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News and stories from the campaign to reclaim individual responsibility and liberate Americans from bureaucracy and legal fear.

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Philip Howard Leads Roundtable on Regulation for Inc. Magazine

In March, Inc. magazine organized a roundtable discussion with small business owners about the regulations that affect their businesses. Common Good’s Philip Howard moderated the conversation, which is summarized by Inc.'s Editor-at-Large Leigh Buchanan in their July/August issue.

One of the participants, who heads a winery, discussed a federal rule that limits where he can sell his product if it contains grapes from “‘noncontiguous’ states.” Inc. relates:

This rule exists, suggests Howard, to protect vested interests. But, he adds, 'it looks like [rules governing the wine industry] exist only because someone made them up that way 80 years ago.'

That could be said of tens of thousands of governmental rules that appear arbitrary, irrational, or out­dated. Unfortunately, the list is only growing. Roughly 3,400 federal regulations were issued in 2015, 545 of which directly affect small business, according to the Competitive Enterprise Institute. The Office of Management and Budget reports that another 3,000 are on course for this year. Entrepreneurs are, or soon could be, grappling with new federal and state rules related to—among other things—overtime, sick leave, health care reporting, employee retirement plans, independent contractors, lead dust in commercial buildings, and website accessibility for the disabled. The most recent academic paper on the topic released by the Small Business Administration's Office of Public Advocacy—in 2010—reports that per-employee regulatory costs for small companies are 36 percent higher than those for large ones.

The problem is not regulation per se, the roundtable participants agreed—entrepreneurs “want to do the right thing for their employees, their customers, and the environment,” Inc. writes—but that the growing mass of—oftentimes obsolete, conflicting—regulations prevent growth with no accompanying benefit:

Every time your business is prevented from doing something or you choose not to do something because the government makes it difficult, there is an opportunity cost. According to the Paychex survey, concern over regulation had dissuaded 39 percent of respondents from entering a new market, 36 percent from introducing a new product, and 25 percent from starting a particular kind of business.

The Inc. article ends by offering five reform proposals to “build[] a smarter, less restrictive regulatory system”—these include: allowing new business “breathing room” in addressing minor regulations; treating “disrupters” differently than established industries; regulating by principles as opposed to precise specifics; cleaning out obsolete regulations; and empowering regulators to use their common sense.

Common Good has long-advocated for these last three ideas. On the proposal to allow regulators to exercise discretion, Inc. writes:

‘America is run by dead people,’ says Howard. ‘The people who wrote those rules are dead, so you can't argue with them or hold them accountable.’ Some regulations date back 60 years, so it is vital that live human beings have the power to interpret them, says Howard. In general, those who enforce the rules should be encouraged to exercise their best judgment depending on the situation. All too often, regulators and inspectors are conditioned to say no, because that’s the safe bet.

Click here to read the Inc. article in full.

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Common Good to Host Two Infrastructure Events in May

Common Good will host two events on improving infrastructure approvals in the coming weeks. The first, on Monday, May 9th in New York City, will center around the release of our new report: “Billions for Red Tape: Focusing on the Approval Process for the Gateway Rail Tunnel Project.” The event will feature remarks from Senator Cory Booker followed by a moderated panel. 

On Thursday, May 19th in Washington, DC, we will co-host an event with the Progressive Policy Institute and Covington & Burling LLP as part of Infrastructure Week (www.infrastructureweek.org). It will include remarks from Senator Tom Carper, Congresswoman Elizabeth Esty, current and former members of the Obama Administration, and experts from other countries. A full listing of confirmed panelists can be found on Common Good’s website here.

To RSVP for either event, please e-mail your name, position, affiliation, and contact information to Ruth Mary Giverin of Common Good at rmgiverin@commongood.org. Please contact Ruth with any questions as well. This invitation is transferable, but all attendees must register before the day of the event.

Event details:

Title:     Billions for Red Tape

Time:     Monday, May 9, 2016; 6:00 PM to 7:30 PM; cocktails and appetizers will be served.

Where:     The New York Times Building; 43rd Floor (offices of Covington & Burling LLP); 620 Eighth Avenue (between 40th and 41st Streets); New York, NY 10018 (A government-issued ID is required to pass through building security.)

