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 the statute left it to the EPA to decide how much pollution would have to be cut to protect health, and how to go about cutting the pollution, motorists would place most of the blame for any increase in the cost of gasoline on the agency rather than the legislators.
When the EPA began to develop the regulation to protect public health by cutting lead in gasoline, the petroleum industry sought help from members of Congress. Legislators—liberals as well as conservatives—quietly lobbied the agency to stop the regulation and it did. Because the statute had assigned the protection of health to the EPA, voters would place most of the blame for failing to protect children from lead in gasoline on the agency rather than the legislators.
The Clean Air Act instructed the EPA to cut lead to healthy levels by 1976, but the agency failed to meet this deadline. On behalf of environmental and antipoverty organizations, I personally filed lawsuits and won judgments on the basis of the agency having violated the law, but the action the agency produced in response fell far short of the statutory promise. Early in the litigation, the EPA’s deputy administrator, John Quarles, candidly told me that even if the court ruled in favor of the children whom I represented, the agency would drag out implementation so that the victory would have no impact. I ended up winning the suit and the victory did have some impact, but not nearly that which the statute promised. Forcing the EPA to take its time were the White House and members of Congress of both parties, who played both sides down the middle. The upshot was that children’s exposure to lead from vehicles increased over the first half of the 1970s.
For the EPA’s failure on lead, I initially blamed the Republicans who occupied the White House and therefore controlled the agency until 1977. When the Democrat Jimmy Carter became president that year, I hoped that his tough campaign talk on the environment would translate into tough action on lead. To the contrary, under President Carter the EPA reduced the already-weak protection of children that his Republican predecessors had issued.12
If the 1970 statute had openly decided how fast to cut the lead in gas rather than leaving the choice to the EPA, Congress itself would have required the lead to be taken out much more quickly than the EPA did. Public demand drove Congress to legislate on air pollution in 1970, just as public demand had driven it to legislate on civil rights in 1964. Of the air-pollution problems, the public cared most about the lead pollution from gasoline. Bumper stickers of the time read “GET THE LEAD OUT.” Of course, the pressure to cut lead would have run up against resistance from industry, but that happened with new cars, too, and the result was a 90 percent cut in emissions by 1975. Moreover, the auto industry had much-more power than the chief opponents of cutting lead in gasoline—the lead-additive makers and the small refiners. In my opinion, if Congress had decided how much to cut lead in gasoline, by the mid-1970s the reduction would have been, at the very least, 50 percent.
By leaving it up to the EPA to decide how much lead to cut from gas, Congress delayed getting most of the lead out by at least a decade. Based upon EPA calculations of the health benefits of eventually eliminating lead in gas, this delay cost approximately fifty thousand lives (about the number of American deaths in the Vietnam War), and so severely injured the brains of a hundred thousand other people that their IQs fell below seventy.13
This ending may
