March 3, 1976
Page 5139
EVOLUTION AND STATUS OF EFFORTS TO CLEAN ENVIRONMENT
Mr. CULVER. Mr. President, the Committee on Public Works has worked for nearly a year on amendments to the Clean Air Act of 1970. We completed action on those amendments on February 5, 1976, and the bill will be reported to the full Senate shortly.
Senator EDMUND MUSKIE, who is chairman of the Environmental Pollution Subcommittee, described those amendments and the process from which they resulted in a recent speech before the student bar association at the University of Detroit. He also raised several important questions in his remarks about the course and direction of our national environmental policy.
My distinguished colleague from Maine has been at the forefront of our Nation's concern about clean air and clean water, and any progress we have made in these efforts would not have been possible without his unerring dedication.
I share Senator MUSKIE's concern that this country still has a major job to do if we are to have environmental security, and that "we cannot afford to continue to treat either our lungs or our estuaries with disdain."
Senator MUSKIE's speech presents a stimulating analysis of our efforts to improve the quality of our environment, and I commend it to the attention of my colleagues. I ask unanimous consent that a copy of his address be printed in. the RECORD.
There being no objection, the address was ordered to be printed in the RECORD, as follows:
REMARKS BY SENATOR EDMUND S. MUSKIE AT UNIVERSITY OF DETROIT STUDENT BAR ASSOCIATION, SYMPOSIUM ON ENVIRONMENTAL LAW
I approach this appearance this evening with some trepidation.
You have heard this week from outstanding experts on environmental issues representing both the public and the private sectors. You have heard from State legislators, program administrators and special interests. I am sure that you have learned a great deal about the interplay, the development and implementation of environmental law, about the competing interests and the competing interpretations of State and Federal law.
I intend to deal with these issues in a general way. I want to talk about environmental laws, about recent environmental law making, and I would like to address the pressures and dilemmas which confront the Congress and the public in this process.
During the 13 years that I have been chairman of the Senate pollution subcommittee, I have watched the evolution of environmental laws.
We began simply. We authorized the development of the Federal expertise necessary to understand the scope of environmental problems. We established programs to assess the development of state and local regulatory programs. We established a rudimentary federal enforcement capability to deal with those environmental problems which did not respect jurisdictional boundaries. And, we began the process of regulating auto emissions — a task which required a federal presence.
Our knowledge expanded. The public became more aware of environmental problems. The Congress attempted to respond to the public demand for a significantly greater level of performance in the pollution control effort.
In 1970 we initiated the landmark Clean Air Amendments, followed over the next two years by the 1972 Clean Water Act. Those laws had two basic objectives: first, to establish specific regulatory requirements and precise timetables for achievement of those requirements, and second, to establish long-term public policy goals for environmental programs.
Both the Clean Air and Clean Water Acts were the result of our belief that public confidence had to be restored in both the progress and the results of these programs. For too long promises had been made and results had not been delivered. Autos which purportedly met stiff standards on the production line failed to comply after minimum mileage. Enforcement actions were tedious — the results ranged from limited to non-existent. Examples of failure are too numerous to mention.
But fault did not rest in any one place.
Congress was slow to provide adequate funding for costly water pollution cleanup. The auto industry continued to drag its technological feet. And there was little vigor at any level of bureaucracy.
Finally, the burden of demonstrating who was responsible for any particular pollution problem was virtually impossible.
Early clean air and water laws undertook to establish a relationship between a particular pollution source and a specific environmental quality result no matter how many pollution sources discharged in any given area. Predictably, no progress was made. A pollution enforcement officer had to be a mixture of Merlin the Magician and Leonard Jaworski to get a conviction.
First he had to unscramble the egg — then he had to prove who broke it in the first place. At best, the result of any enforcement action was whatever the polluter felt was necessary to meet public relations needs at least possible cost. Any environmental benefit was just good luck. I repeat: no wonder the American public was disillusioned.
We had the rhetoric of law and the actuality of increasing pollution incidents throughout the country. Beaches were posted for swimming and shellfish beds were closed. Mysterious fish kills were frequent. The Atlantic Salmon had disappeared from most Maine rivers. Major sections of coastline were periodically inundated with oil. And yet the American public was led to believe that something was happening because Congress had enacted the water Quality Act of 1965 and the Air Quality Act of 1967. So the American public demanded more — more than lip service to environmental control.
We had a choice: we could continue and try to improve past initiatives or we could change course and experiment with innovative methods which might achieve results at a more rapid pace.
We had succeeded only 19 days before Earth Day in 1970, in obtaining enactment of major Federal oil pollution legislation. But that bill was lost in the fervor of environmental activism.
The Clean Air Act of 1970 was a second attempt at this approach.