Speakers

     Senator Cory Booker
     Patrick J. Foye, Executive Director,
          Port Authority of New York and New Jersey
     Philip K. Howard, Chair, Common Good
     Robert D. Yaro, President Emeritus, Regional Plan Association
          (moderator)

Description:     The Gateway Rail Tunnel Project is a $24 billion infrastructure plan to alleviate a critical bottleneck on the Northeast Corridor, an area of the country that accounts for 20 percent of national GDP. The purpose of the report and event is to outline the economic and environmental costs of different permitting timetables, and to propose approval mechanisms that will save taxpayers billions and avoid significant economic and environmental harm.

--- 

Title:     How Faster Infrastructure Approvals Can Get America Moving Again

Time:     Thursday, May 19, 2016; 9:00 AM to 12:30 PM, with lunch to follow; registration and breakfast begin at 8:15 AM. 

Where:     Covington & Burling LLP, 10th Floor, One CityCenter, 850 Tenth Street, NW, Washington, DC 20001

Speakers

Senator Tom Carper (D-DE)
Congresswoman Elizabeth Esty (D-CT)
Jason S. Miller, White House National Economic Council

Angela F. Colamaria, White House Office of
     Management and Budget
Gary S. Guzy, Covington & Burling; formerly of CEQ and EPA
Philip K. Howard, Common Good
Fawn Johnson, Morning Consult
Deron Lovaas, Natural Resources Defense Council
Will Marshall, Progressive Policy Institute
Philip D. Moeller, Edison Electric Institute; formerly of the
     Federal Energy Regulatory Commission
John D. Porcari, Parsons Brinckerhoff; formerly of the
     US Department of Transportation
Sophie Shulman, US Department of Transportation
Prof. Dr. Andrea Versteyl, National Regulatory Control Council
     (Germany)

Description:     Even as the nation’s needs grow more acute, it takes longer and longer to win government approval to build modern infrastructure. Getting permits can take a decade or longer. Other countries manage to get projects up and running in less time. We are convening this discussion to build common understanding of how government reviews can combine rigorous public oversight with expeditious approvals of projects that can save money, create jobs, boost US productivity, achieve a greener footprint, and restore public confidence in the public sector.

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‘No Labels’ Adopts Common Good Policy Proposals

As part of their recently-released “Policy Playbook for America's Next President”—and in particular as a prescription to create 25 million new jobs over the next decade—the reform organization No Labels included Common Good policy proposals on streamlining infrastructure approvals and requiring judges to act as gatekeepers. The playbook provides:

Idea 27: Streamline Infrastructure Approvals

About the Policy

To accelerate the construction of important infrastructure, the federal government should designate officials to streamline the regulatory process for infrastructure projects such as roads, bridges and highways.

Idea 32: Require Judges to Act as Gatekeepers

About the Policy

In order to restore fairness and reliability to the American justice system, give judges more responsibility to dismiss unreasonable lawsuit claims.

Common Good calls for empowering officials to expedite infrastructure reviews in our September 2015 report “Two Years, Not Ten Years.” Philip Howard has written on the effects of legal fear—and the role judges should play to combat it—for decades. (Read selected essays of his here and here.)

No Labels solicited these proposals from Common Good earlier this year. They then polled registered voters about them in February and March and found 75% and 81% support, respectively.

The policy playbook also calls for sunsets on regulations—which Common Good has long advocated for laws as well (see Philip Howard’s recent Wall Street Journal op-ed “The Crippling Hold of Old Law”)—and also raises the problems of fee-for-service healthcare, defensive medicine, and other issues of concern to Common Good. You can access all 60 proposals here.

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Las Vegas Review-Journal Endorses Call to Address Obsolete Law

In an April 6th editorial, the Las Vegas Review-Journal endorses Philip Howard’s April 2nd Wall Street Journal essay “The Crippling Hold of Old Law”: 

It’s tres chic these days to lament Washington partisanship along with the ensuing gridlock and congressional inertia. But such hand-wringing ignores the nation’s robust bureaucratic apparatus and the energetic regulatory state it administers.

