Philip K. Howard: Our governing processes have become paralytic, and what to do about it.

The Bayonne Bridge, where an urgently needed improvement has been blocked by inane regulatory red tape.

Crook Point Bascule Bridge (1908), once connecting Providence and East Providence, R.I. It’s been stuck in upright position since 1976.

— Photo by Matthew Ward

Governing is not a process of perfection. Like other human activities, governing involves tradeoffs and trial and error. One of the most important tradeoffs involves timing. Delay in governing often means failure. Nowhere is this more true than with environmental reviews for infrastructure. Every year of delay for new power lines, modernized ports, congestion pricing for city traffic and road bottlenecks means more pollution and inefficiency.

New York Times columnist Ezra Klein has awakened liberal readers to the reality, hiding in plain sight, that governing processes are paralytic: “The problem isn’t government. It’s our government. … It has been made inefficient.”

The other week columnist George Will asked whether America “can do big things again.” Citing our work, and the absurd 20,000-page review for raising the roadway of the Bayonne Bridge, which connects Bayonne, N.J., with New York City’s Staten Island, to permit new post-panamax ships into Newark Harbor, Will calls out “the progressive aspiration to reduce government to the mechanical implementation of an ever-thickening web of regulations that leaves no room...for judgment.” American Enterprise Institute scholar and Washington Examiner columnist Michael Barone, also citing our work, the other day called for a rebooting of government to “sweep out the ossified cobwebs.”

The recent $1.2 trillion federal infrastructure law contains tools to streamline permitting, including presumptive 200-page limits on environmental reviews and two-year processes that we championed. But actually giving permits requires officials to use their judgment about priorities and tradeoffs, not to overturn every pebble. That may be a problem in current bureaucratic culture. In a letter to the editor of The Washington Post, an environmental official objects to my suggestion that raising the roadway of the Bayonne Bridge using existing foundations “involved no serious environmental impact.” He asserts that “bringing larger, more polluting ships and increased cargo” to the port “would result in increased diesel pollution from both the ships and the trucks transporting the cargo.”

Actually, the new larger ships are much cleaner, pollution-wise and burn much less diesel fuel per container. That’s a reason they’re more efficient. Increasing the capacity of the Newark port will indeed result in more truck traffic, but those containers have to come in somewhere.

You start to see the problem. It’s impossible to talk about environmental impact in the abstract. What’s needed is a governing culture that can make judgments about practical tradeoffs.

• In a piece for Fortune on efforts to protect kids online, Jonathan Haidt and Beeban Kidron cite my work on the benefits of a principles-based approach to writing laws.

• Julia Steiny in the Providence Journal cites my work in describing how Providence public schools are being crushed by law: “The system suffers from what author Philip Howard calls The Rule of Nobody. He says that the law operates ‘not as a framework that enhances free choice but as an instruction manual that replaces free choice.’”
  

• For the American Spectator, E. Donald Elliott provides a history of Common Good’s effort to bring about infrastructure permitting reform.

  Philip. K. Howard is a New York-based lawyer, civic and cultural leader, author and photographer. He’s chairman of the legal- and regulatory-reform organization Common Good (commongood.org) and the author of, among other books, The Death of Common Sense and The Rule of Nobody.

Philip K. Howard: To help fix infrastructure, cut red tape

The deadly Amtrak derailment on Tuesday is just another symptom of Congress’s refusal to address the United States’ decrepit infrastructure. Amtrak is notoriously underfunded, with a huge capital expenditure backlog. While the cause of the crash is not yet determined, even engineer error may have been avoided if Amtrak had implemented “positive train control” to restrict dangerous speeds. But almost every category of U.S. infrastructure is in a dangerous or obsolete state — roads and bridges, power generation and transmission, water treatment and delivery, ports and air traffic control. There is no partisan divide on what is needed: a national initiative to modernize our 50- to 100-year-old infrastructure. The upside is as rosy as the status quo is dire. The United States can enhance its competitiveness, achieve a greener footprint and create upward of 2 million jobs .

So what’s the problem? Modernizing infrastructure requires money and permits. Congress needs to create a long-term funding plan and radically reduce the red tape that drives up costs and ensnarls projects in their infancy. Instead, Congress uses short-term fixes to get past the looming insolvency of the Highway Trust Fund. Congressional efforts to cut red tape are similarly weak .

