higher level. More significantly, it also enlarged the 

federal enforcement role. The act required the Secretary 

of HEW to establish both air quality control regions 

and clean air criteria. Upon issuance of these criteria 

the states would b=e required to set and plan to implement their own standards. “These standards were to 

be designed to meet air quality standards for the specific 

air quality regions or parts of regions within the state’s 

boundaries.“” Further, if a state failed to enforce its air 

standards the Secretary, through the Attorney General, was authorized to bring suit.5’ 

A final clause, noteworthy for its enhancement of 

federal enforcement powers, allowed the Attorney 

General to “bring abatement action in any air pollution 

situation which presented an imminent and substantial 

danger to health, without the necessity of a prior conference or hearing.“35 

George Washington Plunkitt, a Tammany Hall boss 

noted for speaking his mind, once remarked, “I seen my 

opportunities and I took ‘em.“f6 So too, an opportunity 

missed at the state and local levels was picked up at the 

national level. The Air Quality Act solidified the federal 

role as environmental protector. However, in expanding its own role, the federal government had not 

really impinged on the functional prerogatives of the 50 

states. In fact, a more accurate assertion would be that 

the federal government had given to most states a 

function which they otherwise had chosen to ignore. 

Beginning with the Clam Air Act of 1963 state control 

over matters of air pollution had increased rather than 

diminished. The environment had become a shared 

function rather than a nonfunction. Perhaps the only 

“losers” had been the municipalities but, for the time 

being, these were grateful losers who viewed any steps 

toward uniform standards as a way out of their own 

economic/environmental dilemmas. 

The 1950s and 1960s brought forth a wealth of 

pollution control legislation undreamed of in the first 

half of the century. Pollution had become an issue, but 

the forum for that issue was still relatively narrow and 

the participants relatively few in number. While public 

concern over pollution had grown since 1963, envitonmentalism could hardly be called a grassroots issue. 

Though groups like the Sierra Club had increased their 

numbers,57 they still were largely conservationists-not 

environmentalists. And though the federal government 

had expanded its role through broad new legislation, 

the environment remained a one-branch issueawaiting more concerted and intense interest on the 

parts of the executive branch and the courts. 
p. 34. 

“Ibid., p. 35. 

‘IFor a dii”sio” of inc-remenralism see: David Braybrmke and 

Charles E. Lindblom, A Smtq, of Decision, New York. NY. Free 

Press. 1963. 

‘6Ra”dall B. Ripley, “Congress and Clean Air: The brue of E”. 

hxcer”enr. 15a.“p.231. 

“The 1955 act was enended until it was superseded by the Clean Air 

ACtOfl%.i. 

“Ripley. “Congress and Clean Air,” p. 233. 

-Bid., pp. 244.245. 

‘“Jbd.,~, 235. 

“Riplev,“Congress and Clea”Air.“p. 270. 

‘610nes, C!mnAir: TkPolicierod PoliriaofPollurion Conml, p. 61. 

“Henry D. Jacoby and John D. Sceeinbruner. et al. Ckatinnp rhc Air: 

Federal P&c, m Aummtiue Emirriom Cmd, Cambridge, MA, BaC 

linger PublishingCo.. ,973,~. 10. 

‘YES. Senate. Committee on Public Works, Special Subammittee 

on Air and Water Pollution, hearings. Glenn Air, @Brh Gong., 2d 

Sea.. Washington, DC, U.S. Government Printing O&e, 1964, 

pp. 879-880. Source:Jones, CkanA;r, p, 63. 

‘W.S. Senate, C-irree on Public Works, Special Subcommittee 

on Air and Water Pollud”“. hearings, Air P&tin Cmm,,, 89th 

Gong., 1st Sea., Washingron. DC, U.S. Government Printing 

G&e, 1965,~. 118. Source:]oms.CkanAir,p.65. 

*Davies. Tk Politics ofPoUtion, p. 48. 

“Ibid. 

“lbki 

“J”“es, C!mn Air. p. 65. 

“other provMms of the act included abatement measures foor “VS. 

air pllurion sources which endangered the health “1 welfare of 

persons in Canada or Mexico. and authorit,. for HEW t” call a co”. 

ference co focus attention 0” potential so”xes of air pollution.” 

Source: Davies, Tk Politics ofPollution, p. 49. 

“Grad, Envimnmmtd Control, p. 53. 

“Jacoby and Steinbmner, &&p&Air, p. 10. 

“Davies, The P&tic of Pollution. p. 49. 

“Pretious conferences had bee” held in 1958 and 1962. Jones. CLm, 

Air,pp.32,37,66. 

‘PDavies, Tk Politics ofPollution. p. 50. 

‘“lbd. 

“lbd., pp. 51.52. 

“lb&p. 51. 

Thus, the legislation reflecmd both Johnsaris concern for region& 

km and MuJkie’r concern for state prerogative. Source: Grad, 

Envimnmtnl Crmwl, p. 54. 

“Jbid. 

-Ibid. 

16William L. Riorda”, Plunkin of Tammany Hall, New Ymk, NY, E.P. 

Dunon &Co., Inc., 1%3,p. 3. 

i’Davies,“The Greeningof AmericanPolirics.” p. 92. 

16 
Chapter 4 

The Federal Role 

Comes Of Age, 

1969-80 

There is some indication that the close of the 

90th Congress late in 1968 may mark the end 

of this remarkable period in the history of conservation politics Some members of 

Congress, as well as of the new Republican 

Administration, have suggested that we are 

reaching the end of a long wave of significant 

and highly visible progress, and that the widely 

hailed “environmental crisis” has, in a certain 

sense, passed the peak of critical hational 

interest and public concern.’ 

T he paragraph quoted above was written in 1969 by 

two noted experts in the field of environmental politics, 

Richard Cooley and Geoffrey Wandesforde-Smith. 

Although history has proved that Professors Cooley 

and Wandesforde-Smith were not prophets, their 

remarks are certainly reflective of the wane of enthusiasm wet environmental matters which occurred in 

the late 1960s. 

In 1968 the environment was competing with, and 

losing ground to, another issue: the Vietnam War. 

Public opinion, which for five years had shown some 

growing interest in pollution control, was now divided 

between doves and hawks-antiwar and prowar. 

So too, the press (following ot preceding public opinion, depending on one’s indrpretation) was, understandably, mote prone to report antiwar demonstrations and film napalmed Vietnamese villages than it 

was to write features on the smog problem in Los Angeles. 

17 
In the 1960 and 1964 campaigns, presidential candidates had, at least, paid lip service to the environment. In 1968, the candidates barely did that. Nixon 

Spakr Out, a publication released by the Nixon-Agnew 

Committee, contained 34 major policy statementsonly one of them related to the environment.z “In the 

Humphrey camp, things were just as quiet. The VicePresident dedicated a park in San Antonio, TX., on 

August 10, and the John Day Dam in Oregon on Sep 

tember 28, using both occasions to discuss the environment and conservation. Otherwise, he said nothing on 

the issue.“’ 

Even Congress, stalwart protector of the nation’s resources, was content to put the environment on the 

back burner. Edmund Muskie was now Hubert 

Humphrey’s runningmate and, although he retained 

his own interest in the environment, the press and 

public wanted him to answer questions on the war, inflation, and crime. 

Yet, within four months of the November elections, 

the Senate had introduced its version of the first comprehensive environmental legislation. By late 1970, 

both an environmental agency and a council had been 

established and the Ckan Air Act had been significantly 

amended. In the interim a mass phenomenon called 

Earth Day had occurred and the environment became a 

fundamental issue of the 1970s.’ 

EARTH DAY AND THE RISE IN 

ENVIRONMENTAL CONSCIOUSNESS 

In 1967, public opinion experts Lloyd A. Free and 

Hadley Cantril published a 23-item list of issues which 

concerned Americans, Nothing even loosely resembling 

pollution or the environment appeared on the 1ist.l 

Yet, three years later, in late April of 1970, the Gallup 

Poll asked the question: “Which three.ofthese national 

problems would you like to see government devote 

most of its attention to!” In marked contrast to the 

1967 poll, 53% of the polled population named 

reducing air and water pollution as the most serious 

national problem, second only to crinz6 This sudden 

explosion of the public consciousness regarding the 

environment which surrounded it was exhibited in 

other polls as well. (See T&k I .) 

Certainly, the most visible expression of this new 

public concern with the environment occurred on 

April 22, 1970, Earth Day. Although Earth Day has 

been occasionally reported as a near-spontaneous out. 

pouring of popular sentiment, it was, in fact, a wellplanned production, the author of which was a U.S. 

Senator, Gaylord Nelson (D-WI). 

Inspired by the response to antiwar demonstrations, 

Senator Nelson decided that an environmental “teachin,” like the antiwar teach-ins, would convince the 

American people that a clean environment required an 

activist public.7 Nelson was joined in this effort by Representative Paul McCloskey (R-CA), who served as CD 

chairman of the event, and a former antiwar activist, 

Denis Hayes, who acted as coordinator.8 

The eventual success of this effort must have surd 

prised even Senator Nelson. Public response was enormous and nationwide in scope. In addition, the nation’s citizens were joined by their elected officials, most 

of whom could not afford to ignore this newest 

“motherhood” iss~e.~ “So many politicians were on the 

stump that Congress closed down. The oratory, one of 

the wire services observed, was ‘as thick as smog at rush 

hour.’ “lo 

Together, Earth Day and environmental opinion 

present themselves as a puzzling example of the age-old 

“chicken and egg” dilemma. It is true that much of the 

tremendous gain which the environment made in 

public opinion polls followed Earth Day. At the same 

time, it is difficult to establish a definite causal link be+ 

tween the two. The growth in public opinion relative to 

the environment has remained somewhat of a public 

opinion “mystery.” Thus, according to poll expert 

Hazel Erskine: 

A miracle of public opinion has been the unprecedented speed and urgency with which the ecological 

issues have burst into the American consciousness. 

Alarm about the environment sprang from nowhere to 

major proportion in a few short years.” 

This newly awakened American consciousness made 

certain critical demands upon its government-demands that were translated into the far-reaching air 

and water legislation of the 1970s. If Earth Day did not 

cause this consciousness (and the resulting demands), it 

certainly contributed to it as did another environmental “event” which preceded Earth Day by four months. 

That “event” was a piece of legislation known as 

NEPA, the National Enuirmmcntal Pohq Act. 

THE NATIONAL ENVIRONMENTAL 

POLICY ACT 

For a bill which subsequent to its enactment had such 

profound impacts on administrative arrangements and 

court decisions, NEPA was unartended, in its formative 

stages, by much public interest or by a great deal of spe18 
Table 1 

MOST IMPORTANT DOMESTIC PROBLEMS 

(in percentage of population polled) 

Q: Aside from the Vietnam War and foreign affairs, what are some of the 

most important problems facing people here in the United States? 

Problem 

Inflation/cost of living/taxes 

Pollution/ecology 

Unemployment 

Drugs/alcohol 

Racial problem 

Poverty/welfare 

Crime 

Unrest among young people 

Education 

Housing 

May 1971 May 1969 

sunray SUN9y 

44% 34% 

25 1 

24 7 

23 3 

22 39 

20 22 

19 15 

12 6 

a 5 

6 - 

Significant 

Changes 

+ 10% 

+ 24 

+17 

+20 

-17 

+4 

+6 

+ 3 

- 

SOURCE: Opinion Research Corporation, “Public Oplnlon on Key Domestic Issues,” mimeographed, Princeton, NJ, 

May 1971, p. 17. May 1969 and May 1971 polls. Whiiaker, Slriking A Balance: Envlronmenl end Nalural 

Resources Policy In the Nixon-Ford Years, Washington, DC, American Enterprise Institute for Public Policy 

Research, 1976, p. 9. 

L 

cial-interest lobbying. In fact, by and large emotions ran engineering programs which may affe& the 

high over its wording and passage only among members quality of the environment are not coordinof Congress and these emotions seemed to be prompted ated through a single group, but are handled 

not so much by ideological differences as by jurisdic- through individual interagency liaison (if they 

tional jealousies.” are coordinated at all). 

The beginnings of NEPA probably can be traced back 

to two reports which were issued during the summer of 

1968.‘) One of the reports, Managing the Environment, 

was published by tfie House Subcommittee on Science, 

Research, and Development of the Committee on 

Science and Astronautics. The unique feature of this 

particular report was that it focused on the interrelationship between environmental quality and management functions within the federal government.” For 

the first time, such a report laid some blame on the 

federal government as opposed to industrial and automotive polluters and state and local governments: 

. . Existing institutions can do the job if 

they operate (1) under a coherent national 

policy for the environment, and (2) with an expanded understanding of ecological facts and 

pF3CeSSeS.‘~ 

There are conflicts when environmental 

quality is managed by different policies, originating in conservation, agriculture, aesthetics, recreation, economic development, 

human health, and so on. The operational 

At the same time, the Senate Committee on Interior 

and Insular Affairs, under the chairmanship of Henry 

Jackson (D-WA), released a report by Lynton Caldwell 

entitled A National P&q for the Environment. Prof. 

Caldwell pointed out a number of issues that should be 

contained in an all-encompassing environmental 

policy. Primary among these was Caldwell’s concept of 

“total human environment.” This concept divorced environmentalism from the “resource-conservation-only” 

mentality which had pervaded it since the time of 

Teddy Roosevelt. Instead, Caldwell’s report stated that 

environmental policy should “. necessarily be con19 
cerned with natural resource issues. But the total environmental needs of man-ethical, aesthetic, physical, 

and intellectual, as well as economic-must also be 

taken into account. .“I6 

NEPA was first introduced in the Senate in February 

of 1969 as S. 1075 by Senator Jackson.” As reported 

out of committee on June 18, the Jackson bill bore the 

imprint of the parade of witnesses which had been testifying during the previous four months-in particular, 

Lynton Caldwell. 

Signifiant portions of S. 1075 included a statement of 

national environmental policy and the rights of each 

citizen to a “healthful environment.“‘8 In addition, the 

law sought to expand the functions of all executive 

agencies to include consideration of the environment. 

The enforcement provision of Jackson’s bill mandated 

that the executive agencies file “a short statement of environmental findings” which would accompany budget 

proposals “through agency decisionmaking, through 

the BOB, and to Congres~.“‘~ These environmental 

statements (including a discussion of alternatives) 

would supplement the review process and “their absence would provide a budget examiner with an additional excuse for challenging a proposed agency expenditure.“‘” 

Considering the lack of hostile testimony and intense 

lobbying, Jackson’s bill normally would have sailed 

smoothly into the House. However, the Congressional 

source of past environmental legislation forewarned a 

jurisdictional struggle that was bound to occur: Edmund Muskie, understandably, was not inclined to see 

his own subcommittee eclipsed in rhe field of environmental protection by Jackson’s committee. In the first 

place, both Muskie and Jackson were already eyeing 

their party’s presidential nomination.” Being considered a staunch protector of the environment was becoming a real candidate asset. In the second place, 

Muskie had worked hard to build and enhance the 

work and reputation of the Air and Water Pollution 

Subcommittee and, thus, thought of his subcommittee 

as the rightful and traditional source of environmental 

legislation.‘” Finally, the two Senators disagreed about 

the fundamental role of environmental policy. 

Senator Jackson’s view was that with enactment of NEPA, mission-oriented public works 

agencies would internalize environmental 

values as they began to develop evaluations of 

projects’ environmental impacts. But Senator 

Muskie and the Public Works Committee staff 

harbored grave misgivings about the self-enforcement qualities of NEPA’s action-forcing 

provisions. They believed that some form of 

external policing mechanism was needed; the 

mission-oriented agencies could not be trusted 

to consider seriously the environmental comequences of their actions and the requirement 

for environmental findings provided but the 

narrowest basis for outside review.?’ 

A compromise more to Musk& liking was forthcoming. The requirement of environmental findings by 

agencies was replaced with a mandate requiring a 

“detailed statement” of environmental impact. These 

statements were to be constructed upon consultation 

with other agencies and, finally, circulated to agencies 

at the federal, state, and local levels, the President, the 

public, and to an environmental council, a board of environmental quality advisorsz’ The board would 

approve or disapprove agency actions based on anticipated environmental impacts. To ensure the continuing importance of state environmental agencies, the 

compromise bill ordered that federal agencies should, in 

addition, act in accordance with the rules and standards set by these offices.= 

In the House, NEPA was introduced by Rep. Dingell 

as H.R. 6750 and reported out of committee as a “clean 

bill,” H.R. 12549. However, prior to passage, H.R. 

