Leon G. Billings was staff director of the Senate Subcommittee on Environmental Pollution from 1966 to 1978 and was principal Majority staff author of the Clean Air Act. He later served as chief of staff to Senator and Secretary of State Edmund S. Muskie. He also served 12 years in the Maryland General Assembly.

On Monday, the Obama administration unveiled its plan to establish national limits on carbon-dioxide emissions from existing power plants. Critics of the move say that President Obama is making an end run around Congress, stretching the law to achieve by executive action what he could not accomplish through the legislative branch.

This is flat wrong. More than four decades ago, Congress expressed its clear desire to regulate pollution from power plants, in the form of the Clean Air Act. I know, because I worked on the legislation, including the key part of the act— Section 111—that the Obama administration is using to justify its move. My boss, Sen. Edmund S. Muskie of Maine, was the bill’s main author.


The primary purpose of Section 111 was economic equity: to ensure that all nationally prevalent sources of air pollution, wherever located, achieved minimum emissions standards. And now, one subsection, 111(d) has become the legal basis for the EPA to act. Although that provision has been much discussed in recent months as the EPA’s potential proposed rulemaking has evolved, little attention has been paid to the political history of Section 111.

To appreciate that, it might be useful to understand some of the fundamentals of the legislative process 45 years ago, when the Senate version of the 1970 Clean Air Act emerged from the environment subcommittee that Senator Muskie chaired and where I served as staff director.

Prior to that day in early August 1970, there was little public knowledge of the legislation the Muskie subcommittee was crafting. This was both because, at that time, congressional committees wrote laws behind closed doors and because, in the case of this particular subcommittee, there was a high degree of cooperation. Neither members nor staff leaked drafts of legislation to the press or lobbyists. (Of course, it helped that there were often only as few as four staff involved in the process.)

As the staff director, my job was both political and substantive. I had to find compromises that would both persuade a majority of the conferees and satisfy Senator Muskie. This was difficult, because he had been so successful in the Senate that he did not want to give up anything in conference.

At the time, Senator Muskie was viewed as the most likely Democratic presidential nominee for the 1972 race against Richard Nixon. Ralph Nader, then a self-styled muckraker and defender of the public interest, had publicly attacked Muskie as a “pawn of the Maine pulp and paper industry,” triggering a volatile response from the senator. A few months earlier, the nation had celebrated its first “Earth Day,” which brought political momentum to deal with environmental problems. That summer, many of America’s major cities, including Washington, D.C., suffered from air-pollution episodes that sent emergency room admissions skyrocketing. And President Nixon and his advisers had made the political decision to try to neutralize Muskie on environmental policy. Muskie saw these factors as creating an opportunity to move the federal government into a central role to protect public health from air pollution, and he used his political advantage and his anger to that end.

Although there are other key differences between then and now, perhaps the most significant was the bipartisanship that existed on the Senate Subcommittee on Environmental Pollution. The Senate as a whole operated on a broad bipartisan basis, with only limited use of the filibuster; the Muskie subcommittee had operated that way for a decade. A coalition of Democrats and an equal number of Republicans worked together, discussing, debating, crafting and rewriting the country’s first significant environmental laws. Senator Muskie’s relationships with the ranking Republican on the Public Works Committee, Sen. John Sherman Cooper of Kentucky, and the ranking subcommittee Republican, Sen. J. Caleb Boggs of Delaware, were only exceeded by his relationship with Sen. Howard H. Baker, Republican of Tennessee, who agreed with him on the critical nature of the problem and had the imagination and courage to take the risk of finding real solutions to it. This uncommon coalition was the critical element of our success.

National air-quality standards, citizen suits, statutory deadlines, minimum federal standards, special judicial review provisions, public participation and mandated agency action, virtually all of which were unprecedented in federal law. For 30 years, Congress had dabbled in modest pollution control legislation, always deferring to states. Although the new law continued to recognize the importance of state action, it made the federal government the “gorilla in the closet.” It was Muskie’s intention to create a legally defensible structure to assure that public health-based air quality would be achieved as swiftly as possible. That required federal action.

