At the start of the pandemic, China built a 1,500 room hospital in 5 days. In the United States, things don’t tend to go that way. We’re notorious for our boondoggles, cost overruns, and the slug-like pace it takes us to complete relatively small projects. It’s given rise to a debate over why we so often suck at building stuff, and what we should do to get better at it. Is the problem red tape that ultimately cripples projects or falls victim to abuse? Is it that powerful interests have a monopoly over what gets built? Is the key to creating state capacity for progressive ends building comparable progressive power? A bunch of the scholarly legwork that gave rise to this debate about the future of liberalism was undertaken by a University of Michigan law professor named Nicholas Bagley. He’s the author of the influential law review article “The Procedure Fetish,” and he joins host Brian Beutler for a discussion about how systems that were designed to either sabotage government or keep government honest have combined to make government incapable of building new projects that would make life better.

TRANSCRIPT

[AD BREAK] [music break] 

Brian Beutler: Hello and welcome to Positively Dreadful, with me your host, Brian Beutler. For my entire adult life, I’ve heard politicians appeal for votes by saying something like, we should end wars abroad and rebuild here at home. So the war half of that formulation is primarily the legacy of the George W. Bush administration and its forever wars, which is why you tend to hear Democrats making that pitch more than Republicans. But the other half the part about rebuilding here at home has a much more complicated legacy. And because of that, I think it even lacks a shared meaning among Americans. Rebuild America means something very different to a city dweller than to a person from the hinterlands. But both citizens, I think, would have a sense that it means the government should invest in civic infrastructure so the places we all live in can have better jobs, better public goods, better amenities, the whole deal uh still, and in part because Rebuild America is such a challenge even to define. You can see why politicians like the pitch. It speaks to everyone. It makes everyone think you’re talking about their little slice of America. A leader who ended our global misadventures and instead built a bunch of cool stuff that made life better in both red and blue parts of the country would join the pantheon of great presidents. Or at least that’s what we’d like to think. Joe Biden has tried much harder than anyone before him to implement this vision. He ended the war in Afghanistan and then he signed a bunch of bills that have allocated trillions of government dollars and even more private sector dollars to building roads and factories, energy infrastructure. And it just hasn’t been a recipe for political success, or at least not yet. You can truck some of that up to the way the Afghanistan withdrawal happened and the way the national media covered the Afghanistan withdrawal. But I don’t think you can make sense of the whole picture without distinguishing between passing bills that envision major infrastructure projects and the actual building. Biden got a stunning amount of legislation passed in his first two years, given his narrow majorities. But nearly all of the dividends remain theoretical because most of those projects aren’t complete or even underway yet and probably won’t be before Biden has to face voters again. So I remember back in January 2021, when I was first starting to think COVID-19 was going to be a big problem for everyone in the world, and not just East Asia. And reading about how China had built a 1500 room hospital in five days to accommodate seriously ill patients. And I remember thinking, damn, how is that even possible? In the United States, things don’t tend to go that way. We’re actually notorious for our boondoggles and cost overruns and the slug like pace it takes us to complete relatively small projects. The Big Dig in Boston is a canonical example. The high speed rail in California that never was and seemingly never will be is another. And this contrast and the political problems it creates for those of us who want a government that helps people so that people aren’t so damn skeptical of government. It’s given rise to a debate or disagreement about what fundamentally explains why we so often suck at doing stuff and what we should do to get better at it. Um. You all probably know Ezra Klein of the New York Times and David Dayen of The American Prospect. They’ve gone back and forth on the question a couple of times now. Um. Ezra argues that the main problem is red tape. Some of it very well-intentioned, but ultimately in combination, it’s crippling and ripe for abuse. David surveys the landscape in the country and notices that we can do things extremely fast when we decide we want to. It’s just that those things are backed by powerful interests. And so the key to creating state capacity uh for progressive ends is for progressives to build comparable power. And I got to say, uh sorry, guys, uh both friends of the pod, I don’t find this dichotomy very edifying. I feel like it’s a debate where one side argues you can’t hatch an egg that a chicken hasn’t laid, but you also can’t conjure a chicken that didn’t come from an egg. So both things seem obviously true. Um. And so it is with state capacity. You can find many, many examples of important projects stymied and bloated by bureaucracy. And you can find many other examples where determined interests muscled major projects to completion very quickly. Recently, a section of the I-95 corridor connecting New York to Washington, D.C. collapsed near Philadelphia. And those of us who had grown fatalistic about state capacity kind of shuddered at the thought of a years long disruption of this incredibly important artery. But Joshua Shapiro, the governor there, managed to get it done in like two weeks. In a less inspiring way a bunch of very powerful people wanted to complete the Mountain Valley natural gas pipeline, which had gotten bogged down in the usual fashion. And so they passed a law basically ordering agencies to finish it and prohibiting courts from tying it up. And that seems like it’ll do the trick. So when I hear the question phrase like, do we need a liberalism that builds or liberalism that builds power? I feel like the answer is yes. Or maybe it’s well, it depends on what we’re talking about building in the first place. The bad news is I don’t really know what I’m talking about, but fortunately other people do. A bunch of the scholarly legwork that gave rise to this debate about the future of liberalism was undertaken by a University of Michigan law professor named Nicholas Bagley. Uh. Nick specializes in administrative procedure and lays much of the blame for our predicament on really people very much like himself. Um. He published uh an important law review article a few years back called The Procedure Fetish, about how a mix of systems that were designed to either sabotage government or keep government honest have combined to make government incapable of dependably building solutions to big problems or even new projects that just make life better. So he’s my guest this week, and hopefully he can help us clarify the debate a bit and think through what a better mix of systems and powers and authorities would look like. So, Nick, it’s great to talk to you again. 

