The Clean Air Act of 1963: Postwar Environmental Politics and the Debate Over Federal Power
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The Clean Air Act of 1963: Postwar Environmental Politics and the Debate Over Federal Power Adam D. Orford* ABSTRACT This Article explores the development of the Clean Air Act of 1963, the first law to allow the federal government to fight air pollution rather than study it. The Article focuses on the postwar years (1945-1963) and explores the rise of public health medical research, cooperative federalism, and the desire to harness the powers of the federal government for domestic social improvement, as key precursors to environmental law. It examines the origins of the idea that the federal government should “do something” about air pollution, and how that idea was translated, through drafting, lobbying, politicking, hearings, debate, influence, and votes, into a new commitment to a national program to end air pollution in the United States. In addition to presenting new perspectives on this understudied period in the development of environmental law, it is hoped that this work will shed some light on the nature of political opposition to environmental regulation, which today is one of the greatest challenges to effective pollution control. * Ph.D. Candidate, U.C. Berkeley Energy and Resources Group 2021; MPP/MA (Energy & Resources) U.C. Berkeley 2018, J.D. Columbia 2006. I am grateful to the Energy & Resources Group for the research grant to begin this project, and to the John F. Kennedy Presidential Library and Museum for research funding through the Theodore C. Sorensen Fellowship program. 1 ! Hastings Environmental Law Journal, Vol. 27, No. 2, Summer 2021 TABLE OF CONTENTS ABSTRACT ...................................................................................................... 1 INTRODUCTION ............................................................................................ 3 I. AIR POLLUTION IN THE UNITED STATES IN 1960 ................... 6 A. THE PACE OF CHANGE .......................................................................... 7 B. RELEVANT IDEOLOGIES, INTERESTS, AND ADVOCACIES .................... 13 i. Postwar Liberalism and Modern Republicanism .......................... 14 ii. Public Health Institutions and Environmental Concerns .............. 16 iii. Smoke Abatement – Engineering and Irrelevance ....................... 20 iv. The Urban Lobby – Visions of a New Federalism ....................... 24 v. Conservatives – The Skeptical View ............................................ 27 vi. Other Interests ............................................................................... 29 II. THE DEVELOPMENT OF THE CLEAN AIR ACT OF 1963 ....... 31 A. 1948-1949: DONORA .......................................................................... 32 B. 1949-1958: EARLY DEBATE ON THE FEDERAL ROLE ......................... 35 C. 1958-1960: THE FLEMMING PROPOSAL .............................................. 43 D. 1961: THE AMA PROPOSALS .............................................................. 46 i. The Kennedy Administration Weighs In (February, June 1961) .. 47 ii. Hugh Mields’ Contributions (February to November 1961) ........ 49 iii. A Hearing in Birmingham (November 1961) ............................... 53 E. 1962: WASHINGTON HAPPENS ........................................................... 55 i. The Administration Position (February 1962) .............................. 55 ii. Urban Affairs (February 1962) ..................................................... 56 iii. The House Consolidated Bill (March to June 1962) .................... 57 iv. Roberts Delays (June to December 1962) .................................... 59 v. The Opposition Emerges (December 1962) ................................. 60 F. 1963: CALLING THE QUESTION .......................................................... 64 i. Voices of the New Year (January and February 1963) ................ 65 ii. The Opposition Speaks (March 1963) .......................................... 67 iii. The Muskie Treatment (September 1963) .................................... 71 iv. Votes and Passage (July to December 1963) ................................ 72 CONCLUSION – THE BALANCE OF POWER SHIFTS ........................ 