A Conservative Law of Abundance?
We're seeing it crop up in the courts—but not yet from liberal jurists.
Ideally, the abundance agenda would be completely bipartisan. Getting American building again will require a mix of deregulation (permitting reform, zoning changes, preemption), improvements in state capacity (civil service reform, limiting court review, changes to procurement rules), and targeted investments (for infrastructure, critical industries, and R&D). The emphasis on deregulation may appeal more naturally to Republicans; the emphasis on building state capacity and industrial policy may appeal more naturally to Democrats. There should be room for lots of deals.
Not much in our fallen world is bipartisan, however. For now, the abundance agenda as an idea has emerged most forcefully on the political left. That’s natural: the push for abundance is primarily a response to how hard it's become to build housing and green infrastructure, especially in blue states. And we're starting to see the movement notch some wins. California, for example, is reducing permitting and regulatory burdens on new housing development, albeit slowly and fitfully. Michigan and other blue states have adopted laws preempting localities from blocking big solar fields and wind farms.
In the courts, however, the law of abundance seems to be emerging most forcefully on the political right. Take last Friday’s concurring opinion from Judge Henderson at the D.C. Circuit:
America was once a nation that built. In just over a year, we erected the world’s tallest building: the Empire State Building. Between 1915 and 1925, we doubled the percentage of U.S. homes with electrical service, from 20 to 40 per cent. By 1940, we doubled those figures again. But that progress has subsequently ground to a halt. Since 1970, productivity growth in the construction industry has been on an unyielding decline. Our power grid has become bottlenecked. We have more pipelines in service today that were built pre-1970 than in the fifty-five years since. The sources of our slowdown are myriad. But one driving factor of our national sclerosis has been lawsuits such as this one.
Petitioners—a collection of environmental groups—have developed a cottage industry that uses the nation’s environmental laws to retard new development. Petitioners deluge permitting agencies with dubious claims. The agencies spend years writing thousands of pages of environmental review in an attempt to stave off litigation. Often, however, no sooner do agencies approve new development than they find themselves under a tidal wave of litigation from environmental groups. These groups do not need to win their lawsuits. Indeed, they rarely do. Yet they emerge victorious because delay is the coin of the realm. Developers—overwhelmed by the torrent of challenges—often abandon their projects rather than weather the storm. Many more are cowed from even entering the market.
Today’s case is typical. Petitioners waged an unrelenting campaign to drive Intervenor Mountain Valley from the natural gas market. For years, they launched challenge after challenge to every state and federal permit necessary to the construction of Mountain Valley’s flagship project, Mainline. That campaign was only ended when the Congress approved all of Mountain Valley’s permits and stripped the federal courts of jurisdiction to entertain further suits. With Mainline now out of reach, Petitioners have turned to its spin-off project, Southgate. Both FERC and this Court upheld Southgate’s environmental review and market analyses. But because Petitioners caused so many years of delay, Mountain Valley was forced to seek an extension of its deadline. That extension request has become a beachhead for a fresh assault.
Judge Henderson’s opinion covers a lot of the same ground that Justice Kavanaugh did in his recent opinion in Seven County Infrastructure Coalition v. Eagle County. And, as with Kavanaugh, Henderson didn’t pick up votes from her liberal colleagues, who ruled against the environmental groups on narrower grounds.
In several respects, Henderson’s opinion is richer than Kavanaugh’s. Her description of how NEPA burdens have accreted over time is excellent, as is her explanation for why the courts need to temper their enthusiasm for hard look review in NEPA cases. She also links the rise in permitting burdens to the expansion of associational standing in the 1970s, and makes a bid to cabin standing doctrine to make it harder for environmental groups with gossamer-thin ties to projects to file suit.
Along the way, Henderson discusses the need for remedial restraint in NEPA cases (a hobbyhorse of mine) and opines that “serious questions have been raised about whether the APA authorizes” universal relief, relying on work from John Harrison, Aditya Bamzai, Sam Bray, and Will Baude.
It’s a good opinion, and worth chewing on. It’s worth chewing, too, on whether decisions like this may suggest a deepening appreciation of the costs of hard-look review of agency action. So far, conservative jurists have embraced abundance themes when it allows them to push back on overzealous environmental litigators. But will they do so in cases where their political sympathies are less engaged?
Similarly, in The Procedure Fetish, I made the pitch that reducing the intensity of procedural oversight of the administrative state is essential if progressives hope to achieve their goals. To date, I’m not getting many takers on the left. Maybe that will be an easier sell in cases that don’t involve NEPA?
My hope, and perhaps it’s naive, is that a bipartisan law of abundance can coalesce around the need to step away from a court-centered approach to managing the administrative state—not just in NEPA cases, but everywhere. That’s not quite what Judge Henderson is calling for in her opinion. But it’s not so far from it either.