Congress pretends that not spending money is prudent. But continued delay is not only dangerous but also costly. The longer we wait, the more our infrastructure will cost. Because of decades of deferred maintenance, the bill for repairing the Williamsburg Bridge in New York City, for example, was inflated tenfold in recent years, to $800 million.

Merely avoiding inefficiencies more than pays for new infrastructure — returning $1.44 on each dollar invested, according to Moody’s. Delays due to infrastructure bottlenecks cost about $200 billion per year on railroads, $50 billion per year on roads and $33 billion on inland waterways . America’s antiquated power grid wastes 7 percent of the electricity it transmits, or about $30 billion worth of electricity annually.

Funding won’t build much, however, without red-tape reform. Congress funded an $800 billion stimulus plan in 2009, but five years later only $30 billion had been spent on transportation infrastructure because no government agency had authority to approve projects. As President Obama put it, “There’s no such thing as shovel-ready projects.”

Red tape can consume nearly a decade on major projects. For example, raising the roadway of the Bayonne Bridge near the Port of Newark, a project with virtually no environmental impact (it uses existing foundations and right of way), required 47 permits from 19 agencies, and a 5,000-page environmental assessment. The approval process took five years. In San Diego, permitting for a desalination plant began in 2003 and was completed, after 14 legal challenges, in 2012. It will start producing fresh water this year — 12 years later.

Congress did not deliberately create this bureaucratic jungle. The jungle just grew, like kudzu. Environmental review statements are supposed to be 150 to 300 pages, according to federal regulations, and focus on important trade-offs. Nor was the proliferation of permits by design. As government got bigger, it naturally organized itself into silos, each with its own rules and territorial instincts. Many requirements are senseless in context — like requiring a survey of historic buildings within a two-mile radius of the Bayonne Bridge, even though the project touched no buildings.

Just as conservatives act as if funding infrastructure is imprudent, liberals in Congress defend multiple layers of review. Red tape is not the same as good government. It harms the environment as well as driving up costs. The wasted electricity from the obsolete power grid is the same as the output of 200 average coal-burning power plants — causing an extra 280 million tons of carbon to spew into the air each year. Delays in permitting new wind farms and solar fields and connecting transmission lines similarly result in extra carbon emissions. Traffic bottlenecks create exhaust fumes.

Infrastructure is unavoidably controversial. There is always an impact and always a group that is affected more than others. A wind farm or transmission line spoils views and can affect bird populations. A desalination plant produces a briny byproduct. Modernizing a port will disturb the ocean floor and increase traffic in nearby neighborhoods.

But delay on new infrastructure is far worse than these unavoidable side effects. An inefficient port reduces competitiveness and drives shipping elsewhere, requiring goods to be trucked longer distances. Delay in a desalination plant further depletes aquifers. All public choices involve tradeoffs. No amount of law can avoid that reality.

What is needed for infrastructure approvals is basic: Congress must create clear lines of authority to make decisions. Environmental review and public input are important, but such countries  as Germany and Canada achieve this in two years, not 10. They do this by giving responsibility to particular agencies to make practical choices that balance competing public interests — within strict time frames. For example, an environmental official should have responsibility to draw lines on how much review is sufficient. Similarly, one agency should have overriding permitting authority, balancing the concerns of other agencies and departments.

The opportunity here is transformational. With a two-year process and adequate funding, the United States can modernize its infrastructure at far less cost and with huge environmental and economic benefits. This requires Congress to make deliberate choices in the public good.

Philip K. Howard, a New York-based civic leader, author and lawyer, is chairman of the social- and legal-reform nonprofit organization Common Good. He's the author of the best-sellers The Rule of Nobody and The Death of Common Sense.

Philip K. Howard: Infrastructure repairs drown in regulatory molasses

  To our readers: This column also ran in a pre-renovation version of  New England Diary a few weeks ago. As we seek to import the pre-renovation archives, we will rerun particularly important files, such as  Philip Howard's piece here.

-- Robert Whitcomb

By PHILIP K. HOWARD

NEW YORK

President Obama went on the stump this summer to promote his "Fix It First" initiative, calling for public appropriations to shore up America's fraying infrastructure. But funding is not the challenge. The main reason crumbling roads, decrepit bridges, antiquated power lines, leaky water mains and muddy harbors don't get fixed is interminable regulatory review.

