“New Jersey is called the Garden State, but gardens haven't had much chance lately in the state's environment of smog-choked skies and polluted rivers,” wrote Richard Bragaw of the Dayton Daily News (Dayton, Ohio) in May of 1971. Nevertheless, Bragaw conceded that experts considered New Jersey to have one of the best state pollution control programs in the nation at that time. Moreover, even though “Ohioans pride themselves on the fact that the state was one of the first to get started on pollution programs,” Bragaw acknowledged that Ohio's antipollution agencies were weak, underfunded, and understaffed compared to those from states like New Jersey.Footnote 1 Why did Ohio — a pioneer in the Progressive Era anti-smoke movement — fall behind New Jersey in air pollution control after World War II? Why was New Jersey able to partially overcome business opposition to air pollution control while Ohio remained imprisoned by it? More generally, what accounts for the development of effective state pollution control in the United States after World War II, given the historical institutional constraints on environmental policy?
In his sweeping account of the development of environmental policy in the U.S., David B. Robertson argues that “two distinctly American institutions have structured environmental policy: (1) extensive private owner control over the use of private land (or real property) and (2) a federal system that encourages states to compete in nurturing in-state industries, attracting new investment, and growing the state economy. These institutional arrangements have encouraged Americans to prioritize the use of natural resources for profit.” That said, Robertson acknowledges that during the 1960s and 1970s, the U.S. pioneered stringent, innovative environmental policies that helped the nation overcome the states’ tendency to eschew strict regulations on in-state industries, which always had the option of relocating to states with weaker regulatory regimes. Despite such measures, he maintains that the federal government and most states continue to face headwinds from a determined opposition of business interests, the agricultural sector, and ideological conservatives. In the end, Robertson suggests that only states with strong public support for environmental initiatives (e.g., California) can overcome the structural and economic barriers to secure effective environmental regulation.Footnote 2 This emphasis on states responding to strong public support for environmental initiatives is found in other studies as well.Footnote 3 In the meantime, though, Robertson and other scholars downplay the importance of state and local agency capacity in accounting for the various patterns of environmental policymaking that emerged in post-war America.
Such neglect seems unwarranted because many scholars and policymakers in the 1960s and early 1970s were fixated on agency design and the importance of creating new bureaucratic structures that could act independently of business interests when developing regulatory policies and implementing them. As Paul H. Weaver wrote in 1978 (albeit about national regulation), “the new regulatory agencies are utterly unlike the old ones,” in part because their designers were aware of the social science literature which highlighted agency capture. Indeed, this “new social regulation” sought to ensure that environmental agencies focused on the public welfare by setting relatively specific deadlines and standards for pollution abatement and requiring the adoption of a “command and control” approach to regulation. Instead of monitoring particular sectors of the economy as was the case with New Deal era agencies, newly-established bureaucracies like the EPA regulated economic activity across sectors. Moreover, many (though not all) reorganization advocates contended that agencies ought to be led by solitary executives rather than by the multi-member commissions that had characterized New Deal era regulation in order to achieve greater efficiency and accountability to executive authorities.Footnote 4
While much of the literature about the “new social regulation” concentrated on national developments, students of public administration were also focused on administrative design at the state level in the late 1960s and early 1970s as the states created their own environmental agencies. These scholars noted that “cozy relationships have sometimes developed between state officials and the polluters they are supposed to regulate” and maintained that the new state environmental agencies would have to attain structures which guaranteed independence from affected industries. These observers also noted the states often created “superdepartments” which combined pollution control with programs to manage natural resources, a structure they feared would shortchange the regulation of air and water pollution and encourage cooptation by private interests. Hence, they often contrasted the “superdepartments” with mini-EPAs, state agencies which focused entirely on pollution control. Finally, they chronicled the debate among state officials as to whether a unitary agency leader would be preferable to a plural one.Footnote 5
This debate about environmental agency structure at the state level has been ongoing ever since. In 1975, one head of a state environmental protection agency rejected the criticism of “superdepartments” and instead maintained that “[t]he success of any reorganization depends upon the history of the programs being reorganized, the circumstances and timing of the reorganization, and the leadership that is given.”Footnote 6 In the same year, a study of state agencies concluded that environmental policymaking was best implemented by either mini-EPAs or “superdepartments,” while anti-pollution agencies that resided in health departments were least effective.Footnote 7 More recently, in 2016, Emily Bedwell found that agency structure had no impact on whether states adopted more extensive environmental policies, while JoyAnna Miller demonstrated in 2023 that mini-EPAs were generally more effective at air pollution control than “superdepartments” and agencies lodged in health departments.Footnote 8
Regardless of their structure, studies have demonstrated that state air pollution control agencies have a substantial impact on policymaking and its outcomes.Footnote 9 Hence, scholars would be wise to consider how they influence policy outcomes in addition to variables like agency structure, public support for the environment, and environmental group strength. This paper will compare environmental policymaking regarding air pollution in two states — New Jersey and Ohio — which were both more industrialized than average in the 1950s and 1960s and maintained very similar totals of value added from manufacturing (VAM). As Table 1 shows, these two states had diversified economies, though New Jersey derived more VAM from “chemicals and allied products” than Ohio, and Ohio obtained more VAM from “transportation equipment” and “primary metal industries.” Furthermore, most of the industries listed in the table for the two states were recognized as significant stationary sources of air pollution, including manufacturers of transportation equipment, chemicals, machinery, rubber and plastic products, food, and primary and fabricated metal industries.Footnote 10 This similarity is important because some studies show that states are more likely to invest in pollution control if they have significant air pollution problems.Footnote 11 While both states contain fragile ecosystems and areas of natural beauty, neither state sought to market itself to the nation as an American paradise, and that image was not integral to their economic development plans. Both states were also subject to the “pseudocorporatism” that characterized air pollution control policymaking during these decades, and their public officials feared that imposing stringent regulations would lead to businesses relocating to areas with weaker air quality controls.
Ohio and New Jersey in the 1960s: Population and Manufacturing
Sources: U.S. Census (1960) and U.S. Census for Manufacturers (1963).
New Jersey was more densely populated than Ohio, but both were among top ten states in terms of population density. (See Table 1.) Both states also border Pennsylvania, home of Donora, a municipality of about 14,000 residents that suffered from an infamous lethal smog which killed over 20 residents and affected thousands of others in October of 1948.Footnote 12 Neither of these states framed environmental protection as a constitutional right,Footnote 13 and neither are located in the South, the region that consistently showed the least amount of concern for environmental issues like air pollution in polls from the late 1960s and early 1970s.Footnote 14 While other states have experimented with new agency designs for pollution control since the 1970s, neither New Jersey nor Ohio have substantially reorganized their state-level environmental protection agencies since their initial development.Footnote 15 Finally, both New Jersey and Ohio received federal aid for their air pollution control programs and witnessed the emergence of organized anti-pollution campaigns led by new and existing civic organizations, though these groups achieved their greatest visibility after — not before — the development of statewide agencies.
Despite these similarities, New Jersey was an environmental pioneer which developed a statewide air pollution control program in 1954 and enhanced its capacities during the 1960s while Ohio only developed its first state agency, the Air Pollution Control Board, in 1967. Furthermore, New Jersey's air pollution control program has traditionally ranked higher than that of Ohio, which has consistently been among the top states with respect to the amount of toxic chemicals released into the air.Footnote 16 This paper will demonstrate that statewide action on air pollution was primarily shaped by these states’ institutional legacies (or lack thereof) from the Progressive Era. In Ohio, extant urban pollution agencies remained the center of pollution control during the 1960s even as policymakers recognized their limited capacity to address air pollution. In contrast, policymakers in New Jersey could design a statewide agency virtually from scratch without disrupting existing institutions and their relationships with affected industries. While it took some time for New Jersey to develop an effective state agency, policymakers and pollution control advocates could focus on improving one statewide agency rather than several urban agencies, thus easing their path to developing an agency capable of regulating corporate activity.
1. Statebuilding, policy centralization, and the development of air pollution control agencies
Much of the literature on statebuilding focuses on explaining the concentration of power within centralized governments and the ability of such authorities to exert control over economic and social activities throughout their territories. As scholars like Elisabeth Clemens have demonstrated, however, statebuilding in the United States has never been a purely linear process. Over time, there has been no wholesale, systematic progression, culminating in the centralization of power in autonomous national agencies. Instead, political entrepreneurs and public officials have ultimately fashioned a muddled, fragmented government which mixes national efforts with those of state, local, and private actors to create a bewildering array of governing structures — in short, Clemens’ “Rube Goldberg state.”Footnote 17
Statebuilding in the environmental policy area has been no different. While those promoting the preservation of wildlife during the Progressive Era traversed the shift from local to state to national regulatory regimes in a relatively smooth fashion,Footnote 18 opponents of water and air pollution were not so fortunate during the first half of the twentieth century. The national government would only develop national standards for air and water quality in the early 1970s, and even then, the states retained significant control over how to meet those standards once their implementation plans had been approved. Likewise, the Environmental Protection Agency (EPA) — the national agency which oversaw the implementation of these new standards — was not designed to grant its administrators untrammeled discretion to apply them. Instead, the EPA's regulation of air and water pollution relies on cooperative federalism, a variant of federalism in which national, state, and local governments interact cooperatively and collectively to solve common problems.Footnote 19
To be sure, the adoption of the Clean Air Act Amendments of 1970 dramatically expanded the federal government's role in air pollution control, a policy area that had traditionally been the primary responsibility of the states. This legislation authorized the development of comprehensive state and federal regulations to curb emissions from both stationary and mobile sources of air pollution. For mobile sources, the CAAA imposed emission standards on vehicles; for stationary sources, it established four major regulatory regimes: the National Ambient Air Quality Standards (NAAQS), State Implementation Plans (SIPs), National Emission Standards for Hazardous Air Pollutants (NESHAPs), and New Source Performance Standards (NSPS).Footnote 20 Indeed, since cooperative federalism in this period often involved the federal government's cooptation of state power (either partial or complete),Footnote 21 analysts of American political development typically depict the development of agencies like the EPA during the years 1967 – 1975 to be part of the centralization narrative.
