Robert Whitcomb: 4 policy changes to address infrastructure crisis

That America's physical infrastructure is  crumbling is doing ever more serious damage to U.S. economic and social health. Thus we send along word of a very important report from Common Good, the reform organization chaired by our friend Philip K. Howard. Please read this press release:

Delays in approving infrastructure projects cost the nation more than twice what it would cost to fix the infrastructure, according to a new report released today by Common Good, the nonpartisan government reform coalition. Those approvals can take a decade or longer, and the report shows that a six-year delay in starting construction on public projects costs the nation over $3.7 trillion, including the costs of prolonged inefficiencies and unnecessary pollution. That’s more than double the $1.7 trillion needed through the end of this decade to modernize America’s decrepit infrastructure.

Titled "Two Years, Not Ten Years: Redesigning Infrastructure Approvals,'' the report proposes a dramatic reduction of red tape so that infrastructure can be approved in two years or less. This can be accomplished by consolidating decisions within a simplified framework with deadlines and clear lines of accountability.

The White House Council on Environmental Quality (CEQ), for example, should have authority to draw lines on the scope of environmental review. To cut the Gordian knot of multiple permits, the White House needs authority to resolve disputes among bickering agencies. The report comes as the federal government considers funding for infrastructure projects, but funding alone is not sufficient.

Even fully funded projects have trouble moving forward. In 2009, America had the money (over $800 billion in the economic stimulus package) but few permits. In its five-year report on the stimulus, released in February 2014, the White House revealed that a grand total of $30 billion (3.6 percent of the stimulus) had been spent on transportation infrastructure.

In the current legal quagmire, not even the president has authority to approve needed projects. The report also comes as Americans are increasingly frustrated with the federal government’s inability to improve the nation’s infrastructure.

A nationwide poll of U.S. voters conducted for Common Good in June by Clarus Research Group found that 74 percent of voters would be more inclined to vote for a candidate for President who promised to take charge of federal infrastructure reviews to speed up the process; 79 percent of voters think there are no good reasons for infrastructure delays, which are mostly viewed as an example of wasteful and inefficient government.

In analyzing the costs of delay, the report includes the direct costs (legal, administrative, and overhead), the opportunity costs of lost efficiencies during the years of delay, and the environmental costs of antiquated infrastructure during the delay. These costs are estimated for electricity transmission, power generation, inland waterways, roads and bridges, rail, and water.

To rebuild America’s infrastructure on an efficient and timely basis, the report proposes four major policy changes:

• Public comment should be solicited before formal plans are finalized, as well as throughout the process. Input should be informal, not a matter of formal hearings and “building the record.” This change would help broaden public discussion and make government decisions more accountable.

• The scope and adequacy of environmental review should be determined by a designated environmental official. Review should focus on material issues of impact and possible alternatives, not endless details. Net overall impact should be the most important finding. Environmental review should generally be completed in no more than a year, and should not be longer than 300 pages, as set forth in current regulations. The report proposes that CEQ assume this responsibility.

• It is also important to eliminate the fear of litigation that leads project proponents to practice a kind of “defensive medicine” that transforms environmental-impact statements into multi-thousand page documents. Needed changes would: i) require all claims challenging a project to be brought within 90 days of issuance of federal permits; ii) require credible allegations that the review is so inadequate as to be arbitrary or, for permits, that the project violates substantive law; and iii) require that impact be measured against the overall benefit of a project.

• Multiple permitting should be replaced by a “one-stop shop.” If America wants new infrastructure on a timely basis, approvals must be consolidated. The new framework should preempt state law for interstate projects (similar to the Federal Energy Regulatory Commission’s authority over new gas pipelines), and give the White House authority to designate a single agency to balance regulatory concerns and issue permits for an interstate project.

“The upside of rebuilding infrastructure is as rosy as the downside of delay is dire,” said Philip K. Howard, chairman of Common Good. “America can enhance its competitiveness, achieve a greener footprint, and create upwards of two million jobs. Americans clearly want infrastructure improvement – not further waste and inefficiency. The question is: Will the federal government make it happen?”

