On every point, Pruitt gets the origins of the EPA wrong. Setting aside whether current or past EPA practices were good policy — and for that matter, setting aside the dubious legal philosophy of “originalism” — this is bad history, concocted as part of an agenda to undermine the EPA’s mission to aggressively eard human and ecological well-being. In fact, the executive branch created the EPA as an independent agency explicitly to distance it from the conflicting agenda of resource development. Both the president and Congress charged the new agency with a broad scope and powerful authority. And in practice, the fledgling EPA was a vigorous regulator.
Before the creation of the EPA in 1970, there was little effective antipollution legislation at any level of government. Although state and local governments had enacted some antipollution legislation, these laws were either too weak or not enforced. States lacked the capacity for environmental research. Business interests exerted powerful pressure at the state and local level against environmental laws. Regulations varied across state lines — a headache for businesses — and interstate pollution problems were largely insoluble. Environmental pollution sickened and killed people.
Federal antipollution laws were no better. They mostly directed the national government to study problems and offer guidance to the states. By the late 1960s, it was clear that this system was unsustainable. In addition to legislation that would create enforceable, national-level pollution standards, politicians pushed for an executive-level institution that could tackle environmental problems.
President Richard M. Nixon was not an environmentalist. But he saw the creation of an environmental agency as inevitable, and he sought to preempt Democrats who wanted to create one through legislation. Moreover, Nixon was already considering how to revamp the executive branch and had created the Ash Council (named for its head, industrialist Roy Ash) to advise him.
As they debated the mission of a federal agency on the environment, the Ash Council did consider a department that combined antipollution and resource management functions. But several administrators believed that this would create a conflict of interest between development and pollution control, as well as what Russell Train, head of Council of Environmental Quality (and later an EPA administrator), called a “fuzziness of mission.”
“What we needed — and what the public wanted,” Train argued at the time, “was an organization with a clearly defined mission: to be the sharp, cutting edge of environmental policy.”
The Ash Council echoed these concerns to Nixon, and Nixon echoed them to Congress when he proposed creating the EPA as a “strong, independent agency” charged with viewing the environment as a “single, interrelated system” for the sole purpose of pollution control.
In addition, Nixon argued that his proposed agency would have a “broad mandate.” It would “develop competence in areas of environmental protection that have not previously been given enough attention … and would provide an organization to which new programs in these areas could be added.”
Congress accepted Nixon’s reorganization, and the EPA was born Dec. 2, 1970. Although it was never given a charter, the EPA was clearly not envisaged as an agency with a narrow scope or an agency whose role it was to develop natural resources and industry.
The signature laws passed after the creation of the EPA are also clues to the agency’s early mission. With the 1970 Clean Air Act, Congress charged the EPA with setting national ambient air quality standards, for the sole purpose of public health and welfare — not development. And two years later, the 1972 Clean Water Act set a zealous national goal for all surface waters to be “fishable and swimmable” by 1983 and for there to be “zero pollution discharge” by 1985. These laws suggested the agency should consider the effects of pollution expansively, including not just the impact on human health, but also on animals, plants, soil, climate, recreation and aesthetics.
The keystone laws of the early EPA thus gave the agency explicit authority over states, ambitious goals and a broad scope to consider ecological health and human well-being.
The early EPA also energetically enforced antipollution laws. Under its first administrator William Ruckelshaus (like Nixon and Train, a Republican), the EPA targeted Fortune 500 companies and big cities to send a tough message. By 1973 the agency boasted that the “aggressiveness of our enforcement program has become widely recognized.”
Pruitt and others describe the legal relationship between the states and the EPA as “cooperative.” It can be. But Congress gave the EPA legal authority over the states in many matters. As with businesses, the EPA has forced states to comply with standards, just as Congress believed would be necessary and appropriate. In the 1970s it was a muscular, if inconspicuous, enforcer — a “g0rrilla in the closet,” as Ruckelshaus put it.
In short, the EPA was never intended as an agency that balanced pollution control with development. It was given the charge to consider the effects of pollution capaciously. And it was given powerful tools of enforcement and critical legal authority over states. All for a reason: Because state-level pollution control was a failure and mixing antipollution control with development would create conflicts of interest.
One thing has changed since the EPA’s putative golden days in the 1970s: President Reagan massively cut the EPA’s budget. The agency has never recovered its level of funding, and its programs have suffered extensive problems and delays as a result. The real change, the real problem, with the EPA has been underfunding, not overreach. Pruitt has proposed even deeper cuts that will exacerbate this problem.
Pruitt’s approach to the EPA looks less like “originalism” than “ancestralism,” which is to say, a return to a time before the EPA existed. That would be consistent with his boss’s promise to “get rid of” the EPA “in almost every form.” If so, Pruitt should say so and leave the original EPA out of it. For a return to the agency’s origins would be a return to a powerful, national regulator working to secure human and ecological well-being.