Because this variant of federalism was incorporated into air pollution control statutes beginning in 1967, the EPA has never been able to truly centralize the implementation of federal air quality legislation because the states could achieve regulatory primacy if they adopted standards that met or exceeded federal standards and demonstrated that they had the necessary equipment and personnel.Footnote 22 In fact, the EPA was generally not prepared to implement the Clean Air Amendments of 1970, and by 1972, had approved the initial SIPS for all fifty states, the District of Columbia, and four territories.Footnote 23 Furthermore, the Environmental Protection Agency cannot require the states to increase their expenditures on pollution control, leaving such efforts subject to budget cuts when state coffers are empty.Footnote 24 While it retains the capacity to “federalize” some enforcement actions, the agency has rarely done so.Footnote 25 At best, with respect to air pollution, the EPA is empowered to withhold federal highway funds for areas of the states which are out of compliance with national air quality standards, a power it exercises infrequently.Footnote 26 Hence, the states retain significant autonomy and are responsible for the majority of inspections and enforcement actions associated with their State Implementation Plans, with only periodic interventions or threats of intervention from the EPA.Footnote 27
Because cooperative federalism in air pollution relies so heavily on state agencies for implementation, understanding the development of these bureaucracies and their capacity is an important endeavor. Indeed, many scholars acknowledge that state enforcement of environmental laws has created an unequal playing field, whereby some states maintain programs that exceed national standards while others lag behind.Footnote 28 Instead of focusing primarily on agency structure, this study considers the role of institutional legacies and how they shaped the development of state air pollution control agencies and their enforcement capacity. While some states drew upon existing agencies in creating their state-level departments, others chose to develop new bureaucracies altogether. These decisions, I argue, may have consequences for environmental regulation that persist into the twenty-first century. That is because agencies develop rules, practices, traditions, and shared attitudes and beliefs which are then transmitted to newcomers through socialization. Indeed, as bureaucrats collaborate to solve problems and complete tasks, they establish an organizational culture which determines “the way things are done around here” which then guides future behavior and practices.Footnote 29
Furthermore, students of American political development have long maintained that initial policy arrangements may shape the ensuing development of policy and politics.Footnote 30 In the case of Ohio, the development and entrenchment of urban air pollution control agencies prior to the 1960s had a significant impact on how policymakers, the business community, and civic groups responded to the increasingly salient issue of air pollution during this decade. Rather than pay the costs of uprooting the existing pollution control regime in Ohio, these interested parties worked within the limits of this system until forced by the federal government to develop a statewide approach to reducing the emissions of pollutants into the atmosphere. Moreover, even after the state government assumed a supervisory role over pollution reduction, Ohio merely layered state authority over the urban-based air pollution control agencies, allowing them to continue many of their long-established practices.Footnote 31 In contrast, policymakers in New Jersey could “start from scratch,” so to speak, because the state was bereft of a powerful set of local pollution control agencies that were seeking to protect their autonomy.
2. Progressive era legacies and post-war developments in air pollution control
In the United States, the anti-smoke movement was the first sustained effort to address the nation's deteriorating air quality as industrialization proceeded apace. Emerging during the late 19th and early 20th centuries, this movement was a loosely-organized network of urban activists who sought to reduce the emissions of coal smoke by manufacturers, transportation companies, service industries, and various premises. These activists included clubwomen, physicians, “good government” progressives, real estate investors, and engineers, and their arguments for clean air emphasized concerns about health, cleanliness, aesthetics, property values, and efficiency. In response, many cities — including Newark, Cincinnati and Cleveland — developed air pollution agencies and adopted ordinances designed to reduce ongoing and future air pollution. For example, they often required businesses to install smoke abatement equipment and to secure building permits for all new construction and repairs to boilers and furnaces.Footnote 32
After World War II, air pollution control remained largely the responsibility of municipalities and a few counties. However, the growth of suburbanization soon underscored the inadequacy of such localized regulation. As urban residents moved to the suburbs, “an ever-larger number of polluting businesses were located outside of the boundaries of large cities and could therefore no longer be controlled by municipal officials.” While some municipalities sought to develop cooperative arrangements with nearby suburbs, these arrangements were entirely voluntary and depended on cooperation which was often not forthcoming. Worse yet, small cities typically could not afford to sustain a local program to address air pollution, and they were often at the mercy of local industries, which supplied jobs and other economic benefits to the community.Footnote 33
Meanwhile, scientists and engineers developed a broader understanding of air pollution during the postwar years. Prior to 1945, smoke inspectors had focused entirely on the “smoke” problem — the black or grey smoke produced by coal-burning engines and/or heating units in locomotives, steamships, manufacturing plants, homes, hotels, and other structures. However, by 1951, prominent engineers like Allen J. Johnson and George H. Auth endorsed the view which held that “[s]moke abatement is not the only objective; it is air purification. It is the unseen gases and fumes from all sources with which we are concerned; not coal smoke alone.” Indeed, by 1951, “thirty seven of fifty-six large American cities had revised their local ordinance since the end of World War II. Further, as a rule, regulations now no longer pertained only to the smoke nuisance but also to other types of airborne dust, the majority of laws even containing regulations on gaseous pollutants.” This growing consensus that air pollution involved both visible and invisible pollutants did not necessarily alter the practices of regulatory agencies, however.Footnote 34
As engineers expanded their understanding of air pollution, relevant municipal and county agencies were ill-prepared to assume broader responsibilities for the abatement of air pollution. The number of agencies grew from 55 in 1940 to 82 in 1950, but few of these agencies employed more than two persons. Moreover, these agencies struggled to hire qualified personnel as they offered uncompetitive salaries and required their employees to possess a wide range of technical, administrative, and political skills to be effective. Significantly, as the definition of air pollution broadened, the technical capabilities of pollution control personnel remained narrowly based in mechanical engineering and its mastery of furnace technology. Typically, mechanical engineers lacked the expertise necessary to grapple with the emission of gases and particle pollution from sources other than solid fuel combustion. Hence, pollution control agencies continued to focus on coal smoke and used crude tools (e.g., the Ringlemann ScaleFootnote 35) to determine coal smoke violations even as this kind of pollution declined.Footnote 36 In short, there was a growing incongruity between the problem of air pollution and the stagnant agencies designed to address it, and few members of the general public noticed.
While civic associations still periodically mobilized municipal campaigns against air pollution after 1945, corporate participation in environmental policymaking dwarfed their modest efforts until the 1960s. To characterize the relationship between regulators and industry, Frank Uekoetter has coined the term “pseudocorporatism” to capture the collaborative relationship between air pollution control agencies and American industry that produced an unbalanced partnership in favor of the latter. As Uekotter writes, “American industry was willing to advance on the clean air front more energetically than before or after, but at the same time, this willingness brought air pollution control into a fateful dependence on industry's goodwill.” In fact, during the 1950s, industrial journals were strong proponents of clean air endeavors, and trade associations encouraged their members to adopt anti-pollution practices even if they weren't legally required to do so. Of course, corporate leaders were partly motivated by their interest in reducing civil liability and avoiding more stringent regulations, but pollution control authorities welcomed their participation, thus giving them the last word regarding new limits on air pollution.Footnote 37
With the adoption of the Clean Air Act of 1963, the federal government proffered grants to encourage state governments to develop air pollution control programs which could establish air quality standards and implement them. However, as of 1966, only nine states could boast of such programs including heavily-industrialized states like New York, Pennsylvania, and New Jersey, as well as states like Oregon and Hawaii which were less developed. At the same time, though, the federal government also distributed grants to cities and counties that maintained air pollution control programs. Hence, a state like Ohio could provide little in the way of financial and administrative support for state anti-pollution programs but nevertheless be home to five major municipal programs in Cincinnati, Cleveland, Columbus, Dayton, and Toledo.Footnote 38 In other words, while the federal government helped advance the development of state air pollution control programs, its willingness to subsidize local agencies reduced its capacity to challenge the entrenched urban units in Ohio and, in fact, reinforced their existence. Only in 1967, when the federal government threatened to develop air quality standards in the absence of state air pollution control programs, did Ohio respond by creating a statewide agency.
Although the federal government's encouragement of local and state pollution control efforts sometimes fortified the fragmentation of these efforts, it was nevertheless the case that the states were in a better position to develop and implement public policies after World War II than in previous eras. During the middle of the twentieth century, state governments took a number of steps to modernize their operations. They began to emphasize centralized control of policy implementation and sought to create a more rational structure for their systems of agencies and commissions. Furthermore, they developed more professionalized legislatures that could increasingly rely on expert staff. Many states also strengthened their governors, granting them longer terms and greater control over the administrative apparatus. As demands for state action increased, the states responded by finding new sources of revenues to pay for new services and regulatory policies.Footnote 39 Indeed, the governments of both New Jersey and Ohio underwent many of these reforms, thus enhancing their capacity to govern. For example, by 1967, both states had lengthened their gubernatorial terms to four years, streamlined their state agencies, and adopted reforms to professionalize their legislatures.Footnote 40
3. New Jersey: the advantages of starting from scratch
Unlike Ohio and its well-organized anti-smoke movements in Cincinnati and Cleveland during the first half of the twentieth century, New Jersey lacked sustained, widespread activism against the emission of coal smoke prior to World War II. That is not to say that its residents never protested the ill-effects of the “smoke nuisance.” Rather, its public officials managed to minimize this problem by capitalizing on the electrification of some railroad linesFootnote 41 and encouraging the reliance on cleaner-burning anthracite coal rather than the dirtier bituminous coal, sometimes through the adoption of ordinances to that effect. With their access to the anthracite coal fields in northeastern Pennsylvania, New Jersey, New York, and Pennsylvania consumed more than two-thirds of the anthracite coal produced in the United States during these years.Footnote 42 Of course, due to coal strikes, anthracite coal was not always available, and some businesses (like most railroads) used soft coal anyways. As a result, New Jersey residents did periodically agitate for the adoption of ordinances that outlawed the emission of dense smoke, often targeting the coal-burning railroads.Footnote 43 In response, though, the New Jersey Supreme Court nullified such restrictions, ruling that they were unreasonable and interfered with the railroads’ rights to operate, per their charters.Footnote 44
Furthermore, anti-smoke agitation was often harder to sustain if a city lacked dedicated smoke inspectors and instead relied on general purpose officials like Board of Health officials to monitor the smoke nuisance. Burdened with a wide range of responsibilities, such officials were less likely to be responsive to residents’ objections to air pollution. In Passaic, New Jersey, for example, a member of the Board of Health made a single visit to the Passaic Column and Lumber Company to investigate smoke and cinder complaints in April 1909 and concluded that “there is nothing about the plant to warrant action by the board.”Footnote 45 This reliance on Board of Health officials was particularly common in New Jersey because most of the state's residents lived in a suburb or small city that could only sustain minor air pollution control efforts at best. In fact, whereas only about 35% of New Jerseyans lived in a city with a population of 100,000 or more in 1950, 68% of Ohioans lived in a city with more than 100,000 residents.Footnote 46 While Ohio cities like Cincinnati and Cleveland established substantial smoke inspection bureaus tasked with abating the smoke nuisance, anti-smoke agitation left a minimal footprint in New Jersey prior to World War II. Of its larger cities, only Newark and Jersey City maintained continuously operating air pollution control programs that lasted into the 1960s, and the latter's program was managed by the Board of Health, not a specialized agency.Footnote 47
By midcentury, New Jersey was well on its way to becoming the most suburban state in the nation as small townships broke away from existing municipalities to avoid high taxes or to flee from urban problems.Footnote 48 The state was also heavily-industrialized and densely-populated, which meant that mobile and stationary sources of air pollution were typically located in close proximity to populated areas.Footnote 49 Major stationary contributors to air pollution in New Jersey included power plants, incinerators, chemical manufacturers, oil refineries, smelters, copper and lead refineries, paint and varnish manufacturers, and foundries.Footnote 50 As railroads shifted from coal to diesel engines, their contributions to pollution diminished, to be replaced by the exhaust fumes of the increasing number of cars on the road.Footnote 51 Air pollution was particularly noticeable in the northern counties of Bergen, Essex, Hudson, Middlesex, and Passaic, home to half of the state's population and two-thirds of its factories. A 1963 study revealed that urban areas had worse air quality than less-developed regions, and New Jersey pollution control officials declared the city of Camden to have “the worst air pollution problem of any area in the state” in 1961.Footnote 52
Air quality may have been the worst in the major cities, but it was the suburban, rural, and small industrial towns that were most active in demanding the abatement of air pollution in the state during the years 1945 – 1970.Footnote 53 In Passaic County, for example, Passaic (population ∼ 54,000) empowered both its building and health inspectors to charge air polluters with city ordinance violations whereas Paterson (population ∼140,000) did not. In the former community, the residents, including “housewives who…had the exasperating experience of seeing their wash covered with soot,” demanded pollution abatement from their public officials, a condition lacking in Paterson, home of the fifth worst air pollution in the state.Footnote 54 By 1964, 50 out of the 568 municipalities in New Jersey had adopted air pollution control ordinances, but they maintained small programs as they were generally small cities and towns.Footnote 55 Ultimately, these programs proved inadequate to address pollution that wafted across municipal lines, and suburbanites were at the forefront of demanding stricter regulation of the state's air quality.