12549 also became the target of jurisdictional maneuvering. The challenge in this chamber came from 

Arizona Congressman Wayne Aspinall, chai~~man of 

the Interior and Insular Affairs Committee. Aspinall 

succeeded in adding two amendments to DingelI’s bill 

before it was passed by rhe full House. One, which was 

subsequently dropped in conference, would have practically voided the substance of the Senate bill by declaring that nothing in the act would in any way 

change the responsibilities of federal agencies.26 

The other amendment was a direct attack upon 

Dingell’s subcommittee jurisdiction over fish and wildlife. In the original House bill, environmental impacts 

would have applied only ro fish and wildlife. In the 

amended version, the bill applied to all impacts27 

With Senate and House bills in hand, the conferees 

eventually met in December. Before a final version was 

agreed upon, however, the proposed legisktion was 

subject to several changes. The Senate bill had asserted 

the right of each person to a “healthful environment.” 

Assertion of a right was bound to have profound legal 

implications, “enforceable in court against governmental failure to provide such an environment.“28 

Thus, the conferees changed the declararion of a right 

to a more innocuous sratement that citizens should 

enjoy a healthful environment. 

20 
A second change established the Council on Environmental Quality (CEQ), as proposed by the House 

bill, but to consist of three members rather than the originally proposed five members.z9 

Yet another change embodied a compromise between 

the Senate desire for a strong enforcement provision 

and Aspinall’s amendment to the House bill. The result 

of this compromise was a statement requiring agencies 

to “comply with the action-enforcing provisions [only] 

‘to the fullest extent possible.’ ‘w However, it should be 

noted that the courts have been inclined to give strict 

interpretation to this phrase. This interpretation is 

partially based upon a document developed by the 

managers of the House bill. In this unusual document, 

the managers seemed to interpret the language to mean 

approximately what Senator Jackson had intended:” 

It is the intent of the conferees that the provision “to the fullest extent possible” shall not 

be used by any federal agency as a means of 

avoiding compliance with the directives set out 

in Section 102 no agency shall utilize an 

excessively narrow construction of its existing 

statutory authorizations to avoid compliance.‘2 

On January 1, 1970, President Nixon signed NEPA 

into law. The environment was still not a top presidential priority and Nixon was reticent regarding the 

creation of the CEQ. He was particularly bothered by 

the potential of such a council to become an advocate 

of extreme environmental views. In addition, his reorganization plans already included a proposal for the 

Environmental Protection Agency which, in keeping 

with his organizational philosophy, would encompass 

broad functions rather than narrow programs.” Nonetheless, Nixon chose to make the New Year’s Day 

signing a matter ofgreat moment: 

It is particularly fitting that my first official 

act of the new decade is to approve the National Environmenral Policy Act-the 1970s absolutely must be the years when America pays its 

debt to the past by reclaiming the purity of its 

air, its waters and our living environmenr. It is 

literally now or never.” 

THE COUNCIL ON 

ENVIRONMENTAL QUALITY 

In his book, The End of Liberalism, Theodore Lowi 

describes most modern Congressional legislation as 

“policy without law.” Such policy, Lowi contends, 

mandates authority to an administrative agency 

without specific standards or guidelines.‘5 Although 

Lowi published his indictment of interest-group liberalism and the policymaking system it had spawned 

prior to enactment of NEPA, the act and the council it 

created are prime examples of this theory. 

According to its legislative mandate, CEQ was to develop policies in accordance with the purposes of NEPA 

and was to evaluate other federal programs in order to 

determine if their activities were contributing to the 

purposes of the act. Had NEPA set specific standards, 

CEQ would have encountered a difficult enough time 

defining the scope of its policymaking and watchdog 

functions. But, no guidelines were contained in the 

statement of purpose and the council was faced with 

the additional task of interpreting its meaning: 

The purposes of this act are: To declare a 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.36 

In essence, it seems clear that the stated purposes of 

the act were more symbolic than real.” In addition, interpretation of such phrases as “a nationa!policy which 

will encourage productive and enjoyable harmony 

between man and his environment” would seem to 

require the mind of a philosopher shaped by years of 

introspective thought relating to the qualities of the 

“good life” much more than that of a public administrator. Yet, despite the fact that Aristotle’s objective 

condition prevented his serving on the council, the 

members and their staff had to create a role for themselves in concert with their interpretation of Congressional intent. 

In conjunction with the Office of Management and 

Budget (OMB, the successor to BOB), CEQ publically 

defined its role with the issuance of Executive Order 

11514 on March 5, 1970. Under the terms of NEPA, 

CEQ was to assist the President in the preparation of a 

yearly report, Enuimnmental @u&y, and to act as Presidential advisor on matters of the environment. With 

Executive Order 11514, the council broadened its role 

considerably to include major responsibility in defining 

the environmental impact statement proces~‘~ as well as 

the substantive requirements ofNEPA.j9 

This responsibility took the form of guidelines for 

federal agencies (issued in 1970, 1971, and 1973), a series 

21 
of memoranda which served to supplement the 

guidelines, and, finally, in 1977, a set of regulations ro 

replace the guidelines. It is conceivable that under the. 

broad terms of NEPA, CEQ could have captured some 

additional functions. For instance, except on rare occasions, the council has not chosen for itself the role of 

impact statement commentator. This is understandable 

since CEQ has a permanent professional staff of about 

30 women and men. In addition, budget constraints 

have kept the council’s role at a minimal le~el.‘~ Later, 

these staff and budget woes were compounded by a 

withdrawal of Presidential support, leaving CEQ until 

recently with little political leverage outside of the 

courts.” 

THE ENVIRON~;;M~; PROTECTION 

CEQ was authorized to monitor compliance with a 

single statute. The bulk of environmental legislation 

was divided among other agencies. In particular, the 

National Air Pollution Control Administration 

(NAPCA) was housed in HEW while the Federal Water 

Quality Adminisrration (FWQA) was in Interior. In 

addition, there were separate administrative units 

dealing with solid waste, pesticides, radiation, and occupational health and safety. This sort of fragmentation 

was antithetical to the orthodox organizational 

philosophy of Richard Nixon which centered on consolidation and broad, functional administrative departments, rather than the small, programmatic units 

favored, throughout the years, by Congress. 

In December of 1969, the President’s Advisory 

Council on Executive Organization (the Ash Council) 

accepted the task of suggesting a reorganization scheme 

for all the federal environmental programs.” Like reorganization commissions before it,’ the Ash Council 

met with bureaucratic territory-guarding and expansion 

drives. Few were inclined to relinquish programs while 

some favored reorganizing all the environmental 

agencies under their jurisdicton.k3 In the end, the 

council opted for a scheme in which everyone would 

lose a little. The unanimous choice was the Environmental Protection Agency (EPA). The proposed agency 

would take the FWQA from Interior, NAPCA from 

HEW, the Environmental Control Administration 

from HEW, the pesticides registration program from 

Agriculture, and some of the radiation protection 

standards functions from the Atomic Energy Commission.” The Ash Council suggestion was submitted to 

the Congress as Reorganization Plan No. 3 of 1970 and 

EPA was officially created on December 2, 1970. 

The fact that EPA had come into existence did nor 

necesshrily mean that all the problems of administrative 

coordination had been solved: 

All reorganizations cause some confusion 

and trauma for the individuals and agencies 

involved, but the creation of EPA was unprecedented in terms of the number and size of 

disparate agencies brought together under a 

new organizational structure. In many cases 

parts of different agencies which had been 

rivals or opponents for years found themselves 

suddenly part of the same organization. The 

problems of joining disparate parts of other 

agencies have been aggravated by EPA’s internal organization. The Ash Council staff 

considered how the new agency should be 

organized. and generally concluded that the 

basic snucture should be along functional lines 

such as enforcement, research, and standardsetting. This was a departure from the traditional programmatic approach focusing on air 

and water pollution.‘5 

As if this was not confusing enough for the young 

agency, the EPA workload demanded that a program 

approach would also have to be incorporated. Thus, 

EPA was built along half functional and half programmatic lines-an organi:ational scheme which exists 

today, blurring the lines of effective authority.46 

The creation of EPA established another link?” the 

complex of federal-state-local environmental relations. 

As grant distributor and environmental regulator, EPA 

is ne&ssarily and integrally involved in state and local 

environmenral and pollution program~.~~ The .srablishment of CEQ and EPA firmly institutionalized 

the federal environmental role. This institutionalization 

was legitimized by an act defined as. national. With the 

passage of NEPA, the federal government declared that 

it would “encourage. harmony between man and his 

environment” and “eliminate damage ro the environment.” It did not pay lip service to the previously 

supposed hegemony of states and localities in environmental matters; it merely asked for their cooperation. Yet. once more, in broadening its own scope, the 

federal government proved that the environment is nor 

a fixed field in which the increasing presence of one 

actor necessarily limits the presence of others. Indeed, 

NEPA broadened state and local functions. State and 

local agencies were authorized to comment on the 

actions of federal agencies which were potentially 

damaging to the environment. Protection of the environment was truly a growth business for all concerned. 
THE BIG AMENDMENTS: AIR AND 

WATER LEGISLATION IN THE 1970s 

The Clean Air Act 

Amendments of 1970 

By 1970 a political actor who did not chose to appear 

concerned about the state of the environment was 

engaging in political suicide. Ten years earlier, few 

would have even thought to question a politician on his 

or her environmental views. The environment had 

blossomed as a big issue-the big issue--and everyone 

wanted a piece of the action. Nixon, who was phile 

sophically opposed to increasing government regulation 

of the private or other public sectors, began to manifest 

an uncharacteristic tendency to “talk environmental.” 

His 1970 State of the Union message was reflective of 

this new stance-nearly one-third of it was devoted to 

the environment.‘8 

Politically, the environment had become even more 

important to Nixon than it might have been to the 

average politician. At the time, it seemed obvious that 

his two strongest potential opponents in the 1972 

presidential race would be the very men who were most 

readily identified as environmental lawmakers, Senators Muskie and Jackson. 

The pressure was just as intense on Capitol Hill. The 

1967 Clean Ai Act had proven to be less than a 

panacea for the dirty air problem in the view of most 

environmentalists and they were beginning to shape 

and rally public opinion. On March 4, 1970, Senator 

Muskie introduced the ‘*National Air Quality Standards Act.“‘P Muskie, too, was disappointed in the 

progress of the 1967 act. In the three years that had 

passed, only 21 states had submitted implementation 

plans, none of which had been approved in Washing 

ton. This, of course, made enforcement impossible.s0 

Yet, as of early 1970 Muskie was still committed to a 

policy of strong state and local involvement. His intention, under the terms of the new act, was not to weaken 

state or local responsibilities but rather, “to clarify and 

slightly expand existing (federal) authority.“5’ This was 

a policy of refinement rather than radical alteration. 

By September, Musk& attitude had changed considerably. Between March and September a series of 

events forced the Senator either to endorse much 

stronger air legislation or risk losing his star status in 

environmental matters. The challenges came from all 

around him. 

In the first place, Nixon was clearly challenging 

Muskie’s position. Just a few days prior to the introduction of the March 4 bill, the Administration pre 

posals were sent to Congress. Thesejroposals included 

the setting of federal emissions standards for stationary 

sources, a federal function which Muskie had long 

opposed.s’ 

In the second place, the House of Representatives 

quickly, and perhaps unexpectedly, endorsed the Administration proposals. In fact, the House chose to go 

further. For instance, where the Administration bill 

authorized the secretary of HEW to establish air quality 

standards in six months, the House bill (H.R. 17255) 

gave him only 30 days.*’ 

Finally, Muskie’s most severe challenge came from 

outside government. In May of 1970, Ralph Nader’s organization published Vanishing Air, which, among 

other things, directly attacked Muskie: 

Muskie is, of course. the chief architect of 

the disastrous Air Quali~ Act of 1%7. That 

fact alone would warrant his being stripped of 

his title as “Mr. Pollution Control.” But the 

Senator’s passivity since 1967 in the face of an 

ever-worsening air pollution crisis compounds 

his earlier failure. Muskie has rarely interceded 

on behalf of accelerated pollution Perhaps 

the Senator should consider resigning his 

chairmanship of the subcommittee and leave 

the post to someone who can devote more 

time and energy to the task.5’ 

Muskie’s response to all these challenges was a bill 

stronger still than either the Administiation or House 

bills. Heavy press coverage of the Muskie proposals, 

coupled with intense public interest, almost ensured 

that very little modification would result from the Conference Committee meetings.” It seemed clear that any 

attempt to significantly change the Senate language 

would brand the politician responsible as a puppet of 

industry. 

Throughout the period, lobbying was intense from 

both industry and environmental groups, but public 

attention to the debate made industry the sure loser. 

Indeed, the bill that emerged was almost identical to the 

Senate version--a fact that placed Muskie, once again, 

in the environmental limelight. The bill as agreed to in 

conference was certainly like no other, both in terms of 

the significantly increased authority of the federal 

government and its “get tough” attitude toward industry. Among other things, the Clan Air Act Amendments 

of 1970 mandated national air quality standards, air 

quality control regions to be designated by the secretary 

of HEW,16 and emissions standards to be applied to 

new stationary sources of pollution, as well as to emissions from existing stationary sources deemed to be 

23 
hazardous. In addition, it required 1975.automobiles to 

adopt emissions standards 90% below those for 1970 

autos (though manufactures could request a slight extension); it allowed for federal assemblyline testing of 

vehicles; and it authorized citizens to bring suits for violations of standards.” 

The scope of the legislation was clearly beyond the 

technological capability which industry was known to 

possess at the time. Thus, Congress, in response to immediate public pressure, had legislated nonexistent 

technology. According to Charles 0. Jones, this sort of 

ill-considered policymaking or, “speculative augmenration,” marked a radical departure from the normal 

decisionmaking process: 

The most striking feature of the policy action 

in 1970 was the escalation of proposals leading 

to the enactment of a law admittedly beyond 

the immediate capabilities to apply. 1 have labelled this speculative augmentation. Norrnally decisionmakers are expected to refine 

existing policy by determining what is technically and administratively feasible, as well as 

what is within the limits of acceptability to 

those being regulated. In speculative aug 

mentation, however, the basis of decisionmaking changes. Feasibility is less important 

than estimating what will be acceptable to a 

rather indistinct “public” perceived to be demanding stringent action. Since decisionmakers cannot be certain what is acceptable, 

however, they are forced to speculate in designing satisfactory changes in the law, and 

whatever specific form these changes take, 

they must constitute more than a mere incre. 

merit in existing law, regardless of administrative and technological capabilities.s8 

The Water Pollution Control 

Act Amendments of 1972 

The Clean Air Act Amendments were profound in 

both scope and potential impact. Yet, they appear mild 

compared to pending Congressional initiatives in the 

field of water pollution u~ntrol. These initiatives followed close behind, but then far exceeded, Administration proposals and set the scene for a head-on battle 

between Nixon and Congress. 

Indeed, Nixon had taken the lead in proposing new 

water legislation. His first environmental message to 

Congress on February 10,1970, had stressed the importance of water pollution control over that of air pollw 

tion contr~l.~’ Forthcoming Congressional action, as 

previously noted, however, was in the field of air pollution. This was understandable since a series of public 

relations setbacks had made the auto industry ripe for 

plucking. However, Congress could not afford to put 

the Presidential challenge for cleaner waters on the 

back burner for lot~g.~O 

During February of 1971, Muskie began turning his 

subcommittee’s attention toward revision of the Water 

Pollution Control Act. The bill was, far and away, the 

most far-reaching piece of environmental legislation 

ever proposed-its underlying premise being the elimination of the effects of man on water. The proposed 

act declared it “to be national policy that the 

discharge of pollutants into navigable waters be eliminated by 1985.61 In addition, it authorized an unprecedented $14 billion in waste treatment construction 

grants to be federally financed up to 70% of cost 

through 197562-this, despite the fact that states and localities had been making excellent progress in this area 

prior to 1971. This far exceeded the President’s proposals in a number of areas. Nixon aide John C. 

