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Rethinking Infrastructure Approvals

Part of “Infrastructure Week 2015”

Event Description:

Fundamental change is needed to rebuild and modernize America's infrastructure. As systems across all sectors of infrastructure age and demands of a modern economy and population grow, is there a better way to deliver new bridges, tunnels, roads, transit, rails, ports, airports, drinking water, and energy? This half-day forum—organized by Common Good, the Bipartisan Policy Center, the National Association of Manufacturers, and Covington & Burling LLP—will present new perspectives and a conversation on why an overhaul is needed. Boosting the economy and improving environmental outcomes can move in tandem but current structures and regulatory barriers prevent such paradigm shifts. This forum will also include a presentation of best practices from other countries and opportunities created by consolidating decision-marking and early consideration of environmental impacts.

Confirmed Panelists (list in development):

E. Donald Elliott, Yale Law School
Patrick J. Foye, The Port Authority of New York and New Jersey
Gary S. Guzy, formerly of the Council on Environmental Quality
Philip K. Howard, Common Good
Deron Lovaas, Natural Resources Defense Council
Diana Mendes, AECOM
Joann Papageorgis, The Port Authority of New York and New Jersey
John Porcari, formerly of the U.S. Department of Transportation
Mark R. Tercek, The Nature Conservancy

Date and Time:  

Tuesday, May 12; 9:00 AM to noon. Registration and breakfast begin at 8:30 AM.

Location

Covington & Burling, 11th Floor, One CityCenter, 850 Tenth Street, NW, Washington, DC 20001

RSVP:

Registration required. Please e-mail your name, title, and affiliation to Ruth Giverin at rmgiverin@commongood.org. Please e-mail Ruth with any questions as well.

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Experts Call on ASTM to Rethink New, Risk-Averse Playground Standards

Experts affiliated with the British Columbia Injury Research and Prevention Unit (BCIRPU) are calling upon ASTM, the international standards-setting body, to hold off on implementing new, “more absorbent” playground surfacing standards. In a recent article titled “Can we go too far when it comes to children’s injury prevention?,” the BCIRPU authors explain that the new standards—designed to reduce head injuries—will do more harm than good:

At first blush, this may seem like a great idea. Who wouldn’t want their child to avoid head injuries??! Not as evident are the ramifications, both immediate and long term, of a decision like this. While playground safety standards are not policies and are developed by a voluntary organization, they are typically applied as policy. This is because of liability concerns. If anything goes wrong, the playground provider wants to be able to support the fact that their playground met the safety standards as a measure of due diligence.

So what this means is that every time there is a playground standard change, schools, daycare centres, recreation facilities and so on across the country have to rip out equipment, surfacing, etc., to comply with new standards.

They go on to delineate five particular issues with implementing stricter surfacing standards, which UK childhood expert Tim Gill succinctly recaps on his blog Rethinking Childhood:

1.  Head injuries on the playground are extremely rare and there is no evidence that they are increasing on playgrounds.

2.  The head injury criterion (HIC) is measured by dropping a head form straight down, but children do not fall that way.

3.  Ripping out and replacing surfacing is a very expensive proposition.

4.  Kids want and need to take risks and experience uncertainty. So reducing risks has major ramifications.

5.  We are doing a miserable job of providing stimulating play opportunities for children.

Playgrounds with no risk, the BCIRPU authors explain—and Philip Howard and Common Good have often argued—have less value in teaching children about themselves and the world around them, and they can actually become more dangerous as children “climb higher and fall harder” in order to make them more interesting. 

Read the full BCIRPU article here, and Tim Gill’s commentary here. ASTM will begin voting on the new standards in the coming days—Common Good joins BCIRPU, Gill, and the host of others calling on them to reconsider implementing the proposal before them. 

