The tragedy of the commons, ecologist Garrett Hardin’s handy description of individual interests pursued through a shared resource, often is used to describe the misuse of water, air, land and all the beasts within. But there are also intangible commons such as, for instance, the quality and extent of debate to create rules that protect these natural resources. They also need tending or will become despoiled.

One of the most difficult parts of passing the Clean Air Act of 1990, George Mitchell recalled the other day, was rejecting amendment after amendment that he knew strengthened the act. The amendments came from fellow Democrats and had the enthusiastic encouragement of the sort of environmental groups that gave the Senate majority leader a closet full of awards for his good works.

He turned down the amendments and thoroughly irritated the environmentalists, he said, because he had a deal with Republicans. Both parties would work together publicly, invite all manner of suggestions, build an agreement on what should be in the bill, then each side would defend the other. The process, while lengthy, worked well enough so that Sen. Mitchell found himself fighting to include a proposal from President George H.W. Bush for reducing sulfur dioxide – a cap-and-trade plan like what may be offered now for mercury emissions by the current President Bush. There were to be no last-minute changes in the 1990 bill, nothing secretive, one party wouldn’t work on the bill to the exclusion of the other. They had a deal and with only one exception – inclusion of an ethanol amendment – stuck with it. Congress ultimately passed the largest improvements to air quality in its history: acid rain was addressed, cars became cleaner, ozone standards were strengthened.

“We ended up with a good bill, a strong bill, not a perfect bill,” Sen. Mitchell said while looking over a summary of the legislation at his office in the business law firm of Piper Rudnick in Washington. “We ended up with that because it was a bipartisan effort. We could not have succeeded to do it with one party alone. The current leadership operates in a completely different manner and that is to shut out the minority and write a bill on their own, and an issue of this complexity – the Clean Air issues – they’re very difficult. … I don’t think you can do it in the way they’ve done these other bills,” meaning Medicare and energy reforms.

Not that they haven’t tried. From the beginning of the private meetings on energy Vice President Cheney held two years ago to the near-exclusive conference committee work that last month produced a huge energy bill of uncertain cost and damage, majority leadership has used a top-down style in which it decides policy, announces it and opposes anyone who disagrees. This is a tragedy of process, and it shows in the product.

The energy bill is a treasure chest for the oil, natural gas, coal, electricity and nuclear power industries – $23.5 billion in tax breaks, $8 billion in new grants and production incentives and retroactive protection for the makers of MTBE. It is bipartisan in the sense that several Midwestern Democrats couldn’t resist another round of ethanol subsidies. Conservation – that thing the nation keeps remembering it should have done whenever oil prices rise – is mentioned just barely.

Fortunately, senators of conscience, including Susan Collins and Olympia Snowe, stopped the bill, at least temporarily. But the strategy of creating an energy bill that tried to attract votes not through compromise and agreement but by lavish spending on pet projects remains nearly unexamined. The practice will return with the next major legislation and, just as the near hysterical attacks from the right against President Clinton were adopted by the left and applied against President Bush, so will the nearly countless ways of excluding the minority’s influence on legislation be adopted by Democrats when they next return to the majority.

It’s a simple thing to find another period in history when members of Congress were less civil, more corrupt or more likely to raise their voices or their canes to attack their opponents and to conclude that the current situation isn’t so bad. But there is no reason to hold this Congress to the lowest historical standards when it should be measured by what is possible: a more open legislating process, inclusion of minority ideas, respect for the way bills are passed. The process determines the quality of the legislation, and while the regulations that protect air and water are now accepted parts of government’s function, they may not always be around.

“In the 1980s President Reagan sought to terminate the Clean Water program – to terminate it!” said Sen. Mitchell, who led the fight to override the veto and still sounds astounded that he had to. Significantly, he was joined by the late Republican Sen. John Chafee of Rhode Island and by Vermont Sen. Jim Jeffords, who is a late Republican of a different sort. “We overrode his veto by one vote. One vote. And so it is not beyond the realm of possibility” that the Clean Air Act be dismantled. “And if President Bush is re-elected it is likely to happen. I think there will be a difficult, painful, political effort to reduce the effectiveness all in the name of flexibility, energy self-sufficiency. There will be good and noble sentiments expressed in the titles of whatever legislation they make – and they’ve gotten very good at making up titles that actually are the opposite of what the bill will do. It’s a major issue. I’m distressed at the fact that very few Americans – at least at this stage – seem to care about it.”

Part of the tragedy of the commons is that people begin to care only when the resource – clean air, clean water, full and open debate – have disappeared. That’s why it’s called a tragedy.

Todd Benoit is the BDN editorial page editor.