Whitaker notes five items which caused considerable 

concern among the President and his advisors: 

First, the total price tag was a budget 

busting $18 billion, compared to a three-year 

cost of $6 billion for Nixon’s proposal. Second, 

the stated policy of the bill, “that the discharge 

of all pollutants into navigable waters be elifninated by 1985,” could be construed literally to 

mean zero discharge, not only an impossible 

goal to achieve, but also an unreasonable limitation because it did not permit consideration 

of the costs of removing the last few percent of 

effluent in relationship to the benefit of that 

result. .63 

Third, the so-called fishable, swimmable 

waters provision of the bill called for the 

use of best available pollution abatement technology by 1981. In spite of qualifying language, 

the fact was that the policy statement extended 

a promise that could not be fulfilled. 

[The fourth] objection to the bill was that, in 

providing for federal guidelines and 100% 

federal financing of waste water management 

planning, it would give the federal government 

a dominating position in the planning process. 

State authority would be severely curtailed. 

Finally, in the administration’s view the 

standards incorporated in the Senate bill not 

only were unrealistic, but also were inequitable 

and cost1v.M 

24 
On the basis of these objections, Nixon sought to 

modify the hill while it was still in the Senate. The fact 

that the Senate was not inclined to share Nixon’s point 

of view was illustrated in grand measure when it passed 

the original hill by an 86-O vote.65 

This staggering defeat directed White House attention toward the House of Representatives. An array 

of Administration officials including EPA Administrator William Ruckelshaus, CEQ Chairman Russell 

Train, and the Chairman of the Council of Economic 

Advisers, Paul McCracken, were sent to testify against 

the Senate proposals before the House Public Works 

Committee.66 Despite these and other efforts, the 

House modifications were minor. The only significant 

change provided for further Congressional action 

before enforcement of the 1981 and 1985 deadlines 

could be implemented.67, This change was largely 

retained by the Conference Committee. 

When the conference report emerged it looked more 

like the tough Senate bill than the slightly modified 

House bill. Aside from the 1981 and 1985 goals (in 

contrast to Senate language which had made the 

deadlines policy)6s other provisions of the hill included: increased authorization of $24.7 billion over 

three years; a requirement that industrial polluters 

produce “the best practicable control technology by 

1977 and the best available technology by 1983;” EPA 

veto power over permits for pollution discharge; and a 

grant of authority to the EPA Administrator for the 

initiation of suits, as well as to private citizens if they 

could prove that they, personally, had been adversely 

affected by a polluter.@ 

The terms of the amendments, as passed by both 

houses on October 4, 1972, were anathema to Nixon. 

Therefore, in order to avoid an anticipated pocket 

veto, Congress delayed its ,scheduled adjournment 

until October 18, overrode the President’s veto, and 

the Water Pollution Control Act Amendments of 1972 

became I~w.‘~ 

Subsequent legislation indicates that 1972 signalled 

the high-water mark in federal air and water pollution 

control. 1974 and 1977 amendments to the air act and 

1977 amendments to the water act have, in some instances, modified and contracted previous legislation 

rather than expanded it. If Jones’ concept of “speculative augmentation,” discussed earlier, is expanded to 

the case of water, the conclusion, based on an admittedly shakey sample population, is that such policymaking results in failure and disappointment. Of 

course, it must he noted that the amendments have 

succeeded in reducing the amount and impact of air 

and water pollutants. But, many goals and deadlines 

have been repeatedly delayed, extended, and unmet. 

The amendments have been successful in further 

defining the fed&l role in the environment. Massive 

grant authorizations (See Tabk 2) have given the federal government a substantial say over the terms of 

state, local, and regional projects, particularly in the 

atea of wstewam treatment plant construction: 

[This] balancing of incentives and conditions in the evolution of the construction 

grant program has moved it from one characterized by minimal federal conditions to one 

where the federal government (before it will 

pay three-fourths of the construction cost of a 

treatment plant): (1) establishes construction 

priorities by requiring states to [require permits 

for] all municipal and industrial discharges (if 

they do not, the Environmental Protection 

Agency has the authority to do it for them); (2) 

requires states to establish a network of basin, 

regional, and local planning that must be ap 

proved by [EPA]; and (3) determines the level 

of treatment necessary for pollution control 

and abatement in the various communities.7’ 

ee Chart 1.) 

As noted above, the 1977 Water Pollution Control Act 

Amendmew provided a statutory basis for a new means 

of federal enforcement--that is, enforcement by permit. 

a method long employed by states and localities.‘x The 

act “authorized EPA to issue permits for the discharge 

of pollutants from any point source into U.S. waters.“” 

This authority could be turned over to a state but only 

after state compliance with federal criteria. Even then, 

the appropriate state agency had to submit permit 

proposals to EPA for its comments prior to issuan~e.~’ 

Finally, The Clean Air Act and the Water Pollution 

Control Act, coupled with NEPA, provided for the final 

and ultimate legitimation of the federal environmental 

role. In authorizing federal and citizen suits these acts 

brought the consummate legitimizing agent squarely 

into the fray-congress, the executive, and now, 

finally, the federal courts were all protecting the environment. 

THE ROLE OF THE COURTS 

IN ENVIRONMENTAL PROTECTION 

The Clean Air Act Amendments and the Water 

Pollution Control Act Amendments both provided for 

citizen suits: 

25 
TABLE2 

GROWTH OF MUNICIPAL WASTE WATER 

TREATMENT CONSTRUCTION GRANTS, 1957.77 

(in millions of dollars) 

Year Authorization Appropriations Obligations Outlays 

1957 50 50 38 1 

1958 50 45 47 17 

1959 50 47 46 36 

1960 50 46 48 40 

1961 xl 46 45 44 

1962 80 80 64 42 

1963 90 90 92 52 

1964 100 90 65 66 

1965 100 90 84 70 

1986 150 121 118 81 

1967 150 150 131 84 

1968 450 203 191 122 

1969 700 214 201 135 

1970 1,000 800 424 176 

1971 1,250 1,000 1,152 478 

1972 2,000 2,000 860 413 

1973 7,000' 3,900' 2,989 884 

1974 6,000 3,000 2,608 1,553 

1975 7,000 4,000 4,131 1,938 

1976' 0 9,000 4,853 3,347 

1977 7,700 1,980 7,168' 3,546 

Total 30,020 25,3761 12,928 

‘Includes $2 billion for reimbursement to municipalities for prior construction. 

‘Includes $1.9 billion for reimbursement to municipalities for prior constructlon. 

‘Includes transition quarter. 

‘IncludesSO. bllllonforreimbursement tomunlclpalitiesforpriorconstruction. 

‘Includes523 billion for reimbursement to munlcipallties forpriorconstruction. 

SOURCE: U.S. Environmental Protection Agency, Office of Planning and Management, “Actlvltles of the Grants 

Assistance Programs,” Washington, DC, September 1977. 

any citizen may commence a civil action 

on his own behalf-(l) against any person (in- 

&ding(i) the United States, and (ii) any other 

act which is not discretionary with the Administrator.75 

governmental instrumentality or agency to the 

extent permitted by the eleventh amendment 

to the Constitution) who is alleged to be in 

violation of (A) an effluent standard [emission 

standard] or limitation under this act or (B) an 

order issued by the Administrator [of EPA] or 

a state with respect to such a standard or 

limitation, or (2) against the Administrator 

where there is alleged a failure of the Administrator to perform any act or duty under this 

In addition, while NEPA does not specifically provide 

for citizen suits, it has been interpreted as justifying 

such suits in cases where federal agencies fail to adequately prepare the environmental impact statements 

legislated in section 102 of the act.‘6 The result of these 

three acts has been to bring the courts directly into the 

business of environmental protection. 

The bulk of the environmental cases brought before 

the courts have been concerned with agency obligations 

under the terms of Section 102 of NEPA. In other 

26 
Chart 1 

EVOLUTION OF POLICY OBJECTIVES, INCENTIVES, AND CONDITIONS AND ENSUING 

PROBLEMS IN THE FEDERAL WATER POLLUTION PROGRAM 

t 

2nd Phase 

19851986’ 

t 

3rd RI-. 

1972’ 

Policy Objestiws 

State primacy 

“Wellare”CcmCePt 

Healiheffects 

Incenllves 

(Conslructlon Grants) 

Enco”rage lees pop”- 

tated, lese Wealthy 

states to build plan18 

COildMOllS Problems 

Dollar limitation; tack of state participation: 

Stetecomplienceplen; - Lack of participation by 

Guaranteenon-federal, large municipalities and 

share; metropolitan areas; 

InS”reprcpercp- Inadequate level of federal 

erellcn and main. funding 

,*“*“CX?; 

Certification of 

priority 

State contribution; 

State “WS, establish 

enforceable we,*, 

qwlity standards; 

Regional planning; 

Other requirements 

I 

National policy 

Water quality B 

technology 

Uniform 75% federal 

funding; 

Eliminate state 

Technology (sewndary treatment, 

beat practical 

treatment); 

Financlel cos,s 

(Needs survey, 

Userscharges, 

Coat effectiianess,; 

Planning (state, 

areawldel; 

Facility planning 

Waterguelity (point scurce 

emphasis. cperaticnl 

maintenance problems); 

Investments (permits issuing 

dominates planning); 

Financial needs 

‘Dates refer to federal water pollution legislation. 

‘Encouraged state panicipation by including a provIsion which allowed the dollar ceiling tc be dropped entirely it a state agreed to match the 

federal share. 

‘Allowed the federal shareto be increased tc 50% if the state contributed 25% and established enforceable standards. 

‘If a project was part 01 a metrcpclitan reglonal plan the ba8e federal share could be Increased by 10X. 

SOURCE: Robert D. Thomas end Ralph A. Luke”. “Balancing Incentives and Conditions in the Evolution of a Federal Program: A Perspective 

on Construction Grants fcr WasteTreatment Plants,” Publlus, Summer 1974, pg. 53. 
words, what are the obligations of the federal government concerning a cleaner national environment? This, 

however, has not meant chat the courts have seen fit co 

judge the substance of agency decisions. Rather, their 

role has been one of judging how well agencies have 

responded co the procedural mandates of NEPA.” 

More substantive rulings have occurred under interpretations of the air and water acr amendments. 

Two cases brought co court after enactment of the 

Clean Air Acr Amendments illustrate the thrust and difficulty of substantive court decisions in the highly technical area of pollution control. The first of these is International Harvester vs. Ruckelhus. In this case International Harvester, along with General Motors, Ford, and 

Chrysler, filed suit against EPA in an effort to gain a 

one-year extension of the 1975 emissions standards. 

The companies involved provided data which indicared that the technology needed co meet such a deadline was not yet available. Their data were substantiared by a National Academy of Sciences study.‘* Yet, 

despite overwhelming evidence in favor of the motor 

companies, EPA had refused a deadline extension on 

the basis of predicting “available technology” rather 

than on actual “available technology.“‘9 

The court ruled that the burden of proof lay with 

EPA and ordered the Administrator co give further 

consideration co the case-it did not specifically grant 

an extension. However, the effect of the decision had 

the same result, for the administrator did suspend the 

standards until 1976.*” 

The justices’ decision co remand the case back to EPA 

was due largely co the technical nature of the issue. 

They “were not completely comfortable dealing with 

these substantive aspects nor in passing judgement on 

the relative worth of conflicting scientific opinion. 

Therefore. thecases were remanded.“81 

The second case, Sierra Club, et al vs. Ruckrlshaur, was 

fought over the conditions of state implementation 

plans. As originally conceived, the EPA guidelines had 

included a nondegradation policy. Nondegradation 

policy forbade deterioration of existing air quality. Such 

a provision meant chat a scace could not move a source 

of pollution from a highly polluted area co an area 

within the scace whose air quality exceeded national 

standards. However, the final guidelines did not reflect 

this nondegradation policy. The Administrator of EPA 

had decided to delete the provision in order co make 

meeting air quality standards a simpler and less economically devastating matter for the states. 

Upon issuance of the final guidelines, the Sierra Club 

filed suit against EPA, claiming that the Clean Air Act 

did not allow for degradation of any air-no mater 

how clean. The courts found in favor of the Sierra Club 

in requiring state programs co “provide for nondegradation of the air ‘no matter how presently pure that 

qualie in some section of the country happens to be,“8 

Thus, the courts upheld the strictest interpretation of 

the act. 

Increasingly, western states, eager to develop their 

lands for economic and recreational purposes, have 

become disgruntled over court rulings which tend co 

favor environmentalists and the EPA over developers. 

One of the major reasons for this, westerners contend, 

is that the environmentalists are able co have their cases 

heard before the District Court and the Court of Ap 

peals in Washington, DC-far removed from the fray 

and allegedly more amenable to environmental claims 

than co chose who advocate development. To circumvent this, in March of 1980, Senators Dennis DeConcini (D-AR) and Paul Laxalt (R-NV) introduced an environmenral venue bill which, if enacted, would require 

environmental cases co be heard “where a substantial 

portion of the impact or injury” OCCU~S.~~ 

Court intervention into the environment has had at 

least two consequences. In the first place, the cou~c 

system has provided one more arena in which environmental battles can take place. This has been espwzially 

true in increasing the visibility of environmental and 

conservation interest groups. In the second place, rhe 

federal court system has served co further expand the 

federal environmental role both by strictly interpreting 

NEPA-and thus giving meaning co a aometimizs vague 

piece of national legislation-and by putting its weight, 

as the third branch of government, behind the federal 

environmental effort. 

SOLID WASTE, NOISE, CHEMICALS, 

AD INFINITUM 

The history of federal intervention into the local 

problem of solid waste disposal closely parallels federal 

efforts in the fields of air and water pollution control. 

That is, federal intervention began as a research and 

grant program devoid of any federal regulatory effor~.~’ 

The purpose of the Solid Waste Disposal Act of 1965 was 

co create a “national research and development program for new and improved methods of proper and economic solid waste disposal. .“81 Primary responstbllny 

for disposal sites and methods was kept at the state and 

local levels. 

Of course, as presaged by air and water legislation this 

approach was not to last for long. In 1970, Congress 

responded to the expiration of the Solid Waste Disposal 

Act by enacting the Resource Recwey Act. The new act 

was opposed and almost vetoed by the Nixon Adminis28 
nation which saw it as “a first step toward an all-out 

program that would shift responsibility for solid waste 

disposal construction from the local to the federal government just as sewage construction funding gradually 

had been shifted from B state and local responsibility to 

a federal ~ne.“~~ 

The act still relied primarily on grants-in-aid, but in 

major new proportions. It authorized recycling demonstration grants and resource recovery studies. In addition, planning and demonstration resource recovery 

grants were to be made available, up to 75% of cost, to 

regional, state, and intermunicipal units of government.8’ 

Moreover these grants were not to be given as “nostrings-attached” bonuses. States receiving funds for 

solid waste management plans were directed to submit 

a” inventory of existing solid waste disposal facilities. 

Further, states were to provide material-recycling or re, 

covery plans.88 

In 1976 new legislation, the Resource Conservation and 

Recwey Act, created several new programs and further 

expanded the federal role in a once purely local service 

function. Grant authorizations and other financial outlays were increased, along with the federal regulatory 

role. The act provides for federal regulation, by permit, 

of hazardous wastes. This includes the enactment of 

federal standards over all facets of hazardous solid 

wastes-generation, transport, storage, and disposal. I” 

addition, the an requires that all open dumps be 

phased out within seven years.89 

Solid waste disposal has, indeed, become big federal 

business. In 1977 outkys for control and abatement of 

solid waste pollutants were $101.9 million-the largest 

outlay for a single poll~tant.~~ The growrh of solid 

waste control efforts over the past I3 years is instructive 

for several reasons. In the first place, while the evolution of solid waste control is a mirror image of early air 

and water control, it reflects that image at a greatly accelerated pace. From the standpoint of legislation, the 

federal government first became interested in water 

pollution control in 1948 but did “or begin a program 

of regulating by permit until 1972-a total of 24 years. 

