Remarks of Leon G. Billings
75th Annual Meeting
Missouri Water Environment Association
Osage Beach, Missouri
March 22, 2004
Good morning. I have never been to this part of Missouri before, though my grandmother was born in Jefferson City -- in 1882. She was the epitome of a child of Missouri. She left here to stake out a homestead in Montana. She was a single woman. My father often said that she was as stubborn as a Missouri mule.
During my tenure as the staff director of the Senate Pollution Subcommittee, some people said the same about me.
I write my speeches. I write speeches because I know how easy it is to talk without thinking. writing without thinking is much more difficult.
I also write my speeches because this gives me an opportunity to organize my thoughts in a better way and even do some research. For example, I learned, while researching this speech, the name of the first woman elected to the United States Senate. She came from your neighboring state of Arkansas. She held water pollution hearings in the United States Senate -- in 1936.
Senator Hattie Carraway's hearings were on legislation to create a Federal regime to regulate the discharge of untreated waste in the nation's waters. That was more than a decade before Harry Truman signed the first clean water law. And it was 35 years before Ed Muskie wrote the first comprehensive Federal clean water law.
And I thought we had a corner on innovative pollution legislation.
Of course, pollution is a by-product of our existence. We all know that. The problem is that we do such a wonderful job of producing more than nature can treat. And our capacity to pollute has grown faster than our willingness to invest in pollution prevention.
By the 1960's we knew we had a national crisis. There were massive fish kills. Rivers were burning. Lakes were dying. Beaches were closed.
It was this crisis which caused my mentor, Senator Edmund S. Muskie of Maine, to launch what has become an international environmental crusade.
Senator Muskie started the evolution of national environmental policy before the word "environment" was in the popular lexicon; before the term "ecology" was a household word; before there were federal non-economic regulatory programs; and, most importantly, before there was certain scientific evidence that pollution caused long-term health and welfare problems.
Muskie knew that to build an environmental regulatory house not made of cards he would need a sound and defensible foundation. And, as an ex-governor, he knew that the regulatory task would need to be the responsibility of the level of government most appropriate to it.
He thus gave real life to two concepts: government science and Creative Federalism. (Some attribute the latter to Richard Nixon, but Muskie wrote the first laws articulating "Creative Federalism" while John Kennedy was still in the White House.)
Like the 1948 and 1955 laws, the debate on the structure and basis for environmental policy was largely the result of legislative initiative. While the administrations of Johnson and Nixon were involved in early clean water legislation, neither shaped the debate or determined the outcome.
Members of Congress developed today's national environmental policy behind closed doors before Congress opened up its processes to the public and to the media. Thus, the nature of those debates has gone largely unreported.
But, as the person charged with the responsibility to write the legislation and the legislative history which emanated from those discussions, I can report on both the focus and intent of the authors. The debate was vigorous, sharp, sometimes humorous, sometimes acrimonious, but always constructive and never partisan.
The members had lengthy discussions of the impact of pollution control investment on older plants like paper and steel; they talked about the impact on jobs and consumer prices. And when they debated non-point sources and agricultural runoff -- they even wondered whether non-point source controls would require "diapers on ducks."
As I have noted, Muskie believed that science should and would have to drive environmental policy, but that policy should not wait for scientific certainty because science was evolutionary, never final. His first effort was to require the development of the analysis which would support the regulatory outcome and provide the scientific basis on which to justify Federal intervention.
Our experience has been -- in every case that I can recall in the intervening 30 years -- that better science argues for more, rather than less, aggressive pollution controls.
In 1963 -- and even in 1936 -- the Public Health Service was the Federal agency responsible for pollution, largely because pollution was seen as a cause of disease. Muskie and his colleagues mandated the Public Health Service to develop scientific criteria based on biological and epidemiological evidence for measuring the impact of pollution on public health and welfare. (Note that the early pollution laws referred to public health and welfare, not public health and the environment, as is now the case. This was, in part, due to the fact that Muskie and his colleagues were focused on pollution's impact -- broadly defined -- and in part due to the absence of the word "environment" in common usage.)
These air and water quality criteria analyses or documents were to provide the scientific base for the regulatory policy function. They were authorized 40 years ago and they began to be published coincident with the explosion of public interest in protection of the environment in 1969 and 1970. They drove the debate on the 1970 Clean Air Act and the 1972 Clean Water Act.
In the early years, there were three competing perspectives in the evolutionary debate on national environmental policy.
There was the Muskie perspective, which was that national pollution control policy ought to be driven by the science of pollution.
