Before Ed Muskie, there was no national environmental policy.
There was no national environmental movement.
There was no national environmental consciousness.
by Leon G. Billings
AS THE FATHER of the modern environmental movement, Edmund S. Muskie leaves an indelible legacy as one of the pivotal figures of post-war America. Before Ed Muskie, there was no national environmental policy; there was no national environmental movement; there was no national environmental consciousness. Before Ed Muskie, we protected places and things. Stewardship was seen only in conservationist terms. Modern environmentalism, which protects human health and welfare, was mostly an academic subject. Through a unique blend of leadership, courage, and foresight, Ed Muskie made it national policy to protect human health by protecting the air, the water, the land. And that policy, that philosophy, has spread across the geopolitical surface of the planet.
Under his direction, the nation's environmental laws became a fabric. There was legal continuity, definition, and purpose. There was a policy basis which the public could grasp -- health in Clean Air, biological integrity and drinkable and fishable and swimmable in Clean Water. There were tools to achieve objectives and timeframes for action. There were performance mandates and defined roles for program administrators, the courts, and the public. No earlier federal laws contained all of these. Most contained none.
The Clean Air Act of 1970 was his outstanding achievement. For the first time, it set national statutory environmental goals. It required that air quality which would protect the health of people -- not just healthy people, but people sensitive to air pollution-related illness -- would need to be achieved within a five-to-seven year period. Then it gave the responsibility to states and localities to adopt air pollution control measures which would achieve that standard in that timeframe, to give states and localities the maximum flexibility to tailor air pollution cleanup plans to local economic and environmental needs.
To mold that law he combined Senator Howard Baker's commitment to technology-forcing with Senator Tom Eagleton's demand for deadlines and his own insistence that "health" standards be met. And then he challenged his colleagues in committee, on the floor, and in conference to defend anything less than forcing technology to achieve healthy air by a date certain. None did.
The bill established a requirement that emissions from new cars be reduced by 90 percent within five years. As important, it required that every car meet those reductions and that auto companies warrant emission performance to new car buyers. And the bill included a wide variety of public participation, scientific information, enforcement, and regulatory tools. No environmental law enacted before was as ambitious. None was as powerful. And none became as fundamental to our society despite uneven implementation and repeated attacks over the past 25 years.
The superficial memories of Ed Muskie are large. He was physically imposing. His flashes of temper were legendary, although overstated. He had a powerful voice, strong opinions, and sizeable political ambition. Yet the things that made him so effective were smaller, more subtle -- and he was the most effective legislator of his generation. He had not only brilliance, but thoroughness; not only tempter but patience; not only a clear and principled vision, but also the ability to find consensus that kept faith with his vision.
There are lessons not only in what he accomplished, but in the way he did it. Ed Muskie had served as a state legislator and governor before coming to the U.S. Senate in 1959. He had a lifelong interest in the processes of government. He was a hunter and fisherman and thus had a lifelong interest in conservation. But it was the fact that Maine's rivers were too polluted to allow new businesses to be established that led him to environmental protection.
As a second-generation Polish-American who grew up with the understanding that his father's native land was a victim of totalitarianism, he was a committed internationalist. As the product of a working class background, he understood what economic opportunity -- or the lack of it -- meant to the average citizen. As a product of Rumford, Maine, a paper mill town, he also knew first hand the price the earth had paid for economic progress.
As a Democrat in an overwhelmingly Republican state, Muskie appreciated the value of process in protecting individual right, and developed a talent for persuasion, consensus building and compromise. He possessed a combination of intellect, curiosity, and thoroughness that helped make him one of those rare Senators who could change their colleagues' minds. He had a clearly and completely articulated view of government, and, most importantly, he knew the difference between right and wrong -- in policy terms, in moral terms, and in terms of human interaction. This gave him an unshakable faith that activism could improve the human condition. And it made him a risk taker.
MUCH OF WHAT WAS SAID on the death of Edmund S. Muskie dealt with his political career. This is appropriate because it is not only the most public part of his life, but also the most controversial. It is not, however, that which will secure his place in history. Ed Muskie came to the Senate at a time when the Congress was controlled by southern Democrats; when the seniority system was the basis for power; when success in program and placement equated to getting along with those power brokers; and when liberals were new and numerous but not very effective. Because he challenged the southern-dominated seniority system on his first vote, he was exiled to three secondary committees. By the time he became chairman of the Government Operation's intergovernmental relations subcommittee, the Banking, Housing, and Urban Affairs housing subcommittee, and the Public Works environment subcommittee, he turned each into not only a major power base but also a laboratory for some of the most creative legislation passed in the 20th century.
As chairman of the Intergovernmental Relations Subcommittee, Muskie helped redefine the relationship between federal and state governments. During President Nixon's "Imperial Presidency" it was Muskie who developed the concept of the "New Federalism." His idea of creative federalism recognized that the level of government most able to perform a task ought to be the level charged with the responsibility for implementing the task.