On the other hand, it took less than half that amount 

of rime-11 years-to initiate such a program in the 

field of solid waste. 

Second, efforts in the field of solid waste connol are 

illustrative of the increasing boldness with which the 

federal government a~~urnes functional and programmatic responsibility. Air and &et can seldom be assumed to stay in one location or, often, eve” in one 

state. Yet, federal control over these pollution media 

was attended by over two decade of soul searching and 

debate. Solid waste disposal, on the other hand, has 

generally been thought of as a very local service function. Cities have long generated, collected, transported, 

and dumped their own garbage. However, despite 

protests from Nixon, prompted as much by budgetary 

concerns as by concern over the proper federal r~le,~’ 

there secmcd to be little hesitancy in asserting a” evergreater federal responsibility in the field of solid waste 

disposal. 

Finally, as in the cases of air and water pollution 

control, the assumption of increasing responsibility by 

the federal government has also meant increasing the 

role of other levels of governments, particularly states 

and regional bodies. Like air and water pollution 

control, responsibility for solid waste has not been 

assumed in a fixed field of control. Like air and water 

pollution control, there seems to be room for everyone 

in solid waste control. 

Another area which, until recently, was considered a 

purely state and local problem is noise pollution. In the 

past, city ordinances have been aimed at noise sources 

such as overenthusiastic partygoers, radios, car horns, 

and the like. States have commonly regulated urban 

noises through two means. First, state labor and safety 

codes have often provided for industrial noise levels. 

Second, automobile owners have long been prohibited 

from driving cars without effective muffler ~ystems.~~ 

The first federal effort to control excessive noise came 

in 1968 as a” amendment to the Federal Aviation Act of 

195K9’ The act authorized the Federal Aviation Administration to set noise limits for new planes. This was 

followed in 1969 by U.S. Department of Labor noise 

rulings based on previous labor laws. The new Labor 

regulations “set decibel limits for industrial noise to 

protect the health and safety of employees in all industrial concerns with government contracts in excess of 

$10,000.“‘~ 

The most recent federal initiative in noise pollution 

control was The Noise Control Act of 1972.95 The act 

authorized the establishment of federal noise emissions 

standards for products distributed in commerce and increased research and information activities by EPA.96 

While states and localities are to retain primacy in the 

field of noise pollution control, no laws or regulations 

which are see” as conflicting with federal standards 

may be enacted. 

Two major pieces of federal legislation currently 

regulate the distribution of chemicals in inter and intrastate commerce. The Federal Environmental Pesticide 

Control Act of 1972 gives EPA the authority to regulate 

the banning, manufacture, commercial sale, and use of 

pesticides.98 The definition of pesticides includes insecti29 
tides, rodenticides, herbicides, fungicides, and disinfectants. As of 1975, 29,000 such pesticides had been 

registered wth EPA. The major federal chemical control 

act is The Toxic Substances Control Act of 1976.9p This act 

authorizes testing and, when necessary, restricts use of 

toxic chemicals.‘oO. 

In the 196%. the Santa Barbara oil spill, the 

Cuyahoga River fire, and reports of heavy smog and air 

inversion conditions served as the symbolic centerpieces of calls for stringent federal air and water 

pollution laws. Of similar potential emblematic value in 

the area of toxic wastes has been rhe Love Canal disaster-the irresponsible dumping and tragic leakage of 

chemical wastes. resulting in abnormally high levels of 

cancer. miscarriages, birth defects, and other illnesses 

among the residents of Niagara Falls, NY. Responding 

to Love Canal and similar calamities in Massachusetts, 

Maine, Tennessee, and Michigan, Congress passed P.L. 

96.510, the Comprehensive Environmental Response, 

Compensation, and Liability Act of 1980. The Act 

establishes liability-generally to a maximum of $50 

million-for owners or operators of facilities or vessels 

which release hazardous substances into the environment. In the event that liability is established, it 

will be transferred to and assumed by a Post-closure 

Liability Fund (popularly known as “superfund”) 

financed by a tax on owners and operators of $2.13 per 

dry ton weight of hazardous waste upon receipt at waste 

disposal facilities.“” 

Space does not permit the review of all federal environmental efforts. However, legislation cited previously by no means exhausts the realm of federal environmental legislation. Orher laws dealing with land 

use, animal protection, and consumer and occupational 

health and safety have all contributed to an increased 

federal environmental role since 1970. (See Figure 1.) 

JUGGLING EXTENSIONS WITH 

DEADLINES: THE NEWEST AIR AND 

WATER AMENDMENTS 

In 1977 Congress passed amendments to both the 

Clean Air Act and the Warer Pollution Con& Act. The 

result of these amendments is a mixed and confusing 

bag of tough regulations coupled with relaxed standards. and deadlines coupled with extensions. 

Congressional contradictions are understandable in 

light of the overall decline which the environment, as 

an issue, has undergone in the past few years. As it once 

fought for precedence over the Vietnam issue, it has 

now taken the back seat to an economy beset, at once, 

with high unemployment, low productivity, and inflation and a declining reservoir of energy-producing resources. If Congress often acts after reading the “na. 

tional pulse,” it has had to deal with the environment 

on the bases of very contradictory readings. 

Chart 2 illustrates the declining public importance of 

the pollution issue both in an absolute sense and 

relative to other problems. Clearly, pollution can 

hardly be considered among the biggest problems 

which face most people. However, as exhibited in Chart 

3, when people are explicitly asked if they think government is spending “too little” on the environment, a sig 

nificant number respond affirmatively. 

An obvious public groundswell of support for innovative environmental legislation had inspired Congress to 

act in 1970 and 1972. By 1977 the environment was no 

longer the “issue of the 1970s.” Rather, in a surprisingly 

few short years, it seems to h&e joined the ranks of 

such “institutionalized” and enduring problems as edu, 

cation and health. The “national environmental pulse 

rate” is no longer inclined to “race” and neither, with a 

few notable exceptions, is Congress. 

The initial “softening” of the Clean Air Act occurred 

in 1974 on the heals of the first of the so-called energy 

crises. The propitious nature of this moment was not 

lost on industry. Nor was Senator Muskie insensitive to 

the need for guarding his an from extinction. In fact, 

some of the proposed amendments sought to delete 

entire portions of the act.‘0z 

In a significant way the Senator’s vigilance paid off. 

The act remained intact, subject only to technical 

amendments. However, these technical amendments, 

themselves, were important in modifying some impacts 

of the 1970 legislation. The new amendments allowed 

EPA to suspend, for limited periods of time and under 

specific conditions, stationary source emissions limits. 

In addition, all 1975 auto emission standards were 

extended through 1976 and limited extensions on hydrocarbon and carbon monoxide standards were 

allowed through 1978.‘0’ 

The 1977 amendments to the Clean Air Acr went 

further in deferring reductions of automobile furn~ 

until at least 1981.‘0’However, in a very significant way 

the amendments signal a more stringent stance toward 

stationary source pollution. The targets of this stringency are “nonattainment areas” generally found in the 

northeast and Great Lakes regions of the country. 

Under the new provisions, an area which could not 

meet air quality standards by 1979 is not allowed to introduce new sources of pollution-in other words, new 

industrial plants-unless the responsible state has 

adopted a plan ensuring full compliance by 1982.‘01 

30 
1899 

1948 

1956 

1961 

1965 

1968 

1970 

1972 

1974 

Figure 1 

MAJOR FEDERAL ENVIRONMENTAL LEGISLATION 

Dale Title important Provisions 

WATER POLLUTION CONTROL 

Refuse Act, Required permit from Chief of Engineers tor dis30Stat. 1152 charge of refuse into navigable waters. 

Water Pollution Control Act 

P.L. 80845 

Gave the federal government authority for investigations, research, and surveys. Left primary 

responsibility for pollution control with the states. 

Water Pollution Control Act 

Amendments 

P.L. 84-660 

Federal Water Pollution Control 

Act Amendments 

P.L. 87-88 

Strengthened federal enforcement procedure. 

Water Quality Act Created Federal Water Pollution Control AdP.L. 89.234 ministration. 

Clean Water Restoration Act 

P.L. 89-753 

Water Quality improvement Act 

P.L. 91-224 

Increased grant authorizations. 

Established ilability for owners of vessels which 

splli oil and created new rules regarding thermal 

pollution. 

Federal Water Poifutlon Control 

Act Amendments 

P.L. 92.500 

Safe Drinking Water Act 

P.L. 93-523 

Established federal pollution policy for 1956.70 

period. Provided (I) federal grants for construction 

of municipal water treatment plants; (2) complex 

procedure for federal enforcement actions against individual dischargers. 

Set policy under which the federal government 

now operates. Provided (1) federal establishment 

of effluent limits for individual sourcas of poliubon; (2) issuance of discharge permits; (3) large increase In authorized grant tunds for municipal 

wastetreatment plants. 

Directed EPA to set standards, applicable to all 

public water systems, to protect human health 

from organic, inorganic, and microbiological con 

taminants and for turbldity in drinking water. 

31 
Figure 1 (Continued) 

MAJOR FEDERAL ENVIRONMENTAL LEGISLATION 

Dale Title Important Provisions 

1077 

1055 

1063 

1965 

1967 

1970 

1074 

1977 

Federal Water Pollution Control 

Act Amendments 

P.L. 05.217 

Relaxatlon of some standards under 1072 amendments. Relaxes existing industrial antipollution 

standards on suspended sollds, fecal bacteria, 

and oxygen demand of discharge if It can be 

shown that the cost of equipment exceeds 

benefits. 

AIR POLLUTION CONTROL 

Air Pollution Control Act 

P.L. 84.150 

Authorized a federal program for research, 

tralnlng, and demonstrations relating to air pollu. 

tion control (extended forfouryears in 1950). 

Clean Air Act 

P.L. 88.206 

Gave the federal government enforcement powers 

through enforcement conferences similar to the 

1056approach to water pollution control. 

Motor Vehicle Air Pollution 

Control Act 

P.L. 89272 

Air Quality Act 

P.L. 00.148 

Added new authority to 1063 act, giving HEW 

power to prescribe emission standards for automobiles as soon as practicable. 

(1) Authorized HEW to oversee state standards for 

ambient air quality and state implementation 

plans; (2) set national standards for auto emissions. 

Clean Air Act Amendments 

P.L. 91604 

Greatly expanded the federal role in setting and 

enforcing standards for ambient air quality and established stringent new emission standards for 

automobiles. 

Clean Air Act Amendments 

P.L. 03.319 

Technical amendments. Some relaxation of standards. 

Clean Air Act Amendments 

P.L. 05.05 

Required states with air quality nonattainment 

areas to adopt plans for full compliance by 1982. 

Deferred further reductions in automobile toxic 

fumes until 1981. 
Date Title 

SOLID WASTE AND RESOURCE 

RECOVERY 

1965 Solid Waste Disposal Act 

(Title II of P.L. 89-272) 

as amended by the Resource 

Recovery Act of 1970 (P.L. 

91.518and P.L. 93.14,973) 

Figure 1 (Continued) 

MAJOR FEDERAL ENVIRONMENTAL LEGISLATION 

Important Provislons 

(1) Promoted the demonstration, constructlon, 

and application of solid waste management and 

resource recovery systems; (2) provided technical 

and financial assistance to states, local Qovernments, and interstate agencies in the planning 

and development of resource recovery and solid 

waste disposal programs: (3) provided for national 

research for improved management techniques; 

(4) provided for federal guidelines. 

Resource Conservation and 

Recovery Act 

P.L. 94.580 

Provided technical assistance for the development of management plans and facilities for 

recovery of energy and other resources from discarded materials. Regulated management of, 

hazardous wastes. 

1976 

1968 

1972 

1972 

1977 

NOISE POLLUTION CONTROL 

Air Act to Require Aircraft 

Noise Abatement Regulation 

P.L. 90.411 

Noise Control Act 

P.L. 92.574 

Amended Federal Aviation Act of 1956 to require 

aircraft noiseabatement regulation. 

(1) Provided for coordination of federal research 

and actlvfties In noise control; (2) authorized establishment of federal noise emission standards 

for products distributed in commerce. 

CHEMICALS 

Federal Environmental Pesticide 

Control Act (as amended by 

P.L. 94-51 and P.L. 94-140) 

Toxic Substances Control Act 

P.L. 94-469 

Authorized federal regulation of pesticides and 

related chemicals including banning. manUfaCture, commercial sale, and use. 

Required testing and necessary use restriction on 

certain chemical substances. 

33 
Figure 1 (Continued) 

MAJOR FEDERAL ENVIRONMENTAL LEGISLATION 

Date Title Important Provisions 

1964 

1965 

1972 Coastal Zone Management Act 

P.L. 92-563 as amended 

1976 

1976 

1972 

1973 

WATER RESOURCES AND LAND USE 

Water Resources Act 

P.L. 86.379 

Established water resourca research centers to 

promote a more adequate program of water 

research. 

Water Resources Planning Act 

P.L. 69.80 

Provided for the “optimum” development of the 

nation’s natural resources through coordinated 

planning of water, and related land resources. Established a water resources council and river 

basin commissions. 

(1) Provided for assistance to states to develop 

and implement management programs for use of 

land and water resources of the coastal zone 

areas; (2) encouraged participation and cooperation among the public, federal, state, local, and 

regional authorities in development of coastal 

zone management programs. 

Federal Land Policy and 

Management Act 

P.L. 94.514 

Provided an organic act for the Bureau of Land 

Management (Department of the Interior.) Directed that unless otherwise specified, the management of public lands be on a multiuse and sustained-yield basis. 

National Forest Management Act 

P.L. 94-588 

Required comprehensive assessment of present 

and anticipated uses, demand for, and supply of 

renewable resources from the nation’s public and 

private forests and rangelands. 

Marine Mammal Protection Act 

P.L. 92-532 

Regulated the taking of marine mammals and 

replenishing any species or population stock 

which has diminished. 

Endangered Species Act 

P.L. 93.205 

(Same as above for endangered nonmarine 

animals.) 

34 
Figure 1 (Continued) 

MAJOR FEDERAL ENVIRONMENTAL LEGISLATION 

Date Title Important Provisions 

1989 

1970 

1960 

1985 

1966 

1986 

1968 

1968 

1969 

1969 

1970 

1970 

1971 

1972 

1972 

1974 

1974 

1975 

COMPREHENSIVE ENVIRONMENTAL ACTS 

The National Environmental Policy 

Act (as amended by P.L. 94-52 

and P.L. 94-83.) 

Established a national environmental policy; required information on and coordination of federal 

prefects and programs impacting upon the en. 

vironment; established the Council on Environmental Quality. 

Environmental Quality Improvement 

Act (Title II of P.L. 91-224) 

Required each federal department and agency 

conducting or supporting public works activities 

which affect the environment to implement the 

policies established under existing law. 

HEALTH, SAFETY, AND CONSUMER ACTS 

(Date and title only) 

Federal Hazardous Substances Labeling Act 

Service Control Act 

National Traffic and Motor Vehicle Safety Act 

Federal Metal and Nonmetalic Mine Safety Act 

Natural Gas Plpeline Safety Act 

Flammable Fabric Act 

Federal Coal Mine Health and Safety Act 

Child Protection and Toy Safety Act 

Federal Railroad Safety Act; Hazardous Materials Transportation Control Act 

Occupational Safety and Health Act 

Federal Boat Safety Act 

Ports and Waterways Safety Act 

Consumer Products Safety Act 

National Mobile Home Construction and Safety Act 

Motor Vehicle and School Bus Safety Act 

Hazardous Materials Transportation Act 

35 
Chart 2 

BIGGEST PROBLEMS FACING PEOPLE, 1970-76 

(in percent of response) 

40 

30 

20 

10 

,.,,,,._..,.... . .._._, 

36 
Chart 3 

PUBLIC OPINION RESPONSES INDICATING THAT THE FEDERAL 

GOVERNMENT IS SPENDING “TOO LITTLE” ON THESE 

FEDERAL PROGRAMS, 1973.77 

(In percant of persons polled) 

Bo 

50 

_<-- _---’ 1 -- 

-.. 