The full report is available at www.commongood.org. For more information or to talk with Common Good Chairman Philip K. Howard, please contact Chelsey Saatkamp at 212-576-2700 x259 or csaatkamp@goodmanmedia.com.

Common Good (www.commongood.org) is a nonpartisan government reform coalition dedicated to restoring common sense to America. The  chairman of Common Good is Philip K. Howard, a lawyer and author of most recently The Rule of Nobody. He is also author of The Death of Common Sense.

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.

More reforms for Gina Raimondo

I used to see Rhode Island Gov. Gina Raimondo (and her communications chief, Joy Fox)  a bit when Ms. Raimondo was the state treasurer, after her highly successful run as a venture capitalist. She got elected governor as a person willing to take on the challenges of structural reform  after having displayed this courageous willingness when she  embraced, as treasurer, the brutally difficult chore of pensi0n reform.  Runaway public pensions have threatened to effectively bankrupt Rhode Island and some of its cities and towns. (Some of the cities are still on the edge.) Now many of us hope very much that she'll join with Common Good and other reform organizations to push to eliminate obsolete laws and to review the  inefficient and costly "system'' of federal mandates on the states. The National Governors Association has a project along those lines.

Changes in these areas would make state governments more effective and cost-efficient and citizens' lives easier and more productive.

To get a sense of what I'm talking about, read Philip K. Howard's The Rule of Nobody. He runs Common Good and is an admirer of Governor Raimondo's work as treasurer.

Let them take responsibility

By ROBERT WHITCOMB

In the appendix of Philip K. Howard's mordantly entertaining new book, The Rule of Nobody: Saving America From Dead Laws and Broken Government, is a well-named collection of proposed new amendments to the U.S. Constitution that he calls the “Bill of Responsibilities.”I over-summarize them here; read the book. Mr. Howard is an engaging writer, using stories (some grimly funny) to get across his strong prescriptions.

Mr. Howard proposes amendments to: “sunset” old laws and regulations; give the president power to far more effectively manage the executive branch — including line-item vetoes and expanded discretion to hire and fire and reorganize operations, all subject to being overridden by a majority of each house of Congress — and widen judges’ power to dismiss unreasonable lawsuits.

Finally, he recommends an amendment to create a “Council of Citizens” as an advisory body to make recommendations on how to make government more responsive to the public’s needs. This reminds me of the Hoover commissions on government reorganization of the late 1940s and the ’50s, named after Herbert Hoover, who chaired them. The composition of this council would be very federalist, with members chosen “by and from a Nominating Council composed of two nominees by each governor of a state.” The idea is to push along the ideas represented by the other new amendments. This is intriguing but the nomination process could get caught in political sludge.

The phrase “Bill of Responsibilities” gets to the heart of what Mr. Howard is saying throughout his book: that we have become so tangled up in laws and regulations that it’s often impossible to exercise authority and take responsibility — the avoidance of which, I would add, is attractive to many people, just as long as they continue to have the perks of their positions. As a result, it’s tougher and tougher to get things done, at the local, state and federal levels, whether it is fixing a bridge, creating a health-care system whose benefits are commensurate with its vast cost, or firing an incompetent bureaucrat.

Admiral Chester Nimitz said during World War II, “When in command, command.” President Truman said of the prospect of Dwight Eisenhower as president: “He’ll sit here, and he’ll say ‘Do this! Do that!’ And nothing will happen. Poor Ike. It won’t be a bit like the Army. He’ll find it very frustrating.” Well, Eisenhower turned out to be a pretty effective president but Truman was fairly accurate: It has always been hard to make government work, and in many ways it’s harder now than 60 years ago because of the accretion of laws and regulations, many of which should have been eliminated or streamlined long ago. A law or a regulation cannot cover every eventuality, Mr. Howard writes: You need judgment and common sense. Fewer laws and more decisions, please!

The problems that Philip Howard tackles remind me of the growing dominance of process over content (or maybe call it substance). You see this in daily life with the increasing time demanded to keep up with endlessly updated computer programs (planned obsolescence!), and the hours needed to fill out tax returns and insurance forms.

Meanwhile, the European Court of Justice has issued an advisory judgment that European Union residents have the right in certain circumstances to make search engines remove links to personal information that people think damages them. It’s “the right to be forgotten,” a cousin of Americans’ famous, if informal, “right to be left alone.”