Washington Post columnist David Broder summarized Muskie's role this way: "As chairman of the Senate's intergovernmental relations subcommittee -- a backwater assignment if ever there was one -- he made it the forum of the 1960s for that favorite issue of the 1990s, downsizing the federal government and shifting power and responsibility to the states.
"That was hardly the mind-set of most Democrats in the era of the Great Society, but Muskie and a handful of others insisted that as the scope of governmental responsibilities widened, the constitutional relationship between the states and Washington needed protecting. Muskie was not averse to activist government; he wrote much of the new environmental protection legislation enacted in the next decade. But he was wise enough to see that many of the new domestic initiatives needed to be tailored to the varying conditions of the 50 states. As later events proved, he was right."
Ed Muskie was committed to providing opportunities for American workers. He wrote the legislation -- carried by other senators -- that created the nation's economic development policies of the 1960s, including the Area Redevelopment Act and the Public Works and Economic Development Act. As chair of the housing subcommittee, he rewrote and floor managed the 1966 Model Cities legislation, which was to define the first major undertaking of the new Department of Housing and Urban Development.
Muskie's lasting legacy is the great body of environmental law that guides our national policy and serves as a world model. In it, one can find the proof of all his skills and his defining themes. His appreciation for process led him to propose a shared responsibility between federal and state agencies for environmental cleanup and enforcement. It led him to support citizen suit provisions to provide a vehicle for the victims to help themselves when government would not help them. His commitment to economic opportunities led him toward a rationale for cleanup as an economic necessity, and a view of air, water and land as limited economic as well as social resources. His commitment to improving the lot of the average American helped him embrace and capitalize upon the concept of public health as the fundamental basis for environmental law -- and in the process, helped him define modern environmentalism apart from conservationism. It also provided the essential justification for asserting a strong federal role in cleaning up pollution.
On the Public Works Committee, where he chaired the environment subcommittee, he worked with Senator Baker to break the Highway Trust Fund, making gas tax revenue available for public transit. To the consternation of anti-dam preservationists, he developed a sound working relationship with the redoubtable Senator Jennings Randolph of West Virginia, chairman of the committee and the greatest public works advocate of the Post War period. His relationship with Senator Randolph, his legislative skill, his appreciation for bipartisanship and compromise, his ability to outwait the opposition, his debating skills, his willingness to compromise on everything except principle, all can be seen in the history of these landmark laws.
HE GUARDED HIS role as environmental leader vigorously, and left his mark on every significant environmental action. He changed Senator Jackson's National Environmental Policy Act from a proposal which would allow government agencies to justify their adverse environmental impacts to a law which gave the public access to environmental impacts and a means to be sure that alternatives were fairly evaluated. He forced a commitment from the Nixon administration that the Environmental Protection Agency would be an advocate, not an adjudicator, of environmental protection.
In effect, the modern environmental movement started when, at his request, the environment subcommittee -- more conventionally known as the Air and Water Pollution Subcommittee -- was created in 1963, and he became its chairman. Prior to that time, there had been virtually no federal laws concerning pollution. There was no national forum to even discuss environmental problems. His first job was to educate himself and build a record against which any initiatives he might propose could be justified. By the time his colleagues began to ask questions, Ed Muskie already knew most of the answers.
At first, he took ever so modest initiatives to the Senate, trying to chip away at the precedents and prejudices which limited the federal government's ability to grasp the pollution problem and deal with it effectively. Over the seven-year period between 1963 and enactment of the Clean Air Act of 1970, the Senate passed numerous environmental laws, a few of which eventually went to Presidents Johnson and Nixon for signature. Each was modest. Each built on its predecessor. Each accomplished more than a prior initiative, especially if that initiative had failed to pass. And each reflected a broadening intellectual commitment shaped, urged, and negotiated by the intellect of Senator Muskie.
In the environment subcommittee he co-opted his opponents, always seeking to bring the best and the brightest in first, assuming that their colleagues would follow. Frequently, he would try to accommodate the concerns of his most antagonistic colleague, knowing that building that bridge could bring many votes across a philosophical gulf. He could engage Senator Jim McClure to fashion federal policy to keep areas with clean air clean (the so-called "prevention of significant deterioration" policy) and add hazardous pollutants to the provisions of clean water law which established strict, joint, and several liability.
He could convince Senator Jim Buckley to cosponsor the 1972 Clean Water Act. Buckley came to understand the relationship between his conservative political philosophy and the concept of conservation under Muskie's tutelage. As a result, he became an articulate supporter of the landmark 1972 Clean Water Act. As Buckley said: "I know of no situation in private life where a newcomer would have been accorded greater consideration, or where differences of opinion would have been given a fairer hearing than that which was characteristic of both the Committee on Public Works and its Subcommittee on Air and Water Pollution. I feel particularly fortunate to be a member of both and to have been able to work with the two chairmen and the committee staff, who have made so great an effort to accommodate differences of approach to common objectives."