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Philip Howard in the Daily Beast: Why Your Bridge Will Never Be Fixed

Philip Howard takes to the Daily Beast to explain why, even with adequate funding, infrastructure projects in America won’t proceed. An excerpt:

Red tape this dense is a problem of governing philosophy, not organizational efficiency. Modern government is organized to avoid giving anyone authority to make a decision. Balkanizing decisions among multiple departments is how we try to make sure every interest is satisfied. A typical project requires approval from a dozen or more government departments, at federal, state, and local levels. Each department considers itself the keeper of the flame, and, like a special interest, clings to its concerns notwithstanding countervailing public interest elsewhere. Applicants often find themselves caught in regulatory cross-fire, as, say, the Corps of Engineers battles against the EPA. Getting an infrastructure permit requires a process akin to negotiating an international treaty.

Efforts to accelerate approvals ignore the underlying defect: that multiple decision-makers almost always cause paralysis. Recent streamlining initiatives include a ‘permitting dashboard’ and new inter-agency committees charged to work things out. The 2012 ‘Moving Ahead for Progress’ transportation law included 30 pages of new procedures designed to accelerate approval. Therein lies the problem: All it accomplished was adding more mandatory meetings. A project gets bogged down as soon as there’s a disagreement. ‘Nothing is impossible,’ as one pundit put it, ‘until it’s sent to a committee.’

Philip goes on to offer three solutions to improve the approval process, including empowering environmental officials to decide when there’s been enough environmental review, creating a “one stop shop” for permitting, and increasing flexibility in procurement. Click here to read the full essay.

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Paper: “America Today: Burkean Nation?”

In a paper addressing Edmund Burke’s concept of nationhood, Alfred University Professor Robert Heineman draws from The Rule of Nobody. He writes in part:

In his aptly titled book, The Rule of Nobody (2014), Philip K. Howard examines the deterioration of values and authority in contemporary American culture. He chronicles the attempts of legislatures to compensate for the moral vacuum in American public policy by enacting detailed legislation, thinking that the greater the detail the more likely that national goals will be met. The problem, of course, has been that legislation must be implemented and that implementing agencies have taken refuge in process. Procedures have replaced individual judgment, and, most important, this moral neutrality, perhaps impotence would be a better term, has led to egregious examples of outright stupidity, if not tragedy. In Howard’s words, ‘The philosophy of neutral rules pushed society another giant step toward immorality by basically abandoning any pretense of moral responsibility. Just go by the book.’

Professor Heineman’s paper, “America Today: Burkean Nation?,” was delivered on February 28, 2015 at the Edmund Burke Society Conference at Villanova University. You can read a draft copy of it here.

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Press Release: Health Courts Gain New Momentum in Congress

Common Good released the below press release on February 18, 2015. Download it as a PDF here.

CONTACT: Miranda Barbot – Goodman Media International
212-576-2700; mbarbot@goodmanmedia.com

HEALTH COURTS GAIN NEW MOMENTUM IN CONGRESS

President Obama’s Expressed Support for Them
Could Provide the Basis for Bipartisan Agreement

New York, NY—February 18, 2015—The creation of specialized health courts is gaining new momentum on Capitol Hill. Earlier this month three prominent Members of Congress introduced an alternative to the Affordable Care Act, which includes the creation of health courts. While the future of that plan is unknown, the inclusion of health courts is significant, because health courts have previously been endorsed by President Obama. Health courts could thus emerge as a point of bipartisan agreement.

The three Members of Congress are Sen. Orrin Hatch (R-UT), Chairman of the Senate Finance Committee; Rep. Fred Upton (R-MI), Chairman of the House Energy and Commerce Committee; and Sen. Richard Burr (R-NC), a member of the Senate Finance Committee. They have proposed the Patient Choice, Affordability, Responsibility, and Empowerment (CARE) Act to replace the current health law. Included in the nine-page summary of its provisions is the following language: “States could also elect to establish a state Administrative Health Care Tribunal, or ‘health court,’ presided over by a judge with health care expertise who can commission experts and make the same binding rulings that a state court can make.”