There was the philosophy articulated by then Senator Howard Baker (R-TN), who believed that the pollution control result ought to be a function of the technology available to achieve that result.
And there was the philosophy espoused by then Senate committee chairman Jennings Randolph and many in the counterpart House committee leadership who argued that the pollution control result ought to be driven by economic feasibility.
In the end, there was a compromise between Muskie and Baker. Economic feasibility would not drive or limit pollution control policy. Scientific necessity and technological availability prevailed.
The compromise between Muskie and Baker (both of whom had backing from various colleagues) was predicated on a basic question: What happens when science requires a result but technology is not available to achieve that result?
Muskie argued that with respect to issues of public health the science should be used to force the technology and baker acceded, acknowledging that constraining the environmental result by the availability of technology was simply not a responsible outcome. They agreed that, to the extent technology might not be available to achieve the scientific result, more time could be provided.
Muskie accepted this compromise but insisted that Congress, not bureaucrats and not the courts, should make the decision to extend deadlines. Thus, the scientifically established pollution control objective could be delayed, but only to the extent technology to achieve that result had not become available in the time required and only if that failure could be proved to the Congress.
The founders of the nation's environmental policies believed that if Congress held this hammer, polluters were more likely to find solutions. They all agreed, albeit somewhat reluctantly, that a political decision to require a political debate to which the public could be joined would be preferable to a regulatory or judicial process where lawyers, bureaucrats, and technicians would determine outcomes.
Baker and Muskie had an enormous belief in the creativity of entrepreneurial America. Muskie often cited the ability of Ford Motor Company to convert from producing cars to producing airplanes for the World War II effort. Baker was a protege of the scientists at Oak Ridge National Laboratory.
They both believed that a nation capable of putting a man on the Moon could clean up municipal and industrial waste, automobile, and power plant emissions. Both exhibited a faith in invention to achieve regulatory outcomes, inventions which they couldn't predict nor were particularly concerned about predicting.
It was precisely this technology-forcing aspect of Federal pollution control law which has put the United States on the cutting edge of public health protection from environmental contamination -- and made the U.S. the world's leader in environmental technology.
But, to be sure, Muskie retained the deadline hammer as a hole card. He knew that there would be many who would argue the absence of technology to convince Congress to provide more time to achieve pollution reduction objectives. He had faith in the legislative process -- the political process -- and he knew that, at least for a time, he would be in a position to demand evidence of technological deficiency.
On no fewer than three occasions during the decade that Muskie was in control of the legislative process did industry come to Congress and demand more time, protesting that technology didn't exist. And on each occasion Muskie and his colleagues required evidence of the absence of technology rather than acceding to the overture of polluters. His successors -- Mitchell, Baucus, Stafford and Chafee -- were equally reluctant to waive clean air and clean water deadlines.
Until very recently there have been two fundamental truths about national environmental policy. first, and most important, is that our Federal environmental laws, without exception, have been the product of a bipartisan and geographically diverse initiative -- in many cases, like the Clean Air Act and The Clean Water Act, unanimously or near unanimously approved in each House of Congress.
The second truth is that national environmental policy has been a product of Congressional rather than executive initiative.
That was true in 1948, when Senator Barkley, a Democrat from Kentucky, and Senator Taft, a Republican from Ohio, sponsored the first Federal water pollution intervention, and even more true in 1972 when the basic Clean Water Act was enacted, and in 1977, when its mid-course correction took place.
So strong was the bipartisan support for the 1972 Clean Water Act that it passed the Senate 86-0 and the House 380-14, and the conference report was approved 74-0 and 366-10 respectively. President Richard Nixon's veto was overridden by a huge bipartisan majority. That vote, which occurred after midnight on the night in October, was 52-12 in the Senate and 247-23 in the House. This was the first Nixon veto to be overridden and we were in the fourth year of his first term.
The 1972 amendments are the epitome of the concept of Federalism, not just in the way the law is written nor the way the law has been implemented. Federalism was at the core of development of the structure of this law.
The views of states and localities were the driving force behind the legal philosophy Congress adopted. The permit program, which exemplifies a Federal approach, was crafted after consultation with the states. In perhaps a unique endeavor, the minority counsel and I traveled to Texas, California and New England in a three-day swing to listen for hours to the views of the administrators of state clean water programs.
We learned about the nature of clean water demands; that needs were very much a function of geography. We learned that regulatory policy was a function of geography. And we learned that the politics of clean water was very local.
In hindsight, I need to say we were pretty dumb when we left D.C. and better educated when we returned.