4. The air pollution and control act: 1950 – 1962
Unlike Los Angeles, another pioneer in environmental policymaking, New Jersey didn't suffer from a persistent, eye-stinging smog that threatened the comfort and health of its inhabitants on a near-daily basis. To be sure, some New Jersey residents complained of being “dogged by diseased air, smoke, soot and the like,” and there were local pollution panics in municipalities like Newark, Elizabeth, and Linden. However, the most extensive survey of New Jersey air quality during the early 1950s maintained that the state was not suffering from a widespread public health emergency.Footnote 56 Instead of focusing on local conditions, then, New Jersey residents like Charles Johnson of Woodlynne often seized on the afore-mentioned Donora environmental disaster in nearby Pennsylvania or the launch of the First U.S. Technical Conference on Air Pollution to prod the state legislature to act on air pollution. “We have witnessed the infamous Donora massacre in which a cloud of smog attacked, terrified and killed citizens of this Pennsylvania city,” Johnson wrote to the Courier-Post in 1950. “When the smog cleared 20 deaths were recorded plus injuries to 5910 human beings. We want no more Donoras.”Footnote 57
Led by Senator Walter H. Jones (R-Bergen County), the New Jersey legislature adopted a concurrent resolution in April 1950 that established an Air Pollution Study Commission, which met for two years before issuing a report of its findings and legislative recommendations. Though it was undoubtedly a legacy of the Progressive Era anti-smoke movement, the Newark Bureau of Industrial Hygiene and Air Pollution Control (NBIHAPC) played no role in shaping this commission, perhaps because it remained a relatively minor agency. The forerunner of the NBIHAPC, the Newark Bureau of Smoke Abatement, was founded in 1907 and expanded to employ fifteen officials during the 1930s. By 1948, however, while the bureau still claimed to be “a model agency in its field by national smoke abatement experts,” it was comprised of only two full-time employees. In 1958, the municipal council created the Newark Bureau of Industrial Hygiene and Air Pollution Control which combined the efforts of the Bureau of Industrial Hygiene and the Bureau of Air Pollution. While this agency was tasked with both air pollution control and industrial hygiene, it sustained an office of but 20 employees, about half the size of the Cleveland Air Pollution Commission at this time. Significantly, the U.S. Senate Subcommittee on Air and Water Pollution recorded that “[t]he city of Newark has a minimal air pollution program” in its report of the 1967 hearings on air pollution.Footnote 58
Instead of using the NBIHAPC as the basis of a new state-level agency, the New Jersey Legislature created an Air Pollution Commission that was staffed by five current and former state lawmakers (three Republicans and two Democrats), two professional engineers, an organized labor representative, a railroad executive, an oil company executive, and two individuals to represent the public, including a Rutgers plant pathologist. After two years of meeting, the commission issued its report in March 1952. This report reflected input from “the State Departments of Health and of Labor and Industry, together with a representative of the New Jersey Agricultural Experiment Station.” It was also informed by a tour of urban air pollution agencies (including that of Cleveland) in which Commission members interviewed air pollution control officials about their programs.Footnote 59
In 1954, Senator Walter H. Jones responded to the commission's investigation by proposing a statewide measure to regulate air pollution, the Air Pollution Control Act (APCA). Though lawmakers considered the study commission's recommendations, they ultimately adopted a statute that incorporated the views of the Department of Health, which sought to administer the policy.Footnote 60 Signed into law on September 16, 1954, the APCA created a body similar in form to the traditional regulatory agencies: a nine-member Air Pollution Control Commission (APCC), staffed by members appointed to staggered four-year terms, which was situated in the Department of Health and empowered to investigate and propose “suitable rules and regulations designed to reduce as far as practicable the menace of air pollution.” For purely local pollution, the Act authorized the APCC to develop county pollution control associations and appoint county notables to staff them. These county associations were to study the pollution problems in their counties and to recommend locally-applicable rules to the Commission. While the Commission would issue rules, the Health Department was responsible for disciplining polluters who violated such regulations.Footnote 61
In 1956, Middlesex County became the first county to organize an air pollution control association; by 1957, seven more counties (Bergen, Passaic, Hudson, Essex, Union, Mercer, and Camden) joined it. The state Air Pollution Control Commission chose to focus on these eight counties because they were the counties “in which the population density and industrial concentration indicate the presence of air pollution control problems.” To staff these associations with volunteers, the APCC called for organizations to submit the names of three persons for each of the eight counties; these organizations included the county-level Boards of Agriculture, Medical Societies, Boards of Chosen Freeholders, the New Jersey Congress of Parents and Teachers, the New Jersey Society of Professional Engineers, the New Jersey State Chamber of Commerce, the Industrial Hygiene Association, and the New Jersey Health Officers Association. In addition to fostering county associations, the APCC also encouraged municipalities to develop their own pollution control measures in response to the findings of the county associations and the state commission, and they could rely on local agencies like their Boards of Health for enforcement.Footnote 62
Lacking regulatory teeth and funds to operate, the county air pollution control associations never lived up to their promise as sources of air pollution policy.Footnote 63 Meanwhile, state officials found it easier to formulate rules under the Air Pollution Control Act of 1954 than to enforce them. Before it issued any rules, the Air Pollution Control Commission had to hold public hearings which were potentially subject to judicial review. Following this process, the commission developed four codes by 1961: one which banned the open burning of refuse (1956); another which prohibited the emission of smoke with more than 40 percent density from any fuel-burning equipment (1958); one which limited the amount of fly ash derived from the combustion of solid fuel that could be discharged into the open air (1958); and one which provided for a general prohibition of air pollution (1961).Footnote 64
Though it managed to issue rules, the state government's power to investigate possible polluters was initially hemmed in by an elaborate set of procedural rights, such as the respondent's right to bar inspections. The Department of Health was empowered to impose the rules drawn up by the APCC, but the Act required the agency to go through a series of negotiations and attempts at persuasion before recommending coercion, an approach supported by the business community. Indeed, as of 1958, the Health Department had never invoked the Air Pollution Control Act's penalty provision, which authorized the agency “to assess fines up to $100 a week for each week its orders” were violated. Instead, state pollution control officials claimed that more progress would be obtained through voluntary cooperation than by punishing violators.Footnote 65
Further evidence of the “pseudocorporatism” of the era could be found in the statute's provisions regarding the composition of the Air Pollution Control Commission. While not explicitly pro-business, the law practically guaranteed that businesses which contributed to air pollution would have a seat at the table when the APCC made decisions. First, it limited the governor's discretion to appoint the majority of the individuals who served on this board. According to this statute, the governor could select one member to represent the public, and three members of the Air Pollution Control Commission were to be the Commissioner of Health, the Commissioner of Labor and Industry, and the Secretary of Agriculture, gubernatorial appointees who could also designate someone from their respective agencies to serve in their stead. However, five members of the Air Pollution Control Commission were to be recommended by the New Jersey Health Officers Association, the New Jersey State Chamber of Commerce, the New Jersey Society of Professional Engineers, the New Jersey Manufacturers Association (NJMA), and the New Jersey Section of the American Industrial Hygiene Association. The governor had the authority to select members from short lists provided by these organizations. It is not surprising, then, that the 1955 Commission included employees of American Cyanamid, Hercules Power, Public Service Electric & Gas Company, and Esso Standard Oil Company, who viewed themselves as part-time volunteers rather than public administrators.Footnote 66
4.1. Building a stronger state air pollution control agency, 1962-1970
By the early 1960s, some New Jersey newspapers were complaining about the state's “ineffectual air pollution program” and the APCC's pro-business members. In 1962, the Asbury Park Press objected to the health department's emphasis on conciliation and persuasion. “There've been a lot of conferences, an undue amount of conciliation, and very little persuasion,” the paper maintained. “Violators find they can stall and stall with little fear of anything serious happening. Air pollution cases drag on for three and four years.” The Asbury Park Press also reported that Commission Chief William R. Bradley, an employee of American Cyanamid who had been nominated by the NJMA, had developed a private consulting firm that represented accused violators of the state's air pollution regulations. In fact, in one lawsuit against the Aglite manufacturing plant of Sayre & Fisher, Bradley had served as a consultant for both the citizen plaintiffs and the defendants and thus secured fees from both sides. For his part, Bradley denied having a conflict of interest in serving on both the Commission and as a private consultant for accused violators. He noted that since his service on the APCC was uncompensated, he was not a state employee. Furthermore, since the commission lacked the power to enforce the rules it promulgated, Bradley viewed his work there to be advisory in nature. Meanwhile, even if the governor wished to replace Bradley before the conclusion of his four year-term, he could only do so for cause and in the wake of a public hearing.Footnote 67
