Today, while the media is full of stories of partisan bickering, it is important to remind ourselves that sensible reforms of law and policy are still possible. This article describes one such success story in which the system worked. Along the way, I try to draw out the lessons of why this story has a happy ending in the hope that others may be able to learn from it and duplicate these successes elsewhere.
The story begins with a true American hero, Philip K. Howard. Howard is the “policy entrepreneur” who founded a bipartisan NGO, Common Good, to try to improve our legal system.
That’s the first lesson that I learned in my 50 years in Washington — every successful reform needs a sponsor, someone who is committed to seeing it through thick and thin over the years that it takes to get things done.
As far as I can tell, Howard had no ax to grind, except perhaps the laudable desire for personal satisfaction and reputation that comes from making the world a better place. Howard had the advantage of being a best-selling author of five books about practical legal reform. One of them, The Rule of Nobody (2014), begins with the story of the attempt to raise the roadway of the Bayonne Bridge so that the new generation of larger ships could access the port of Newark, the largest port on the East Coast. The project had no appreciable adverse environmental effect because an official at the Port Authority of New York and New Jersey came up with the brilliant idea of simply raising the roadway using the existing bridge supports, which meant there would be virtually no disruption of the environment. Nonetheless, the permitting and environmental reviews under the National Environmental Policy Act (NEPA) took almost five years, with an environmental assessment of 10,000 pages and 47 permits from 19 government agencies, thereby delaying this vital project and dramatically increasing its cost.
As Howard wrote, NEPA had been corrupted from a laudable program to review and reduce the adverse effects of projects having “significant effect on the human environment” into a way for people who were opposed to a project, for whatever reason, to go to court to stop it by contending that some minor detail or other had been omitted. Or as Howard put it with a turn of phrase that I can only envy, litigation under NEPA had become “a process of no pebble left unturned.”
Don’t get me wrong: I strongly support NEPA. As a co-author and I say in a recent book summarizing U.S. environmental law, NEPA is a “technique copied around the world.”
However, as wise people have understood since Aristotle, a virtue carried to an extreme becomes a vice. Other countries such as Canada and Germany which copied our law were doing a much better job of implementing the concept of reviewing projects in advance to reduce their adverse effects on the environment than we were.
Howard decided to do something about it. First, he convened a small bipartisan group of NEPA experts at his law firm, Covington & Burling LLP, of which Howard was vice-chair in his spare time. Covington is a very special place that prides itself on doing more public service work than any other private law firm. (That’s what we lawyers call pro bono publico, “for the good of the public,” in Latin; you can always tell that lawyers are serious when they start saying things in Latin, which they usually mispronounce.) That group, on which I was privileged to serve, helped Howard, who is not a NEPA lawyer, understand what was wrong with the existing system and why other countries were able to get their projects reviewed in less than half the time that it took in the U.S. The main difference was that other countries set deadlines for the reviews which required studies to prioritize the big issues, and some of them also allowed the decision-maker to halt the review when he or she concluded that the project would have net environmental benefits. That’s the second lesson, the policy entrepreneur who wants to get something done needs to understand the problem by listening to people who know more about it than he or she does. Perhaps Howard’s second greatest talent, after his uncanny ability to capture a complex problem in an anecdote like the Bayonne Bridge, is that he listens.
Next, Howard wrote this all up in 2015 in an engaging little report with the wonderful title, Two Years, Not Ten Years: Redesigning Infrastructure Approvals, which is available here.
That is the third lesson: one has to generate a policy brief that can provide support for the proposed reforms.
Covington then held three forums with a variety of invited guests, including environmentalists and Washington representatives of various interested groups, to discuss the problem and its potential solutions. That’s the fourth lesson: engage stakeholders.
Next, Howard had a series of meetings with White House officials during both the Obama and Trump administrations. The report by Howard’s Common Good, Two Years, Not Ten Years, became the basis for the Trump administration’s reforms of the NEPA process, which are here.
Unfortunately, however, the Trump administration seized the opportunity to cut back on the consideration of the indirect effects of proposed projects such as on climate change, along with the more sensible procedural reforms such as setting deadlines for environmental review. Both Howard and I opposed that aspect of the Trump package, which resulted in unnecessary opposition by environmentalists.
Upon taking office, the Biden administration revoked some portions of the Trump-era reforms, including eliminating Trump’s reductions of attention to indirect and cumulative effects, but kept most of the package.
This illustrates one unremarked aspect of the genius of separation of powers in our system of government: our two parties typically take turns at governing, which means that the only reforms that survive over the long run are those that are sufficiently inoffensive to the next administration that doesn’t bother to overturn them.
But there was still a problem. The lawsuits by environmental groups against the Trump reforms that had only been partially revoked by the Biden administration were still pending, and some of the key changes, such as setting deadlines, were at least debatable from a legal standpoint.
Howard and his team worked quietly and behind the scenes with the staffs of a bipartisan group of members of Congress to get language into the bipartisan infrastructure bill codifying the changes. Note that Philip Howard’s name is not mentioned anywhere; these reforms are now owned by Sens. Rob Portman, Kyrsten Sinema, and Joe Manchin. That’s the fifth lesson, which Ronald Reagan put this way: “There is no limit to what a [person] can do or where he can go if he doesn’t mind who gets the credit.”
Congress would never enact free-standing legislation over something as banal as reducing the time it takes to complete the review of a proposed project under NEPA. “Only a crisis — actual or perceived — produces real change. When that crisis occurs, the actions that are taken depend on the ideas that are lying around,” wrote Milton Friedman.
Getting legislation enacted on second or third-tier issues requires not only ideas lying around but also what we in Washington call a “vehicle,” which I once defined as “borrowing someone else’s crisis.” You get your issue included in a “must-pass” bill about something else but which is sufficiently related. That’s the sixth lesson. In this case, the Biden administration and Democratic majority in Congress realized that they couldn’t implement their ambitious program of infrastructure spending, much less their even more ambitious vision of retooling the American economy to combat climate change unless they could get through NEPA’s environmental reviews in a reasonable time.
As a result of Howard’s efforts, which have taken nearly a decade, with more still remaining to be done, the average time for projects that require full “environmental impact statements” under NEPA (which is currently an average of 4.5 years, but much longer for large projects) is now required to be no longer than two years. That may sound like a small improvement to some, but, as Howard and his team have shown, a six-year delay typically results in doubling the cost of a project, which is often enough to cause its sponsors to abandon it.
These quiet little changes to procedural issues are “below the radar” for most, but they have literally saved the American people billions of dollars with no adverse effects on environmental reviews.
That’s the seventh and final lesson: getting reforms done in the American system of government is not for the faint-hearted or the impatient. The Framers of our Constitution believed in limiting government and as a result, they made change difficult and not a sport for the summer soldier. As legal scholar Richard Epstein put it, the Framers made “a global judgment that the errors of going too fast are more dangerous than those of going too slow.”
Slow maybe, but sensible law reform is still possible.