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Abstract

At Senator Muskie’s funeral I noted that I had been on his staff for fifteen years, but had worked for him for thirty. In a way I am still working for him, or at lease, because of him. This fall my colleague and minority counsel, Tom Jorling, and I are team-teaching a course entitled “Origins of Environmental Law” at Columbia University. Preparing for that course, reading old memos to the Senator, re-reading his floor statements, interrogatories, and speeches and going back to the transcripts of Subcommittee discussion has been revealing, inspiring, and refreshing. I am not sure that, at the time, I fully appreciated what it was to sit in the shadow of greatness. Edmund S. Muskie was indeed a great statesman, legislator, and thinker. While many thought him the “moderate,” especially when compared to his George McGovern/Gene McCarthy colleagues, he was actually a radical thinker. The difference was one of style and perception. Ed Muskie wanted to get things done and he knew how to advantage the situation to extract the most progress with the least controversy. I need not mention that the Clean Air Act and the Clean Water Act—targets for vehement opposition and negative characterization today—were reported from Committee and passed the Senate of the United States unanimously. I probably do need to mention some of the provisions of those laws that were precedent and, by today’s standards, radical. It was Ed Muskie who shepherded through the Congress of the United States and into law, with and without presidential approval, concepts like mandatory agency action; statutory deadlines; open decisions, openly arrived at and enforced through mandatory public participation not only in rulemaking, but also in judicial review; private attorneys general through citizens suits; statutory standards; non-degradation (often referred to as prevention of significant deterioration);8 and, perhaps the most important, a politically unassailable objective of protection of public health and biological integrity in the air we breathe and the water we consume.

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