Like the Asbury Park Press, suburban governments in New Jersey also faulted state agencies for their slow response to air pollution complaints. When municipalities referred air pollution complaints to the Health Department, they often discovered that the agency failed to act in a timely fashion. Borough councilmen from Rutherford complained that “[T]he system of referring complaints to the State Board of Health is getting nowhere and resulting in no action.” In a similar fashion, Dr. Joseph Matriss, East Rutherford Sanitary Inspector, noted that “[I]f a municipal health official waits until the State is requested to send an investigator,...the problem may continue for days or weeks, or be ended (often temporarily) by the time a State official arrives to measure the amount of air pollution.” Instead of waiting for the board to act, several municipalities either authored their own air pollution control ordinances or relied on general nuisance or state codes to instigate legal action against polluters. Local officials and citizens lodged their complaints in Municipal Court, where magistrates had the authority to convict firms of violating codes and to fine them.Footnote 68
Of course, local fines often involved minor sums, (e.g., $35), and no one pretended that local action alone could solve the problem of air pollution. In particular, suburban officials typically lacked expertise, the sophisticated equipment necessary to prove the existence of air pollution, and jurisdiction over polluters outside the boundaries of their municipalities.Footnote 69 Ultimately, the local governments’ response to state enforcement delays reflected the fact that they often bore the brunt of citizen complaints about air pollution. “We've got to get the people off our backs,” insisted Anthony Sachs, Sanitary Inspector for Carlstadt Borough, when opposing the suggestion of Carlstadt authorities to forward the citizenry's complaints about local air pollution to the state Health Department.Footnote 70
Indeed, after the Air Pollution Control Act's enactment in 1954, local governments witnessed an upsurge in citizen complaints about air pollution. In August 1956, 158 residents of Ridgefield Park signed a petition protesting the smell emanating from an open garbage dump in nearby Little Ferry. One hundred citizens of Woodbridge Township presented the township committee with a petition in September 1959, accusing the Koppers Coke Company and Hess Brothers Oil Company of being responsible for “heavy smoke, soot, and odors.” In Wall Township, “more than 45 residents packed the municipal building…to complain to the Township Committee of air pollution” in June 1960.Footnote 71
Given the surge of criticism lodged against Air Pollution Control Commission and the Health Department after 1954, it is not surprising that air pollution became a political issue in New Jersey shortly thereafter. Candidates for the state legislature and governor focused on proposing solutions to the state's weak enforcement of its codes, and support for air pollution control became a way for politicians to distinguish themselves from their competition. For example, Senator Walter H. Jones (R-Bergen County) had championed an air pollution program for several years as a state lawmaker and helped secure the enactment of the Air Pollution Control Act of 1954, which was signed into law by Democratic Governor Robert B. Meyner.Footnote 72 Running for re-election in 1957, Jones reminded voters that he had backed the APCA while criticizing Governor Meyner for his failure to forcefully implement the measure and for diverting $25,000 from the APCC to other state departments.Footnote 73 Jones then ran for the Republican gubernatorial nomination in 1961 against a fellow state senator, Wayne Dumont, Jr. (R-Warren County) and James P. Mitchell, a former labor secretary in the Eisenhower Administration. During this campaign, Jones used his record on air pollution to again criticize the Meyner Administration and to distinguish himself from his principal rival, Mitchell.Footnote 74
Despite his best efforts, Jones lost his primary race to Mitchell by eleven percentage points. Nevertheless, Mitchell and his Democratic opponent, Richard J. Hughes, both raised the issue of air pollution during the 1961 gubernatorial election campaign. Beginning in July, Hughes called for swifter action against industrial polluters in a few of his speeches, noting that “there have been some delays in enforcing compliance” of the Air Pollution Control Act. Furthermore, Hughes recommended the establishment of a “standing committee of industrial representatives to work with the state on air pollution control.”Footnote 75 Meanwhile, Mitchell also began to echo Jones’ critique of Meyner's air pollution control record in some of his speeches. In contrast to the Meyner Administration, which had failed to adequately fund the APCA's implementation, Mitchell promised in September that if he were elected governor, “he would provide sufficient funds for an effective battle against air pollution with a program of enforcement, research and education.” Like Hughes, Mitchell also sought an administrative response to pollution, and, in keeping with some new social regulation schemes, he proposed to replace the Health Department and the APCC with a “strong pollution agency headed by a capable professional administrator with policy established by a cabinet-level board.”Footnote 76
Once elected, Hughes did follow up on his campaign promise about improving enforcement when he signed the 1963 amendments to the Air Pollution Control Act, which were designed to streamline the state Department of Health's administrative processes. In particular, the amended law revoked the ban on inspections without the suspected violator's permission and deleted the requirement that the agency engage in conference and conciliation procedures before recommending coercive actions. Moreover, it strengthened the APCA's penalty provision, which authorized the department to assess fines up to $500 a week for each week its orders were violated, up from $100 a week.Footnote 77
Even with the 1963 amendments to the APCA, many observers continued to complain about air pollution control in New Jersey. In 1964, the federal government joined the chorus of disapproval about the Air Pollution Control Commission's composition when the U.S. Public Health Service issued a critical report about the agency and concluded that there appeared to be “a somewhat greater possible representation of industry (on the commission) than would be advantageous.” The USPHS recommended that state lawmakers drop one of the business-oriented members from this agency, thus making “the commission a bit more responsive to the wishes and needs of the people.”Footnote 78 In the wake of this report and calls for the resignation of William R. Bradley and another APCC member (Norman G. White) who was accused of conflicts of interest, Governor Richard J. Hughes replaced these two members after their four year-terms had expired, and the APCC elected Louis A. Winkelman, a representative of the state Chamber of Commerce, to be commission chairman. This change of personnel was but a temporary solution to the staffing problem, for three years later, two APCC members (including Winkelman) were accused of conflicts of interests for working for two companies accused of emitting air pollution. Suffice it to say, state officials — including the governor — increasingly proposed changes to the Air Pollution Control Commission as the 1960s progressed.Footnote 79
Indeed, more significant changes to air pollution policy awaited the outcome of the 1965 state elections where air pollution surfaced once more as a campaign issue. Yet again, political candidates focused on strengthening the APCC and its capacity to address air pollution, particularly regarding auto emissions. When the Republican-led state Senate failed to act on a package of air pollution control measures which had been unanimously passed by the Democratic Assembly,Footnote 80 Governor Hughes used the Republican Senate's intransigence to distinguish himself from his Republican opponent, Senator Wayne Dumont, Jr., (R-Warren County) during his 1965 re-election campaign. In July, he alleged that Dumont was part of a six-man caucus in the Republican Senate that “sandbagged air pollution bills, educational progress, and law enforcement proposals, among other things.” In fact, Dumont had publicly announced back in April that he was opposed to tailpipe pollution controls because of their cost and the APCC's failure to demonstrate their necessity. At most, Dumont held that the state already maintained stringent air pollution restrictions, and he criticized Governor Hughes for inadequate enforcement.Footnote 81
Other Democratic candidates for state government followed Hughes’ lead in condemning the Republican Senate's failure to enhance the APCC's capacity to address auto emissions and air pollution.Footnote 82 For example, Samuel S. Sagotsky, a Democratic candidate for the state Assembly from Monmouth County, argued that Hughes needed a cooperative state legislature, for the health of the state “is being sacrificed by an obstructionist Republican Senate and right now as a result we are breathing dangerous irritants.” That is not to say that Republican candidates completely ignored the issue of air pollution; like Dumont, they often claimed that the Hughes Administration failed to enforce existing statutes and that state government should focus on ensuring compliance. Some Republican candidates also proposed tax breaks for industries to help them pay for expensive pollution control devices so they could meet state standards.Footnote 83
On election night, Hughes won re-election by a resounding majority (1,278,568 – 915,996), and the Democratic Party could boast of significant majorities in both the Senate (19 – 10) and the Assembly (41 – 19).Footnote 84 With the Democrats assuming unified control in 1966, Hughes was guaranteed the legislative support necessary to regulate auto emissions and to enhance the APCC's authority. In April of 1966, Hughes signed two measures to address vehicular air pollution, one which authorized the APCC to set standards “for the control of air contaminants” from motor vehicles, and one which required compliance with the standards as “a condition for passing the annual motor vehicle inspection,” under threat of fines that ranged from $25 to $100.Footnote 85 Significantly, by adopting these measures, New Jersey was following the national government's lead, and thus increased the state's access to federal resources.
