An Abundance Research Agenda
If we need to build lots of things fast to address climate and housing crises, how will we do that?
There’s been a lot of buzz about this column by Ezra Klein in the New York Times. Klein’s basic argument: We need to do a lot of infrastructure and other development projects to make the world a better place. For example, we’ll need to build power lines and renewable projects to address climate change. But our current legal and political system obstructs development projects too much, and we need to change that:
We need to build more homes, trains, clean energy, research centers, disease surveillance. And we need to do it faster and cheaper. At the national level, much can be blamed on Republican obstruction and the filibuster. But that’s not always true in New York or California or Oregon. It is too slow and too costly to build even where Republicans are weak — perhaps especially where they are weak.
Klein cites a recent law review article by Nicholas Bagley at University of Michigan that one key problem is that we focus too much on process in deciding whether and how to build things, and this focus on process undermines our ability to do major projects. He also draws on work by Robert Kagan on “adversarial legalism,” in which Kagan argues that American governmental decisionmaking is driven too much by conflict mediated through courts, in contrast to Europe, and that European outcomes are as good or better on the merits on issues like the environment. As an example of the problem, Klein identifies the National Environmental Policy Act, where there have been efforts to streamline environmental review.
Klein’s critique is a great example of a recent strain of center-left critiques of governmental overregulation interfering with our ability to make the investments we need to address climate change, housing costs, and other critical societal needs. (See as another example this Twitter thread by a Democratic candidate for the U.S. House in New York.) There have been calls for embracing an “abundance” agenda in which policy focuses around making societal goods like renewable energy cheap and easy to obtain, on the grounds this can address equity, economic, and environmental goals simultaneously.
These are provocative and important arguments, and I think legal academia (particularly in environmental law) needs to do more to engage with them. (For examples of work that is on engaging on these issues, see this article by JB Ruhl and Jim Salzman, and this article by Zachary Liscow.) I think a research agenda about how to advance a positive abundance agenda that could make progress on equity, efficiency, and the environment is overdue. Here are some key components I think any research agenda should include:
- What are the real obstacles to doing large infrastructure projects in the US cheaply, well, and quickly? Is it really environmental review? There’s been some initial research on the issue in the context of mass transit projects, and here it looks like the issue is multi-faceted, including issues around labor, public contracting, local control and input into decisionmaking, a desire to make new projects “perfect,” and a whole lot more than just litigation and environmental red tape. Likewise, I have been studying housing development approval processes in California cities with colleagues for years. While we do not tackle large infrastructure projects in this work, we do look at how cities apply both their law and environmental review law to large mixed-use and residential development proposals. Our findings indicate that although environmental review and litigation are part of the story, it seems that a much bigger part of the story—at least in the housing context—is local control over land-use regulation, and the politics of local control.
- What is the broader political context around infrastructure and development in the United States? If the tentative conclusions above are correct, then we need to look more broadly than tweaks to individual laws to understand what is going on. The laws are likely symptoms of a broader dynamic that ultimately needs to be addressed. Here, it seems that real changes in the politics in the United States in the 1960s and 1970s that combined distrust of government and increased local control over decisionmaking helped cause a qualitative change in how government projects occurred.
- What are the comparative lessons to be drawn here? As noted above, commentators have often pointed out that major infrastructure projects happen more cheaply and quicker in other countries than in the United States. But I’d also note that some of the facile claims made in these debates – e.g., that Europe has equal environmental performance to the United States so what we’re doing must clearly be wrong – are not necessarily true. For instance, European cities consistently have worse air pollution than US cities.
- The political and legal changes in the 1960s and 1970s didn’t happen out of the blue. They responded to real flaws in the old system, flaws around both equity and environmental performance. Urban renewal and interstate highway construction are just two examples of major, twentieth century infrastructure projects that had devastating impacts on underserved communities. Highway construction and large-scale oil development produced major environmental impacts like sprawling car-dependent suburbs and oil spills. How do we make changes to the system that allow for cheaper, better development that still responds to equity and environmental needs?
- Finally, implicit in the abundance agenda is an assumption that we want to facilitate “good” development, but not “bad” development. After all, it was tools like NEPA that stymied some of the worse excesses of oil and gas development under the Trump Administration. We can’t continue to massively build out fossil fuel infrastructure if we want to address climate change. But if you change the system to facilitate infrastructure, have you paved the way for the next Trump Administration to wreak havoc? More generally, how do you design a system to be robust to the risk of substantial, short-term political changes, changes that might produce bad projects?
I’m sure there are more issues to develop in this research agenda, and I hope we make speedy progress on it, as the underlying policy questions are urgent.
Eric Biber is a specialist in conservation biology, land-use planning and public lands law. Biber brings technical and legal scholarship to the field of environmental law…READ more