DC Confidential. David Schoenbrod

to deliver clean air would also bring him blame, and thereby cost him votes and campaign contributions in the 1972 election. Yes, the Civil Rights Act, for which he had voted in 1964, also imposed burdens that were unpopular with some voters. That vote, however, was an easy choice for him because the civil rights statute imposed duties to stop bigoted conduct, which voters in most parts of the country viewed as evil. In contrast, legislating clean air would require imposing burdens not only on reckless polluters but also on reasonably responsible businesses as well as city governments and ordinary citizens in their capacities as motorists, employees, and consumers of electricity and home heating fuel.

      To get credit but avoid blame, Muskie cleverly came up with a different sort of regulatory statute. While his earlier statute had said to the agency, “Here’s a problem, solve it,” the air pollution bill that he introduced in 1970 appeared to say, “Here’s our solution, implement it.” The new bill promised everyone healthy air in seemingly precise terms, but generally left an agency to define the duties needed to clean the air. In contrast, in the Civil Rights Act of 1964, it was members of Congress who imposed the duties to enforce the right against discrimination.

      Because President Richard Nixon didn’t want to leave the environmental glory to a potential rival in the 1972 general election, he, too, proposed a bill that promised benefits but shifted responsibility for imposing the commensurate burdens. Competition between Muskie, Nixon, and others who wanted to run for president in 1972 helped to produce a Clean Air Act that Muskie sponsored, both parties in Congress joined in passing with hardly a dissenting vote, and Nixon signed with fanfare on December 31, 1970.⁵

      The Clean Air Act would mean, according to Muskie, that “all Americans in all parts of the country shall have clean air to breathe within the 1970s.” The statute gave the job of deciding which duties to place on various pollution sources to a newly created administrative agency, the Environmental Protection Agency. Nonetheless, Muskie insisted that the statute “faces the air pollution crisis with urgency and in candor. It makes hard choices.”⁶

      Only on auto manufacturers did Congress directly impose a duty to clean the air. The Clean Air Act decreed that new cars sold from 1975 on must emit 90 percent less of three key pollutants. Because administrators had failed to impose significant duties on auto manufacturers under the pre-1970 legislation—a failure for which Nader gave Muskie particular grief—Congress itself had to impose a major duty on them. The legislators were able to impose this duty without shouldering too-much blame because auto manufacturers at the time were in bad repute for making unsafe as well as dirty cars.⁷ Voters would, of course, end up paying more for cars with effective pollution-control devices, but that would be years after the statute passed, and voters would get the bad news from auto manufacturers rather than legislators. They would also, of course, get cleaner cars.

      The cleaner new cars manufactured in the 1970s would, however, fall far short of producing the “clean air . . . within the 1970s” that Congress had promised. To meet the statute’s targets for clean air would have required cuts in emissions from power plants, steel mills, municipal incinerators, and dozens of other facilities including homes, as well as requiring motorists in some areas to use their cars less. None of this was made explicit in the statute.

      To bolster the legislators’ claim that they had made the hard choices needed to produce healthy air by the end of the 1970s, the statute

       • required the EPA to issue regulations sufficient to protect the public’s health from all pollutants everywhere in the United States;

       • established deadlines by which the EPA must do each part of this job; and

       • authorized citizens to sue the agency for failing to meet the deadlines.

      So Congress granted everyone the welcome right to healthy air, but told an agency to impose the unpopular duties needed to vindicate the right. That shifts most of the blame, political scientists find, to the agency.⁸

      With the 1970 Clean Air Act, Congress began to deal with regulation in a new way. During the progressive era that began in the late 1800s, Congress had given agencies broad discretion to shape regulation. The theory was that experts insulated from political pressures would staff these agencies and use a scientific approach to make the correct choices. Viewing the work of these agencies as scientific rather than political, Progressives saw this arrangement as consistent with “government of the people, by the people, for the people.”⁹

      Another strain of progressivism, however, looked down on the people’s government that President Lincoln celebrated at Gettysburg. Herbert Croly, cofounder of the New Republic magazine, wrote in 1909 that “the average American individual is morally and intellectually inadequate to a serious and consistent conception of his responsibilities.” Captains of industry such as J. P. Morgan and John Rockefeller shared that view. So, too, did many socialists.¹⁰ One of them was my father’s father, Nathan Schoenbrod. As a young man in Chicago at the dawn of the twentieth century, he was one of a group of students who worked their way through law school by making cigars. They took turns reading their textbooks aloud while the others rolled the tobacco. Socialists all, they hoped that sooner rather than later people would see that the individual pursuit of private advantage leads to inhumane results. They would then cede power to expert leaders who would run the world as good parents run a family—lovingly but with complete authority. Why complete authority? Because if the leaders had to account to voters, selfishness and shortsightedness would inevitably return, or so they thought. These socialists, too, believed in rule by experts.

      In sum, highly educated people with divergent policy preferences wanted Congress, when establishing federal regulations, to state only general objectives and leave the pivotal choices to experts in agencies supposedly insulated from politics. And Congresses professed to do so for many decades. In experts we trusted. That trust continued into the 1960s but came undone with the increasingly widespread realization that members of Congress, the president, and their staffs interfered with the decisions of these experts who were supposedly insulated from politics.¹¹ Nader drove the point home.

      In the 1970 Clean Air Act, Congress pretended to make the hard choices sufficient to protect people’s health from air pollution by ordering the EPA to make those choices and directing the courts to require the agency to fulfill that order. Supposedly, the public’s health would still be protected and the experts would decide how to go about it. Everyone would have an ironclad right to healthy air, or so the statute promised.

      Now, let us consider whether the 1970 Clean Air Act fulfilled that promise.

      To bring lawsuits to enforce the rights that the Clean Air Act and other environmental statutes seemed to confer upon citizens, a group of ardent young attorneys set up an environmental advocacy organization, the Natural Resources Defense Council. I joined them in 1972 and, during the 1970s, litigated to get the EPA to protect the public’s health from an air pollutant particularly dangerous to children—lead.

      Refiners had long put lead additives in gasoline as a means of reducing refining costs. But because the Clean Air Act required that, starting in 1975, cars must have newly manufactured pollution-control devices that would be destroyed by lead, legislators made quite clear that they expected the EPA to order the petroleum industry to allow only lead-free gas in the new cars. Otherwise, Congress would have looked stupid for requiring motorists to pay for the pollution-control devices and then allowing them to be destroyed by gas containing lead. So with this order the legislators were protecting their own reputations, not the public’s health from lead. After all, the statute gave no explicit directions about what the EPA must do about the lead in the gasoline used until 1975 and in the hundred million old cars that would still be on the road when the 1975 cars came on the market.

      To protect children from all this lead, the EPA would have to order refiners to limit the lead that they added to the gasoline used by those cars. This would, however, raise the price that motorists paid at the pump and cut the profits of some companies. Because