We knew our goals. They had been established in 1967 when Congress asserted a national interest in achieving health related air quality standards in our nation's urban-industrial areas and in maintaining clean air in regions in which air was still pristine.
The question we addressed in 1970 was tow to achieve these goals — how to move from rhetoric to regulation — how to maintain public confidence.
We proposed and saw enacted two basic tools — controls on emissions and establishment of deadlines. Emission controls replaced ambient standards as the enforcement mechanism; and deadlines provided the public with a basis against which to judge progress. For autos this translated into statutory emission standards and fixed deadlines.
Over the next two years we re-wrote the Clean Water Act to establish a similar control mechanism. In the process we established, as national clean water objectives, the
restoration of the chemical, biological, and physical integrity of the nation's waters and the elimination of the discharge of pollutants.
Neither of these laws admits to easy explanation. Both have similar control mechanisms but much of the similarity ends there. For example, because there is no direct link with public health, water pollution controls have been based on the technical capacity to reduce waste discharges, which has the important advantage of reducing the competitive disadvantage which would otherwise occur when similar industries in different regions were required to achieve significantly different levels of pollution reduction.
Both of these laws were the product of a long and deliberate legislative process. Let me cite a few statistics so that you can picture the degree to which these laws received the attention of the national legislature.
We had 15 days of hearings on the Clean Air Act after 15 days of oversight hearings which set the stage for legislation. We had 10 mark-up sessions and 13 conference committee meetings.
We had 24 days of water pollution legislative hearings after 9 days of oversight review. And we had 45 mark-up sessions followed by 80 conferences over five months to complete action on the bill.
The total amount of testimony on both pieces of legislation exceeded 9,000 printed pages.
And while the statistics are impersonal, I can assure you that the process was not. We held hearings in Washington and in the field. We heard the passions of affected citizens and the outrage of encumbered industry. And we were lobbied — by industry — by environmentalists — by labor and business people — each expressing a point of view, usually a different perspective, often a conflicting concern. There were no easy answers — no panaceas — no quick fixes.
We still had the ultimate responsibility of creating a framework for environmental policy which would work — which would roll back pollution and begin to achieve the environmental quality values which the public insisted were essential.
The result was dramatic and rewarding. In history there have been few laws as important or as far reaching as these. The real reward was in being able to fulfill the mandate imposed on the Congress by the founders — the opportunity to respond to an issue in the public interest and arrive at a result which was considerably more than an accommodation to the accumulated special interests.
But the real test of this process comes now — five years later. Whether or not the legitimate gains made can be held is uncertain. Those victories and those precedents are now under attack.
After 11 months of effort to extend and amend the Clean Air Act I have real doubts. That process and the result is the substance of my comments this evening.
The Clean Air Act requires a simple renewal of funding authority. However, for the past two years, there has been a massive campaign to relax many requirements of the Act.
We could not simply and routinely extend the law. There are too many issues in controversy. Either the Committee had to address those issues or they would be addressed in a less careful fashion during Senate consideration of an otherwise routine funding authorization.
Some of us believe that the Clean Air Act is basically a sound law. Its premises, the protection of public health and welfare from the adverse effects of dirty air and the maintenance of clean air in areas where air quality has not been degraded, have been broadly accepted.
No one — in any public statement to my knowledge — has challenged the primary purpose of the law — attainment of air quality protective of public health.
Few, and only very few, have challenged the secondary purpose — attainment of air quality protective of public welfare.
Some, especially in the business community, have challenged the concept that we ought not let clean air areas be polluted up to the levels which exist in the nation's major industrial cities.
While the challenges to the premises of the Act have been limited, there has been an overwhelming campaign to eliminate the regulatory and enforcement tools necessary to achieve those public policy objectives.
For example, the auto industry has repeatedly stated that they share the goal of healthful air in the nation's cities. Yet, this year, the auto industry appealed for five more years — they have already received three — to achieve statutory auto emission standards.
The industry did not feel constrained by the fact that virtually every major metropolitan area in the country faces a serious health-related air pollution problem or that the only alternative to early cleanup of auto emissions is disruptive controls on the individual use of motor vehicles in those areas.
Industry executives have ignored the plea of the nation's mayors for more time to achieve health standards for transportation related pollutants so that they can take advantage of progress made in auto emission controls.
Faced with these conflicting pressures, we voted to give cities more time — more time to adopt new transportation modes — to improve existing public transit systems — to provide transportation alternatives. We had to do this because the problem of auto pollutants is far worse than we envisaged in 1970 and potential for control is elusive.
And we voted to give the auto industry two more years to achieve statutory standards — two years to overcome technical problems — to begin to deal with the fuel economy problem — and to recover from the economic troubles of 1974-76.