In fact, writes Philip K. Howard in an April 2 commentary for The Wall Street Journal, “The buildup of federal law since World War II has been massive – about 15 fold.” And that, he posits, shackles American competitiveness, undermines infrastructure development and stifles entrepreneurialism. “Bad laws trap daily decisions in legal concrete and are largely responsible for the U.S. government’s clunky ineptitude.”

Mr. Howard, an attorney who came to prominence as author of the 1994 book “The Death of Common Sense,” which addressed the pitfalls of administrative and legal tyranny, makes a compelling case that many of the nation’s statutes are outdated or counterproductive and should be reconsidered. …

[P]erhaps the country – currently in the throes of a tumultuous election campaign dominated by voters fed up with broken government – now nears the point where the reality of not acting overwhelms the political inclination to avoid hard choices.

Click here to read the full editorial, “Beltway Sclerosis.”

Click here to read the “The Crippling Hold of Old Law.”

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Philip Howard in the Wall Street Journal: “The Crippling Hold of Old Law”

Writing for the Wall Street Journal, Philip Howard explains how bringing American law up-to-date would transform society. An excerpt:

What’s broken is American law—a man-made mountain of outdated statutes and regulations. Bad laws trap daily decisions in legal concrete and are largely responsible for the U.S. government’s clunky ineptitude.

The villain here is Congress—a lazy institution that postures instead of performing its constitutional job to make sure that our laws actually work. All laws have unintended negative consequences, but Congress accepts old programs as if they were immortal. The buildup of federal law since World War II has been massive—about 15-fold. The failure of Congress to adapt old laws to new realities predictably causes public programs to fail in significant ways.

You can read the entire essay here.

A campaign is needed to channel voter anger towards a real solution—clearing out dense bureaucracy so teachers, doctors, entrepreneurs can focus on succeeding, and decrepit infrastructure rebuilt. Let us know if you’d like to help: commongood@commongood.org.

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Progressive Policy Institute Endorses Common Good’s Infrastructure Permitting Proposals

In an economic blueprint released yesterday, “Unleashing Innovation & Growth,” the Progressive Policy Institute (PPI) endorsed Common Good’s diagnoses of why it takes so long to build infrastructure in America, as well as our proposals for reform. Discussing Common Good’s “Two Years, Not Ten Years” report, they write:

To streamline approvals, Common Good proposes that environmental reviews be limited to two years. Other advanced countries—notably Germany and Canada—likewise compress reviews without compromising environmental protection records that are at least as good as ours. Reducing approval time from eight to two years would reduce the costs of power projects by 30 percent, while also reaping efficiency and environmental gains, according to the report.

It also recommends that one agency have overriding authority to issue permits, and that a top EPA or White House official be put in charge of determining the proper scope of environmental review for any given project.

These sensible changes would enable the United States to dramatically pick up the pace of building modern, technologically advanced infrastructure. Approving public works projects with all deliberate speed would save costs and yield environmental benefits, while also helping America catch up with overseas competitors who have been investing heavily in infrastructure while ours has decayed.

Less tangible, but perhaps as important, would be the psychological lift we’d get from fixing a deeply flawed regulatory process. It would help dispel the ‘can’t do’ pall that hangs over Washington today, and boost public confidence in the federal government’s ability to take purposeful action against urgent national problems. And, as a practical matter, taxpayers will be more likely to support more spending on public works if they believe they’ll derive concrete benefits from them soon, not far off in the hazy future.

PPI’s full discussion of infrastructure permitting reform–from pp. 11-12 of Part 2 of “Unleashing Innovation & Growth”–reads:

Speed regulatory review of public works projects

Even as the nation’s needs grow more acute, it takes longer and longer to win government approval to build new infrastructure. Getting permits can take a decade or longer. Delays in starting construction add significantly to a project’s cost, by about five percent a year, according to the U.S. Transportation Department. Nor are all the costs of delay economic.

Lengthy approvals expose Americans to the safety hazards of unsafe bridges and roads, as well as leaks and flooding from ancient pipes and obsolete wastewater systems. Ironically, protracted environmental reviews harm the environment by slowing down the replacement of technologically primitive and inefficient infrastructure. ‘Transmission lines in America waste 6 percent of the electricity they transmit—the equivalent of 200 average-size coal-burning power plants,’ says Philip Howard in a Common Good report.

