On April 20, Colorado Democrat Tim Wirth introduced the first of these challenges, a measure moving up the date by which states would have to comply with clean air rules. We had chosen the Wirth amendment because it offered two attractive features. Regulatory jargon can be difficult to follow: MACT standards, PSDs, nonattainment provisions, and so on. But anyone can grasp the idea that no state would ever meet its obligation without a firm deadline. And because it did not affect a specific industry, the Wirth measure also served as an easy symbolic vote for members wishing to demonstrate their independence, which we hoped would be just enough to eke out a win.
The prospect of another Waxman-backed amendment did not exactly strike fear into our adversaries. Given that we had posted an uninterrupted losing streak now dozens of amendments long, nobody expected us to pass this one. But we stunned the Dingell coalition by prevailing, 22-19. Ralph Hall, the conservative Texas Democrat (who became a Republican), cast the deciding vote. He had never sided with us before, but he was persuaded to do so on this single amendment.
Shortly thereafter, Ron Wyden, an Oregon Democrat, followed with an amendment to undo a provision in the Dingell bill doubling the pollution permitted in national parks. This stood to be a much tougher vote because most of the pollution came from cars, and that put us on a collision course with the chairman himself. But Wyden was addressing an outrageous affront—one that was similarly easy for the public to grasp—and on April 28 it passed 25-13. Seeing his coalition coming apart, Dingell had no choice but to suspend the markup and regroup.
Throughout the summer, both sides prepared for the upcoming clash over the third test-case amendment, a provision limiting toxic air pollutants. The Wirth and Wyden amendments had shown that Dingell lacked the strength to force through anything he wanted. This one sought to go a step further and splinter his coalition. Imposing as the industries aligned against us were, they had come together on no firmer a basis than individual greed. The Reagan administration had promised each of them specific regulatory rollbacks. Our strategy was to muster all our strength to deny one industry its favors, and in doing so, set off a chain reaction—if one industry pulled out, others might waver, too, eventually turning the coalition members against one another. The idea was to prey upon industry paranoia that anyone left out of the bill would not only lose a cherished rollback, but probably face tougher restrictions than before to offset those that would be weakened elsewhere. Though the gathered interests operated in lockstep at the outset, all but the auto industry worried that Dingell might abandon them in a pinch.
We chose the toxic air amendment because the chemical industry had a great deal riding on the outcome. Two members whose constituents lived close to chemical plants, Jim Florio, a liberal Democrat from New Jersey, and Billy Tauzin, a conservative Democrat from Louisiana, agreed to sponsor the amendment. At issue was the question of how the law should classify thirty-seven substances that the EPA had identified as “potential carcinogens.” The Florio-Tauzin amendment gave the agency four years to determine whether the substances were hazardous, and automatically listed them as such if no decision was made. Dingell’s bill set a similar deadline, but with the key difference that it allowed the EPA to delay any final decision indefinitely, which had the practical effect of guaranteeing that it would.
As committee chairman, Dingell held the advantage of controlling the calendar and didn’t have to call up the measure until he was certain that he had the votes to prevail. The call came in early August. Heading into markup, industry groups were brashly confident of a win. But I wasn’t so sure. Over the summer, we had worked hard to organize a coalition, approaching members who, like Ralph Hall, did not ordinarily vote with us but might be persuaded to here. By my count, Florio-Tauzin hinged on a single vote—that belonging to Marc Marks, a Pennsylvania Republican.
Marks was an occasional vote for me on environmental issues, but as someone with industry in his district never a lock. He was a Jewish Republican, so we had religion in common, and I had come to know him as an honest and sincere fellow. But Marks was in a tough spot. Republicans pushed him around whenever he took moderate positions (he later switched parties), so I didn’t expect to get him. But I knew that if we could peel him off, we stood a good chance to carry the day. Over the summer, Marks told me that he would do it.
