Thirty years ago this past December, President Richard Nixon, a Republican, reluctantly signed the Clean Air Act. Thirty years and two months later, a unanimous Supreme Court upheld the fundamental principle of that law--science-based public health standards.
When the United States Senate passed the 1970 Clean Air Act unanimously, then-Senator Eugene McCarthy said to Senator Muskie, "Well, Ed, you found an issue which is better than motherhood. After all, there are some people who are against motherhood."
The Supreme Court, which has been divided on virtually every major environmental issue appealed to it in the past decade, agreed that in this case science trumps politics. In addition, the decision was written by the most intellectually conservative member of the court. Justice Scalia found that the Clean Air Act "unambiguously" excludes cost considerations when establishing public-health-based air quality standards. This ruling was a credit to that group of senators who wrote the law in a closed session in the summer of 1970. The decision is also a commentary on the 1990 amendments, which established deadlines for achieving statutorily specific ozone standards but did not relate those deadlines to another provision of law that required air quality standards to be reviewed, and if necessary revised, every five years.
The seeming conflict created in the 1990 act is, in my view, a function of two very major changes in our national legislature. First, decisions are no longer made so much by legislators as they are by staff. There are far too many staff members, and there is far too much outside influence on the policymaking process. Second, the decisions now, and the process that leads to those decisions, are so widely open to the public that legislators cannot rise above their narrow constituency or contributor interests to formulate a constructive, coherent national policy.
In 1970, as staff director of the U.S. Senate Environment Subcommittee, I sat in on the discussions that led to the drafting of the original Clean Air Act. The 1970 Clean Air Act was indeed written in the back room. There were no more than six staff members present, and we were significantly outnumbered by senators. No more than three staff members participated in the discussion, and then only when asked.
Members of the committee actually reviewed legislative language made policy decisions, and then looked again at the written result to make sure their intention was accurately reflected. And there were no endless meetings between the collective staff and competing special interests.
On one occasion, as we were about to complete action on the 1970 Clean Air Act, Senator John Sherman Cooper, a Republican from Kentucky, asked his staff person if we had removed administrative civil penalties from the bill. The staff person said, "Well, no, Senator." Cooper then said to Senator Muskie, "This bill will not be reported to the full Senate until those penalties are removed. Isn't that right, Mr. Chairman?"
When the final draft of the bill was delivered to the committee, Senator Cooper delayed approval until he personally read the entire penalty provision to ensure that his demand was observed. It was.
Some years later, when we were meeting with a deeply divided House of Representatives staff on the 1977 amendments, I suggested that we start at the beginning and review each body's bill to determine what each of us had done. I was urgently pulled aside by a member of the House staff who informed me that we could not discuss the House bill in detail because "none of the other House staff [his adversaries] knew what it contained and to reveal those provisions would cause them to be dropped."
I'm afraid that this attitude has dominated the more recent legislative process more than it should and may suggest why some of the more recent environmental enactments of the Congress have led to judicial and regulatory confusion. …