Why is infrastructure so entangled in red tape? A major problem is multiple and overlapping jurisdictions, as projects must get permits from a welter of agencies at different layers of government. In addition, environmental reviews in this country routinely get mired in litigation. And public hearings and meetings grind on endlessly as regulators attempt to hear from and accommodate every conceivable interest or ‘stakeholder’ that might be affected by a project.

In a well-functioning democracy, however, not every interested party can be or should be mollified; at some point the will of the majority should prevail. The fact is that there’s a vacuum of political authority at the top. In our balkanized bureaucracies, no agency or official has the power to settle disagreements among agencies, telescope the regulatory gauntlet or otherwise make the ultimate decision to move projects forward.

To streamline approvals, Common Good proposes that environmental reviews be limited to two years. Other advanced countries—notably Germany and Canada—likewise compress reviews without compromising environmental protection records that are at least as good as ours. Reducing approval time from eight to two years would reduce the costs of power projects by 30 percent, while also reaping efficiency and environmental gains, according to the report.

It also recommends that one agency have overriding authority to issue permits, and that a top EPA or White House official be put in charge of determining the proper scope of environmental review for any given project.

These sensible changes would enable the United States to dramatically pick up the pace of building modern, technologically advanced infrastructure. Approving public works projects with all deliberate speed would save costs and yield environmental benefits, while also helping America catch up with overseas competitors who have been investing heavily in infrastructure while ours has decayed.

Less tangible, but perhaps as important, would be the psychological lift we’d get from fixing a deeply flawed regulatory process. It would help dispel the ‘can’t do’ pall that hangs over Washington today, and boost public confidence in the federal government’s ability to take purposeful action against urgent national problems. And, as a practical matter, taxpayers will be more likely to support more spending on public works if they believe they’ll derive concrete benefits from them soon, not far off in the hazy future.

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Matt Brown: Power Grid Gridlock

Last month, the National Oceanic and Atmospheric Administration (NOAA) released a study which concluded that the United States could massively reduce its greenhouse gas emissions by 2030 if it could build a new power grid capable of large-scale integration of renewable power sources. Our current antiquated grid, according to the report, is completely inadequate to the task. Renewables are tricky because production isn’t constant; cloudy days sap solar power, while windless (or overly windy) conditions will idle wind farms. A smarter, more robust grid could seamlessly switch between distant power sources as production rises and falls, ensuring efficient power delivery nationwide.

Even absent the massive environmental gains we’d reap from NOAA’s renewables-based plan, simply replacing our grid with a more efficient one would save our country over $125 billion a year in efficiency and reliability improvements, according to Common Good’s 2015 infrastructure report.

The case for a new grid is strong, but building a brand new national power grid is a massive project, spanning vast distances and requiring a huge investment of time, resources, and expertise. Alexander MacDonald, co-lead author of the study, likened the proposal to the interstate highway system, both in terms of scope, and in terms of the potential to transform the American economy.

Unfortunately, the comparison doesn't end there. Much like the interstate highway system, a new national power grid would be virtually impossible to build today. Three months after the original interstate highway bill was passed, shovels were in the ground, and within ten years of its authorization, the interstate highway system was halfway complete, with over 21,000 miles of roads. That timeline is laughably unrealistic today; between federal environmental review requirements, lawsuits arising from those requirements, and the overlay of state and local permitting regimes (including disagreement between states on inter-state projects), a project of that magnitude would take decades just to permit. In fact, President Obama proposed a more modest modernization of the power grid as part of the 2009 stimulus spending, but quickly found out that the regulatory hurdles would be impossible to clear. Without drastic changes to our legal system, we certainly won’t be building a new national power grid by 2030.

A gauntlet of legal obstacles stands in the way of sensible permitting timelines. Federal environmental review (under the National Environmental Policy Act, or NEPA) would be mind-boggling. Review for the Bayonne Bridge-raising project, a project with negligible impacts which was entirely within the existing structure of the extant bridge, took three years and produced a 20,000-page report. The review for a national grid would likely require decades and span millions of pages.