But when Dingell recalled the committee after months of inactivity, we discovered that we could not get ahold of Marks—always an ominous sign. Everyone assumed the worst, and on the night before the vote, it looked to me like the end. The next morning, as we were about to begin, I approached him in the committee room. “Are you going to be with me?” I asked apprehensively. “Yes, I will,” he replied. Behind me and just out of earshot, my chief of staff, Phil Schiliro, stood anxiously awaiting word. I leaned over and told him, “Don’t smile, but he’s with us.” For a moment, I started choking up at the realization that all our effort on behalf of what had often seemed a hopeless cause was about to produce a win. On August 11, 1982, the Dingell amendment failed by Marks’s single vote, and soon afterward Florio-Tauzin prevailed. An ashen-faced Dingell brought down his gavel and declared, “Meeting recessed.”
With that unexpected loss, Reagan’s historic endeavor to shred the Clean Air Act came to a sudden and ignominious end. Dingell lost the opportunity to revive his bill when his outside coalition collapsed. Its prize suddenly vanished, the chemical industry withdrew its support, and others soon followed, having lost confidence that they could prevail. American industry and the Reagan administration never mounted another such full-scale assault. But the act itself still needed updating. Having fought back efforts to weaken it, we now turned to the task of making it stronger.
IN BLOCKING REAGAN, WE PRESERVED THE LAW REQUIRING POLluted areas to improve their air and clean areas to stay that way. But other problems lingered. Acid rain caused by Midwestern utilities burning high-sulfur Appalachian coal was killing lakes and forests in the Northeast and Canada. For several years running, the Senate’s Environment and Public Works Committee had passed acid rain controls, but none ever made it to the Senate floor: Robert Byrd, the Democratic majority leader who represented the coal state of West Virginia, made sure of this. By 1983, however, Byrd had been relegated to the minority, and Republican margins in both houses had suffered in the midterm elections for Reagan’s overreaching. Several of us in the House decided to take up acid rain.
Science showed clearly that acidic emissions from outdated power plants were the source of this menace. Fixing it would be an expensive proposition that required outfitting smokestacks with scrubbers—a cost that utilities were loath to bear, while Midwesterners feared it would drive their electric bills through the roof. Coal miners in the Midwest and Appalachia feared that switching to cleaner, low-sulfur coal, which was mined elsewhere, would cost them their jobs.
This regional dilemma caused the problem to persist: To one degree or another, everyone cared about acid rain. But only the Midwestern lawmakers who represented the offending utilities cared enough to fight to the death. To solve this regional problem, we set out to find a national solution that would spread the cost across the entire country. Doing so, we believed, would redistribute the main impediment to Midwestern cooperation—the cost of modernization—but in an easy enough way for the rest of us to bear that no one would object too strenuously. We settled on the idea of including a small add-on to electricity bills.
But before we could act, the administration threatened to upend the process. Citing an obscure provision in the 1977 Clean Air Act, Reagan’s EPA administrator, Anne Burford, announced plans to impose harsh economic sanctions on 218 communities across the country that had failed to meet a 1982 deadline for clean air. Burford’s legal interpretation was dubious, but her intention couldn’t have been clearer. Were the sanctions enforced, cities and states would immediately deluge Congress with furious demands that the law be rewritten, quickly and loosely: industry’s dream come true. (In a grim irony that no doub
t doubled as an advantage to our opponents, the sanctions included forfeiture of federal grants for clean air programs.)
Politics indeed makes strange bedfellows. Having just fought to maintain one set of deadlines, it suddenly became imperative to extend another—and my yeoman ally turned out to be none other than Bill Dannemeyer. The key to political victory is always being open to unlikely alliances. Even someone with whom you’re at odds 98 percent of the time—certainly the case here!—may still become a useful partner. Dannemeyer normally sided with industry, but his smog-choked Orange County district stood to get hammered with sanctions, which put us fleetingly on the same side.
Together we offered an amendment postponing the deadline to the fiscal appropriations bill moving through the House, and encountered the expected opposition. “The law is the law,” argued Dingell, having long urged the EPA to enforce the sanctions. Amending the law required a vote of the full House. On June 2, 1983, the Dannemeyer-Waxman amendment passed 227-136. Reagan’s gambit proved too blunt an instrument, and succumbed to regional politics: So many districts stood to lose that he could not assemble even the possibility of a majority.
