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Ash Council and creation of EPA
Q: You served as staff to the Ash Council, which created EPA. Who brought you onto the Ash Council?
MR. COSTLE: A friend named Amory Bradford, who had once run the New York Times and served in a variety of federal positions over the years. After law school in the '60s, I had joined the Department of Justice (DOJ) and been assigned to the Civil Rights Division. The previous summer, in '63, I had worked for Justice, with the FBI in Mississippi. I photographed public records and interviewed witnesses in the early suits over the use of literacy tests to disenfranchise blacks in the South. These suits led to the '65 Voting Rights Bill, which fundamentally changed Southern politics. I was just a young law clerk, and my only identification was a letter from Robert Kennedy saying I worked for the Department. This probably would have been enough to get me shot if I had ever had to show it to anybody. Right after the Watts riots and the Newark fires, Amory was with the Economic Development Administration (EDA) in the Department of Commerce, and he thought Oakland would be the next tinderbox. He wanted to take the jobs creation potential of the EDA to Oakland to see if that could make a difference. Then came the Ash Council.
Q: What were the purposes of the Ash Council, and what were the Nixon Administration responses to your proposals regarding EPA? The Council wasn't entirely successful, or at least many of its proposals didn't go through. Yours was one of the few that did.
MR. COSTLE: Basically, two proposals succeeded: the creation of OMB (Office of Management and Budget) and the Domestic Policy Council (DPC), and the creation of EPA. The Ash Council looked into making EPA part of a larger department and ultimately decided not to.
To give you some background on the Council, one of the first things that every president since Roosevelt has done when taking office is to set up some sort of commission to look at federal government organization. President Nixon's council, formally named the President's Advisory Council on Executive Organization, consisted mainly of very successful business people who ran large organizations. For example, Roy Ash, the chairman, was head of Litton Industries, a very large and successful firm that did a good deal of government contracting. The council members were concerned with consolidating the number of agencies that reported directly to the President. They believed the President needed a policy staff, because their perception was that Cabinet officers often became captive of the "iron triangle" of the executive, legislative, and lobbying communities, whose interests were not always those of the President. A White House staff that was a mixture of career policy specialists as well as the President's political staff would serve as a small think tank to help the President sort out policy debates and choose options.
The Bureau of the Budget didn't like this proposal because it had traditionally played this role, and the Cabinet didn't because the members saw themselves as the President's staff. They feared that the Ash Council's proposed Domestic Policy Council would interpose itself between themselves and the President.
In the midst of all this, Amory's staff was grappling with improving the organization of the government's myriad programs dealing with the environment, ranging from managing public lands to mineral leasing and extraction, anti-pollution programs, power generation, and the regulation of pesticides. These functions were scattered throughout the Departments of Interior to Agriculture to HEW (Health, Education and Welfare) and independent agencies. This executive branch fragmentation of authority was mirrored on Capitol Hill, among all its different committees and subcommittees. The Council's predisposition was to lump all these programs into one new cabinet department.
I was convinced that idea would not fly. First, it would require legislation, because the President's reorganization authority did not extend to creating new cabinet departments. Although Congress had to approve any plan to transfer programs from one department to another one already existing, such a plan would automatically go into effect unless Congress actually vetoed it. And the larger and more complicated the plan, the more likely a veto would occur. Second, no matter how neat, streamlined, and sensible a proposed plan might be, it would be torn into pieces on Capitol Hill by all the interest groups. While everybody talks about how protective the bureaucracy is about its turf, it's not basically the bureaucrats. In the end, the civil service does not have much power itself. Power lies with the Congress and the interest groups, often aided and abetted by the bureaucracy. Congress and the interests resist change because -- the minute power shifts -- loss of control or influence plays its way through the bureaucracy, the press, the political process. I remember the admonition: "If you send a racehorse up to Congress, it is sure to come back into the tent looking like a camel."
A reorganization plan, on the other hand, would not be subject to amendment. It had to be voted up or down as submitted. The Ash Council members, however -- being very smart businessmen but not necessarily smart Washington operators -- thought the logical step would be to combine all the federal environmental, energy, and land resource programs in one cabinet department, presumably Interior. This would be the first major Cabinet shake-up.
We staffers were instructed to brief each of the Cabinet members who would be affected, nine out of ten of whom would lose something. Each Cabinet officer made a pitch for placing the new entity in his own Department. Even the Army tried, saying, "The Corps of Engineers needs a new mission." But Russ Train, who had then just been named chairman of the new Council on Environmental Quality (CEQ), was the first to argue that EPA ought to be independent. He believed that anything else would not be seen as a fulsome response to the growing public perception that environmental problems were getting out of hand and that a highly visible and focused response was required.
Roy Ash reasoned that the standard-setting and enforcement functions of an EPA really needed to be informed by all the Cabinet perspectives: urban, agricultural, commerce, health, natural resources. He toyed with the idea of a coordinating council and became persuaded that it just wouldn't work. The rule in Washington is that everybody wants to coordinate, but nobody wants to be coordinated. So the Ash Council endorsed the idea of a separate, independent EPA reporting to the President. They did not seriously consider a commission form like the FTC (Federal Trade Commission) or the ICC (Interstate Commerce Commission), regulatory agencies set up primarily for the economic regulation of industry, which were as much creatures of Congress as of the Executive Branch.
Using a reorganization plan was brilliant, because necessitating a congressional veto changed the dynamics considerably. It meant Congress had to organize to defeat the plan within 60 days. In the end, Congress couldn't muster the opposition. Bill Ruckelshaus, who was then at Justice as an Assistant Attorney General, was named administrator one week before the EPA's effective date of December 2.