An Evening with the Writers of the Clean Air Act: Insight into the ‘Golden Age’ of Environmental Law
On Oct. 22, the Earth Institute hosted a panel discussion on the Origins of Environmental Law, featuring Leon Billings and Thomas Jorling, the two senior majority and minority staff members who led the Senate Subcommittee on Environmental Pollution which originated and developed The Clean Air Act, Clean Water Act, and other major environmental legislation. Billings and Jorling are also adjunct professors at Columbia, teaching a class this semester on the Origins of Environmental Law in an effort to share their experiences in writing these important laws. The event was well-attended by students, faculty, and local law and policy professionals. For policy buffs and sustainability enthusiasts who couldn’t be there in person, the event was also webcast live; a full video of the event is available here.
The evening began with an introduction from Steven Cohen; Michael Gerrard, director of the Sabin Center for Climate Change Law, moderated the discussion. Gerrard called the 1970s and 1980s the “golden age of environmental law making,” and asked Professors Jorling and Billings to compare that era to today. We learned that the Clean Air Act of 1970 – a complex piece of legislation – was written and unanimously passed in a matter of months. For younger audience members, the fact seemed unbelievable; our Congress today seems unable to pass any legislation, let alone sweeping environmental regulation. Gerrard asked a series of questions about specific provisions in these major laws, which allowed Billings and Jorling to reflect on what worked so well in that era. They also provided insights into what needs to change today to move forward effectively on the federal level.
Billings began by acknowledging that there are many factors that influence why Congress today is different than the Congress of that “golden age.” In the 1970s, 80 percent of those in the House and Senate believed their primary responsibility was to solve problems, and each worked with members on both sides of the aisle. There were only nine members on the environment subcommittee, and there was virtually no division on party basis in this era; Billings remarked that there was only one party line vote in his 12 years working on the subcommittee. He emphasized the role of comity in governing their efforts; Senator Ed Muskie, who chaired the subcommittee, put in the time and effort to achieve consensus among the members.
This led Jorling to identify another important factor of the time – the people. The people of the Senate had a common sense of purpose. They had a great appreciation of history and of what it meant to be a senator. While they may have had differing opinions, they had a deep respect for each other and for the process of legislating. They felt privileged to do their jobs. This sentiment was evident even within the evening’s discussion; Billings and Jorling spoke with clear respect for one another’s ideas and contributions. This is a far cry from what you see in today’s Congress. Jorling also discussed the importance of the closed markup session – in the 1970s, laws were written behind closed doors, resulting in a high degree of cooperation. Senators were free to ask questions and discuss issues openly without fear of scrutiny from others. This created a lawmaking process built on “understanding, education and learning that members actively engaged in.” Today, the open session process in lawmaking makes for better theater than an actual practice of understanding.
Billings went on to say that in many ways it’s not possible to compare today to that era, because the nature of government has changed so drastically. “Today a senator has no time to be a senator,” he said. From the moment someone is elected, they have to fund-raise for re-election. They don’t have time to attend hearings or markup sessions — the kinds of activities that Sen. Muskie was involved in when he led the subcommittee.
Is there a pathway for Congress today to return to functionality? Billings identified two other problems aside from the issue of money that make change difficult – the media and the Supreme Court. The media now functions in favor of whoever has the best “gotcha” journalists, so that the fringe members of the political legislature, who in the past would have never gotten television air time, have become the spokespeople for all of politics. Jorling discussed his own experience with the print press during the 1970s, when a New York Times reporter sought to understand the Clean Air Act line-by-line before writing about it. It seems as though we don’t have this depth of understanding by the media today.
With respect to the courts, in Billings’ view, “when they amended the constitution to make corporations people, they changed the nature of our democracy. Secondly, they extended the rights of campaign finance to corporations.” He stressed the importance of correcting these problems in order to move forward. Jorling highlighted that any change will be difficult. The “hyper-partisanship” of Congress today isn’t really an accurate description; what we have is a destructive orientation that is pervasive in the attitudes of public officials.
The panelists discussed the importance of the Clean Air Act for climate change today. Section 111(d) of the Clean Air Act allows the U.S. Environmental Protection Agency to regulate greenhouse gas emissions from new and existing power plants, due to the concept of “selected pollutants” that was incorporated into the legislation at the last minute. Because of this, the EPA recognizes carbon dioxide as a pollutant harmful to human health, and can regulate it as such. Jorling reflected on the actual writing of the laws, and stressed the importance of anticipating the unknown challenges. When the concept of “selected pollutants” was added into the law in the 1970s, the subcommittee members never imagined that it would be used to regulate carbon dioxide – something that was in many ways seen as a measure of good performance during that time.
Jorling and Billings were certainly limited in the topics they could cover in this hour-long discussion. In their regular lecture earlier in the day, they talked more in depth about the Clean Air Act within the context of climate change. Billings told students: “The law is alive and important and extraordinarily meaningful for your generation.” Those who are interested in hearing Billings and Jorling speak in more detail are welcome to join one of their remaining weekly lectures, which take place on Wednesdays from 11 a.m. to 12:50 p.m. in the International Affairs Building, Room 407. Each session is open to the public and guests are welcomed by the professors. Register for each week individually here:
- October 29: The Federal Water Pollution Control Act: Who, What and Why?
- November 5: The Clean Water Act: Conference with the House Public Works Committee
- November 12: The Nixon Veto and the Override
- November 19: The End of the Environmental Era
- December 3: Congress Today: The Role of Campaign Finance on Environmental Legislation