This past week, I had the honor of attending a new class at Columbia taught by Tom Jorling and Leon Billings on the origins of American environmental law. Jorling and Billings have accomplished a great deal in their long careers. Billings worked for Senator Ed Muskie and was elected to the Maryland legislature. Jorling was a senior administrator at EPA under President Carter, ran New York State's environmental agency for Mario Cuomo, worked in the private sector, and was a professor at Williams College. But the course focuses on a time that began when both were still in their late twenties. At that time, Jorling staffed the Republicans on the senate committee responsible for environmental policy and Billings staffed the Democrats on the same committee. In that amazing and creative time in American environmental history they drafted and saw enacted the Clean Air Act of 1970 and the Federal Water Pollution Control Act of 1972. They and the senators they worked for knew how to compromise, and together they crafted the powerful legislation that today is responsible for our cleaner waters and cleaner air.
Jorling and Billings are teaching this course to make certain that a new generation of sustainability students do not lose heart and think that it is impossible for the United States to lead the world to a more sustainable future. The course teaches about a time when the national consensus--one that still supports environmental protection--found expression in new law and strong environmental regulation. The dysfunction and partisan gridlock of the 21st century was decades in the future. As Billings said in class last week, the senators he worked for did not focus on political gain, but asked, "what is the right thing to do for the good of our country?" It was uplifting and thrilling to be reminded of that time, and of an American congress that at least sometimes saw political power as a means rather than an end. The consensus behind protecting the environment was so strong that when President Richard Nixon vetoed the Water Act in 1972, Congress overrode his veto and enacted the bill into law without Nixon's signature.
The achievement of those days cannot be overstated. When the Obama administration was unable to get Congress to enact new legislation to control greenhouse gas emissions, they were able to turn to a statute passed over 40 years ago and were able to regulate greenhouse gases as an air pollutant. That decades-old law required EPA to regulate dangers to air quality, but left the definition of those dangers open to deal with pollutants yet to be invented. When George W. Bush was president, a number of states sued the federal government to compel regulation of greenhouse gases under the Clean Air Act and eventually the courts, including the federal Supreme Court, required EPA to regulate greenhouse gases. While the Bush administration was reluctant to use this authority, the Obama administration enthusiastically embraced it. Even this less-than-perfect approach to climate change would not have been possible without the bipartisan craftsmanship of Congress in the 1960s and 1970s.
The national consensus to protect the environment was based on easily-observable conditions and obvious dangers like orange air and rivers on fire. Opponents to environmental regulation back then made the now-familiar argument that environmental regulations would harm the economy. In fact, the opposite took place. The need to develop and use new technologies created new industries that helped keep the environment clean. Researching, measuring and controlling environmental impacts has itself become an industry. Before the creation of EPA in 1970 we saw the growth of the economy accompanied by the growth of pollution. Starting in the late 1970s the economy continued to grow, but the absolute level of pollution began to shrink--a trend that continues today. Cynics will say that we merely exported pollution, and while that does account for some of the reduction, most was accomplished by new technologies like catalytic converters on autos and sewage treatment plants. We learned that people will pay for a cleaner environment; just as people will spend more for a safer car with airbags, seat belts and a crash-resistant body, they will also pay for cleaner, greener air, water, lands and buildings.
Watching Jorling and Billings last week, I found myself thinking back to my first experience at EPA, in 1977, when Jorling was an Assistant Administrator. EPA was only seven years old then, and the spirit and idealism of the place was hard to miss. Most of us remembered John Kennedy's call to public service, and in contrast to really tough issues like foreign policy, poverty and racism, the environment seemed almost easy. Who could possibly be in favor of poisoning people and the planet that we all shared? Who indeed...? Perhaps I was too young and naïve to understand what was going on, but it seemed to me that public servants worked long hours and were not looking for a revolving door to make them rich when they left the government.
Another lesson I took from the first session of this class was about American pragmatism and our ability to laugh at ourselves. Those are qualities that seem to have evaporated somewhere on K Street in Washington. We need to get them back; we desperately need a functioning federal government to deal with the new technologies and new global economy that has emerged since the 1970s. It has been nearly a quarter century since the federal government enacted any new environmental law. Many of the students in the room last week were not even born when our era of enacting progressive environmental law ended.
Fortunately, our founders created a federal system, and the spirit of compromise and a willingness to work for the common good is still present in local governments and communities all over America. Without the sustainability efforts now underway in cities like Portland, San Francisco, Chicago, Philadelphia and New York, we would be in real trouble here.
Two major changes in the world since 1990 require a rethinking of the structure of American environmental law. The first is the growth of the global economy, and with it the emergence of global-level problems such as climate change, invasive species and ocean-polluting marine debris. National laws must be enacted and then coordinated to effectively manage these new risks. The second change since the 1990s is the growing integration of the sustainability perspective in corporate culture. Private companies are paying attention to their use of energy, water and other materials, and, due to many factors (including environmental liability law), are seeking to reduce the negative impact of their production and waste on ecological systems. New environmental law is needed to encourage these trends.
Politics is a cyclical process and we should not assume the gridlock of today will continue forever. I think hope for the future is part of the motivation behind the hard work that Tom Jorling and Leon Billings have devoted to developing and teaching this new course. They are eager to ensure that the generation now coming of age has a mental model of the processes that are needed to build consensus and then enshrine it in national law. We were once quite good at this. In fact, American environmental law has often been the model used to develop environmental laws in many parts of the world. I am grateful that two of the leaders of that long-ago effort have decided to share their knowledge with today's students.