Lawsuits would add years to the process. The Cape Wind project in Massachusetts was stuck in legal limbo for a decade while NIMBY lawsuits wound their way through the courts. A project of this scale would bring every possible litigant out of the woodwork, each working at cross-purposes to defeat the project, or to at least extract a reward in exchange for acquiescence.

Coordinating state permitting and local permitting would present another enormous challenge. An article from Climate Central describing the NOAA study glumly concluded that "[i]t is unlikely that such a system will be built before 2030 because states that may be opposed to a renewables transmission system have too much control over how and where it is built."

Recalcitrant states will certainly pose a problem, but the coordination issues run much deeper than that. Permitting for transmission lines varies significantly between states. In some states, individual towns and counties have veto authority on transmission-line siting. Some states require major permitting investments before siting decisions can be completed, while other won’t issue any permits until after siting has been finalized, which can make planning interstate routes extremely tricky. On top of this, many states have environmental review statutes even more onerous than NEPA, and would require massive duplicate reviews. President Obama’s team concluded that their modest upgrade proposal would require signoff from over 200 agencies. That signoff can be nearly impossible to achieve; the Savannah River dredging project has been in permitting purgatory for over a quarter century due in large part to infighting between Georgia and South Carolina. To build a national grid under our current legal system would involve rent-seeking and political squabbling at every level of state and local government, across thousands of jurisdictions nationwide. The disputes and negotiations would take years, perhaps decades, to resolve.

What’s needed is a new way of building infrastructure projects, one that involves clear lines of authority, environmental review that focuses more on overall impacts and less on minutiae, and an ultimate decision-maker to move projects forward and resolve disputes. For a project of this size the federal government should explicitly preempt most (or possibly all) state and local permitting, ensuring uniform results across state lines; in exchange, states should have more control over (and less federal interference in) projects wholly within their boundaries. Siting authority should be invested either in the federal government, as it is for interstate natural gas pipelines, or in regional authorities with minimal state interference. Finally, lawsuits must be limited to the earliest months of permitting, and must be resolved rapidly and with an eye toward common sense. Common Good has proposed legislative language to achieve this change.

Building a new, renewables-friendly power grid should be a top national priority. A new grid would save us billions of dollars a year, create huge numbers of jobs, free us from dependence on foreign oil, unleash our burgeoning renewables industries, enhance American competitiveness, and slash our national carbon footprint. But under the status quo system of infrastructure approvals, 2030 will come and go before the first permit is ever issued. That delay is unacceptable, but unless we insist on a new way of permitting infrastructure projects, it’s all but inevitable.

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Philip Howard Appears on Idaho Public Television

Common Good Chair Philip Howard recently appeared on “Dialogue,” Idaho Public Television’s statewide public affairs program. The 30-minute discussion with host Marcia Franklin covers such topics as principles-based regulation, the role of judges, the need to review old laws, and how to bring about change.

“In a sensible system of government,” Howard tells Franklin, “everybody ought to be free to ask, ‘What’s the right thing to do here?’ Instead we’ve got this crazy world where teachers are told never to put an arm around a crying child, and playgrounds are not allowed to have things that are fun for kids, and businesses don’t give job references, and all these things where people are paralyzed in all kinds of ways that make no sense, because of the detailed rules."

Click here to watch the full interview.

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Common Good Releases New Report: “Two Years, Not Ten Years”

*** Click here to access proposed legislative language to implement the report's proposals. ***

Today Common Good released Two Years, Not Ten Years: Redesigning Infrastructure Approvals, our new report on the costs of delaying infrastructure permits. The report concludes that a permitting delay of six years on public projects costs the nation over $3.7 trillion, more than double the $1.7 trillion needed through the end of this decade to modernize America’s decrepit infrastructure.

Read the press release here.

Read the report here.

This report came out of the May 2015 forum Common Good co-hosted with the National Association of Manufacturers, the Bipartisan Policy Center, and Covington & Burling LLP.

Common Good is pushing for a radically simplified approach, with all reviews and approvals completed within two years. “Two Years, Not Ten Years” is our rallying cry.

We would welcome your comments and suggestions on this crucial national issue. You can e-mail them to commongood@commongood.org.

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Common Good Releases “Two Years, Not Ten Years” Report

Press release (pdf)

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