This will be very difficult to enforce, given the vast complexity of the Web. But I like the idea of taking down the arrogance of Google, et al., a few notches. You don’t have to be much of a “public figure” to be the object of scurrilous inaccurate attacks on the Internet for which the likes of Google wrongly take no responsibility. In the Digital Age your good name can be instantly destroyed on the screen.

The court supported exceptions for “public figures,” especially politicians. But that’s very tricky: Almost anyone can become a “public figure” on the Internet. And is it fair to exclude politicians, etc., from such protection from attacks? Whatever, the European case at least raises the issue of responsibility for content, which the search-engine companies, most notably Google, have tended to avoid while raking in billions of dollars.

***

A college “commencement” is a strange term because it seems much more of an ending, as emphasized by the dirge-like “Pomp and Circumstance.” Sadder is that so many colleges, supposedly refuges of the free exchange of ideas, surrender to demands for censorship by “activists” to block commencement speeches by people (usually with comparatively “conservative” views) whose opinions they don’t like. Cowardly college chiefs fail to take responsibility for protecting one of their central missions -- free and open discussion.

Robert Whitcomb (rwhitcomb51@gmail.com)  is an editor, writer,  fellow of the Pell Center for International Relations and Public Policy and a member of a management-consulting firm in the health-care sector.

'The Rule of Nobody' in American life

Citizens who have had it with America's  relentless litigation and paralyzing fear of it, and its turgid and contradictory regulations,  should read Philip K. Howard's The Rule of Nobody: Saving America From Dead Laws and Broken Government, which I (Whitcomb) review in the  latest Weekly Standard.  

Blame Russia for Russian aggression

By ROBERT WHITCOMB (rwhitcomb51@gmail.com)

Some denounce the United States for Russia’s reversion to brutal expansionism into its “Near Abroad” because we encouraged certain Central and Eastern European countries to join the North Atlantic Treaty Organization. The argument is that NATO’s expansion led “Holy Russia” to fear that it was being “encircled.” (A brief look at a map of Eurasia would suggest the imprecision of that word.)

In other words, it’s all our fault. If we had just kept the aforementioned victims of past Russian and Soviet expansionism out of the Western Alliance, Russia wouldn’t have, for example, attacked Georgia and Ukraine. If only everyone had looked into Vladimir Putin’s eyes and decided to trust him.

Really? Russia has had authoritarian or totalitarian expansionist regimes for hundreds of years, with only a few years’ break. How could we have necessarily done anything to end this tradition for all time after the collapse of the Soviet iteration of Russian imperialism? And should we blame Russia’s closest European neighbors for trying to protect themselves from being menaced again by their gigantic and traditionally aggressive neighbor to the east? Russia, an oriental despotism, is the author of current Russian imperialism.

Some of the Blame America rhetoric in the U.S. in the Ukraine crisis can be attributed to U.S. narcissism: the idea that everything that happens in the world is because of us. But Earth is a big, messy place with nations and cultures whose actions stem from deep history and habits that have little or nothing to do with big, self-absorbed, inward-looking America and its 5 percent of the world population. Americans' ignorance about the rest of the planet -- even about Canada! -- is staggering, especially for a "developed nation''.

And we tend to think that “personal diplomacy” and American enthusiasm and friendliness can persuade foreign leaders to be nice. Thus Franklin Roosevelt thought that he could handle “Joe Stalin” and George W. Bush could be pals with another dictator (albeit much milder) Vladimir Putin. They would, our leaders thought, be brought around by our goodwill (real or feigned).

But as a friend used to say when friends told him to “have a nice day”: “I have other plans.”

With the fall of the Soviet Empire, there was wishful thinking that the Russian Empire (of which the Soviet Empire was a version with more globalist aims) would not reappear. But Russian xenophobia, autocracy, anger and aggressiveness never went away.

Other than occupying Russia, as we did Japan and Western Germany after World War II, there wasn’t much we could do to make Russia overcome its worst impulses. (And Germany, and even Japan, had far more experience with parliamentary democracy than Russia had.) The empire ruled from the Kremlin is too big, too old, too culturally reactionary and too insular to be changed quickly into a peaceable and permanent democracy. (Yes, America is insular, too, but in different ways.)