Health courts have previously been the subject of bipartisan agreement. Both President Obama and his 2012 Republican challenger Mitt Romney endorsed them. Mitt Romney advocated the creation of health courts in an op-ed in USA Today. President Obama had previously endorsed the creation of health courts in a letter to Congressional leaders released by The White House on March 2, 2010.

In addition, the National Commission on Fiscal Responsibility and Reform endorsed the creation of health courts, as have three other bipartisan commissions: the Committee for a Responsible Federal Budget (at the New America Foundation); the Debt Reduction Task Force of the Bipartisan Policy Center; and Esquire magazine’s Commission to Balance the Federal Budget.

The concept of health courts has been championed by Common Good—the nonpartisan government reform coalition—working in conjunction with experts at the Harvard School of Public Health. Under Common Good’s model, health courts would have judges dedicated full-time to resolving health care disputes. The judges would make written rulings to provide guidance on proper standards of care. These rulings would set precedents on which both patients and doctors could rely. To ensure consistency and fairness, each ruling could be appealed to a new Medical Appellate Court.

Health courts are aimed not at stopping lawsuits but at restoring reliability to medical justice. Special courts have long been used in American justice in areas of complexity where reliability requires judges, who can make consistent rulings from case to case, rather than juries, which have no authority to set predictable precedents. In the early republic, America had special admiralty courts. Today, there are special courts for tax disputes, family law, workers’ comp, vaccine liability and a wide range of other specialized areas.

The public sees the need for reliable health care justice—and for health courts in particular. A nationwide poll conducted in 2012 by Clarus Research Group revealed that 66 percent of voters support the idea of creating health courts to decide medical claims. The health court concept has also been endorsed by virtually every legitimate health care constituency, including medical societies, patient safety organizations and consumer groups like AARP.

In the past, the creation of health courts has been blocked in the U.S. Senate by aggressive opposition from a single special interest—the trial lawyers, who benefit handsomely from the current erratic system of medical justice and held great sway with the previous Senate leadership.

“The public would benefit enormously—saving tens of billions of dollars—from the reliable medical justice that health courts would provide,” said Philip K. Howard, Founder and Chair of Common Good. “With the new Senate leadership and President Obama’s endorsement of health courts, let’s hope that the public interest will now be put ahead of the trial lawyers.”

For more information or to talk with Common Good Chair Philip K. Howard, please contact Miranda Barbot at 212-576-2700 x264 or mbarbot@goodmanmedia.com.

Common Good (www.commongood.org) is a nonpartisan government reform coalition dedicated to restoring common sense to America. The Founder and Chair of Common Good is Philip K. Howard, a lawyer and author of The Rule of Nobody (to be published in paperback next month by W.W. Norton) and The Death of Common Sense. The Rule of Nobody sets forth a vision for fundamental government overhaul.

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“The Rule of Nobody” Named a Finalist for the Hayek Book Prize

Philip Howard’s The Rule of Nobody has been named a finalist for the Hayek Book Prize. Awarded annually by the Manhattan Institute, the Prize celebrates authors who best represent the principles of F.A. Hayek (1899-1992), the renowned economist and philosopher who was awarded the Nobel Prize in Economic Sciences in 1974.

This is the latest of many recognitions that The Rule of Nobody has received. It was named by Inc. magazine as one of “The Seven Most Thought-Provoking Books of 2014” and by the Daily Beast as one of the “Best Big Ideas of 2014.” W.W. Norton will release the paperback edition of The Rule of Nobody on March 2nd.

Click here to read more about the Prize and here to read the Manhattan Institute’s press release on the 2015 finalists.