. .._ \ 

%” 

. . . 
In 1970, criticism of the Clean Air Act came only from 

industry and even this was guarded criticism since it 

was hardly advantageous from a public relations standpoint to be “propollution.” That “the times they are a 

changin ’ “‘06 is evident from the very vocal outcry that 

attended the nonattainment provisions. Nor did this 

opposition come only from industry, as this excerpt 

from an article by former EPA Deputy Administrator 

John Quarles illustrates: 

This provision, like a loose cannon on a 

pitching deck, threatens a path of destruction. 

The new law is likely to stop construction of 

new plants or plant expansions in heavy indus, 

tries such as steel, rubber, cement, mineral processing or chemicals in many of, he largest 

cities and most industrialized areas t h roughout 

the Great Lakes and Northeastern regions of 

the country. It probably will prevent any ex+ 

pansion after 1979 of the petroleum and petrochemical industries in Southern California, 

and it may have similar effects along the Gulf 

Coast in Texas and the East Coast from 

Virginia to Maine.‘O’ 

In December of 1977, Congress promulgated 

amendments to the Water Pollution Conrrol Act. Unlike 

the air amendments, with their conflicting patterns of 

stringency and lenience, the water amendments can 

only be interpreted as a Congressional attempt to “back 

off’ from the strict standards imposed by the 1972 act. 

Under the terms of the 1977 amendments, clean up of 

“conventional” pollutants (i.e: suspended solids, fecal 

bacteria, etc.) can be delayed if the agency finds that the 

cost of new antipollution equipment would exceed the 

benefits derived.‘08 In addition, the deadline for compliance was moved from 1983 to 1984. Understandably, 

this portion of the amendments has been favorably 

greeted by industry and termed “a serious step backward” by environmentalists.‘09 Congressional framers 

of the amendments see it as a compromise solution to 

the economic/environmental impasse. According to 

Senator Jennings Randolph, “There comes a time when 

you have to compromise or you don’t bring out a 

bill.“L’0 

Also to the chagrin of environmentalists is a 

provision which will exempt federal projects, authorized 

by Congress, from the need for a permit to dredge wetlands.“’ State, local, and private projects still need to 

obtain such a permit from the Army Corps of 

Engineers and EPA, but under the exemption Congressionally authorized projects will be required only to 

submit an impact statement to the appropriate Congressional committee. 

38 

Like the air amendments, hdwever, ~the water 

amendments have ltiosened some screws while tightening others. For instance, the act mandates stricter 

control over 129 toxic chemicals. Accordingly, industry 

is required to install “the best available technology” to 

abate such pollutants by 1984. Supposedly, no exemp 

tions will be granted. 

THE CHANGING SHAPE OF 

ENVIRONMENTAL POLICY: 

THE EFFECTS OF THE NEW 

ANTIREGULATORY MOOD AND 

STATE DEPARTMENT TURNOVER 

Intrinsically related to the problems of an ailing eco. 

nomy and rapidly diminishing energy resources is the 

current antiregulatory sentiment. The notion that 

industry is now overregulated,-to the point that res&ant annual coe.ts range in the billions of dollars and 

initiative and creativity are stifled at every turn,-has 

gained recent widespread acceptability. Of course, those 

citing excessive regulation are not merely aiming their 

displeasure at pollution control and abatement. Occupational, transportation, and consumer product safety 

regulations, among others, have generated considerable 

criticism. However, bccause the benefits of pollution 

abatement and control are so difficult to mea~ure,“~ 

the costs of environmental regulations have been particularly susceptible to attack. Realizing this; EPA has 

begun taking steps to instill more flexibility in its regulatory procedures. 

Thus, in a move that wns greeted less than enthusiastically by environmentalists, EPA instituted the “bubble” policy. So named because it conceives of each 

industrial plant as being “contained in an imaginary 

bubble that has a single stack emitting pollutant~,““~ 

the policy allows “companies to decide where to cut 

emissions as long as overall air quality standards are 

me[.“‘I’ Moreover, in a recent response to President 

Carter’s pledge to “reduce the regulatory burden”“’ on 

the struggling U.S. auto industry, EPA has decided to 

delay, and in some cases reverse, a number of its emissions and exhaust standards. 

Equally as critical to the future shape of environmental policy was a series of foreign policy events occurring in the spring of 1980 which lead to the resignation 

of Cyrus Vance as Secretary of State and the sppointmerit of Edmund Muskie as his successor. Muskie’s departure from the Senate marked a critical turning point 

in environmental policymaking for a number of reasons, 
First, the Maine Democrat’s seniority and influence 

always assured environmental matters a serious heating 

on Capitol Hill. Second, since 1970, Muskie had generally adhered to the more stringent forms of pollution 

control--sometimes swimming against the antiregulatory tide. Hence, the effects of his absence were felt just 

15 hours after his formal resignation from the environmental subcommittee, when the remaining 

members voted unanimously to repeal a provision of 

the Ckan Water Act which required industrial users of 

federally funded sewerplants to pay a portion of capital 

costs. An industry-sponsored measure, the repeal was 

something against which Muskie had fought for eight 

years and a Senate staff member’was quick to sum up 

the situation: “It’s an indication of the measure of the 

man and the power he wielded over that committee 

that they waited until he was gone and then rammed it 

right through.“lL6 

Finally, on May 15, 1980, Senator Mike Gravel (DAK) was chosen as Muskie’s subcomminee successor. 

Probably the last choice of environmentalists to chair 

“their committee,” Gravel isBest known for his intransigence on federal 

control of Alaska lands and his support for development there, particularly of oil resources, 

[and] the $nator is an outsider in the clubby 

Senate circles, a factor which may further 

hamper environmentalist protection moves his 

subcommittee might want.“’ 

FOOTNOTES 

” Ed. 

a Andrew. Entirom~un 1 Policy and AdmmirrmriueChnngc. p. 13. 

19Nakmd Envimnmmm, Pobq An of ,969, P.L. 91.190,Title ,I. Sec. 

202. 

m Anderson, NEPA in tk Cmq P, 9. 

“The manapr’s sraw,,enr as appended co the conference reporr 

appears in 115 CO”& REC. 39703 Washington. DC, U.S. Govcmmem P~inring Office. Dec. 17, 1969. (Congrcman Aq,inaU did 

not sign) Source: Anderson, NEPA In The Cmm, p. 9. 

‘2 115 Gang. Rec. 39703, Washington, DC, U.S. Government Printing CSce, Dec. 17. 1969. Source: Liroff: A Nnrkmd Pdiq far rk 

Ewironmmr, p. 30. 

” Wbiraker. Snikingo Edact, p. 50. 

“Ibid. 

39 
6’lbui., p, 82. 

‘Datics, TkP&ticrofPolkdon,p. 42. 

-‘Ihe Warhingron Pan, March 27, 1980. p. A-14. 

-Grad, Envimnmmral &ml, p. 68. 

“P.L. 89-272, Title II, Sec. 202(b), 1965. 

MWhitakcr, Snikinga Baloncqp. 113. 

“Ibid., p. 112. 

40 
chapter 5 

The Unequal Partnership: 

The Continuing Roie Of The Stat& 

And Areawide Planning 

A3 alluded to several times in the preceding pages, 

massive federal intervention into the field of environmental protection has had the effect, in many instances, of creating an environmental role for the states 

rather than undermining a previously viable role. Since 

approximately 1970, states have responded to federal 

initiatives through general compliance and through 

their own laws and new administrative arrangements. 

Under the terms of the Clean Air Act Amendments, 

states are required to create implementation plans for 

achieving pollution control limits set by EPA.’ In 

addition, states are responsible for “establishing the 

boundaries of area classification to prevent significant 

deterioration of air quality.“’ Such boundaries are established according to the desired economic activity for 

particular areas. 

The Water Pollution Control Act Amendments provide 

for state water quality standards and for state plans to 

achieve those standards as well as discharge standards 

established by EPA. According to sections 208 and 305 

of the act, states and areawide agencies are instructed to 

regulate “the location and construction of future waste 

water treatment facilities and establish strategies to 

control nonpoint pollution so~rces.“~ 

Many states have gone well beyond the scope of these 

federally mandated functions. In this regard Article Xl, 

Section 2 of the Constitution of the state of Illinois is 

instructive: 

Each person has the right to a healthful environment. Each person may enforce his right 

against any party, governmental or private, 

41 
through appropriate legal proceedings subject 

to reasonable limitation and regulation as the 

General Assembly may provide by law.’ 

Clearly, declaring a right is far bolder than NEPA’s assertion that citizens should enjoy a healthful environment. Other states have amended their constitutions to 

include references to environmental quality’ and some 

have enacted detailed environmental policy acw6 

Total state environmental expenditures also increased significantly during the 1970s. Between 1972 

and 1975, state expenditures for all environmental 

quality control activities increased from $1.03 billion to 

$2.89 billion--an increase of 180%.’ 

State response to federal environmental initiatives, as 

well as to indigenous legislation, is dramatically illustrated by the number of recent environmental reorganizations. Between 1967 and 1975,34 states adopted new 

administrative arrangements to deal with environmental quality controL8 

States generally have relied on three basic organizational types: the health department, the little EPA, and 

the environmental superagency. 

The health department model is the most traditional 

and widely criticized of the three. It represents the historic relationship between the environment and public 

health concerns which once served to obscure pollution 

control efforts. However, proponents of this model 

argue that health departments have well-established relationships with their local counterparts and avoid unnecessary duplication in the administration of public 

health and safety.1° 

The second type, little EPAs, have earned their desig 

nation by organizing along the lines of the Federal 

EPA. Finally, as suggested by the record, the minimum 

definition of an environmental superagency is one that 

includes three pollution control programs along with 

“at least one other state conservation or development 

p*0gIa”l.“” 

Thus, federal intervention into the environment has 

stimulated state activity rather than preempted state 

functions. Yet, this federal-state arrangement has not 

endeared itself to everyone. Many state governments 

have expressed concern over their roles as implementors of federal pollution programs. They complain 

that such programs have created financial hardship due 

to inadequate federal funding and administrative involvement.‘~ 

In addition, representatives from northeastern and 

midwestern states have begun to feel that federal 

standards-especially ambient air quality standardsdiscriminate against growth in older industrial cities. 

42 

In the terms of the Clean Air Aa New York 

City and New York state are, with respect to 

many pollutants, “nonattainment areas.” This 

means that they do not attain “national ambient air quality standards” established by the 

act. And because the standards are not attained, new sources of pollution are not 

permitted to locate in these areas, or are permitted to do so only under very stringent regulations. New sources of pollution include 

power plants and factories and might otherwise be described as new sources of jobs.” 

These state economic concerns are symbolic of an increasingly general reticence to improve the environment for future generations when such improvement is 

wen as imposing major costs on the present generation. 

A recent federal attempt to provide states with more 

environmental flexibility is reflected in pending legislation known as the “integrated Environmental Assistance Act.“” Supported by the National Governors 

Association,‘I the stated purpose of the bill is to 

provide “a flexible environmental program of integrated financial assistance to state and local governments to plan, manage, and implement abatement and 

control strategies in a more efficient and effective 

manner.“‘6 Flexibility would be provided by awarding a 

single grant in lieu of as many as ten separate grants.‘7 

The single grant, then, is intended to allow a certain 

amount of financial leeway among functions inanified 

state environmental plans. 

Another intergovernmentally significant facet of federal environmental legislation has been the creation of 

areawide planning agencies. Currently, three areawide 

programs are funded through EPA: air quality control, 

waste treatment management, and solid waste planning. (See Figure 2.) 

Legally recognized air pollution control agencies can 

be defined in any of four ways: 

1) 

2) 

3) 

a single state agency designated by the Governor of that state as the official state air pollution control agency for purposes of the [ Clean 

Air] Act; 

an agency established by two or more states 

and having substantial pavers or duties 

pertaining to the prevention and control of air 

pollution; 

a city, county, or other local government 

health authority, or, in the case of any city, 

county, or other local government in which 
Figure 2 

SELECTED DATA ON AREAWIDE ENVIRONMENTAL PROGRAMS 

Air Quality Control 

General Purpose: To help state, local, 

regional, and interstate 

agencies plan, develop, 

and establish programs 

for prevention and 

control of air pollution 

through implementation 

of ambient air standards, 

Types of 

Activities 

supported: Regulation and planning 

Eligible Areas: States and local 

governments and 

designated regions 

Membership of 

Organization: Government officials. 

State Role: 1) State is con- 1) State desigsulted before nates organidesignation; zation;’ 

2) state program 2) state program 

for the same for the same 

function is function is 

also federally also federally 

funded; funded; 

3) State assumes 3) state aSS”meS 

function as function as 

last resort. last resort. 

Waste Treatment 

Management 

To encourage and facilitate the development 

and implementation of 

areawide waste treatment 

management plans. 

Solid Waste Planning 

To help develop plans 

and programs leading 

to the solution of solid 

waste management 

problems. 

Urban-industrial 

and other areas 

with water quality 

problems. 

Elected officials 

from local 

governments or 

their designees 

(others not specified). 

Planning. 

State, interstate, 

municipal, and 

intermunicipal 

agencies (priority 

given for areawide 

planning). 

I 

Not specified. 

1) State designates 

organizations; 

2) state program for 

the same function 

is also federally 

funded. 

43 
4) 

there is an agency other than the health authority charged with responsibility for enforcing ordinances of laws relating to the prevention and control of air pollution, such 

other agency; or 

an agency of two or more municipalities 

located in the same state or in different states 

and having substantial powers or duties 

pertaining to the prevention and control of air 

pollution.‘~ 

Aside from their planning responsibilities, such agencies have responsibility for implementing air quality 

standards. Thus, they possess a regulatory as well as a 

planning function. The EPA is authorized to make 

grants to these agencies for up to two-thirds of the costs 

of planning air quality programs and up to one-half of 

maintenance costs. However, in order to encourage regional cooperation and broader-based planning, EPA 

may carry up to three-fourths of the costs of planning 

and three-fifths of the program maintenance costs for 

agencies covering a statewide, interstate, or intermunicipal jurisdiction. 

According to section 208 of the Clean Water Aa, the 

governors of the 50 states are responsible for designating areas with “substantial water quality control 

problems.“‘P Such areas may be substate regions whose 

boundaries are entirely within a single state or interstate areas linking two or more stares. Upon designation of an area, the Governor appoints a “representative” planning agency whose membership is to include locally elected officials. 

Grants provided under 208 have been especially lucrative. For those agencies submitting plans prior to 

October 1, 1977, EPA was required to provide 100% of 

the costs of the planning process for a two-year period 

and 75% thereafter. This provision, of course, has made 

208 quite popular. However, failure on the part of EPA 

to obligate funds has caused planning delays as well as a 

considerable amount of disappointment and frustration 

among regional councils.“0 

Finally, EPA is required to provide grants of up to 

75% of the costs of planning and coordination of solid 

waste programs. Such grants may be awarded to state, 

interstate, municipal, or intermunicipal agencies. Once 

again, priority is given to areawide planning. 
Chapter 6 

From Increments To Giant Steps: 

Analysis Of The Growth 

Of A Federal Function 

I f each turning point in the history of governmental 

involvement in the environment had been attended by 

a banner headline, a collector might have had the 

following acquisitions by early 1978: Cities Struggle 

Under Blanket of Smoke; Washington Offers Clean-Up 

$$$ To Mayors, Governors; Feds Tell States-“You 

Clean Up Or We Will;” States Take Cue-Begin Big 

Cleanup Effon; Public Says, “No More Pollution”-Environment Called Issue of The Decade; Congress Responds to Public Uproar-Legislates Nonexistent Technology; Courts Give “OK” To Environment; Costs Up, 

Interest Down-Environment No Longer No. 1 Item on 

National Agenda. 

In a very simple way, these “headlines” trace the development of the federal environmental role-a development which took place in two very distinct stages. 

That is, up until approximately 1969, federal assump 

tion of a traditional, though largely unrealized, state 

and local function was accomplished slowly over a 

period of at least 20 years. It was policy developed by 

Congressional entrepreneurs and relevant support 

groups; legitimated through the “proper” bargaining 

channels; backed primarily by one patty; and, finally, 

applied as small adjustments to existing rules. In other 

words, just as life is sometimes an imitation of art, so, 

the reality of the stage one policymaking process was a 

fairly accurate “imitation” of increment&m and the 

pluralist model. (See Figure 3.) 