Infrastructure approvals can take upward of a decade or longer, according to the Regional Plan Association. The environmental review statement for dredging the Savannah River took 14 years to complete. Even projects with little or no environmental impact can take years.

Raising the roadway of the Bayonne Bridge at the mouth of the Port of Newark, for example, requires no new foundations or right of way, and would not require approvals at all except that it spans navigable water. Raising the roadway would allow a new generation of efficient large ships into the port. But the project is now approaching its fifth year of legal process, bogged down in environmental litigation.

Mr. Obama also pitched infrastructure improvements in 2009 while he was promoting his $830 billion stimulus. The bill passed but nothing much happened because, as the administration learned, there is almost no such thing as a "shovel-ready project." So the stimulus money was largely diverted to shoring up state budgets.

Building new infrastructure would enhance U.S. global competitiveness, improve our environmental footprint and, according to McKinsey studies, generate almost two million jobs. But it is impossible to modernize America's physical infrastructure until we modernize our legal infrastructure. Regulatory review is supposed to serve a free society, not paralyze it.

Other developed countries have found a way. Canada requires full environmental review, with state and local input, but it has recently put a maximum of two years on major projects. Germany allocates decision-making authority to a particular state or federal agency: Getting approval for a large electrical platform in the North Sea, built this year, took 20 months; approval for the City Tunnel in Leipzig, scheduled to open next year, took 18 months. Neither country waits for years for a final decision to emerge out of endless red tape.

In America, by contrast, official responsibility is a kind of free-for-all among multiple federal, state and local agencies, with courts called upon to sort it out after everyone else has dropped of exhaustion. The effect is not just delay, but decisions skewed toward the squeaky wheels instead of the common good. This is not how democracy is supposed to work.

America is missing the key element of regulatory finality: No one is in charge of deciding when there has been enough review. Avoiding endless process requires changing the regulatory structure in two ways:

Environmental review today is done by a "lead agency"—such as the Coast Guard in the case of the Bayonne Bridge—that is usually a proponent of a project, and therefore not to be trusted to draw the line. Because it is under legal scrutiny and pressure to prove it took a "hard look," the lead agency's approach has mutated into a process of no pebble left unturned, followed by lawsuits that flyspeck documents that are often thousands of pages long.

What's needed is an independent agency to decide how much environmental review is sufficient. An alteration project like the Bayonne Bridge should probably have an environmental review of a few dozen pages and not, as in that case, more than 5,000 pages. If there were an independent agency with the power to say when enough is enough, then there would be a deliberate decision, not a multiyear ooze of irrelevant facts. Its decision on the scope of review can still be legally challenged as not complying with the basic principles of environmental law. But the challenge should come after, say, one year of review, not 10.

It is also important to change the Balkanized approvals process for other regulations and licenses. These approvals are now spread among federal, state and local agencies like a parody of bureaucracy, with little coordination and frequent duplication of environmental and other requirements. The Cape Wind project off the coast of Massachusetts, now in its 12th year of scrutiny, required review by 17 different agencies. The Gateway West power line, to carry electricity from Wyoming wind farms to the Pacific Northwest, requires the approval of each county in Idaho that the line will traverse. The approval process, begun in 2007, is expected to be complete by 2015. This is paralysis by federalism.

The solution is to create what other countries call "one-stop approvals."  Giving one agency the authority to cut through the knot of multiple agencies (including those at state and local levels) will dramatically accelerate approvals.

This is how "greener" countries in Europe make decisions. In Germany, local projects are decided by a local agency (even if there's a national element), and national projects by a national agency (even though there are local concerns). One-stop approval is already in place in the U.S. New interstate gas pipelines are under the exclusive jurisdiction of the Federal Energy Regulatory Commission.

Special interests—especially groups that like the power of being able to stop anything—will foster fears of officials abusing the public trust. Giving people responsibility does not require trust, however. I don't trust anyone. But I can live with a system of democratic responsibility and judicial oversight. What our country can't live with is spinning our wheels in perpetual review. America needs to get moving again.

Philip K. Howard, a lawyer, is chairman of the nonpartisan reform group Common Good. His new book, "The Rule of Nobody," will be published in April by W.W. Norton. He is also the author of, among other works, "The Death of Common Sense''.