Indeed, at the same time New Jersey politicians were weighing measures to regulate auto emissions, the federal government was also proceeding in this direction. In 1965, Congress enacted the Motor Vehicles Air Pollution Control Act, which authorized the National Air Pollution Control Administration (NAPCA) in the Department of Health, Education, and Welfare (HEW) to establish federal auto emission standards for motor vehicles. Hence, in late December 1965, HEW Secretary John W. Gardner announced a set of national standards to curb auto exhaust fumes that would be applied to the 1968 models of cars. According to these rules, all new cars sold in the U.S. had to be equipped with devices to reduce such fumes. However, neither the statute nor the rules pre-empted the states from developing their own standards and approaches to regulating auto emissions. Hence, the New Jersey Health Department applied for a $388,286 grant from the U.S. Public Health Service in September 1966 to study how motor vehicles contributed to air pollution. While the Department received a lesser amount ($235,300) than requested, political observers maintained that this grant would produce research that could inform New Jersey's rule-making regarding vehicular fumes.Footnote 86
Ultimately, the late 1960s proved to be the crucial years for environmental policymaking as air pollution control advocates were developing a stronger organizational footprint in New Jersey. They formed new groups like Better Air for Bergen, New Jersey Citizens for Clean Air, (NJCCA) and Hudson County Citizens for Clean Air, while extant civic organizations like the Jaycees, the Kiwanis, the New Jersey State Federation of Women's Clubs, and the League of Women Voters were often on the front lines of demanding stricter limits on air pollution.Footnote 87 In December of 1966, for example, Ruth Ballou of the NJCCA spoke at the Third National Conference on Air Pollution and called for “increased opportunities for participation by the general public in the commissions and other bodies involved” in the New Jersey pollution control program. In terms of public policy, Ballou's group campaigned for more state spending on air pollution control and sought the reorganization of the business-friendly New Jersey Air Pollution Control Commission.Footnote 88 That said, their opponents also mobilized; in Perth Amboy, for instance, the Jaycees developed a display about air and water pollution in 1966 that so angered local officials that City Commissioner Donald Olson ordered the display removed from the windows of a chain store. “These do-gooders are alright,” Olson remarked, “but this is an industrial town and we're not going to shut down just for them. It was a one-sided presentation and a detriment to the town.”Footnote 89
As pollution control supporters and opponents mobilized, Governor Richard J. Hughes signed into law the 1967 amendments to the APCA which abolished the business-friendly APCC and replaced it with the Division of Clean Air and Water (DCAW) within the state Department of Health. Leading this new agency was Richard Sullivan, a veteran of the APCC who represented the Labor Department's Bureau of Safety and Engineering and who promised a more punitive approach to air pollution control. In replacing the part-time, multi-member commission populated with several industry-nominated members with an agency led by a single individual who served at the pleasure of the governor, the lawmakers created a body that was more in line with the new social regulation of this era. Indeed, as the Joint Legislative Committee on Air and Water Pollution and Public Health noted in its proposal to replace the APCC with the DCAW, “the commission form, by its very nature, is an extremely slow mechanism for decision-making because it requires the formal concurrence of at least a majority of the Commission members and because the Commission is only a part-time body. In the final analysis, hard decisions can best be made by an experienced, well-staffed, competent administrator upon whom responsibility can be clearly focused.” Moreover, the APCC was not accountable to the governor or any other public official, something the DCAW would rectify.Footnote 90
Significantly, these amendments further simplified the enforcement process and required new sources of pollution to adopt state-of-the-art pollution controls. Another provision granted the governor the authority to ban industrial activity during an air pollution emergency, and yet another authorized municipalities to draft more stringent air pollution codes, provided they received approval by the Department of Health. Meanwhile, state spending on air pollution control soared. Whereas New Jersey spent a little more than $100,000 a year to address air pollution in the early 1960s, the 1967-68 budget included an appropriation of $808,081 for air pollution control, with funds available for 83 staff members devoted to air sanitation. By 1969, New Jersey was behind only California and New York in total air pollution control expenditures, and by 1971, the state's outlays totaled $6 million while the staff had grown to about 200.Footnote 91
In contrast to the oft-criticized Anti-Pollution Control Commission which issued no penalties for years, the DCAW won immediate praise from pollution opponents in New Jersey. “The state Department of Health and its new Division of Clean Air and Water are to be applauded for their new and aggressive policies against air pollution,” the Asbury Park Press declared in 1968. The Press marveled at the size of the fines imposed by the new agency and concluded that “the weakest air pollution control program in the nation is perhaps the strongest.” In November of 1968, New Jersey became the first state in the nation to subject cars, buses, and trucks to tests on the level of particulate matter from exhausts. Meanwhile, the pace of rulemaking picked up. In 1968, the agency issued a new code which regulated the construction of new incinerators and the operation of existing ones. A year later, the DCAW proposed new rules that sought to limit the airplane emissions at the Newark Airport, as well as rules which fleshed out the governor's powers during an air pollution emergency. The agency also sought to expand its geographical reach when it “announced South Jersey will be policed far more vigorously to curb health hazards of air pollution” and would be “subject to the same type of state scrutiny as the more populous regions in New Jersey.” In 1969, the new air quality standards adopted by New Jersey were so stringent that they upended the process of developing standards in nearby Pennsylvania, which was leaning toward weaker regulations. “We found ourselves in the embarrassing predicament that New Jersey...came out with some crash numbers that really shook our teeth out,” recalled one Pennsylvania pollution commission member about the pressure to adopt more exacting air quality standards.Footnote 92
Of course, as New Jersey regulators issued more stringent air pollution rules during the late 1960s, industry leaders became more vehemently opposed to their actions. Hence, the DCAW still made accommodations for industry when practicable without sacrificing its goals for reducing pollutants. For example, in 1968, the DCAW adopted a regulation that sought to restrict the sulfur content of coal and oil used in heating and power generation facilities in order to decrease the release of sulfur dioxide into the atmosphere. However, the agency delayed the implementation of this rule to give manufacturers and public utilities additional time to convert to low sulfur oil.Footnote 93 In the end, the delay of such rules didn't prevent New Jersey from improving its air quality. An analysis of a long-used measurement of air quality, the coefficient of haze (COH), suggests that the state managed to achieve “major decreases in uncontrolled combustion source emissions, elimination of residential coal burning, and reduction of sulfur in the oil.” In fact, “the largest percentage reduction in COH occurred before the implementation” of the 1970 amendments to the federal Clean Air Act.Footnote 94
After Hughes left office in January of 1970, the new governor, William T. Cahill (R) built on his environmental legacy. Cahill, a former U.S. congressman, ran for governor against former governor Robert B. Meyner (D) as an opponent of the development of a new jetport which had caused much consternation for residents who lived near potential sites and who feared that the new jetport would produce noise, air, and water pollution that would alter the character of their exurban communities.Footnote 95 Once in office, Cahill championed legislation which created a cabinet level agency, the New Jersey Department of Environmental Protection (NJDEP), to unite all pollution-related offices and natural resource conservation in one bureau, a measure that received near unanimous approval from the Republican-controlled legislature. As with the Division of Clean Air and Water, this agency would be led by a single, powerful administrator, and it served as a model for other states.Footnote 96
Still, two students of public administration in the early 1970s would have categorized the NJDEP as a “superdepartment” which combined natural resource conservation and pollution control. From the perspective of Elizabeth H. Haskell and Victoria S. Price, such an agency design would be less conducive to the strict enforcement of environmental laws because its commitment to natural resource conservation would encourage the agency to collaborate and compromise with industry stakeholders. That said, a study by JoyAnna Hopper demonstrates that the NJDEP is far more likely to take enforcement actions when an air pollution violation is discovered than Ohio's state agency.Footnote 97
Indeed, due to its sixteen years of state-level air pollution control efforts, few states were as prepared as New Jersey to adapt to the new air quality standards promulgated by the Environmental Protection Agency after 1970. For example, New Jersey had maintained a safety inspection system for cars and trucks since 1937. When the New Jersey Department of Environmental Protection decided to use an automobile idle emissions program to meet the EPA's new auto emissions requirement, the DEP merely had to incorporate this new testing procedure into the pre-existing motor vehicle safety inspection program. In contrast to Ohio, which only adopted an emissions testing program for five counties in 1986, New Jersey began emissions testing in 1968 and maintained a fully operational statewide program from 1974 onward, receiving praise from federal EPA officials for being a pioneer in this area. By 1980, the state Department of Environmental Protection reported that “carbon monoxide in the air had been reduced by more than 40 percent [in the state] despite a large increase in vehicle use” because of this program.Footnote 98
More generally, during a hearing for the 1970 amendments to the Clean Air Act, the director of the National Air Pollution Control Administration, John T. Middleton, named New Jersey and New York as the states with the most meaningful state air pollution control programs at that point and highlighted their capacity to implement air quality standards.Footnote 99 In fact, New Jersey and New York were also the first states to work towards solutions to the problem of interstate pollution, though they did so in fits and starts.Footnote 100 Furthermore, due to its tough state laws, New Jersey met four of the national air emissions standards on time. More recently, in 2002, “New Jersey was declared in compliance with the carbon dioxide standard, and in 2012 it petitioned the federal Environmental Protection Agency…to declare that it met the soot standard.”Footnote 101
In the end, air pollution control did not constitute the most salient issue in New Jersey during the years 1954 – 1970. In fact, the gubernatorial campaigns of this period focused more on the best way to raise revenue in New Jersey, with the Democrat Hughes opting for an income tax proposal and the Republican Dumont supporting a state sales tax in 1965.Footnote 102 However, many state lawmakers and gubernatorial candidates believed that New Jersey had a responsibility to abate air pollution and embraced the issue. To achieve that goal, they initially created a state air pollution control agency which lacked independence from the private interests it was supposed to regulate and garnered criticism in the ensuing years. Still, policymakers found it relatively easy to displace the New Jersey Air Pollution Control Commission because the leaders of this agency were volunteers who did not view themselves as public employees or committed to the agency's broader mission. Hence, the APCC's structure decreased the “costs of exit” for policymakers who were interested in replacing the commission with a different agency model altogether.Footnote 103
With the creation of the DCAW and then the NJDEP, New Jersey state policymakers were again “starting from scratch.” As with the creation of the APCC, the Newark Bureau of Industrial Hygiene and Air Pollution Control (later the Newark Air Pollution Control Agency) played no role in these administrative developments and instead focused on enforcing local air pollution regulations “so long as such action is in complete accordance with the laws and regulations regarding the same as promulgated and enforced by the State Department of Environmental Protection.”Footnote 104 Meanwhile, the state maintained three regional air pollution control agencies which addressed complaints about violations of municipal ordinances but they were small agencies with fewer than 15 employees each. Thus, the NJDEP faced no competition within the state for the establishment of strict air pollution control measures that would help the state achieve the targets set by the EPA.Footnote 105
5. Ohio: urban problem, urban solutions
Like New Jersey, Ohio at mid-century was a mix of densely populated counties and counties that were more rural in nature. However, whereas the bulk of New Jersey's pollution was in the heavily-developed northern part of the state, the densest counties were scattered across the Ohio landscape in 1960 and included Cuyahoga County (home of Cleveland), Hamilton County (home of Cincinnati), Lucas County (home of Toledo), Summit County (home of Akron), Franklin County (home of Columbus), and Montgomery County (home of Dayton). While it is difficult to find systematic data on air pollution in Ohio during the 1950s, the National Air Pollution Control Administration compiled statistics from across the nation on three pollutants (sulfur oxides, particulates, and carbon monoxide) when it was establishing air pollution control regions during the late 1960s. This data illustrates that industrial activity, power plants, and autos in Cleveland, Cincinnati, Toledo, Akron, Dayton, Canton, and Steubenville contributed substantial amounts of pollution to their respective regions. (For the most part, this paper will focus primarily on the largest metropolitan areas in Ohio, namely, those situated around Cincinnati, Cleveland, Columbus, Akron, and Dayton.)Footnote 106
5.1. The triumph of municipal air pollution control programs, 1950-1965