In marked contrast to the pre-1969 model of policy 

making by incremental adjustments, the second stage illustrates the rapid growth of federal regulations and institutions when an issue becomes public. This stage cot45 
responds to Jones’ concept of “speculative augmentation, the escalation of proposals leading to the enactment of law admittedly beyond the immediate 

capabilities to apply.“l Here, the process of legitimation, in the form of mass public demands (demonstration democracy), precedes policy formulation. The 

response of policymakers then becomes one of rapid 

policy escalation finally applied as lofty national goals. 

(See Figure 4.) The eventual outcome of stage two was, 

in some respects, a sort of policy backlash resulting 

from unrealized goals and leading to a less escalatory 

process and more realistic (or less unrealistic) outputs. 

These stages, of course, represent two vastly different 

responses to the same problem-responses which were 

shaped by different forces and which resulted in very 

different policy outputs. In assessing the growth of the 

federal role in the field of environmental protection it 

will be useful to summarize, in slightly more detail, 

some of the factors which contributed to, and constrained its growth during each of the two stages. 

STAGE ONE: 

POLICYMAKING BY INCREMENTAL 

ADJUSTMENTS 

1. Forces Generating Greater Federal 

Involvement: Problem Recognition 

World War II had a number of well documented primary and secondary impacts upon the American lifestyle. Certainly, it left the nation sadder and not quite 

so naive and, if there is a less negative side to war, it left 

it more powerful and productive. The increased productivity, in turn, contributed to undreamed of prosperity, 

but it also contributed to the nightmare of pollution. 

This industrial fact of life was recognized by the 80th 

Congress which introduced several water pollution bills 

in 1947’ and produced the Water Pollution Control Act 

in 1948. 

In the realm of air pollution, too, a problem was recognized-albeit considerably later (1955) and following 

far more tragic evidence of its existence (Donora, PA, 

London, New York.) The Congressional response to 

the pollution problem, in the cases of both water and 

air pollution, was the same. That is, the problem, once 

recognized, needed to be researched and, once researched, small sums of money would entice states and 

localities into solving the problem themselves. Thus, 

this first, relatively unfocused phase of problem recog. 

nition forced the creation &weak legislation. It did 

little to solve problems, but it was a start. 

By the 1960s the state of knowledge was burgeoning 

and with the growth of knowledge came a new environmental sophistication. The result was an increasing recognition of the scope of the pollution problem’ 

coupled with the realization that the problem was not 

being solved at the state and local levels. The response 

was the pollution legislation of the 196Os, measured in 

small adjustments to existing laws rather than radical 

ventures into the unknown. 

Incentives, particularly waste treatment construction 

grants, were “sweetened” considerably. Federal regulation of state and local pollution moved from a posture 

of friendly persuasion to one of firm but gentle nudging. 

Finally, a new problem-auto pollution-was added to 

the agenda. 

2. Policy Development: Entrepreneurs, 

Support Groups, and the 

Effect of Party 

POLICY ENTREPRENEURS 

The first stage of environmental policymaking was 

decidely Congressional. More precisely, it was policy 

initiated, guided, and sold primarily by a few “entrepreneurs” within Congress. 

The earliest clear example of the entrepreneurial role 

was provided by Rep. John Blatnik, chairman of the 

Rivers and Harbors Subcommittee of the House Committee on Public Works.’ According to M. Ke.nt Jennings, Blatnik assumed this role for three reasons: 

First, he was a conservationist, joining an 

academic background in natural science and 

mathematics with practical experience in the 

Civilian Conservation Corps during the depression. Second, as a member of the Rivers 

and Harbors Subcommittee, he was impressed 

with the filth and pollution he saw during his 

travels . . [Third,] Congressmen generally 

make their mark in the House by establishing 

themselves as specialists in a substantive legislative area. Blatnik’s record, while respectable, 

was not particularly notable prior to 1955, 

when he became chairman of the subcommittee.* 

Thus, Blatnik created an entrepreneurial/sponsorship 

role for himself born of the relationship between his 

natural and experiential interests and his desire for 

recognition. 

The Minnesota Congressman was successful in nurturing this role for nearly ten +ears. From 1956 to 1965, 

46 
Figure 3 

STAGE ONE: 

FEDERAL POLLUTION POLICY DEVELOPMENT AND IMPLEMENTATION, 

1964-66 

System 

Goal 

Process 

output 

Development Implementation 

Sequence of 

Activities - 1. Identification/Formulation 4 2. Legitimation _t 3. Application 

Articulation of new Insured Contextual 

knowledge majority change 

Policy entrepreneurship/ Bargaining Adaptation 

Support group access 

Proposal Incremental Ruleadjustment 

change 

SOURCE: Based upon charts found in Charles 0. Jones, CleanAir, pp. 17,294. 

Figure 4 

STAGE TWO: 

FEDERAL POLLUTION POLICY DEVELOPMENT AND IMPLEMENTATION, 

1969-72 

Sequence of 

Development Implementation 

System Activities - 1. Legitimation - 2. Formulation ‘3. Application 

Goal 

Process 

output 

Satisfied majority 

Demonstration 

democracy 

Indeterminate 

majority 

Unspecified 

change 

Escalation 

Speculative 

augmentation 

(policy proposals 

beyond capability) 

Determined 

limits 

Risk-taking 

Rhetorical 

goals 

SOURCE: Jones, Clean Air. p. 294. 
if anyone could be called “Mr. Water Pollution 

Control” it was John Blatnik. Unquestionably, he was 

responsible for initiation and passage of both the Water 

Pollution Cond Act of 1956 and the F&ml Water Pollution Control Act of 1961. 

In a very significanr way, Blatnik left his mark on all 

subsequent water pollution legislation. His firm commitment to grants for municipal waste water treatment 

plants never wavered. In increasingly larger amounts, 

those grants continue to be the mainstay of federal water pollution policy. Certainly, Blatnik would have enjoyed retaining his hegemony in the area of water policy; but by 1965, Senator Edmund Muskie, with the 

backing of the President, introduced stronger legislation. The pollution entrepreneurship shifted not only 

from one person to another but from the House to the 

Se”ate.6 

In the late 1950s and early 1960s pollution policy entrepreneurship was divided between water and air. 

Thus, water pollution was attacked by Rep. Blatnik 

while Rep. Kenneth Roberts took the first steps toward 

more effective air pollution legislation. This early 

division of labor was due to the fragmented committee 

jurisdiction in the House which, at that time, was 

taking the lead in environmental policymaking. In contrast, the authority for the two elements was combined 

in the Senate. The man who engineered this consolidation was Edmund Muskie. 

Actually, Musk& prominence as the nation’s chief 

pollution fighter was born of an adverse situation. 

Having once voted against Majority Leader Lyndon 

Johnson on the Senate cloture rule, Muskie was due for 

some political “punishment.” That punishment manifested itself in a less-than-desirable committee assigns 

merit-the Public Works Committee.’ Yet, despite lack 

of enthusiasm over rhe assignment, Muskie managed to 

parlay a bad circumstance into a good one when his 

chairman, Patrick McNamara (D-MI) designated a special subcommittee on air and water pollution. The subcommittee was officially created and given permanent 

status in 1963. Its chairman, the fourth ranking committee Democrat, was Ed Muskie.* 

AhskieP de as envk?nmemd &ky eR~relleur 

par excellence has been well documented. Though he 

wa only partially responsible for the C&n Air Act of 

1963, he was almost totally responsible for the air pollution acts of 1965 and 1967, as well as for the watet pollution acts of 1965 and 1966. In the nature of a policy 

entrepreneur, he massaged each succeeding piece of 

legislation-thus slowly enhancing his own role while 

making incremental changes in the policy over which 

he held sway. This, of coutse, was the Muskie of Stage 

““-One who responded to increasingly sophisticated information on the problems of a polluted environment with 

legislative adjustments. The Muskie of Stage Two reacted in a considerably different way to a considerably 

different set of stimuli. 

SUPPORT GROUPS 

Neither Senator Muskie not Congressman Blatnik 

(nor, for that matter, any of the Congressional champions of a cleaner environment) could create policy 

without support from outside Congress. Throughout 

Stage One the bulk of that support came from the 

urban lobby, represented by such groups as the National League of Cities U.S. Conference of Mayors, the 

American Municipal Association, and the National Association of Counties. Their involvement was instrumental not only in promoting the eventual passage of 

pollution legislation but in shaping and, in some instances, actually writing the laws. 

This urban involvement began as early as 1956 when 

Congressman Blatnik requested American Municipal 

Association aid in drafting his Water Pollution Control 

Act.3 The association’s efforts were visible in the sewage 

treatment grant provisions as well as the federal enforcement provision. The power of the urban lobby was 

felt in the Senate also: 

The [National League of Cities was] welcomed in Congressional committees that 

[were] not necessarily urban oriented and [was] 

therefore the urban lobby focus in the Public 

Works Committee.‘o 

By the 1960s these mayoral lobbying efforts had sueceeded in changing the thrust of pollution legislation 

from rural conservation to urban environmentalism. 

Thus, immediately upon succeeding to his new subcommittee chairmanship in 1963, Muskie sought the aid of 

Hugh Mields. lobbyist for the US. Conference of 

Mayors.” Mield’s influence was present both in subsequent water and air legislation. In the area of water polk&m mntrd he p&ed f&r, and received subscancially 

larger sewage tteatment grants. In addition, his own 

strong air pollution bill, drafted in 1962, included 

federal enforcement and an increase in grants-in-aid. 

Air pollution legislation was supported by other 

urban interests as well. Testifying at the 1963 Senate air 

pollution control hearings and supporting federal enforcement were the likes of Mayor Richard J. Daley of 

ChicagoI and Mayor Joseph M. Barr of Pittsburgh, 

whose statement in behalf of the American Municipal 

48 
Association was representative of the sentiments of 

many big city Mayors: 

National assistance is needed in meeting a 

problem which cannot be bottled up within a 

given region. It is meaningless to establish 

effective control programs in one locality, if 

another locality across a state line is unable for 

whatever reason to control pollutiqn~‘; :. The 

record will show that up to the present time, 

local governments and states, with a few 

notable exceptions, have not developed adequate programs for abatement and connol of 

air pollution.” 

UrbanMz~u~ andadministrators, then, had several 

good reasons for supporting the federal environmental 

role as strongly as they did. First, as stated by Mayor 

Barr, they recognized the regional nature of pollution 

and the corresponding futility of a single city’s efforts to 

abate it. Second, as seen in the case of Gary, IN, 

uniform federal regulations were perceived as the only 

way to protect the integrity of a city’s air and warer tesources while, at the same time, holding on to a vital industry. Finally, economic incentives in the form of con, 

struction grants continued not only to grow across-theboard but, increasingly, to favor the larger urban areas. 

One other group should be mentioned briefly, 

though it was far less significant in the Stage One 

policymaking process than the urban lobby. These were 

the conservationists whose successors, the environmentalists, were to become such a compelling force during 

the early phases of Stage Two. While the conservationists always supported the growing federal environmental role in all its aspects, they were more instrumental in promoting efforts to preserve the 

wilderness and protect recreation resources than in 

determining the urban antipollution thrust of federal 

policy.‘+ 

THE PARTY EFFECT 

A fina? variable-party membership-played a significant role in Stage One policy development. This was 

particularly true of the 1956 to 1961 period and of water 

pollution control in general. (See Table 3) As Tuble 3 

reveals, most of the meaningful party-line votes came 

on motions to recommit. In these cases recommittals 

were sponsored by Republican members of Congress 

with the aim of deleting or significantly weakening 

grant provisions. Such voting, of course, was reflective 

of the Eisenhower Administration’s contention that 

“water pollution [was] a uniquely local blight.“‘5 In fact, 

as noted previously, the President and his Republican 

allies in Congress were never so concerned with an 

expanding federal role per se as they wete with an expanding federal budget. Thus, no matter what rhetoric 

Table 3 

PERCENTAGE OF VOTES IN SUPPORT OF WATER POLLUTION CONTROL 

ON RELATED ROLL CALLS IN THE HOUSE OF REPRESENTATIVES, 

1956.61, BY PARTY OF REPRESENTATIVE * 

Roll Calls Democrats Republicans 

1956 Recommittal 88% 21% 

1956 Final Passage 97 85 

1957 Approprlailon Deleilon a4 23 

1959 Recommittal 89 9 

1959 Final Passage 89 19 

1966 Veto Override 90 10 

1961 Recommiltal 92 14 

1961 Final Passage 91 47 

‘All percentages reflect the pro vote on water pollution control regardless of the specific direction Of the orignal vote. 

SOURCE; M. Kent .hnhQs, “Legislative Politics and Water Pollution Control,” in Congress and Urban Problems, ed. 

by Frederic N. Cleaveland. Washington. DC, The Brookings Institution, 1969, p. 10.2. 
was expounded, the party-line vote ultimately came 

down to one of dollars and cents. 

This, of course, was one of the early constraints on an 

expanding federal role. When a Democratic Adminstration came to power in 1961 these budgetary constraints were loosened and grant authorizations doubled; but throughout Stage One, barriers-real or perceived-continued to keep the federal role from e+ 

panding to its full potential. 

3. Constraints on Federal Expansion: 

Pollution Control as a 

State and Local Responsibility 

During the Stage One period of policymaking by incremental adjustments, a common theme continually 

surfaced with each attempted expansion in the federal 

role: water and air were local resources and, thus, 

problems to be resolved by localities and ultimately by 

the states. However, these “states’ rights” assumptions 

were never tested as genuine Constitutional questions. 

Rather, they served as philosophical bases for practical 

objections to federal expansion. These objections were 

reflective of two sets of concerns: (1) that federal 

spending was increasing too rapidly, and (2) that compliance with federal standards would be both costly and 

administratively cumbersome. The expression of these 

concerns occurred in two phases which overlapped 

both chronologically and in terms of actors but were. 

nonetheless, distinguishable. 

Phase 1: The Republican Budget 

Primary responsibility for solving the [water 

pollution] problem lies not with the federal 

government but rather must be assumed and 

exercised, as it has been, by state and local 

governments The federal government can 

help but it should stimulate state and local 

action rather than provide excuses for inaction 

16 

The quotation noted above was taken from President 

Eisenhower’s 1960 veto message. The veto, which succeeded in stalemating Congressman Blatnik’s efforts in 

the field of water pollution control, was used because of 

proposed new sewage construction grants. In fact, it 

was a theme invoked by the Republican President 

whenever there were attempts to increase grants-in-aid 

for sewage construction. That the state responsibility 

theme was used selectively was seen in 1955 when the 

Water Pollution Control Act came up for extension. Administration amendments would have given PHS the 

power to begin federal abatement procedures in any 

state, without its permission, if another state was 

adversely affected by the offending state’s pollution. In 

addition, it would have allowed PHS to set water q&Iity standards for interstate bodies of water. Thii was a 

considerable departure from the 1948 law and was subsequently deleted by the Senate Public Works Committee.” Thus, while the Republican Administration 

was intractable in its contention that states had fiscal 

responsibility for pollution control activities, it was 

willing to enforce federal standards. 

Phase 2: The Antienforcement Argument 

Practically any issue produces some fairly clear pros 

and cons. However, the universally harmful nature of 

pollution makes it quite different from other issues. It 

would probably be impossible to find even a single individual who favors pollution. The most “public be 

damned”minded industrialiit does not like to choke on 

the air he or she breathes. Thus, while the pollution 

issue and its successor, the environmental issue, could 

never simply be broken down into propollution and antipollution forces, industry, as an interest, fought 

hardest against federal regulatory controls. 

