Debates over the future of administrative law and regulatory reform often map onto familiar intellectual and political terrain. That’s not to say those debates aren’t interesting—far from it—but it sometimes does feel a little repetitive. Recently, however, I attended a regulatory reform conference that was very different.
In November, my friend Steven Teles of Johns Hopkins University (JHU) invited a couple dozen lawyers, academics, journalists, and others to JHU’s downtown Washington campus, for a day-long conversation on the future of infrastructure regulation—the “Law of Abundance” conference, he called it.
It was fascinating and encouraging, and it centered around issues that have interested me throughout my own career so far. Years ago, at Baker Botts, I worked for a great team of energy lawyers who specialized in natural gas and electricity infrastructure. I covered a lot of issues, but especially the National Environmental Protection Act (NEPA), which meant that for six years my office was basically an Environmental Impact Statement library.
Those years taught me NEPA’s importance, its limits, and its tendency to create counterproductive incentives within and around infrastructure agencies. That experience informed my subsequent research and writing, but frankly I’ve been stunned to see how long it’s taken for many folks to come to grips with the regulatory environment’s detrimental impact on even clean-energy projects.
When President Obama and Congress enacted major subsidies in the American Recovery and Reinvestment Act of 2009, the conflicts between national and local environmental groups soon became evident—the former favoring big energy projects for the sake of global climate policy, the latter opposing them because of their local environmental impacts. As I quipped in a magazine essay headline at the time, it was an era of “Green Power, Red Lights.” Yet even a decade and two presidential administrations later, we still see clean-power projects getting swamped in the same regulatory and political quagmires—virtually all other major infrastructure projects do, too.
And so I found Steven Teles’s conference encouraging, because it suggested to me that we may finally be reaching a moment of genuinely interesting and productive conversations about regulatory reform and modernization. These issues are becoming a major focus of my own programs at the Antonin Scalia Law School’s C. Boyden Gray Center for the Study of the Administrative State, and I hope they will take on greater prominence within the ABA’s Administrative Law Section, too.
But in recognizing this new era of bipartisan support for infrastructure reform, we should pay equal attention to bipartisan opposition to big national infrastructure projects. Environmental conservation groups are right to worry that national transmission or pipeline projects could harm local ecosystems, and that national corporations and regulators won’t know (or care) about those local impacts nearly as much as their own communities will. And local communities are right to worry that those projects will have major effects on property rights, property values, aesthetic values, quality of life, and more. (For two decades, I thought about these concerns in the abstract and thought I took them seriously. Frankly, I started taking them much more concretely last year, when a power company proposed a major new high-voltage transmission line right through my own rural community.)
Those of us who are especially energized—sorry, couldn’t help myself—about these debates would benefit from reading The Power Broker, Robert Caro’s famous study of Robert Moses. While Moses is remembered today as the elitist oppressor of Jane Jacobs’s plucky community-minded activists, Caro reminds us that Moses was, first and foremost, a progressive activist, a New Dealer—“the optimist of optimists, the reformer of reformers, the idealist of idealists,” as Caro put it at the outset of his book. Eventually, “[t]o realize a dream of unprecedented scope,” Moses “armed himself with unprecedented powers—and then, finding that these powers were still inadequate, he had deliberately gone beyond them, beyond the law.”
For that reason, The Power Broker’s fiftieth anniversary, this year, is particularly well-timed. So is the fortieth anniversary of Serge Taylor’s smart (and mercifully shorter) book on NEPA: Making Bureaucracies Think. Caro and Taylor remind us that it would be a terrible mistake to simply erase the procedural protections that NEPA and other lawyers give to local communities. And it would be a terrible mistake for environmentalists to try to short-cut all of it by simply exempting their favored projects from general laws like NEPA, because it would help to further delegitimize those laws in the eyes of everyone else whose preferred projects remain stuck in the regulatory quagmire.
But we need a path forward. The last fifty years’ regulatory approach has proven terribly counterproductive; it’s far past time to reform it. As the venture capitalist Marc Andreesen put it bluntly a few years ago, “It’s Time to Build.”
These are not just timely debates—they’re timeless ones, going back to the very beginning of American constitutional government. The Philadelphia Convention of 1787 was preceded by smaller meetings at Annapolis (1786) and Mount Vernon (1785), on urgent questions about whether the thirteen States could actually cooperate in the development of interstate commerce and the improvement of interstate waterways like the Potomac River. Even after writing and ratifying the Constitution, our nation would be vexed by the challenges of “internal improvements,” “public works,” and today’s “infrastructure.”
Maybe the hard-earned wisdom of American experience will help to inform the next decades’ debates. Hopefully this Section will contribute to them.
All the best,
Adam White