In 1960, four Ohio cities (Cincinnati, Cleveland, Columbus, and Toledo) maintained air pollution control programs that were the product of the anti-smoke movement of the Progressive Era.Footnote 107 Akron established its air pollution control program in 1947; Youngstown followed in 1950. Meanwhile, Dayton sought to develop a similar program in 1948 and appointed a city smoke engineer in 1949. However, the city struggled to enact an ordinance authorizing the engineer to eliminate smoke and smog in Dayton, only adopting such a measure in April 1952.Footnote 108 As was the case elsewhere, most Ohio cities updated their municipal ordinances to address airborne dust, gases, and fumes, in addition to coal smoke during the 1950s. Of these cities, though, only Cincinnati regulated the consumption of high-volatile coal, an approach that had led to significant decreases of air pollution in St. Louis and Pittsburgh. This failure on the part of most Ohio cities reflected the influence of the Coal Producers Committee for Smoke Abatement (CPCSA), a Cincinnati-based group representing several high volatile coal operators and coal-bearing railroads that opposed fuel-restricting ordinances. The power of this committee was considerable as eastern Ohio was home to several coal mines which were in the process of ramping up production through surface mining. Still, as elsewhere, regional railroads replaced coal with diesel fuel, and Ohio manufacturers increasingly relied on oil and natural gas after 1950. As a result, coal mining became less important to the state's economy and coal smoke became less of a problem, regardless of the political machinations of the Coal Producers Committee for Smoke Abatement.Footnote 109 In fact, by 1963, whereas Ohio's per capita value added by manufacturing was $1522.14, the state's per capita value added by mining was only $22.43.Footnote 110
While the CPCSA failed to expand the use of coal in Ohio in the long run, the coal industry continued to supply the state's power plants and steel mills through the 1970s.Footnote 111 Moreover, the committee's approach to air pollution control had an enduring impact on the municipal agencies tasked with regulating smoke, fumes, and particulates. Following the position advocated by coal producers and other businesses, many of these agencies embraced “pseudocorporatism” and emphasized cooperation with companies that fouled the air rather than on fines or other coercive mechanisms. For example, in an article from 1953 entitled, “Are You Breathing Danger?” Beatrice Schapper rated the agency of Dayton as “Poor.”Footnote 112 In response, the Chief Building Inspection Superintendent of Dayton, Harold Nielson, acknowledged that Dayton's ordinance lacked teeth and did not address incinerators, open fires, or secure much support from civic groups. However, he rejected the “poor rating,” and contended that his department had reduced significant amounts of air pollution through cooperation with local polluters (e.g., foundries) and the Dayton Chamber of Commerce.Footnote 113 In a similar fashion, even though Cleveland's agency was rewarded with a “Good” rating from Schapper, a 1954 study by Los Angeles County of the Cleveland Air Pollution Commission found that it was focused on persuading industry to voluntarily reduce air pollution while ignoring the fact that its own power plants, institutions, and dumps were some of the main sources of pollution. Furthermore, the study concluded that the agency eschewed “stringent” or “forced compliance,” and pointed out that the Cleveland ordinance did not “specifically fix maximum pollution allowances.”Footnote 114
Meanwhile, in terms of state legislation, urban politicians and air pollution control agencies showed no interest in lobbying for a state agency that would create anti-pollution codes applicable to all polluters in Ohio. Instead, city officials and urban representatives in the Ohio legislature sought to expand the reach of the urban agencies beyond their corporation limits. As a strong advocate for water and air pollution control, Senator William H. Deddens (R-Cincinnati) supported this approach because while Cincinnati “has an anti-air pollution ordinance, there is none in [nearby] Norwood. Smoke from Norwood blows into Cincinnati and makes our law of little value in some areas.” From 1949 to 1953, Deddens regularly introduced legislation at the beginning of the legislative session to extend city control over air pollution beyond city limits. In Deddens’ proposal, urban air pollution control agencies would have been authorized to regulate air pollution three miles outside the city boundaries and could have entered into pacts with nearby cities to develop joint air pollution abatement policies. While the Senate passed his sponsored legislation twice, the House rejected it in both instances, a result Deddens blamed on railroad influence.Footnote 115 At most, then, Cincinnati developed a Metropolitan Air Pollution Control Program in 1957, a voluntary arrangement in which seven out of the fifteen invited suburban municipalities agreed to be served by an air pollution control officer employed by the Cincinnati Bureau of Air Pollution Control. This officer was to help enforce the municipalities’ pollution control policies and was paid for by their tax dollars. Furthermore, the Cincinnati Bureau head, Charles W. Gruber, drew up a model air pollution control ordinance and encouraged the seven localities to adopt it.Footnote 116
During the 1960s, this idea of expanding the reach of municipal air pollution control agencies gained momentum in Ohio. While the state legislature only sought to explicitly authorize contracts between counties and city air pollution control agencies in 1963, some metropolitan areas had already participated in the development of such partnerships earlier in the decade. For example, in 1960, Dayton City Service Director, Whitney Shartzer, proposed that Dayton join forces with Montgomery County to achieve “countywide control” of air pollution. He feared that any attempt by the city to strictly regulate Dayton's air pollution would encourage industries to relocate outside of the city's boundaries. To that end, Montgomery County developed a contract with the Dayton Bureau of Combustion Control whereby it compensated the city for costs when its officials engaged in air pollution control activities outside of city limits.Footnote 117 Likewise, Lucas County authorized the Toledo Department of Air and Water Pollution Control to police the unincorporated parts of the county, and Toledo forged a similar agreement with a nearby municipality.Footnote 118 Akron, however, was somewhat less successful. Its 1964 attempt to develop a countywide air pollution control program with Summit County went nowhere, though the city did forge a partnership with nearby Barberton that was advanced by the U.S. Department of Public Health. By promising more generous grants to inter-community anti-pollution programs than to their municipal counterparts, the federal government provided strong encouragement for both Akron and Barberton to join forces.Footnote 119
Prior to 1965, then, the politics of air pollution in Ohio focused on city governments like that of Cleveland. In 1960-1961, the Cleveland City Council labored (and failed) to adopt an ordinance which would have required steelmakers to install antipollution equipment before converting their open hearths to an oxygen process, a development which would have reduced the companies’ production costs and helped them remain competitive. While the council and Mayor Anthony Celebreezee deliberated about this policy, Jones and Laughlin Steel Corporation was already using the oxygen process and the city had exempted Republic Steel Corporation from addressing the pollution produced by the oxygen process until December 31, 1961.Footnote 120 As red smoke and dust poured into the atmosphere after the plants began to use the oxygen process, four neighborhood civic associations joined together to create the Cleveland Federated Council for Clean Air in an effort to halt the use of this process. Likewise, seventy-six citizens sued Cleveland, arguing that city officials could not “license the creation of conditions hazardous to the public safety, the public property and the public health.”Footnote 121 Indeed, the 1961 Republican mayoral candidate, Albina Cermak, sought to capitalize on Mayor Celebrezee's failure to adequately address air pollution in 1960-1961. She argued that the city fell short “in everything that it takes to do the job — trained personnel, sufficient budget, community education and cooperation with civic and industrial leaders.”Footnote 122 While Cermak's views on air pollution resonated with some voters,Footnote 123 Cleveland was a largely Democratic city and Mayor Celebrezee easily won re-election with 73.8 percent of the vote.Footnote 124
Of course, each metropolitan area experienced its own air pollution crises depending on local conditions. In 1962 and 1965, Cleveland continued to debate the aptness of setting a deadline for steel producers to abate the red dust produced by the oxygen process.Footnote 125 Meanwhile, in Columbus, public officials struggled to trace the sources of nauseating odors that periodically plagued the city.Footnote 126 In Dayton, hundreds of East Side residents petitioned the mayor and air pollution officials in 1964 to demand action against the local industries that sullied their neighborhoods with fly-ash.Footnote 127
Central to these efforts to improve air pollution control in Ohio were the state's well-established municipal air pollution control agencies and their leaders. In fact, a few of these officials — like Charles W. Gruber, head of the Cincinnati Bureau of Air Pollution Control and Albert W. Lucuoco, Cleveland Air Pollution Commissioner — had reputations as national experts about air pollution, though it should be noted that these reputations were the product of the business-friendly Air Pollution Control Association (APCA).Footnote 128 Furthermore, these agencies often received national recognition, as was the case when three Ohio air pollution control programs (Cincinnati, Columbus, and Dayton) won awards from the APCA for “education work to clean up air pollution” in 1961.Footnote 129 In retrospect, these agencies probably did not deserve so much acclamation; in 1972-1973, state and federal environmental officials held that some of these agencies, most notably that of Columbus, were understaffed, underequipped, and lacked adequate training. In the case of Columbus, the Air Control Division had failed to apply for federal matching funds after 1963, thereby forgoing thousands of dollars that could have helped the city fight air pollution.Footnote 130
While municipalities dominated air pollution control in Ohio, the state legislature was not entirely absent from this policy arena prior to 1965. In 1957, lawmakers authorized the Ohio Department of Health to undertake air pollution research and to provide assistance to Ohio communities that experienced air pollution problems.Footnote 131 However, even though the state established a laboratory to implement this law, major cities typically consulted their own air control experts or even federal authorities rather than appeal to the state for assistance. For example, during the oxygen process imbroglio, Cleveland officials sought the advice of local experts and an expert from the U.S. Public Health Service, and only considered requesting assistance from the Ohio Board of Health after state Representative Michael J. Crosser (D-Cleveland) insisted on it. In fact, the Cleveland Air Pollution Commissioner, Albert W. Lucuoco, dismissed the state laboratory as nothing more than “a secretary and one air pollution man.”Footnote 132
The controversy over the oxygen process produced a more important legislative proposal in 1961, though it never came close to passing during that session. A district representative for the United Steelworkers (A.F.L./C.I.O.), Senator James Carney (D-Youngstown), introduced legislation that would empower the state government to enforce air pollution regulations. Carney's hometown, Youngstown, had also been roiled by the oxygen process controversy and he was well-aware of possible economic consequences of requiring steel producers to abate the emissions resulting from this process. As Carney watched Cleveland debate regulations on steel mills that used the oxygen process, he contended that air pollution could not “be controlled according to city or county borders. If one city puts on controls and another doesn't, the second city has a competitive advantage over the first city.”Footnote 133 Meanwhile, beginning in 1961, state lawmakers considered granting tax breaks to encourage corporations to build and use air and water pollution control facilities, a policy favored by industry. Some public officials opposed this legislation because they feared the loss of revenue; other critics argued that this policy rewarded industrialists for failing to abide by pollution control regulations by taking corrective action. Adopted in 1963, this measure exempted factories and plants from paying real and personal property taxes, the sales tax, and the corporation franchise tax on income used to purchase and install air pollution control equipment.Footnote 134
In a few cities like Cleveland, which maintained a strong mayor-council system of government, mayoral candidates raised the issue of air pollution in their election campaigns during the mid-1960s. For example, Cleveland Mayor Ralph S. Locher (D) boasted of his record on air pollution in 1965 while his Democratic primary opponent, Mark McElroy, called him a “tool of big business” for delaying legislation designed to end air pollution by steel companies in the city (among other things).Footnote 135 However, this issue never emerged as a concern that helped define candidates or party image in Ohio state elections before 1966. Instead, the major themes of state elections during the 1950s and early 1960s were job creation and maintaining a positive business climate.Footnote 136
In other words, during the 1950s and early 1960s, gubernatorial candidates and governors did not raise air pollution as an issue of concern to Ohio governance. At most, they acknowledged that it was a problem best addressed by municipal governments. In 1961, for example, Gordon Rawlinson, president of the Buhrer Area (Cleveland) Air Pollution and Civic Association and an opponent of the oxygen process, wrote to Governor DiSalle and “requested statewide regulation of air pollution.” In response, DiSalle maintained that state air pollution control standards could not account for variations in topography, meteorology, and urban and rural air quality. “Fortunately,” he wrote, “the Ohio Constitution and (sections of the Ohio code) allow each municipality to individually make a decision as to the extent of air pollution it will permit.” In a similar fashion, Governor Rhodes’ only contribution to air pollution control during his first term was his support for exempting industries from taxation when they installed air pollution abatement equipment, a policy that Rhodes would later cite as evidence of his green bona fides during his unsuccessful race for the 1970 Republican nomination to the U.S. Senate against Robert Taft, Jr.Footnote 137 At the same time, however, municipal air pollution control agencies increasingly released reports which showed that air pollution was worsening in their areas, thus challenging the narrative that local control was best.Footnote 138
5.2. The development of air pollution control as a state responsibility, 1965-1972
While Governor James Rhodes was enjoying a fairly-successful first term as governor, the out-party Democrats began to raise the profile of pollution as an issue during the mid-1960s. In September 1964, the Ohio Democratic Party included a plank in its platform which promised a “program to eliminate water and air pollution,” and the party reiterated that promise in more detail two years later.Footnote 139 In keeping with the platform, the 1966 Democratic gubernatorial candidate, Frazier Reams, Jr., a state senator from Toledo, delivered a series of speeches which argued that the Rhodes Administration “has done little or nothing about pollution.” Citing the small sums allocated by the state to fighting pollution, Reams “recommended a state pollution agency, individual river-basin water control authorities, and state aid to local authorities fighting water and air pollution.”Footnote 140