Section 111 was a response to a different set of issues. Jack Sheehan, the lead lobbyist for the United Steelworkers and an ardent advocate of occupational and environmental health protection, led a coalition of labor lobbyists concerned about the potential adverse effects of rigorous clean air rules on rustbelt industry. Neither the Democrats nor the Republicans on the committee wanted the Clean Air Act to be criticized as a cause of industrial disruption. Several states, particularly in the northeast and the Rust Belt, shared this concern. The subcommittee staff was directed to develop a provision that would eliminate the incentive for industry to flee from states with aggressive regulation for those less committed to clean air. Section 111’s provision for basic nationwide emission standards was the product of that endeavor.

This provision was not in the House bill and had only lukewarm support from the Nixon administration even though, early on in the process, the White House had circulated and later withdrew a proposal to establish national emission standards.

In addition to requiring the best available technology-based emission reductions for any pollutant emitted by a new and modified air-pollution source, two other provisions authorized the EPA to require emission reductions from existing sources of pollution—and they covered both pollutants that were deemed toxic, and selected pollution agents that may later be determined to merit regulation. None of these provisions were challenged in the Senate, which passed the bill without a single dissenting vote.

The conference committee was a horse of a different color. The House bill had been modeled on the Nixon administration’s proposed legislation, with few of the precedents contained in the Senate measure. The conference started shortly before the midterm election recess and was resumed after the 1970 election. At the pre-recess conference, the House conferees agreed to the Senate provision for statutory automobile emission reductions, an agreement that was abandoned in the lame-duck session that followed the election. Spurred by a letter from then-Secretary of Health, Education and Welfare Elliot Richardson, the three conservative House conferees demanded reopening the previous agreement. The result was a conference committee that nearly failed to meet the adjournment deadline. (The final bill passed the Senate on Dec. 18 and was signed in to law on Dec. 31.)

The joint House and Senate Committee staffs met well into every night to craft compromises to present to the conferees the next day. The two bills were so different that finding a middle ground was nearly impossible. It was a difference between something and nothing. Fortunately, the chairman of the House Health subcommittee, the late Paul Rogers of Florida, worked well and closely with Senator Muskie to reach a compromise that looked, for all intents and purposes, very much like the Senate bill.

Rogers’ efforts were aided when a syndicated columnist exposed the fact that one of the House Democrat conferees owned an automobile dealership and had an impermissible conflict of interest. That conferee never returned to the conference. The chair cast his proxy to give Rogers the 3-2 majority to report the bill that had been worked out by his and the Senate staffs.

As noted above, Section 111 was intended to give the EPA the authority to establish national emission limits (standards of performance) for new and modified sources of any air pollutant. In addition, the Senate bill provided for establishing emission limits on toxic pollutants and, in another provision, authority to regulate so-called “selected agents.” These three categories of pollution were to be subject to federal emission controls in addition to the responsibility of the states to reduce criteria pollutant concentrations below the health-based national air quality standards. “Selected agents” was a catch-all provision to assure that all air pollutants determined to threaten human health or welfare but not regulated as an air toxic or criteria pollutant would not escape emission reduction requirements. Members of the Muskie subcommittee, sitting in closed session during a severe air-pollution episode, debated how to deal with potentially dangerous pollutants not yet identified. This section was a response to that concern.

Faced with reluctant House conferees and the incipient adjournment of Congress, the joint staffs proposed to eliminate the “selected” pollutant provision entirely, streamline the “new source” and “toxic” provisions and establish a mechanism to deal with future pollutants from existing sources. Subsection 111(d) was the product of that compromise. Though I do not recall any talk about global warming at the time—the issue was barely on anyone’s radar screen—given Muskie’s intention to deal with the future as well as the past, I believe he would have approved of the Obama administration’s use of this obscure provision today.

The Clean Air Act has often been criticized as codifying the “precautionary principle” by those who insist that, absent absolute certainty, the government should never anticipate a crisis. Senator Muskie and his colleagues intended to codify precaution; they meant to give the EPA and the states a roadmap that would allow workable responses to new threats of air pollution.

Were they alive today, Senator Muskie, Congressman Rogers and their colleagues who voted this bill out of conference late that December night would be heartened that the law they worked so hard to enact established a viable and defensible mechanism for dealing with a profound air pollution problem they had no way of anticipating but every intention of addressing through the design of a vibrant and vital bulwark to protect our country.