Though their relationship was tenuous, to say the 

least, the federal enforcement issue often succeeded in 

uniting industrial interests and state interests‘against 

the urban lobby and conservationists. While the 

practical reasons for this stance against federal regulations differed, the philosophical rationale remained the 

same. A sampling of statements made in testimony 

prior to enactment of the Clean Air Act of 1963 illustrates the point. The Manufacturing Chemists Association stated that “Too much stress on federal enforcement will discourage state and local level enforcement 

people and impair their programs.“18 The American 

Iron and Steel Institute argued that air pollution was 

not serious enough to justify “intrusion of the federal 

government into what has hitherto been strictly local 

and state affairs.“19 The National Association of Manufacturers contended that federal regulations would 

result in the “stifling of local initiative.“20 Finally, the 

states, represented by the National Association of Attorneys General, asserted that “a self-generating federal 

enforcement program seems premature, to say the very 

least.“*’ The message of the statements was clear-the 

federal government was intruding where it was neither 

wanted nor needed. Pollution was a state responsibility 

and the regulation ofpolluters was a state prerogative. 
By 1965, the states’ rights issue had become somewhat less convenient for industry-in particular, for the 

auto industry. Suddenly a uniform federal emission 

standard seemed far less difficult to implement than 50 

different state standards. The Motor Vehicle Pollution 

Control Act signalled the beginning of a decline in industrial influence over the Congressional pollution 

committees. The practical objections to enforcement 

remained but the philosophical facade had been badly 

eroded. 

The final product of the Stage One policymaking 

process was the Air Quality Act of 1967. It was nothing if 

not the perfect expression of incrementalism: It continued grants-in-aid at a higher level and added to the 

federal enforcement role. 

On January 1, 1970, the first expression of the new 

mode of environmental policymaking was signed into 

law. It marked the beginning of a series of radical departures from the “normal” policymaking process. The 

battle against pollution had ended; the war to preserve 

the environment was beginning. 

STAGE TWO: 

SPECULATIVE AUGMENTATION 

1. Forces Generating Greater Federal 

Involvement 

PUBLIC OPINION AND 

“DEMONSTRATION DEMOCRACY” 

Throughout Stage One the policy process leading to 

greater federal involvement in the environment was 

orderly and eve” predictable. Had environmental policymaking proceeded along such lines, the next “expetted” step would have been a slight expansion of 

federal enforcement powers coupled with increased authorizations when the Clean Air Act came up for reconsideration in 1970. However, the policymaking process, 

like the human beings responsible for it, often deviates 

from the comfortable confines of predictable behavior. 

Environmental legislation in the 1970s ceased to be a 

base for incremental adjustments-it had become a 

launching pad. The catalysts for this policy deviation 

were extensive coverage of environmental disasters by 

the press and a” unusual outpouring of public opinion. 

By 1969 public interest in environmental matters was 

beginning to grow. Though it had hardly reached the 

flood tide stage that it would in the following year, it 

was growing enough to convince the astute politician of 

its issue potential. More important in 1969, however, 

were a series of “pollution events” which managed, temporarily, to deflect front-page news away from Viet- 

“am. Particularly disastrous were the Santa Barbara oil 

spill and the Cuyahoga River fire. Of such stuff was legislation born. According to NEPA scholar Richard A. 

Liroff: 

NEPA was enacted when public interest in 

the environment was rising. The Santa 

Barbara oil spill had just occurred, the Cuy& 

hoga River had caught fire, and the news was 

laden with stories of environmental trauma. 

Clearly a gesture of Congressional concern was 

in order. For many legislators, undoubtedly, a 

vote for NEPA was symbolic-akin to a vote 

for motherhood and apple pie. Little did they 

realize, however, that in voting to enact 

NEPA, they were placing a potent weapon in 

the hands of citizen activists.z2 

Thus, responding to perceived pressure from outside 

to be environmentally aware and active, Congress 

neglected to examine the potential impacts of the law. 

That a number of Congresspersons subsequently 

regretted this lack of legislative consideration is attested 

to by the following comments which Mr. Liroff obtained from Congressional staff aides one year after 

NEPA’s enactment: 

If we had waited another year, we wquld 

have developed legislation which wasn’t so 

drastic in terms of program effect 

If Congress had appreciated what the law 

would do, it would not have passed. They 

would have see” it as screwing public works 

. The timing of the bill complicated the way 

it worked. Had it passed a year earlier or later, 

things would have been far different. 

If Congress had known what it was doing, it 

would not have passed the law. .= 

Had NEPA been considered in 1968, its form and 

substance probably would have differed considerably 

from the legislation of 1969. However, it is doubtful 

whether Congress would have responded any differently in 1970 than it did in 1969. By 1970, public interest in the environment had reached its celebrated 

Earth Day proportions. Such demonstrations represented the articulation of demands upon lawmakers 

to clean up the environment, now. The demands were 

far-reaching-in some cases, eve” impossible; yet, the 

numerical scope and class background of those making 

the demands forced Congress to respond with extreme 

measures. 

51 
“Demonstration democracy,” of course, was not unprecedented. The civil rights, poverty, and antiwar demonstrations of the 1960s had paved the way for the 

environmental movement. What was unusual and politically so significant about these demonstrations was 

the middle class initiation and involvement. The environmental movement was not peopled primarily by 

the alienated of society (blacks, poor, young). Rather, 

the demonstrators represented the “mainstream.” In 

addition, the environment tended to be a unifying 

issue. It seemed to narrow the gap, if not actually join 

the generations. Finally, the villains, technology and 

growth, were easy targets-vague intangibles which 

could hardly be expected to respond in their own 

defense to outside attacks. 

The sum of this public force changed the shape of 

policymaking. Normally policy is formulated and then 

legitimated. In the case of Stage Two environmental 

policymaking the processes were reversed. According to 

Charles 0. Jones: 

Whereas we normally think of fotmulation’s 

preceding majority-building in the policy process and identify each step with the executive 

and legislative, respectively, in 1970 a majority 

seemingly awaited unspecified strong action. 

Thus, instead of a majority having to be established for a policy, a policy had to be constructed for a majority. Much of that occurred 

within Congress as proposals escalated toward 

various actors’ perceptions of what was necessary to meet public demands.” 

2. Policy Development 

THE CASE OF POLITICAL ONEdJPMANSHIP 

Unlike Stage One, the Stage Two environmental 

policymaking process involved more than a few Congressional entrepreneurs and supportive interests. As 

the scope of public interest expanded, the number of 

actors directly involved in the process also expanded. In 

addition, policymakers began reacting not only to their 

perceptions of public demands but to the proposals of 

other policymakers as well. Thus, environmental policy 

came to be made in what was essentially a game of oneupmanship. 

Of course, Senator Muskie was once again the pivotal 

figure. In order tc~ retain his position as chief environmental policymaker he, more than anyone, was forced 

to react to each new actot who entered the process. 

Having watched his proposed “National Air Quality 

Standards Act” (a series of incremental adjustments to 

the Air L&&y Act of 1967) eclipsed by the President, 

the House, the Nelson-sponsored Earth Day, and, 

finally, what was almost certainly an overly critical 

Nader report, he was literally forced to come up with 

something “bigger and better” or relinquish his leadership role. Muskie’s choice was reflected in the Clean Air 

Act of 1970. (See Table 4) 

In their new reactive stance, Muskie and his subcommittee created a greatly expanded federal policy based 

largely on popular demands and political feasibility. 

The technical and economic problems of implementing 

such a policy were simply not considered, as this exchange between Senator Muskie and Senator Robert 

Griffin (R-MI) illustrates: 

MR. GRIFFIN Did the committee have any 

hearings in this session on this problem as to 

the state of the art--on the likelihood or possibility that this goal can be reached by 1975? 

MR. Musw. Yes, we had testimony jointly 

before the Conimerce Committee and before 

our committee from the automobile companies 

on the state of the art. With respect to this specific deadline, no. 

Mx GRIF~V. On this particular bill? 

MR. Musw. No. 

MR. GNFFN. No hearings? 

MR. MUSKIE. The deadline is based not, I 

repeat, on economic and technological feasibility, but on considerations of public health. We 

think, on the basis of the exposure we have 

had to this problem, that this is a necessary 

and reasonable standard to impose on industry. If the industry cannot meet it, they can 

come back. . 

MR. GRIFFIN. Without adequate expertise, 

without the kind of scientific knowledge that is 

needed-with [out] the hearings that are necessary and expected, this bill would write into 

egdmon concrew requirements that can be 

/m;oss!blc. .I5 

Nonetheless, under the pressure of unusually extensive 

press coverage, the Muskie proposals were unanimously 

passed by the Senate, agreed upon almost to the letter 

in conference, passed by voice vote in both chambers, 

and signed by President Nixon on December 13, 1970. 

One year later, bold water pollution policy was fashioned in much the same way. 

SUPPORTGROUPSOLDANDNEW 

Throughout Stage Two, the urban lobby continued 

to show its power in huge grant authorizations for 

52 
Table 4 

ESCALATION OF AIR POLLUTION PROPOSALS, 1970 

Major Administration 

Provisions Bill 

House-Passed 

Bill 

Senate-Passed 

Bill 

Air Quality Standards 

Control Regions 

Implementation Plans 

Stationary-Source Emissions 

Automotive Emissions 

Fuel Standards 

Aircraft Emissions 

Federal Facilities 

Money Authorized 

Judlclal Review 

Citizen Suits 

+ ++ ++ 

++ + 

+ ++ +++ 

+ ++ +++ 

+ ++ +++ 

++ + ++ 

++ + 

+ + 

open + ++ 

+ 

+ 

- indicates no provision. 

+ indicates provision included. 

Additional +‘s indicate strength of provision relativeto otherbills. 

SOURCE: Jones, Clean Air, p. 204. 

waste treatment and solid waste projects. In addition, 

grants for waste treatment management plans, though 

stressing regionalism, clearly favored urban areas. 

Section 208 of the Federal Water Pollution Control An 

Amendments of 1972 proposes: 

encouraging and facilitating the develop 

merit and implementation of areawide waste 

treatment management plans [in] state[s] 

which, as a result of urban-industrial concentrations or other factors, [have] substantial 

water quality control problems. 

The urban thrust is clear as is the reason for its 

popularity: 

(t)(2) The amount granted to any agency 

under paragraph (1) of this subsection shall be 

100% of the costs of developing and operating 

a continuing areawide waste treatment 

management planning process. .*’ 

While the urban lobby remained an important component in the environmental policymaking process, a 

new group, the environmentalists, had come to equal 

its input and overshadow its press coverage. In fact, the 

environmentalists were a more militant and broadbased version of the old style conservationists. 

In a book entitled, Lobbying for the Peo&, Jeffrey M. 

Berry defines a public interest group as LL~ne that seeks a 

collective good, the achievement of which will not selectively and materially benefit the membership or activists of the organization.“2e Certainly, environmentalists and their predecessors, the conservationists, have 

always fought for a collective good or, at least, their perception of a collective good and, thus, qualify as public 

interest groups. Of course, early conservation groups 

such as the Sierra Club had a rather narrow view of the 

collective good. That is, the collective good consisted of 

protecting forests and wildlife, presumably, from any 

encroachment by the collectivity. As the environment 

became an issue of increasing public importance, 

however, such venerable institutions as the Sierra Club 

and the National Wildlife Federation experienced rapid 

growth. Enlarged membership rolls tended to draw 

these groups into the mainstream of popular environmental concerns. In addition, a number of new groups 

formed and the issues and tactics changed. 

First, a concerted effort was made to influence public 

opinion. This was certainly clear in the case of Earth 

Day, a “national event” coordinated by the group 

53 
which later became known as Environmental Action.29 

The success of their efforts was apparent. 

Second, a number of the newer groups have chosen 

the courts as the arena in which to wage their struggle. 

This is particularly true of the Natural Resources Defense Council and the Environmental Defense Fund. 

They have been joined in the touts by some of the 

older groups, notably, the Sierra Club and the Izaak 

Walton League.‘Q 

Finally, some of the newer groups have chosen not to 

attract membership. Instead, their resources have been 

spent on lobbying Congress and acting as a public information sowce. This information often includes the 

environmental voting records of members of Congress 

as well as those of gubernatorial candidates.” 

THE EFFECT OF JUDICIAL INTERVENTION 

A final critical factor in Stage Two policy development was the court system. This was especially true of 

federal environmental policy as defined by NEPA, a law 

whose broad language and action-forcing potential left 

it particularly open to judicial interpretation: 

Environmentalists’ dissatisfaction with 

agency response, their desire to see an elaboration upon NEPA’s broadly stated requirements, and their viewing NEPA as an ultimate 

weapon to use against ongoing projects that 

they hitherto had unsuccess64ly opposed-all 

combined to push many vital decisions about 

NEPA’s meaning into the courts. NEPA’s 

enactment at a time when the courts were 

increasingly opening their doors to “public 

interest groups” also spurred this lateral 

nm”elnent from the executive to the 

judiciary.3f 

The courts have facilitated the application of NEPA 

as well as the Ckan Air and Federal Water Pollution 

Control Acts by broadly interpreting citizen-standing to 

su@ and, in the case of NEPA, by strictly interpreting 

the procedural requirements of the law. Such actions, 

in turn, significantly contributed to the accelerated federal environmental role in at least two ways. In the first 

place, court decisions regarding NEPA have succeeded 

in doing more than prodding a few agencies into action. 

The more pervasive effect has been to substantially 

heighten the environmental consciousness of all federal 

agencies. Second, the liberal interpretation of standing 

to sue has had a valuable side effect for those environ54 

mental groups pressing claims. ‘That is, the publicity 

afforded these groups by major court actions-particularly in the 1970-73 period--was instrumental in 

rallying public opinion to their cause. 

3. Constraints on Federal Expansion: 

Policymaking “Without” Constraints 

That policymaking during Stage One proceeded incrementally was due, in large measure, to the real and 

perceived constraints which served to delimit the 

federal role. These “constraints” on federal expansion 

included budgetary concerns, a powerful and effective 

industrial lobby, and a reticence to usurp a traditional 

state function. By 1969, the environmental policy 

making process and, consequently, the scope of the 

federal role were beginning to change dramatically. 

Suddenly there seemed to be no constraints on what 

the federal government could or should do to save the 

environment. More appropriately, the following factors 

served to loosen many of the constraints which usually 

occur throughout the policymaking process: 

broad-based public demands, which, as expressed in demonstrations as well as public 

opinion polls, not only were the most important contributing factor but served as a catalyst for the remaining factors; / 

reticence on the part of policymakers to claim 

budgetary or any other concerns as being more 

important than a clean environment; 

a feeling on the part of many federal policymakers that the states had had at least 20 years 

to act decisively and effectively with little 01 no 

result; 

the combination of events and changing attitudes, occurring throughout the 196Os, which 

made industry particularly vulnerable to 

attack; 

an unwillingness to seriously study possible 

economic and social costs of pollution control; 

genuine fear that cleaning the environment 

was, literally, a “now or never” proposition; 

and 

the ambivalent twin beliefs that the very 

technology which was labelled as the polluting 

enemy could, if properly directed, continue to 

maintain the same basic American lifestyle under conditions of clean air, water, and land. 
STAGE TWO: EPILOGUE, 

A NEW REALIZATION OF 

CONSTRAINTS 

In the spring of 1980, Senator Muskie became 

Secretary of State. Though unintentionally so, this 

event amounted to the symbolic swansong of the %nvironmental decade” and the prelude to the so-called 

“era of constraints.” Indeed, as early as 1971, the most 

vocal of the public demands for massive and radical environmental changes had already begun to subside and 

the diminution of intense public interest in the environment has continued since then. Where federal policy. 

makers once relied upon a decisive base of mass public 

support for large-scale environmental measures, they 

are now faced with the nemeses of conflicting policy 

demands and diminished public interest. The normal 

policy constraints, once dismissed as inconsequential 

vis-a-vis a cleaner environment, have begun to appear. 