Democratic politicians weren't the only ones to find the Rhodes Administration wanting with respect to air pollution control. In August 1966, an air pollution expert, Dr. David Gilbert, testified in front of a state legislative study committee that, under Rhodes’ leadership, Ohio had one of “the lowest state budgets for air pollution in the country. It's below $100,000, and for a state of 10 million people this is small.” In response to that testimony and other input, the Legislative Service Commission issued a report which recommended the creation of a state air pollution board and noted that only eight local air pollution control programs in Ohio had at least minimal budgetary and staff support. Meanwhile, Jean Schueneman, an air pollution official from the U.S. Public Health Service office in Cincinnati, contended that Ohio was “behind most other heavily industrialized states” in terms of adopting air pollution control legislation, and another USPHS official called Akron's air among the most polluted in the nation.Footnote 141
These critiques from Reams and others succeeded in compelling Governor James Rhodes to discuss air pollution control during his re-election campaign. In October 1966, Rhodes acknowledged at a campaign stop that “[a]ir pollution control needs more help from the state government.” However, Rhodes lacked a detailed plan, and merely acknowledged that the state “is going to have to bridge the gap with assistance to the counties” and that “this may involve additional appropriations.” Such vague promises were apparently enough for Ohioans, for Rhodes was re-elected to a second term “by an astounding and record-setting margin of more than seven hundred thousand votes out of about 2.9 million cast.”Footnote 142
Once re-elected, Rhodes did back legislation in 1967 to establish a state air pollution control board. However, his proposal was not exceptional; state lawmakers had already introduced four similar bills by April 1967. Why was there a sudden burst of interest in air pollution control in the 1967 session of the Ohio Legislature? In part, these legislative proposals were a response to the recommendations of the Legislative Service Commission, which had proposed such a board in 1966. However, the single greatest impetus for state action was the fact that Congress was debating the Air Quality Act, a measure that seemed likely to authorize federal authorities to impose ambient air quality standards on the states if they failed to develop their own. As George Eagle, Chief Engineer for the Ohio Health Department, noted, this flurry of air pollution legislation in Ohio was a “defensive mechanism.” “We'd rather run [the state air pollution control program] than have Washington run it,” Eagle asserted. In the end, Ohio lawmakers developed an agency that was modeled after the state's Water Pollution Control Board and situated in the Ohio Department of Health. While this board was empowered to adopt air quality standards for various parts of the state, its actions would not supersede the authority of “any public subdivision of the State…to adopt and enforce ordinances or regulations relative to the prevention, control, and abatement of air pollution.” Hence, the Ohio Air Pollution Control Board (OAPCB) was not designed to displace the urban agencies that had traditionally addressed air pollution.Footnote 143
As it turned out, the Air Pollution Control Board was a poor vehicle for policy development and implementation. Like the New Jersey APCC, the first air pollution control agency in Ohio was staffed by unpaid volunteers including the Director of Health, the Director of Development, and representatives of municipal corporations, industry, and agriculture, none of whom were required to demonstrate technical competence with respect to air pollution control. Furthermore, the board met but once a month to make decisions and lacked the power to directly order violators to abate pollution. Instead, this body could only recommend that the attorney general bring suits against polluters. The OAPCB also struggled to complete basic tasks like meeting deadlines set by the federal government for recommending air quality standards for air pollution control regions. From the perspective of those who favored stringent air pollution regulations, the board initially proposed weak air quality standards and gave industry more opportunities to participate in its hearings than members of civic organizations and the general public. Not surprisingly, the extant urban air pollution control agencies seemed robust by comparison.Footnote 144
By 1970, both candidates for governor, Roger Cloud (R-Logan County) and John J. Gilligan (D-Cincinnati), supported stricter environmental policies and were featured speakers for Environmental Crisis Week (the week that included Earth Day) during April 1970. Whereas Cloud released detailed policy proposals for waste management and air pollution, Gilligan focused on a proposal for reducing auto emissions, the development of state air pollution standards, and the enforcement of existing laws. “We need prompt, strict enforcement of our anti-pollution laws,” Gilligan argued.Footnote 145 Significantly, their primary opponents and other state politicians also supported getting tougher on polluters. For example, James L. Baumann (D-Columbus) charged the Republican-dominated legislature with making “no real effort” to abate air pollution in his successful quest to represent the 60th district in the state House of Representatives.Footnote 146
Though Gilligan assumed the governorship in 1971 with a Republican-controlled state legislature, he pursued an aggressive agenda which included the creation of a cabinet-level agency devoted to pollution control. To that end, Gilligan had the support of the “Breathers’ Lobby,” a coalition formed in 1969 that included the Ohio AFL-CIO, the Ohio Tuberculosis and Respiratory Disease Association, the Ohio Council of Churches, and “several Ohio conservation groups.”Footnote 147 Other groups that actively opposed air pollution at this time included the Ohio League of Women Voters, the Air Conservation Committee, the Ohio Conservation Association, the Ohio Environmental Council, the Air Pollution League of Greater Cincinnati, the Citizens Clean Air Association (Miami Valley), and Citizens for Clean Air and Water. These groups were well-aware of Ohio's failure to develop an effective air pollution control program and were ready to prod the Gilligan Administration if necessary.Footnote 148
With Ohio anti-pollution advocates clamoring for action, Gilligan established a Citizen's Task Force on Environmental Protection, which issued a report in June 1971 that urged the “consolidation of all current and future environmental protection, conservation, development, and management activities into a single state department for environmental protection.” According to the report, the new department would be responsible for developing limits on the discharge of pollutants, enforcing those limits, and initiating auto emissions and recycling programs. As it turned out, though, Gilligan's proposal wasn't the only plan out there; state lawmakers had their own ideas about the development of a new cabinet-level department of environmental protection, and his bill joined five others already circulating in the state legislature. Gilligan also sought to acquire additional funds from the federal government and the Ohio legislature to pay for improving the state's air pollution control program.Footnote 149
While the “Breathers’ Lobby” favored the version of the legislation proposed by Representative George V. Voinovich (R-Cleveland), state lawmakers approved of a measure originally introduced by Senator Ralph Regula (R-Navarre) on July 7, 1972. Signed into law shortly thereafter by Governor Gilligan, this statute created the Ohio Environmental Protection Agency (OEPA) which combined the efforts of the Air Pollution Control Board, the Water Pollution Control Board, established a three-member review board to hear appeals of OEPA decisions, and set up a siting commission which would determine the location of major utilities.Footnote 150 To help implement the law, the OEPA formed contracts with twelve local air pollution control agencies, including those of Dayton, Cleveland, Cincinnati, and Columbus, which measured air pollution and used abatement action to meet federal, state, and local air quality standards. In other words, the new state air pollution control system was layered on top of the old municipal air pollution control agencies, though they often had new names and broader jurisdictions which reflected the federal government's regional approach to air pollution control after 1967. In the process, the OEPA was relying on many of the same pollution control personnel that had pursued a conciliatory approach toward polluters, including E. D. Ermenc of Cincinnati, Louis E. Bunts of Akron and Paul D. Findlay of Toledo.Footnote 151
Though the development of this agency was a significant development, environmentalists and civic groups were often critical of the resulting regulatory regime. Even while it was pending in the Ohio legislature, they faulted it for not including language that authorized citizen suits which could be directed at either polluters or the OEPA, a provision that would have resembled a feature of the 1970 amendments to the federal Clean Air Act. “…[T]he bill contains severe restrictions on citizen rights, access to courts and participation in decision-making,” complained Mrs. Rodger Mitchell of the Ohio League of Women Voters. Furthermore, clean air advocates strenuously opposed the agency's decision to delay its deadline from 1975 to 1977 for reductions in sulfur dioxide emissions.Footnote 152 Of course, the OEPA's conservative critics portrayed the agency as too aggressive and unrealistic about the possibility of pollution control. While the opposition of industry was expected, the conservative Columbus Dispatch (Columbus, Ohio) — a close ally of Republican governor James A. Rhodes — ridiculed it for being naïve and brash. Populated with secretaries in “tight blue jeans and bare midriffs” and employees with “long hair and beards,” the OEPA “was as unpredictable and exasperating as royal toddler who suddenly inherits the power of the throne.”Footnote 153
In any case, the establishment of a cabinet-level environmental protection agency did not guarantee that air quality would improve in Ohio. The entire state and cities like Cleveland and Cincinnati were subject to several air pollution alerts during the 1970s, and, in 1977, David Kee, the enforcement chief of Division V of the federal EPA, called Ohio “a black mark in our environmental program in the Midwest.” He added, “Our compliance in Ohio is very low. It's the worst of our states [that included Illinois, Wisconsin, Minnesota, and Indiana].” Furthermore, in 1979, Ohio was the only state in the nation without a federally-approved program to reduce sulfur dioxide pollutants. National EPA administrators faulted industry for this situation, noting that the largest industries and utilities plagued “the local, state and federal enforcement agencies with a flood of lawsuits, appeals and other foot-dragging tactics.” Meanwhile, Republic Steel was still battling with Cleveland air pollution control authorities over its emissions in 1980, and Ohio only adopted a broad-based auto emissions testing program in 1986 after the EPA had threatened to withhold federal highway funds.Footnote 154 Interestingly, several studies of state environmental agencies categorize the OEPA as a mini-EPA, which imitated the federal Environmental Protection Agency in its structure. Such a structure should have encouraged stricter enforcement of environmental laws in Ohio because the agency could focus entirely on achieving one goal: pollution control. However, as previously discussed, that did not prove to be the case.Footnote 155
In a way, Ohio and New Jersey adopted similarly-structured air pollution agencies in their first attempts to develop state-level air pollution control agencies. The New Jersey Air Pollution Control Commission and the Ohio Air Pollution Control Board both employed part-time, uncompensated officials who often represented the very industries the agencies were supposed to regulate. However, whereas the NJAPCC and its stronger successor, the Division of Clean Air and Water, had the authority to establish regulations for the entire state, the OAPCB's power was limited by the existence of the urban air pollution control agencies, which retained primacy over their areas. As Ohio and New Jersey then sought to create cabinet-level environmental protection agencies, the states repeated the same pattern. In the Ohio Environmental Protection Agency, the OAPCB became the Division of Air Pollution Control while most of the cities retained their own pollution control boards, albeit often with responsibility for nearby counties.Footnote 156 Of the 560 public officials from Ohio listed in the Air Pollution Control Association's 1974-1975 Directory, only 234 of them (or 41.8%) were employees of the state-level program. Meanwhile, in New Jersey, the creation of the New Jersey Department of Environmental Protection centralized its air pollution enforcement activities in the Division of Air Pollution Control. Of the 219 public officials from New Jersey listed in the Air Pollution Control Association's 1974-1975 Directory, 174 of them (or 79.5%) were employees of the state-level program.Footnote 157
6. Discussion
In his seminal essay, “The Politics of Bureaucratic Structure,” Terry M. Moe contends that “American public bureaucracy is not designed to be effective.” For Moe, this was as true for the regulatory agencies created in the 1960s and 1970s as it was for the independent regulatory commissions fostered by the New Deal. Instead, Moe contends that government agencies are inevitably the product of the “politics of structural choice” in which elected officials, interest groups, and bureaucrats compete to secure agency arrangements, procedures, and criteria that will allow them to remain influential players in future policy endeavors. Hence, national political actors often develop unwieldy bureaucracies that were hemmed in by often-conflicting directives from the president, Congress, and the judiciary, each of which had some claim to authority in regulatory policy.Footnote 158
Significantly, Moe singled out the Environmental Protection Agency as “the quintessential agency of the new social regulation,” and one which was hampered by “a forbidding maze of detailed instructions, procedures, requirements, criteria, and deadlines — all of them tacked onto entrenched institutions inherited from a powerless past.” Of course, these institutions included “a complicated, confusing diversity of state and local agencies,” such as the Ohio Environmental Protection Agency, its urban-centered agencies, and the New Jersey Department of Environmental Protection. Moreover, those agencies had their own institutional legacies, and state officials in Ohio and New Jersey engaged in their own “politics of structural choice.”Footnote 159
When New Jersey established the Air Pollution Control Commission in 1954, it created more than just a new state agency. Though originally encumbered in its capacity to impose limits on pollution, the APCC served as a new center of gravity for air pollution control advocates in both state government and civil society. After 1954, state lawmakers, the governor, local officials, newspapers, and citizen groups directed most of their energy toward criticizing and demanding improvements to the APCC and its enforcement arm, the Department of Health, eventually displacing them. In contrast, many Ohioans remained fixated on their urban agencies during the 1950s and 1960s. Established in the Progressive Era, these bureaucracies were headed by often-prominent directors who were well-known for their willingness to cooperate and negotiate with local businesses in reducing air pollution.