Ed Muskie staked out a national policy which he himself defined only after the most excruciating of intellectual exercises. He frequently pointed out that the Clean Water Act required 44 Senate committee meetings and as many joint meetings in conferences with the House committee before action was concluded. But he never rushed any of his colleagues, though he tended to be more impatient with those on his left than those on his right.
His influence, of course, extended beyond those three subcommittees into other major areas of policy. In 1975, a Supreme Court decision on impoundment of water pollution funds authorized in the 1972 Clean Water Act created a constitutional crisis. In New York v. Ruckelshaus, the Supreme Court held that the president could not impound -- refuse to spend -- funds appropriated by the Congress. Impoundment had been a convenient discipline on federal spending. Congress could look good back home appropriating funds; the president could apply the frugality selectively. It was an informal line item veto. Its collapse forced Congress to reexamine its budget process. Ed Muskie seized this opportunity for reform and became the first chairman of the new Senate Budget Committee and the father of the modern congressional budget process.
Muskie's interest in foreign affairs led him to seek a seat on the Foreign Relations Committee, and he served on that committee twice. Among his accomplishments was the War Powers Act, once again a far-reaching reform of government process. It was this international expertise, as well as his broad respect gained through two runs on a national ticket, that made him the obvious choice to replace Cyrus Vance as secretary of state in 1980, where he was able to bring the social welfare principles of modern environmentalism to an international arena.
HE WAS THE ONLY Democratic senator who could sit longer, talk longer, and debate longer than his more conservative colleagues. During the 1975-1977 reauthorization or "midcourse correction points" for both basic laws, Muskie would schedule 8 a.m. meetings. Often he was the only senator to show up. Other times, it was he and one or two others and they would exhaust the minutia of each issue.
Muskie always tried to identify a position "to the left" of his own position. Thus, when he wanted to clean up motor vehicles in 1970, he pointed to the legislation sponsored by Senator Gaylord Nelson to ban the internal combustion engine as the alternative to federal mandatory standards and deadlines. The provision allowing citizens to sue to enforce environmental laws was juxtaposed with Senator Philip Hart's alternative of class actions to enforce environmental laws based on case-by-case standards established by the courts. And it was Senator Gary Hart's insistence on preserving a politically untenable auto emission standard of nitrogen dioxide which allowed Muskie to hold firm in 1977 against John Dingell and the all-out assault on the 1970 standards. (I would be less than complete not to recall that he was also able to tell Dingell that Maine didn't have any auto plants which might close. Dingell, faced with a massive shutdown of auto production, conceded defeat, only to become the Clean Air Act's enemy in Congress for the next decade.)
Imaginative and inventive, he used the Nixon administration's attempt to regulate water pollution based on the obscure Refuse Act of 1899 (which prohibited any discharge of any pollutant whatever into the nation's waters), to establish a national goal of "zero discharge" into waterbodies and a federal clean water program based on available technology.
Whatever the committee, preparation was his first demand. Senator Muskie never went to committee or to the Senate floor unless he knew the answer to more questions than anyone else would think to ask. He would beat his colleagues into submission with details. Few would even try to compete. And those that did would frequently ask to "take the matter to the cloakroom" so they could try to resolve the issue offstage rather than in open debate with the senator.
It was often said of Hubert Humphrey that he had more solutions than there were problems. Ed Muskie wanted more answers than there were questions. He always had room for one more idea, one more concept, one more way to get things done. But if someone had an idea, a concept, or an option, that person better have the detailed knowledge of how it would work in practical application. Ed Muskie never turned over the technical detail to staff. And in a Washington which all too frequently wanted to assume that policy was some staff conspiracy, detractors of Ed Muskie's environmental laws were frustrated by their inability to make that claim stick.
ED MUSKIE'S POLICY accomplishments will endure, embedded in the average American's expectations as well as in federal, state, and international policy. The environment is a settled issue for the average American, and increasingly so for the average business leader.
During the 1995 round attacks on environmental policy, most Americans did not take the anti-environment rhetoric seriously at first. When they became convinced that the new Congress was seeking to reduce environmental protection, the people found their voice and the GOP House is now scrambling to fashion a cloak of green.
There are lessons for the new leadership in this. There are also lessons in the way Ed Muskie did his job -- with a strong base of knowledge, with thoroughness, with tolerance for opposing views, with understanding that consensus was essential and comity required, and with an appreciation for process, history, and human welfare. It seems we need his vision more every day.
Copyright ©2000, The Edmund S. Muskie Foundation. All Rights Reserved.