There’s also that old American “can-do” impatience — the idea that every problem is amenable to a quick solution. For some reason, I well remember that two days after Hurricane Andrew blew through Dade County, Fla., in 1992, complaints rose to a chorus that President George H.W. Bush had not yet cleaned up most of the mess. How American!

And of course, we’re all in the centers of our own universes. Consider public speaking, which terrifies many people. We can bring to it extreme self-consciousness. But as a TV colleague once reminded me, most of the people in the audience are not fixated on you the speaker but on their own thoughts, such as on what to have for dinner that night. “And the only thing they might remember about you is the color of the tie you’re wearing.”

We Americans could use a little more fatalism about other countries.

***

James V. Wyman, a retired executive editor of The Providence Journal, was, except for his relentless devotion to getting good stories into the newspaper, the opposite of the hard-bitten newspaper editor portrayed in movies, usually barking out orders to terrified young reporters. Rather he was a kindly, thoughtful and soft-spoken (except for a booming laugh) gentleman with a capacious work ethic and powerful memory.

He died Friday at 90, another loss for the "legacy news media.''

***

My friend and former colleague George Borts died last weekend. He was a model professor — intellectually rigorous, kindly and accessible. As an economist at Brown University for 63 years (!) and as managing editor of the American Economic Review, he brought memorable scholarship and an often entertaining skepticism to his work. And he was a droll expert on the law of unintended consequences.

George wasn’t a cosseted citizen of an ivory tower. He did a lot of consulting for businesses, especially using his huge knowledge of, among other things, transportation and regulatory economics, and wrote widely for a general audience through frequent op-ed pieces. He was the sort of (unpretentious) “public intellectual” that we could use a lot more of.

***

I just read Philip K. Howard’s “The Rule of Nobody: Saving America From Dead Laws and Broken Government.” I urge all citizens to read this mortifying, entertaining and prescriptive book about how our extreme legalism and bureaucracy imperil our future. I’ll write more about the book in this space.

Robert Whitcomb (rwhitcomb51@gmail.com), a former editor of The Providence Journal's editorial pages, is a Providence-based writer and editor, former finance editor of the International Herald Tribune and a partner and senior adviser at Cambridge Management Group (cmg625.com), a consultancy for health systems, and a fellow of the Pell Center for International Relations and Public Policy.

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Philip K. Howard: Shipwrecked on ancient laws

By PHILIP K. HOWARD NEW YORK

A shipload of salt to deal with this year’s snow and ice on New Jersey’s roads has been detained in legal limbo in Providence Harbor, en route from Maine. The problem, detailed in the Feb. 19 New York Times, is that it’s illegal for a foreign-owned vessel to ship goods from one U.S. port to another. (There’s even a word for it, I learned. Domestic shipping is called "cabotage.")

Now, there’s nothing apparently wrong with the ship, which had just finished unloading its cargo in Maine and was available to take on the salt immediately. But an obscure 1920 law known as the Jones Act requires a U.S. ship, with a U.S. crew, on all domestic routes. There’s a cottage merchant marine industry and union that exists just because of this law.

In this era of free markets, one would think that protectionist laws from almost 100 years ago would have gone the way of the horse and buggy. But laws have remarkable staying power (as we saw two weeks ago with the continuation of New Deal-era farm subsidies). The same onerous process for enacting a law applies to repealing it, with one additional, almost insurmountable, hurdle: the law now is surrounded by an army of special interests who will do anything to defend it (think campaign money and ad hominem attacks on would-be reformers).

That’s why, in the strange culture of Washington, repealing laws is so rare as to be almost unthinkable. Getting rid of old laws violates the laws of legislative physics.

Laws pile up, year after year, like sediment in the harbor. Society, meanwhile, is increasingly paralyzed. The U.S. now ranks 20th in the world in ease of starting a business. This is because of thousands of laws like the Jones Act.