74 2 Hastings Environmental Law Journal, Vol. 27, No. 2, Summer 2021 INTRODUCTION On December 11, 1963, the 88th Congress enacted a law “to improve, strengthen, and accelerate programs for the prevention and abatement of air pollution.”1 Press reports focused on the new law’s allocation of $95 million ($800 million today2) for federal grants-in-aid to state pollution control programs, and it was typically framed as an incremental extension of the 1955 Air Pollution Control Act, which had piloted federal-state cooperative air pollution research at a smaller scale. Less remarked upon at the time, however, the new law also permitted the U.S. federal government to fight air pollution in American cities for the first time. This new authority – wrapped though it had been inside layer upon layer of procedural safeguards to ensure it would be difficult to use – was recognized both by its authors and by its opponents as a significant expansion of federal power. Only a single newspaper bothered to mention the law’s official name: the Clean Air Act of 1963 (the “1963 Act”).3 The 1963 Act remains obscure and understudied today,4 existing as it does under the shadow of the comprehensive 1970 amendments that form the foundation of U.S. national air pollution law to this day.5 The 1963 Act is recognized as a contributor to the development of state regulatory programs, but otherwise as an ineffective precursor to more modern, 1. Clean Air Act of 1963, Pub. L. 88-206, 77 Stat. 392 (1963) (the “1963 Act”) (codified as amended at 42 U.S.C. § 7401 (2020)). 2. All dollar equivalencies calculated using the U.S Inflation Calculator, https://perma.cc/LM6U-RDDK. 3. The short title is found at 1963 Act § 14, 77 Stat. 392, 401. For a typical report on the bill’s passage, see Johnson Signs Fund Bill to Help States Fight Air Pollution, APPLETON POST-CRESCENT, Dec. 17, 1963, at 1. Reporters in jurisdictions most active in air pollution control did note the enforcement elements. See, e.g., John H. Averill, House Approves Bill Giving U.S. Broad Smog Authority, THE LOS ANGELES TIMES, Dec. 11, 1963, at 3; Pollution Control Gets Teeth, THE PHILADELPHIA INQUIRER, Dec. 13, 1963, at 34. The one paper to mention the short title (based on searches of newspapers.com and ProQuest) was the Los Angeles Times. Robert C. Toth, U.S. Moves to Combat InCreasing Air Pollution: Federal Government Given New Powers as Contamination Bill Hits $11 Billion Year, THE LOS ANGELES TIMES, Dec. 22, 1963, at B2. 4. There is very little literature on the 1963 Clean Air Act. The best is Randall P. Ripley, Congress and Clean Air: The Issue of EnforCement, 1963, in CONGRESS AND URBAN PROBLEMS (1969). However, as discussed infra note 105, Ripley is a challenging source because it contains no citations. Unfortunately, nothing more recent has improved on it. Compare Arthur C. Stern, History of Air Pollution Legislation in the United States, 32 J. AIR POLLUT. CONTROL ASSOC. 44–61 (1982). CHRISTOPHER J. BAILEY, CONGRESS AND AIR POLLUTION: ENVIRONMENTAL POLICIES IN THE USA 103–08 (1998). Arnold W. Reitze, Jr., The Legislative History of U.S. Air Pollution Control, 36 HOUS. L. REV. 679–741, 689–90 (1999). Christopher D. Ahlers, Origins of the Clean Air ACt: A New Interpretation, 45 ENVTL. L. 75–127, 84–94 (2015). WILLIAM H. RODGERS, JR., 1 ENVIRONMENTAL LAW 169– 184 (1986). 5. 42 U.S.C. §§ 7401–7671. 3 Hastings Environmental Law Journal, Vol. 27, No. 2, Summer 2021 successful legislation – that is, in comparison to the 1970 Act and its long decades of subsequent amendments and execution. However, while these comparisons are not unwarranted, this Article argues that they are insufficient, and that the 1963 Act stands on its own as a landmark environmental law, because it overcame the resistance to treating air pollution as a federal problem. It was a “foot in the door” toward a robust national air pollution enforcement program, a signature environmental legislative achievement of the Kennedy Administration, and a surprising outcome in a legislative context that was hostile to the expansion of federal power. To put the 1963 Act into its proper context, this Article proceeds in two Parts: § Part I provides background. Section I.A explores the physical and social trends and circumstances that defined air pollution as a policy problem circa 1960. Section I.B examines the relevant interests involved in air pollution – players in a world pre-dating the words “environmentalist” and “environmentalism” in their modern senses. By the end of Part I, the reader should have a clearer feeling for the world of air pollution politics circa 1960, when it was first suggested that a federal agency should have the authority to clean it up. § Part II describes the development of federal air pollution law, from its genesis through what would become the Clean Air Act of 1963, tracking in detail the bills, advocacy, hearings, and legislative actions that produced the text of the final law. The Part begins by examining the development of federal air pollution control legislation between 1948 and 1958. It then examines the development, from year to year, of the legislative proposals that would eventually form the Clean Air Act of 1963. Throughout the discussion, the Article focuses on the debate over the appropriate role of the federal government in air pollution control, and particularly on whether it should have