I had hoped that we would not have to give that much time — that the industry could have produced some clean cars in 1973 — that we would have had an opportunity to test our new technology for a couple of years before it was required across the board. But I lost. The auto industry was able to convince a majority of the Committee that they were simply incapable of achieving needed results before 1980.
We also revised the enforcement sections of the Act — revisions which are not discouraging. We voted to provide more time for stationary sources to achieve applicable emission. limits. But, in return for a new outside deadline of 1979, which for some polluters is only an 18-month extension, we have gained two new penalty features.
Under the new amendments the Administrator would be authorized to seek civil fines in addition to his current authority to seek criminal sanctions. And, more importantly we voted to require the establishment of a delayed compliance penalty —an automatic penalty, which begins to accrue at the end of January, 1979, a penalty based on the value which the polluter gains by not complying with the law. Not only will this penalty serve as a significant incentive to achieve compliance by the new deadlines, but it will remove the competitive advantages that accompany failure to comply.
The most difficult issue which the Committee was asked to resolve was the question of nondegradation. As I have indicated, this controversy involves the extent to which national policy requires protection of air quality in clean air areas. This policy was an essential element of the Air Quality Act of 1967.
Unfortunately, for a variety of reasons, including interference by the Nixon White House in the EPA regulatory process, nondegradation became an important controversy which industry demanded that Congress address.
An executive of the American Petroleum Institute said: "... unless this issue is quickly and intelligently resolved, efforts to strengthen our economy and develop a stronger domestic energy base will be stymied."
I think the business community in either arrogance or ignorance, decided that the same Congress which had initiated this environmental policy would succumb to this kind of rhetoric in response to short-term economic distress.
Business chose to characterize all manner of nondegradation policy as "anti-growth." They argued that nondegradation policy would prohibit any industrial development in large areas of the country. But worst of all, they argued that if they could not take advantage of all the available air resource in clean air areas, they would not be able to take advantage of the "economies of scale".
Many of us on the Committee approached nondegradation from an entirely different perspective. We had seen the results of the abuse of air and water resources. We had witnessed the limits on growth imposed where one or two facilities were permitted to use all of a region's air or water resource.
We knew what happened when the only consideration was the economies of scale. We knew what happened when a community's growth potential was totally limited by one industry's misuse of the environmental resources. And we saw nondegradation as providing the margin of safety whereby the air resource would be protected — clean industrial growth could occur — and there would be available air quality in which a community could expand in the future.
We understood the ecological values as well. We knew that existing air quality standards are not an adequate measure of all pollutant effects — such as acid rain — and we knew that virtually nothing is known of the synergistic effects of those pollutants once lost in the chemistry of the atmosphere.
The Committee voted to make specific the requirement that clean air regions be conserved. We determined that each new major plant should be required to use the best pollution control technology available and that the impact of each new plant's emissions should be evaluated against a national nondegradation standard.
The Committee decided that these new sources in clean air areas have a special responsibility to preserve air quality values, both to avoid a repetition of past mistakes and to provide margins for future growth.
This decision was a victory for environmental quality. It comes at a time when Congress is under heavy pressure to sacrifice all environmental initiative for economic recovery even when there is little demonstrable relationship between the two.
But while we did not abandon nondegradation and while we have maintained the health standard, we have had some setbacks. We will not get a clean car as soon as necessary and I fear that the industry will use the additional time they have to lobby for further extensions rather than develop new systems.
We had to delay our deadlines and had to make major compromises on urban auto pollutant health standards because of the impossibility of making radical structural changes in our cities. Only by a narrow margin of 7 to 5 did we keep emission limits — through permanent controls and precise timetables — as the enforcement mechanism.
To those of you here who have followed the course of environmental law and who have witnessed the anti-environmental rhetoric of the past year, these setbacks may seem acceptable, when balanced against the threat of much greater setbacks in the current economic and political climate. But I am concerned by the drift in national policy away from the basic objectives which we set forth at the beginning of this decade.
I am not satisfied with the progress we have made or the results which will occur even if we overcome the temptation to abandon environmental goals in the face of economic uncertainty.
When we started out we knew that economic pressures would affect both the degree of controls required and the speed with which results were achieved.
We knew that we would have to establish a national environmental regulatory policy which would deal with the immediate visible and critical problems — the Lake Eries and Los Angeles Smog — the fish ki11s and the killer fogs — the closed beaches and shellfish beds.
But many of us knew or at least strongly suspected, that eliminating those visible problems would only buy time. We knew from biological and medical data, however limited, that more subtle and dangerous changes were taking place from the random dispersal of hazardous material in the environment — dispersal of materials the effects of which were not understood.