American democracy has a structural problem: There’s no political or legal imperative to clean the stables. The accumulation is so bad that, as I argue elsewhere, America should initiate a series of commissions, area by area, to recommend what are known as "recodifications" of law—new, simpler codes that reflect current national goals and priorities. Going forward, most regulatory programs should periodically "sunset," with an action-forcing mechanism (perhaps a constitutional amendment) that prevents Congress from simply re-enacting the same program in a midnight vote.

It’s impossible to run a government, much less balance public budgets, under the weight of a hundreds of laws and programs that are obsolete in whole or part. The weight grows heavier every year. It will break, sooner or later. Perhaps it’s time to start thinking about to fix it.

Philip K. Howard is a New York-based lawyer, civic leader and author. He is chairman of the legal and social-reform group Common Good and the author of , among other books, The Death of Common Sense and the upcoming The Rule of Nobody.

Philip K. Howard: The perilous search for legal certainty

 By PHILIP K. HOWARD

NEW YORK

You will profit by reading philosopher Simon Critchley's recent reflection on Dr. Jacob Bronowski and the dangers of certainty. People who think they possess a final truth, driven compulsively towards their view of certainty, often cause evil, whether they're religious fanatics like Savonarola or, as Bronowski discusses, the officials who devised the Final Solution.

A responsible human must look life in the eye, open to the moral and factual uncertainties presented by many choices in human dealings. Critchley: "There is no God's eye view, Dr. Bronowski insisted, and the people who claim that there is and that they possess it are not just wrong, they are morally pernicious. Errors are inextricably bound up with pursuit of human knowledge, which requires not just mathematical calculation but insight, interpretation and a personal act of judgment for which we are responsible."

Applying this principle of human responsibility for moral choices has applications throughout the range of human endeavor. Let's look at law for a minute.

Legal certainty is accepted orthodoxy. Of course,  law should be certain, we have been taught. Only then will people know what's expected of them, and not be fearful of arbitrary officials. In pursuit of certainty, laws have become ever more detailed. The new Volcker Rule regulating proprietary trading by banks is almost 1,000 pages long. The Affordable Care Act is almost 3,000 pages long. Nursing homes are typically regulated by 1,000 rules. In total, there are over 100 million words of binding federal law, and several billion words of state and local law.

Do all these detailed dictates achieve certainty? Of course not. Law is an unknowable jungle. Does all this law safeguard us against arbitrary officials? No, it's a legal minefield. No one can comply with it all. We're at the mercy of the state. Does all this detailed law make government a well-oiled, smoothly-running machine? HELP!! There's hardly any program, even the best of them, that doesn't waste vast resources in bureaucratic nonsense.

Public solvency is basically illegal in America. All this detailed law prevents the president, and any governor, from making the choices needed for fiscal responsibility.

Our obsessive quest for legal certainty has left our society, ironically, in a very uncertain state. The only cure is to abandon legal certainty and embrace human responsibility as the operating philosophy for most activities of government.

Canadian management theorist Brenda Zimmerman makes the distinction between activities that are "complicated"--like engineering, or rocket launches, or surgery--and activities that are "complex"--such as raising a child, or running a healthcare system. Complicated activities profit from detailed rules, checklists, and protocols. Complex activities require balance, and tradeoffs, and moral choices. Detailed rules cause failure.

Law can support a free society, I argue in my new book, The Rule of Nobody (due out in April), only when it abandons this obsessive quest for certainty. Law should instead set goals and principled boundaries, leaving room for humans to make practical and moral choices. Real people, not rules, make things happen. Automatic government is a false philosophy. Democracy is supposed to elect people to act on their vales, not to avoid them by mindlessly applying detailed rules. Of course people will sometimes abuse this trust. Look at the George Washington Bridge lane-closings. But officials there are paying the price. The worst system is one where things fail, and there's no one to hold accountable. That's what we have today: The Rule of Nobody, As Jacob Bronowski passionately explained, avoiding human responsibility is the root of much evil.

Philip K. Howard is a New York-based lawyer, civic leader and writer.  He is chairman of Common Good, a nonprofit social- and legal-reform organization. Mr. Howard is the author of, among other books, The Death of Common Sense. For more of Mr. Howard's Daily posts, visit commongood.org/blog and follow him on Twitter: www.twitter.com/philipkhoward

To contact the overseer of New England Diary, please use rwhitcomb51@gmail.com