Because the deterioration of the environment was 

viewed with such alarm in the period 1969-72, drastic 

environmental policies were felt to be needed, whether 

or not they conflicted with other policies. For instance, 

NEPA directed federal agencies to review and report 

the environmental impacts of anticipated and ongoing 

projects. This requirement, of course, could and did 

conflict with, delay, and even put a stop to other policy 

objectives. Increasingly since 1972, however, the 

perceived gravity of some conflicting policy outcomes 

has acted as a constraint upon the realization of certain 

environmental goals. Thus, in the case of the widely 

disputed Trans-Alaska Pipeline, the so-called energy crisis prompted Congress to exempt the Interior Department’s environmental impact study from review by 

the courts.3’ 

More recently, under the terms of the 1977 Water Pollution Control Act Amendments, permits for dredging 

wetlands could be obtained only for Congressionally 

authorized public works projects. And instead of the 

normal EPA review, such federal projects are only 

required to submit impact information to Congres~.‘~ 

As important as conflicts between and among federal 

programs are some emerging policy conflicts of an intergovernmental nature. One type of intergovernmental 

conflict can occur when a state or locality with an established pollution policy feels that federal environmental policies are contradictory to or, in any other 

way, are impeding its own policies. This type of scenario 

occurred as early as 1972 on the occasion of the Senate 

Clean Air Act implementation hearings. In this instance, a Los Angeles County supervisor testified that 

the federal air regulations, a set of policies which he described as “overkill on carbon monoxide,“36 were 

hindering long-established California environmental 

programs. In his words, “We cannot stand idly by and 

see our programs delayed by fruitless efforts to attain 

the unattainable.“” 

A second type of intergovernmental policy conflictair quality standards vs. urban economic revitalization-has also emerged as a constraint on the realization of environmental goals. Thus, the widely 

criticized “nonattainment” provisions of the 1977 Clean 

Air Act Amendments, if strictly applied, would have the 

effect of halting new industrial growth in cities unable 

to meet federal air standards. of course, such a policy 

would have its greatest impacts upon those cities most 

in need of revitalization and industrial expansion. As a 

result, President Carter’s urban policy initiative addressed this situation by advocating a relaxation in air 

standards and proposing “air quality planning grants to 

accommodate economic development.“38 Moreover, 

the proposed “Integrated Environmental Assistance 

Act” is intended to offer states and localities more 

control in planning their own unified environmental 

programs. 

Aside from the constraints imposed by conflicting 

federal, state, and local policies, the erosion of public interest in and support of drastic environmental measures 

may have imposed another type of constraint on the 

federal role. That is, policymakers and implementors 

(the regulators) increasingly may be forced to deal with 

those who are being regulated in a more cdoperative 

manner. In the case of an environmental policy 

developed within the context of speculative augmentation, this return to “regulation as usual” may have 

special consequences. Again, Prof. Jones offers some 

interesting insights: 

[Speculative augmentation] has emphasized 

large change to be effected through an adversary relationship with industry, but it has been 

followed without the quantum increase in 

knowledge that is required for its effectuation 

[T]he adversary approach to regulation 

normally requires considerable expertise on 

the part of the regulators [b]ut given [policymakers’] perception of public interest and 

concern they sought to get dramatic results by 

setting tough standards and forcing as much 

compliance from industry as possible This 

is a highly risky venture. As long as the regu 

lators can depend on public support, they can 

proceed to enforce regulations. With the erosion of public support, however, regulators are 
forced to compromise with industry in determining the level of compliance . . Thus, 

regulators are forced back into a cooperative 

mode, but without the advantage of having 

developed the regulations based on that 

approach.‘9 

In some instances this newly realized “constraint”- 

the need to cooperate-has resulted in lowered standards, extended deadlines, and new agency policies 

offering industry more flexibility in controlling pollution sources. Unlike many regulatory policies whichwhile enacted with idyllic preambles nonetheless assume cooperation from the beginning with those being 

regulated-environmental policymaking proceeded 

with more than the usual symbolic real. In creating environmental policy the rhetorical goals of the preamble 

extended throughout the legislation and early implementation. When the public support that made such 

policymaking possible began to fade, the result was, at 

least, disappointment and, at most, actual policy backsliding. These results occurred, to varying degrees, in 

the legislation of 1974 and 1977. 

A final new constraint on an expanded environmental role is the issue of costs. This can include public 

and private, social and economic costs. However, CUTrent reactions-typical of the new antiregulatory sentiment, generally-tend to emphasize economic costs. 

A number of problems emerge here which make any 

assessment of pollution control and abatement costs 

vis-a+is benefits difficult, if not impossible. In the first 

place, cost analyses from a variety of sources tend to be 

highly contradictory. In addition, there exist only frag. 

mented and weak benefit data. Beyond these problems, 

genuine environmental cost-benefit analysis lacks an effective methodology to compare the costs of plant 

closures with the benefits of fewer air pollutants discharged. 

What is significant for the purposes of this analysis 

are the emotional responses elicited by the issue of environmental costs vs. benefits. Such emotions are especially likely to be reflected in the policy process at a 

time when the economic state of the nation is less than 

ideal and the cost of living is the primary concern of 

most Americans. 

In 1970, consideration of the costs of pollution abatement and control was minimal. The overwhelming 

public mood-and consequently the mood of policymakers- was one of “clean air and water at ay cost!” 

This was consistent with the heady nature of the time 

and, as smog-free air had become almost an abstract 

concept to many city dwellers, so also, costs tended to 

be abstracted--and, at any rate, those were costs someone else would pay. 

By the mid-1970s the mood had changed. Not only 

were constraints recognized in the forms of conflicting 

policy goals and an overall lack of intense public interest; but suddenly the costs of controlling pollution 

were becoming visible. (See Tabk 5) In addition, release 

of figures such as those found in Table 5 are usually unaccompanied by discussions of the environmental benefits of pollution control. When benefits are discussed, 

they are defined in terms such as the “reduction of criteria pollutant discharges”-certainly less comprehensible and less dramatic than billion dollar-plus price 

tags! 

SPECULATIONS ON THE FUTURE 

OF THE FEDERA;Ot;VlRONMENTAL 

As Professors Co&y and Wandesforde-Smith discovered in 1969, predicting the course of environmental 

policymaking can be B risky business. Certainly, in 

1969, neither scholar nor practitioner could have 

predicted the environmental legislation of the 1970s. 

Nor is it any easier in 1980 to predict the scope of the 

federal role in 1990. The environment is clearly volatile, 

both in its elemental forms and as a policy issue. Nonetheless, a few concluding statements regarding the 

federal environmental protection role today niay Lx 

helpful in speculating on the future. 

1. The loss of Senator Muskie as chairman of the 

Senate Environmental Pollution Subcommittee 

(formerly the Air and Water Pollution Subcommittee) 

has engendered mope than a little anxiety among environmentalists, who feel that the absence of his substantial clout and seniority is “bound to drain some of 

the power and prestige of the group.“‘o Moreover, his 

short-term replacement, Mike Gravel, is primarily 

noted both for certain maverick tendencies which have 

alienated a number of his more powerful Senate colleagues and for strong stance on developing Alaskan 

lands-a policy position viewed with great alarm in 

environmentalist circles. 

2. In addition, environmentalists are less than 

sanguine about a Reagan presidency, which may place 

economic development and energy self-sufficiency 

before environmental protection. 

3. Regardless of who occupies Congress and the 

White House, the problems of an unstable economy 

and energy depletion are likely to alter or overshadow 

environmental policy for some time to come. Already 

56 
Table 5 

ESTIMATED TOTAL POLLUTION ABATEMENT AND ENVIRONMENTAL 

QUALITY EXPENDITURES, 1978.87 

(in billions of 1978 dollars) 

1978 1987 1978.87 

Total Total Cumulafive 

Annual Annual Total 

Costs’ CO#S’ Costs” 

Air Pollution 

Public 1.7 4.0 27.4 

Private 

Mobile 7.6 14.4 111.4 

industrial 6.2 11.3 07.4 

Utilities 3.8 13.0 79.5 

Subtotal 19.3 42.7 305.7 

Water Pollution 

Public 13.1 19.9 164.5 

Private 

industrial 4.7 12.0 65.3 

Utilities 2.4 3.9 32.1 

Subtotal 20.2 35.8 281.9’ 

Solid Waste 

Public 1.9 3.2 27.0 

Private 4.5 7.9 66.3 

Subtotal 6.4 11.1 93.3 

Toxic Substances 0.1 0.3 2.2 

Drinking Water 0.6 1.6 12.5 

Noise 4.05 0.1 6.6 

Pesticides 4.05 0.1 0.5 

Land Reclamation 0.1 1.0 8.0 

Total 46.7 94.2 710.7 

‘Includes operalion and maintenance costs and capital costs. 

**Includes capital investment, operation and maintenance, and capital costs. 

SOURCE: Council on Environmental Quality, Executive Officeof the President, Environmental Quality, 1070, 

Washington, DC, U.S. Government Printing Office, 1979, p. 667. 
Figure 5 

MAJOR CONGRESSIONAL COMMITTEES 

AND SUBCOMMITTEES INVOLVED IN ENVIRONMENTAL POLICY 

Committee 

SENATE 

Agriculture, Nutrition, & Forestry 

Subcommittee 

Environment, Soil Conservation, 

and Forestry 

Energy and Natural Resources Parks, Recreation, and Renewable 

Resources 

Environment and Public Works Environmental Pollution 

Water Resources and 

Resource Protection 

Foreign Relations Arms Control, Oceans, International 

Operations, and Environment 

HOUSE 

Agriculture Conservation and Credit 

Government Operations Environment, Energy, and Natural 

Resources 

Interior and Insular Affairs 

Interstate and Foreign Commerce 

Energy and the Environment 

Health and the Environment 

Merchant Marine&Fisheries Fisheries and Wildlife Conservation 

and the Environment 

Public Works and Transportation 

Science and Technology 

Water Resources 

Natural Resources and Environment 

Small Business Impact of Energy Programs, Environment 

and Safety Requirements and 

Government Research on Small business 

58 
seen in the form of a number of relaxed standards, financial and fuel woes, coupled with the new wave of 

antiregulatory sentiment generally promise an era of 

more flexible or lenient environmental controls. 

4. Finally, as pointed out previously, the environment is no longer dominant among the issues which 

arouse public attention and voter reaction. 

5. Yet, despite these factors, which might work to 

alter environmental policy, it is highly unlikely that the 

federal environmental role will greatly diminish and 

extremely improbable that it will cease altogether. The 

business of environmental protection has been firmly 

institutionalized as a permanent function of governments at all levels. At the federal level, this institutionalization has taken the forms of an agency, a council, 

and the active consideration of environmental impacts 

by all federal agencies. In addition, four standing 

Senate committees and eight House committees have at 

least some responsibility in making environmental 

policy. (See Figure 5.) 

Each stare now has some permanent agency or 

department with responsibility for environmental 

FOOTNOTES 

‘Jones, Clean Air. p. 176. 

‘S.418.H.R. 123,H.R. 315,H.R.470,8othCong., lstSess.,(l947) 

‘This new type of en”irO”me”fal wisdom is generally amibuted to 

the wblicadon of Rachel Carson’s Siknr Stim. Baron MA, 

Hou;hton Mifflin, 1962. 

‘Of course, Blatnik was nor the first member of Congress to push 

pollution IegLdation, he was merely the first to give it the bulk ofhis 

attendon. The Wnrer Pollution Cmool Aa of ,948 was sp.mored by 

Senators Barkley (II)-KY) and Taft &OH). The Air Pollution 

Canal An of 1955 WBS sponmed by Senators Thomas Kuchel (RCA) and Homer E. Capehart (R-IN). 

‘Jennings, “L&larive Politics and Water Pollution Control,” p. 75. 

6Blarnik retained responsibility for guiding much of Muskie’s wareel 

&i&don rhrough the House. 

’ Davies. The Politic of Pdution. p. 62. 

aRipley, “Congress and Clean Air,” pp. 259.260. 

pJames L. Sundquist. Paliticr and P&q, Washington. DC, The 

Brwking~Insdtution, 1968, p. 325. 

‘QSuranne Farkas, Urban Lobby@: Moyorr in the F&al Ama, New 

York NY, New York Universiry Press, 1971, p. 165. 

“Ripley. “Congress and Clean Air.” p. 254. 

“Ibid. 

“Sundquist, P&a and Policy, p. 354. 

“Ibid., pp. 335.340. 

“Mesage of February 23,19f,!l, Publti Pqm of thP Pmidmu, 1960, p. 

208. 

‘61bui., pp. 2OR209. 

“Sundquist. Politics and Policy. p. 324. 

“Tesrimony of Walker Pen&Id. in Air Pollution. Hearings before rhe 

Subcomminee on Public Health and safety of the House lntmstate 

and Foreign Commerce Committee, S&h Gong., 1st S-s. 

Washtnmx,. DC, U.S. Government Pr~ntine Of&, March l&19, 

1963, p.i30.* 

“Tcstimonv of Erwin E. Schulre. in Air Poll&m Cmml. Hearinea 

before the Subcommittee on Ai; and Water Pollution of ;he S&e 

Public Works Committee, 88th Gong., 1st Sas., Washington, DC, 

programs. At least four state legislatures have created 

special staff offices to deal with various facets of the environment.” Added to this array of federal and state institutions are the many local, regional, and substate 

bodies engaged in environmental activities. 

6. Moreover, public interest in the environment may 

have declined, but it would be misleading to claim that 

the public is no longer interested in a healthy environment. As was noted previously, when posing questions 

specifically aimed af tapping public concern over environmental matters, polls indicate that a significant 

number of people are still concerned with the quality of 

their environment. The fact the environment, as an 

issue, seems to be leveling off at about the same point 

where concern about education and health leveled off 

may be further indication of its institutionalization. In 

other words, it may be that the environment has 

become an enduring but relatively unemotional and 

secondary public concern. This, in turn, may be indicative of a return m the type of policy gradualism seen in 

Stage One. The environment will no longer set the 

national agenda, but it will certainly remain a part of it. 

U.S. Government Printing Oftice Sept. 11, 1963, p. 283.* 

‘“T~rimony of Daniel W. Cannon, in Air P&tin, Hearings, p. 

IQ?“* 

‘2Liroff, A Nnrional Policy for the Enuirmmr. p. 8. 

“See for example U.S. vs. SCRAP. 412 U.S. 669, 3ELR 20536 (U.S. 

June 18, 1973.) 

“W&raker, Striking A B&me. p. 335. 

“The Clean Water Act ar Amended, December 1977. Title IV, Sec. 

404. 

‘6U.S. Senate, Committee on Public Works, Subcommittee on Air 

and Water Pollution, Hearings, Im&mem&m of the Clean Air Act 

Amendmenu of 1970 Pati 3,92d Gong., 2d ?a.. Washington. DC, 

U.S. Governmenr Printing Office, 1972, p. 915. 

Tbid., p. 916. 

‘*Presidenr Jimmy Caner. “New Partnership to Conserve America’s 

Communities.” March27,1978,pSl. 

“Jones, Ckan Air, pp. 306-307. 

‘OLond Use Phning Repon, Vol. 8, No. 20, May 1980. 153. 

“Council of State Governments, The Bmk of the Sum, ,Lexington, 

KY, The Council of Srate Governments. 1976, pp. 76.83. 

59 



COMMISSION MEMBERS 

Private Citizens 

Abraham D. Beame. ACIR Chairman, New York. New York 

Bill G. King, Alabama 

Mary Eleanor Wall, Illinois 

Members of the United States Senate 

Lawton Chiles. Florida 

William V. Roth, Jr.. Delaware 

James R. Sasser. Tennessee 

Members of the U.S. House of Representatives 

Clarence J. Brown, Jr.. Ohio 

L. H. Fountain, North Carolina 

Charles B. Rangel. New York 

Officers of the Executive Branch, Federal Government 

Moon Landrieu. Secretary. Department of Housing and Urban Development 

James T. McIntyre. Director. Office of Management and Budget 

G. William Miller, Secretary, Department of the Treasury 

Bruce Babbitt, Arizona 

John N. Dalton, Virginia 

Richard W. Riley, South Carolina 

Richard A. Snelling. Vermont 

Mayors 

Thomas Bradley. Los Angeles. California 

Richard E. Carver, Peoria, Illinois 

Tom Moody, Columbus. Ohio 

John P. Rousakis. Savannah. Georgia 

State Legislative Leaders 

Fred E. Anderson, President, Colorado State Senate 

Jason Boe, President. Oregon State Senate 

Leo McCarthy, Speaker, California Assembly 

Elected County Officials 

William 0. Beach, County Executive, Montgomery County. Tennessee 

Lynn G. Cutler. ACIR Vice-Chair. Board of Supervisors, Black Hawk County, Iowa 

Doris W. Dealaman. Freeholder Director. Somerset County. New Jersey