Though we dodged that bullet, knotty regional issues were still tying up efforts to address acid rain. Later that month, I joined with Gerry Sikorski, a Minnesota Democrat, to introduce a bill requiring the dirtiest power plants in the country to install pollution control technology, of which the federal government would cover 90 percent of the cost through the electricity bill fee. Here was a proposal that went beyond merely “splitting the difference” and actually solved the acid rain problem equitably for all sides: It managed at once to preserve the environment, affordable utility rates, and high-sulfur coal jobs.
To build support, I convened a series of field hearings in the Midwest intended to showcase this winning proposition that delivered an environmental benefit without imposing the regional economic consequences Midwesterners had come to fear. Even though they stood to gain $3 billion in federal help, the utilities wanted no part of this, and relied on the White House to provide cover. In the face of overwhelming scientific consensus on the cause of acid rain, Reagan officials insisted that the jury was still out.
By the following spring, we believed that we had put together a narrow majority that, from the outside, wouldn’t have appeared to make much sense. Every non-Midwestern Democrat on the subcommittee supported a bill that would tax their constituents to pay for pollution control in another part of the country. Opposing the idea were all six Republicans and three Midwestern Democrats. The remaining member, Dennis Eckart, an Ohio Democrat, stood to tip the balance, and his was ordinarily a solid vote for the environment. But unemployment from industrial closings had ravaged his district, which was also home to two of the fifty utility plants the bill targeted for clean-up. We had negotiated for weeks to earn his support, and, believing that we had it, I called for a vote—only to be stunned as Eckart sided with the opposition, striking down, by a single vote, the entire acid rain measure.
The next year we tried again, this time with provisions that would make it cheaper and easier for utilities to cut sulfur dioxide emissions. This time, the bill made it through subcommittee, but no further, after industry groups spent more money lobbying against it that any other measure that year. In the mid-1980s, clean air was an issue in transition. Industry’s attempt to weaken regulations had failed; but it had not yet been compelled to accept stronger ones.
IN CONTRAST TO WHAT MANY PEOPLE IMAGINE, LEGISLATIVE DEbates rarely occur within fixed parameters, or at least not for very long—the center is constantly moving. In the years it can take to pass a major piece of legislation like the Clean Air Act, the terms of debate often shift significantly. Sometimes the balance shifts gradually and by design, such as from a sustained lobbying effort. At other times, the shift happens suddenly and without warning, the consequence of a new president, a shake-up in Congress, or a major news event that recasts public opinion.
In the early morning hours of December 3, 1984, a Union Carbide pesticide plant in Bhopal, India, leaked forty tons of deadly methyl isocyanate gas, instantly killing more than three thousand people and maiming 100,000 more in one of the worst industrial disasters history has ever seen. The Bhopal tragedy riveted the world, and, practically overnight, turned public attention in the United States to the dangers of toxic air pollutants.
Our inadequate clean air laws provided plenty of cause for concern. Incredibly, the EPA did not consider methyl isocyanate a hazardous substance, nor other plainly dangerous chemicals like phosgene, although it had been used as a poison gas in World War I. At the time of the disaster, the agency recognized just five substances as toxic pollutants—a shortcoming the Florio-Tauzin amendment had sought to address two years earlier. But that effort had died with the 1982 bill.
EPA’s haplessness in this area stemmed from the sort of bureaucratic breakdown of common sense that brings justified contempt upon the way government sometimes works. The agency’s policy was not to list a substance as a toxic air pollutant until it was prepared to regulate it—but it also refused to regulate any substance not already recognized as a toxic air pollutant. Obviously, this circular logic prevented anything from ever being done. In the fourteen years since the Clean Air Act had come into being, the EPA had categorized only a handful of 650 chemicals as dangerous air pollutants.
