A Perpetual Process Machine.
Why did a public toilet in San Francisco cost $1.7 million?
The following piece was written by Philip K. Howard. Mr. Howard is Chairman of Common Good. His new book is Everyday Freedom: Designing the framework for a flourishing society. The son of a minister, he got his start working summers at the Oak Ridge National Laboratory for Nobel laureate Eugene Wigner. He has been active in public affairs his entire adult life. He is Senior Counsel at the law firm Covington & Burling, LLP.
American government is suffering a breakdown of authority. It is unable to give permits for transmission lines and housing, deal with homelessness, fix broken schools, or even fire a civil servant who doesn’t show up for work.
Reforms usually try to trim the edges of bureaucratic excess. For example, the Biden Administration recently announced that it would expedite the permitting of transmission lines by designating the Department of Energy as “lead agency” for environmental reviews. The program’s catchy title—Coordinated Interagency Transmission Authorizations and Permits (CITAP)—unintentionally reveals its flawed premise: Delays in permitting are mainly caused not by a lack of coordination, but by the lack of authority in any official to make needed decisions. Red tape has supplanted official responsibility.
The accretion of detailed codes, procedures and regulations among numerous agencies at federal, state and local levels are like layers of sediment that have silted over a harbor. It’s hard to get anywhere because it’s basically unlawful to make sensible decisions.
Why did a public toilet in San Francisco cost $1.7 million? New York Times columnist Ezra Klein catalogs the legal requirements: planning and design processes with formal input from local community groups, building codes that ban prefab components, local laws that bar purchasing products from 30 states with L.G.B.T.Q. and other policies that do not conform with San Francisco’s laws, formal procurement processes with rights of appeal, and permits from six different municipal agencies and the power company.
That was for one public toilet. An interstate transmission line faces exponentially greater legal constraints because it affects scores of communities. Years of process will be followed by years of litigation. Most projects never get off the drawing boards and those that do, I found in my 2015 study “Two Years, Not Ten Years,” cost two to four times what they should.
Modern government has evolved into a kind of perpetual process machine. All those rules and processes—150 million words of federal regulation alone—are a version of central planning, except that the planners are long dead. Thousands of regulations written in the 1970s dictate choices in 2024, whether or not they make sense today.
What’s missing is a hierarchy of authority to make practical judgments. Rote compliance and years-long processes are not suited to making judgments about tradeoffs, budgetary and time constraints, and risks and benefits. Legal principles and process should be tools for human judgment by accountable officials, not a replacement for human judgment and accountability.
To build infrastructure on a timely basis, three legal changes are necessary:
1. Environmental officials must be given authority to make judgments on the scope of environmental review. Reviews should be limited to significant material impacts—instead of the current process of no-pebble-left-unturned. Not only would a tighter focus dramatically shorten environmental review, but it would make choices more coherent for the public at large. Judgments on the scope of review should not be overturned unless they transgress outer boundaries of reasonable statutory intent.
2. The president and other elected executives must be given authority to make tradeoffs and other judgments to resolve conflicts among different agencies and levels of government. For interstate projects, federal decisions should preempt state and local decisions. For disagreements among federal agencies, the president should have authority to act for the public good as, for example, occurs in an emergency.
3. Judicial review should afford deference to official judgments and require a finding of significant factual or legal error of practical significance. Courts should also adjudicate disputes in a matter of months, as they do with preliminary injunctions.
American government is suffering system failure. The operating system remade after the 1960s was intended to make governing a kind of software program: Follow the rules, comply with set processes, defend lawsuits, and a sound public choice will eventually emerge after officials have wallowed through all the legal ooze.
Modern government can’t deliver because officials no longer have authority that matches their responsibility. Find almost any public success, and you’ll find public employees that have ignored the rules—for example, Pennsylvania Governor Josh Shapiro rebuilding a fallen Interstate highway in Philadelphia in only 12 days, overriding multiple permits and procurement requirements. Another example would be the billions granted to develop COVID vaccines, at the discretion of a handful of officials. Studies of successful public schools have found a culture of doing what’s needed, not a culture preoccupied with legal compliance.
The modern red-tape state tried to make a government better than people. Instead we got paralysis and frustration. American government is overdue for overhaul. The needed vision is not mainly to de-regulate, however, but to de-micromanage. Americans at all levels of responsibility must be re-empowered so they can roll up their sleeves and get things done again.