Of course, as Congress began to adopt environmental laws during the late 1960s and early 1970s that threatened federal preemption of state and local authority over air pollution control and other environmental issues, many of the states that lacked state-level agencies felt compelled to quickly establish such agencies. As was the case in Ohio, state officials typically preferred to advance their own air pollution control programs rather than allow federal regulators to assume that authority. Hence, the number of state-level air pollution control agencies grew from nine in 1966 to fifty in 1970, though it should be noted that some of them were tiny and sometimes overshadowed by their county and urban counterparts.Footnote 160
In fact, when Ohio did create the Ohio Air Pollution Control Board in 1967, it failed to displace the extant business-friendly urban air pollution control agencies. As a result, proponents of stronger air pollution control lacked a single focus in their advocacy efforts. For example, Dr. Arnold Reitze and the Air Conservation Committee devoted considerable energies to the enactment of a new air pollution code for Cleveland in 1969 while the OAPCB was struggling to develop state policies. Though Air Conservation Committee activists later pressured the state Air Pollution Control Board to adopt tighter standards in 1970, its efforts remained divided between state and local air pollution control agencies during the early 1970s.Footnote 161 Furthermore, even when the state legislature created the cabinet-level Ohio Environmental Protection Agency in 1972, it merely incorporated these urban programs into the new organization, allowing them to retain some autonomy from the OEPA, their existing personnel, and their conciliatory approach to the companies they were supposed to regulate.
This autonomy meant that the urban agencies could forge their own paths to achieving the requisite air quality standards but it also meant that they sometimes experienced financial instability. As most of the urban programs became regional in character after 1970, they could tap some state and federal money but the cities continued to pay a significant amount of their expenses and they periodically found it necessary to supplement their income with outlays from other communities they served. For example, once the Cincinnati Air Pollution Control Agency became Southwestern Ohio Air Pollution Control (SWOAPC), the agency's director, E. D. Eremec, often had to beg Butler, Clermont, and Warren Counties for contributions or cut services to these areas.Footnote 162 Meanwhile, since all of the urban-based agencies received some money from the state, they were often vulnerable to cuts by the Ohio legislature.Footnote 163 In any case, the urban-based pollution agencies did not take advantage of their relative autonomy to strengthen the state's lax environmental standards but instead reinforced them. For example, in 1976, they supported the state's claim that federal standards on sulfur dioxide emissions were too stringent and needed to be relaxed for the sake of the state's industries and utilities.Footnote 164 Their continued sympathy for business interests was not surprising; they were merely doing things the way they had always done them.
In terms of policy leadership, the New Jersey case revealed that the “politics of structural choice” at the state level was often driven by the ambitions of governors and gubernatorial candidates. Just as President Richard Nixon propelled the development of the EPA at the national level to better position himself for reelection in 1972, governors like Richard J. Hughes (D) and William T. Cahill (R) played a key role in creating pollution control agencies that they could directly manage through their appointment power and executive authority. In that sense, the politics of agency design reflected a well-studied phenomenon: executives, in particular, have more incentives to focus on shaping the administrative performance of agencies under their purview because they will be held accountable for it by their broad electorates.Footnote 165 Indeed, gubernatorial candidates could not avoid discussing the effectiveness of the New Jersey Air Pollution Control Commission and its successors because once elected, they would be responsible for ensuring these agencies achieved their missions.
In contrast, until 1966, gubernatorial candidates in Ohio could deflect concerns about air pollution by asserting that it was a local problem that was the responsibility of urban pollution control agencies. Indeed, Ohio politicians like William H. Deddens, who were pollution control advocates, focused on strengthening and increasing the reach of the urban air pollution control agencies. Perhaps, Ohio politicians were wary about challenging the authority of these agencies, as some of them — most notably those of Cincinnati and Cleveland — were headed by nationally-prominent air pollution experts. They may also have been unwilling to pay the costs of exit necessary to uproot existing institutions in favor of an alternative approach to air pollution control.Footnote 166 Conversely, in New Jersey, where only Newark maintained a relatively small and insignificant agency in the 1950s, politicians did not hesitate to develop a state agency in 1954 or to increase its authority during the 1960s without consideration for Newark's position.
While New Jerseyans had the opportunity to vote for state candidates who favored air pollution control beginning in the early 1960s, there is no evidence that popular support for this issue was higher in New Jersey than Ohio during the 1960s and early 1970s. To be sure, civic groups entered the fray earlier in New Jersey (mid-1960s) than in Ohio (late 1960s), but I have not found any indications that green groups in New Jersey were significantly larger or more influential than those in Ohio.Footnote 167 Most of the organizations in both states were small and heavily reliant on volunteers. For example, one of the most prominent clean air groups in New Jersey, the New Jersey Citizens for Clean Air, could claim only about 300 members in 1970. “We have no source of income other than our $2 membership fee from some 300 individuals and a few $10 group memberships,” the group's president, Ruth Ballou, explained. “We all pay our own expenses whenever we travel to Trenton or elsewhere to testify. We beg stationery and other supplies whenever we can, and our headquarters in Orange are rent-free.”Footnote 168
In the end, Ohio's air pollution regime was the victim of stagnant urban agencies and politicians who lacked the incentives to displace them, an institutional legacy which may have consequences for air quality today. Indeed, to this day, the urban-led agencies still exist as the Southwest Ohio Air Pollution Control Agency (Cincinnati), the Regional Air Pollution Control Agency (Dayton), Toledo Air Pollution Control, Akron Air Pollution Control, and the Cleveland Department of Public Health, Division of Air Quality.Footnote 169 Despite decades of government action devoted to air pollution control, Ohio's air quality index is 48.2 in 2025 and it maintained the second-worst air quality in the nation (tied with Georgia). That is not to say that the air in New Jersey is pristine; in 2025, the state ranks 30th in the nation with an air pollution quality index of 44.1.Footnote 170 Nevertheless, from 2010 – 2017, the New Jersey Department of Environmental Protection has led the nation in number of enforcement actions taken per number of air pollution violations discovered (11.82) while Ohio lags behind with 3.77 enforcement actions per violations discovered. Furthermore, the NJDEP's annual penalty assignment per number of polluting facilities ($929.24) was higher than that of the OEPA ($552.63) for air pollution, and it spent more per capita ($16.25) than the latter ($7.95) on air pollution control during the years 2011 – 2013.Footnote 171
One should not assume, however, that the two states’ management of other environmental issues (e.g., water pollution and natural resources conservation) necessarily followed the same pattern as air pollution control. For example, some attempts to rank water quality maintain that Ohio's drinking water is far cleaner than that of New Jersey.Footnote 172 Such findings would not undermine the claim that institutional legacies shaped air pollution control in New Jersey and Ohio as water pollution had previously been managed by specialized agencies with their own histories and cultures. In fact, what is striking about the debate about mini-EPAs, “superdepartments,” and pollution control agencies ensconced in health departments is that the participants in this debate often focus more on how public officials respond to the challenges posed by their agency structure and less on how they acquired their own approach to policymaking in the first place.Footnote 173 By tracing institutional legacies over time, one can better understand why a public official like E.D. Ermenc of the Southwestern Ohio Air Pollution Control Agency was still closely consulting with business interests about air pollution regulations in 1980 just as he had back in 1969 when he had served as Director of the Cincinnati Bureau of Air Pollution Control.Footnote 174 Ohio may have adopted the mini-EPA model for pollution control, but this model does not appear to have altered the urban agencies’ historical practices. Indeed, this study demonstrates that state building without the displacement of entrenched bureaucracies often just preserves the status quo.
Finally, this study suggests that bureaucratic autonomy is not always a source of innovation. In The Forging Bureaucratic Autonomy, Daniel Carpenter depicts entrepreneurial bureaucrats as creative forces who led their agencies in new directions. For them, bureaucratic autonomy was key to forging these new paths.Footnote 175 However, in Ohio's urban air pollution regimes, agency heads were supporters of the existing pro-business status quo, and their agencies reflected that. Their autonomy allowed them to operate with impunity as lawmakers, governors, and mayors deferred to their expertise. Later, the new air pollution regime headed by the Ohio Environmental Protection Agency, continued to grant them autonomy, perhaps to the detriment of clean air in the state.
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