A catastrophe like Bhopal creates unique conditions in which long dormant issues can suddenly find new life and rocket to the top of the congressional agenda—but it’s important to move quickly. To capitalize on public concern, we held a field hearing the very next week in an auditorium located along the fence line of a Union Carbide plant in Institute, West Virginia, that produced methyl isocyanate. Greg Wetstone, an environmental counsel on my subcommittee staff, traveled ahead to interview local officials and other residents and gather information on the plant’s safety procedures.
Greg’s discoveries were troubling, even heartbreaking. Located in the narrow Kanawha Valley, the plant was identical to the one in Bhopal and emitted hazardous chemicals that appeared to pose the risk of a Bhopal-like incident. The plant manufactured another toxin called mercaptan, the gas additive responsible for the smell in your stove, which created overpowering odors that burned the eyes and lungs of those who lived nearby on the valley floor, forcing them indoors on windless days. These were the area’s poorest residents, since the better-off could afford to live high in the hills, where the air was cleaner.
Public safety was an afterthought. Local cancer rates were 25 percent higher than the national average. One schoolteacher had taken to sleeping on an incline to prevent fluid from building in his lungs. At the hearing, a union representative testified that the evacuation plan was to “put a wet cloth over your face and go crosswind,” only to be corrected by a school official who pointed out that a crosswind path in the valley would lead one into the Kanawha River on one side or up a mountain on the other. Residents were left to find solace in what they said was the company’s assurance that “if you can smell it, it can’t hurt you.” As the community’s largest employer, Union Carbide held tremendous sway, which discouraged many people from testifying. The reality that the company could ruin the local economy by relocating the plant was clear to municipal officials and workers alike.
Coming on the heels of Bhopal, the hearing drew enormous attention and became the lead story on every network news show. The few days we’d had to prepare for the hearing hadn’t allowed for as thorough an investigation as would normally occur. But even the abbreviated effort produced startling revelations. Union Carbide had reported to state regulators that the Institute plant emitted twelve pounds of chemicals into the air each day. A scientist from the Occupational Safety and Health Administration testified that, in fact, the plant emitted 11,000 tons of toxic materials every year, including about sixty chemicals, many known carcinogens among them. As if to underscore the danger, an alarm from the plant sounded during the hearing, briefly t
hrowing the proceedings into chaos, since no one knew if chemicals had leaked and if we had to run for our lives. (We later learned from a company memo that plant managers had feared that an accident could cause widespread casualties.)
OUR PURPOSE THAT DAY WAS NOT ONLY TO EXAMINE CHEMICAL plant safety, but to try and answer a fundamental question: Just how toxic was the air that Americans breathe? Before you can begin thinking about a legislative solution, you must first understand the scope of the problem.
We knew from EPA’s failures that government did little to control the release of airborne pollutants. But we soon discovered an even more basic shortcoming that made quantifying the problem impossible: No one collected data about how many chemicals were released into the air each year—not federal, state, or local governments or even the chemical companies themselves. The EPA lacked such rudimentary information as an up-to-date list of the nation’s chemical plants and where they were located.
Just as we had done with pharmaceutical companies when trying to understand the orphan drug issue, we initiated a broad voluntary survey of the country’s largest chemical manufacturers to find out which toxic substances they put into the air. Only fifty of the eighty-six companies we approached supplied detailed data. But even these incomplete responses indicated that 80 million tons of toxic pollutants entered the air every year—far more than anyone had imagined.
In the wake of Bhopal, spewing carcinogens into the air was bad enough; but refusing to share basic safety information with government and worried neighbors was not just arrogant, but outright offensive. Citizens have a right to know when dangers lurk, even if their elected officials choose not to protect them. To ensure public awareness, I joined Gerry Sikorski, Tim Wirth and Jim Florio in proposing a national inventory of toxins that were known, or suspected to cause, cancer, birth defects, and other chronic health problems. In addition to giving people the right to know what chemicals their local plants were producing, the bill granted anyone injured by poisonous releases the right to sue in federal court, and also required the EPA to regulate more airborne pollutants. We attached the amendment to a hazardous waste clean-up bill moving through the House.
The Waxman Report Page 9