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“Bureaucrats Take On Bureaucracy”

The Sacramento Bee ran a good piece last week on the efforts of five retired California public employees who are trying to slim down the state’s outmoded job classification system—to some 2,000 job titles, from the current 3,666. Here’s an excerpt from reporter Jon Ortiz’s story:

They asked questions like this: Does the state really need 27 pay levels for prison math teachers? How about forensic toxicologists I, II, III and IV? The Technology, Trade and Commerce Agency was abolished 11 years ago, so why are its job classes still on the books?

‘We were amazed by that one,’ Fong said.

Simplifying the system won’t cure the state’s ailments, but it would signal that government values efficiency and wants to make itself more available to outsiders currently mystified when they apply for a state job. It would also cut down on needless, costly testing for promotions between jobs with little real difference. And it would clear out the clutter of tailor-made job classifications that sometimes were devised by a department with a single person in mind.

Click here to read the entire article. Convoluted job classification systems are not exclusive to California—New York City alone has over 1,000 job titles, as Philip Howard writes about here.

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The Future of the Individual: Video Excerpts

Click on the images below to watch excerpts from The Future of the Individual, Common Good and Columbia University’s November 6 forum on the social and economic developments that are diminishing the role of the individual in the modern world.

Here’s Common Good Chair Philip Howard on how we have the wrong idea of “the rule of law”:

Here’s former Indianapolis mayor and New York City deputy mayor Stephen Goldsmith on how innovation within government is “illegal”:

Click here to watch Mr. Goldsmith’s entire presentation.

Here’s Doctored author Dr. Sandeep Jauhar on the effects of bureaucracy on health care:

Click here to watch Dr. Jauhar’s entire presentation.

Here’s Brookings senior fellow Robert Litan on possible solutions:

Click here to watch Mr. Litan’s entire presentation.

And click here to read Philip and Nobel laureate Edmund Phelps’ joint statement from the event, “Humans vs. Bureaucracy.”

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Philip Howard in the Daily Beast: Modern Law Bars People from Doing What’s Right

Writing in the Daily Beast, Philip Howard details how modern law prevents human judgment and why it’s now time to rebuild the legal framework of American government. An excerpt:

American greatness is built on a culture in which people wake up in the morning energized by the fact that they own their own choices. They are free to do things their way. They have the right to do what they think is right. Letting humans use their common sense is not an invitation to anarchy. It is freedom, and accountable both legally and socially to the free choices of others around them.

Today, doing what’s right is often unlawful. This is not because of bad leaders, or polarized politics, but because of a governing structure that is fatally flawed. Sending reformers into this vast regulatory jungle with pairs of shears is a fool’s errand. There’s no way to prune this vast tangle. It has grown from a rotten root—striving to replace human judgment with detailed dictates.

You can read his full essay here.

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Bob Litan on the Need for Sunsets, Review Commissions

Writing in Foreign Affairs, Bob Litan of the Brookings Institution makes the case for sunsets and review commissions to clear the regulatory jungle hindering American entrepreneurship. An excerpt:

More broadly, Congress should regularly reevaluate and update federal regulations, many of which pose unnecessary barriers to entry for new firms. Federal regulations are expensive, often costing small businesses thousands of dollars per employee, and such costs pose a distinct disadvantage for younger and smaller firms, which rarely have the resources to hire full-time attorneys or compliance officers. To facilitate the dismantling of unnecessary regulations, Congress should include sunset provisions on all major federal rules so that every ten to 15 years or so, Congress is forced to reevaluate its regulations, removing those that do not pass a cost-benefit test and improving those that do. Congress could also authorize a bipartisan panel of experts to identify outmoded regulations and submit them on a regular basis to lawmakers for an up-or-down vote.

You can read his full essay (“Start-Up Slowdown: How the United States Can Regain Its Entrepreneurial Edge”) here. Common Good and Philip Howard have previoulsy made similar proposals—click here to read Philip’s proposed “Bill of Responsibilities” from The Rule of Nobody

Litan also made this case at Common Good’s recent forum, The Future of the Individual—click on the image below to watch an excerpt from his presentation.

You can watch his complete presentation from the forum here.

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