The NPDES permit program was written with three essential objectives in mind:
-- First, to eliminate the economic incentive for states to sell "dirty water" to attract new business;
-- Second, to take advantage of and enhance the capabilities of the states to do the job many were already doing; and
-- Third, to make sure that clean water permits issued by the states did not become embroiled in the National Environmental Policy Act (EIS) process.
In 1971, the Federal courts held that any discharge of pollution to navigable waters was illegal and subject to a bounty of $2500 to anyone who turned in a polluter. This created a crisis to which the newly-established Council On Environmental Quality proposed to respond by establishing a national program to issue permits to all dischargers -- a mind boggling, gargantuan task, to say the least.
The House of Representatives wanted to turn this program over to the states and be done with it. Senator Muskie and his colleagues demanded that we find an alternative which would keep the faith with the then-growing citizen concern for environmental protection, while at the same time maximizing the benefits of state regulatory capacity.
The permit program today and for the last 30 years is a product of that compromise. And, interestingly, while from time to time there are complaints from persons required to obtain state NPDES permits, I know of no concerted or organized effort to change this aspect of the law.
Of course, once in a while one hears screams of agony and cries of pain from the developers who are frustrated by the Section 404 Wetlands Permit Program, but even they have failed -- most recently being rejected by a president they assumed would be sympathetic to their position.
We have witnessed great progress under the Clean Water Act and its predecessor and successor amendments. But there is much yet to do. Some of the problems which were in the forefront in 1972 continue to plague the nation's older communities.
New growth still consumes too much of limited infrastructure funding for water pollution control. New science tells us that secondary treatment is often inadequate to achieve the law's biological integrity standard. And urban and rural runoff threaten to wipe out the benefits of point discharge controls.
The Federal government too soon abandoned its commitment to provide construction grant funding for waste water treatment facilities and, quite frankly, in my view, a loan program is simply inadequate.
Too many national treasures -- from my own Chesapeake Bay, to the myriad estuaries and lakes and trout streams across America -- are being contaminated unnecessarily by legally-permitted waste discharges treated to currently-approved levels. And, at the same time, the concentration of people in urban areas generating more and more waste is exacerbating the problem.
So, where do we go from here?
Quite simply, the nation needs a new clean water initiative. That initiative needs to be bold. At a minimum, it should include the following components:
-- First, a source of funding to provide the needed waste water infrastructure investment -- in a trust fund dedicated to this purpose.
-- Second, a ten year commitment from the Federal government to provide at least 50 percent of the cost of waste water treatment facilities, and I'm not talking about any investment in collection sewers to meet new growth. As a condition of receiving any Federal funds, states should be required to fix or have fixed failed septic systems.
-- Third, a beefed-up and vigorous enforcement program to assure that the public investment in waste water treatment facilities achieve the objectives funded, including publicly-reported continuous monitoring results.
-- Fourth, a renewed investment in the science of water quality. We need to know the levels of pollution that are safe and the levels of pollution that can be accepted by the nation's waterways, so that species are not endangered and public health is protected. In a word, we need the science to support the Clean Water law's biological integrity standard.
-- And, finally, we need to connect the dots. It is no longer adequate to assume that waste water discharges from point sources of pollution are the primary or the sole cause of contamination of our water resources. Whether it is mercury or pollution from power plant air emissions or fertilizer from urban lawns, the source of the contamination needs to be identified and a regulatory process established to reduce it.
It is unfair and unreasonable to try to impose on POTW's -- or industrial sources for that matter -- excessive controls simply because we lack the political will to regulate non-point or air emission sources.
We have experienced a decade of assault on the credibility of government science, challenged not because of the quality of that science but because of the regulatory implications good science entails. This too must stop.
This president wants to build a settlement on the Moon, a place with no potable water and no breathable air. My response is, if we have a trillion dollars to spend, let's first spend it to guarantee we have breathable air and potable water on this planet before we settle another one.
We cannot ignore the infrastructure needs simply because the funds aren't available. Like we need to extend the regulatory process to home lawns and agricultural fields, to air emissions and highway runoff, we need to establish a source of funding free of budgetary vagaries and anti-tax mania.
In a word, we should enact a national water user fee. Virtually every gallon of water consumed eventually passes back to the environment. We need to capture a portion of the cost of that water to invest in clean water development.
I will soon retire from the active advocacy community. I only hope the generation which must survive in the waste we produce is as committed to improving what they leave behind as were Ed Muskie and those of us who had the pleasure to work with him.