The warning signs could be found in the fate of the Peregrine Falcon, the Western Grebe and other bird and fish species. We began to see shellfish areas closed because of concentrations of heavy metals. And almost without exception, the more we learned, the more detailed the analysis, the more concerned we became.
We did not, in 1970, nor do we now, have sufficient evidence to establish the kind of statutory regulations on the discharge of toxics that we had for the automobile emission programs. But in 1970 and 1972 we had the foresight to establish air and water pollution authority to prohibit or at least tightly regulate the discharge of' toxics when the evidence of their impact became available.
When we were on more certain ground, we went further. In 1972 we established a specific program to assess stiff penalties for accidental spills into the water of hazardous materials, on the assumption that exposure to stiff penalties would be an incentive for procedures to avoid accidents.
I underscore that these programs were supplemental to, and intended to be tougher than the general environmental regulatory programs which were geared toward reducing gross emissions of common pollutants.
And I think it is an interesting commentary on the implementation of environmental law that massive resources have been committed to meeting the problems posed by these common pollutants while virtually no resources have been committed to eliminating the discharge, either intentionally or accidentally, of toxic and hazardous wastes.
The law exists but the regulatory programs do not. The data, though limited, are not used. And even in those areas where the regulatory programs exist, they have been so compromised as to make them meaningless and ineffective.
And so, nearly thirty years after enactment of the first Federal water pollution law and three years after enactment of stringent water pollution regulatory authority, our efforts are so poorly directed that we can have in our midst a scandal of the proportion of Hopewell, Virginia kepone situation without knowing that it was there.
Worse, had we known, there is a real question whether we had the capacity to deal with it. And yet many miles of the James River were closed for months — scores of people appear to have been permanently damaged by the environmental and occupational exposure to the pesticide — God only knows what the long-term ecological effects of the discharge will be in the waters of the James River and the Chesapeake Bay — and nobody knew that this pollutant, this toxic was being discharged through a municipal waste treatment plant into the river with no treatment and no concern by the plant’s owners for its effect.
A few months ago, three Nobel Laureates announced their conclusion that 80% of the increase in cancer in our society is the result of exposures to chemicals in the environment. It is this kind of concern expressed by these famed scientists which makes me less than encouraged with a marginal victory preserving the Clean Air Act. If we cannot move ahead to deal with the problems which pose the potential for human disaster, I find little solace in our efforts to preserve the basic framework of the Clean Air Act.
"'What I am trying to say is that this country still has a major job to do if we are to have environmental security. We cannot afford to continue to treat our lungs or our estuaries with disdain.
We must learn how to accommodate environmental requirements even where the costs are uncomfortable and the benefits are distant. Necessary environmental investment will not necessarily show quantifiable results. The benefits of that investment may be nothing more visible than the failure of elements of the food chain to disappear under the pressure of unidentified threats.
Protection of our environment — of the earth's life support system — will require investment based on suspicion and speculation. The alternative is to wait for absolute knowledge — and possible disaster.
Barry Commoner concludes "The Closing Circle" by noting that "none of us ... can possibly blueprint a specific plan for resolving the environmental crisis. To pretend otherwise is only to evade the real meaning of the environmental crisis ..."
He says, "Anyone who proposes to cure the environmental crisis undertakes thereby to change the course of history."
My answer has to be: Do we have any choice?
Rolf Edberg, the eloquent author of "On the Shred of a Cloud" described our earth as he perceived it while hiking in the mountains with his son. "There are the blue mountains. Below them a film brushed across the continents, so thin as to make it impossible even for the finest brush to apply its equivalent to any desk globe. At its thickest it is only some fractions of a millionth part of the radius of the earth. But this film is the condition and the domicile of what we mean by organic life. Without it the continents would be sterile moonscapes. Inside this thin covering, in the porous darkness of the soil, bacteria — those tireless and mute servants of life — are busily at work on exhausted organisms, liberating the salts that are the premise of the uninterrupted renewal and circulation of life, of everything that grows and blossoms, of the song of birds, of man himself.
"Just below this film is the solid mass of the globe, glowing with black fire in its interior — an abode of death from the point of view of organic life. And if I raise my sight over the mountains, I know that oxygen filling my lungs, as the plants of the earth fill my stomach, will be rapidly rarefied and soon gone. Outside the ozone covering a black emptiness, where the cold of space and its radiation, softened by no air cover, join in creating another realm of death.
"Here, then, in the paper-thin margin between the black deaths, we love and dream and strive, we indulge in our politics and contemplate our interesting personalities. Here we are sometimes caught up in a solemn zeal of existing, in worship of the beautiful picture nature has painted on the film. Here is the home of mankind — in a narrow frontier, with the hot black death of the globe beneath, the cold black death of space above. A marginal home for marginal beings."