Nicholas Bagley: It is great to talk to you, too. Brian, Thanks for having me on the show. 

Brian Beutler: So riddle me this. Do we need a liberalism that builds or a liberalism that builds power? 

Nicholas Bagley: Oh, look, I’m with you on that we need both. I mean, you can’t have a liberalism that builds where you can’t actually get liberals elected. So it is in that sense, a false dichotomy, um you know and and listening to your intro, I think you’re right that there are a lot of high salience projects that can get pushed through when the stakes are high enough. I think one thing that has, I think, gone largely overlooked, at least among the lawyers that I hang out with, is that most projects in the United States are not high salience. Most of them are low salience, They’re local. They are regional. They are even just statewide. And they don’t attract a lot of headlines. But the structures that we’ve put in place to govern their approval, govern the permits, govern the regulations, all of those legal structures that we’ve put in place have made it very hard to move those low salience projects ahead. And so I think we actually, in a way, have the worst of all worlds. We’ve got a set of laws that makes it very hard to build that private interests can overcome when the stakes are high enough. But where determined opposition can frustrate the low stakes stuff that we actually just need day to day. Let me be concrete about it. Um, you know, we’ve seen kind of three interrelating trends that I think have have really given rise to the state capacity movement. We’ve seen a dearth in affordable housing, which is primarily caused by a lack of supply. Why do we not have enough houses? Well, there’s a lot of impediments to actually getting new housing built, and a lot of those impediments are procedural and legal in nature. Most of them don’t make the headlines. Most of them are local. Um. The Green New Deal, the idea that we’d transition to some kind of green revolution infrastructure is going to require enormous investments in and in actually like physical land, especially out west, in order to build solar and wind farms. And there too, the particular fights don’t tend to be high salience. They tend to be quiet. And that means that the committed opponents of those projects can frustrate and gum up the works. The last and you did kind of touch on this in your in your opening um relates to big infrastructure projects like the big dig like the high speed rail in California. In both cases, the legal structures that we’ve created have created bottlenecks that make it very difficult to overcome the political resistance to the kind of change that a majority of Americans would, I think, find very appealing. 

Brian Beutler: Do we need a one size fits all approach? Like like I understand that a system that can be gained by powerful interests to overcome hurdles while leaving smaller projects that don’t have a lot of political interest behind them is a bad mix. But just as a as a rule, do we do we want a catch all like. Like–

Nicholas Bagley: Yeah. 

Brian Beutler: I’m thinking about it like this. Um. If if you came to me and said, Hey, we want to spend trillions of dollars to build nuclear plants, solar and wind installations. Like, modernize the grid, create transmission capacity, and we want to test various means of decarbonizing the atmosphere. And we can do all this in a year or two years. Um. And it’ll be rough sledding at times, like we’re going to screw some stuff up. But at the end, 95% of it will work and we’ll shorten our path to like carbon neutrality by many years. I’d say sign me up like that sounds great. Let’s let’s like mow over the hurdles to doing that. If you came back to me again and said, we want to build a natural gas pipeline that will have like a marginal impact on greenhouse gas emissions and energy prices, it’ll create 10,000 jobs, but most of them will go away when the construction is over. Um. I might say, okay, but like it’s not so important that we mow over the procedural obstacles. Like we can take our time on this so we don’t screw up that 5% and then like wreck a community or something like that um in the building. 

Nicholas Bagley: Yeah. So I think this is the internal attitude that a lot of liberals have about these these procedures as, gosh, you know, like maybe it’s not great what we have now, but it could be much worse. What if you got rid of all these procedural obstacles? Won’t you get lots more fossil fuel development, won’t you get lots of housing development that we think is actually bad? Won’t you get lots of infringing on, you know, all sorts of rights that people care about, you know, our environmental justice will get trampled or or what if what if what if. Um. And and I’ll just say I have a couple of thoughts on this. The first thing I’m going to say right out of the gate is um the chosen approach to deal with our anxieties has been to create procedural rules that make it hard to do stuff. Who is most adept at navigating procedural rules? It is the very special interests, very organized interests that you have already decided you don’t want to support. In other words, you’re going to create obstacles, both to good and bad development, but you’re going to favor bad development because the entities that are capable of overcoming those obstacles are going to disproportionately be the incumbents that like the world as it is, you’re going to frustrate changes to the status quo. Now what you might say is okay, great. So I’m going to come up with a with a bill. What I’m going to say is all the heavy procedural rules for the dirty uh development that I dislike and all of the clean, streamlined rules for the development that I prefer. And there I just want to say that we live in a country that is sharply divided and where that kind of political deal is simply not on the table. I’m not sure it should be on the table. But what I what I think is kind of not relevant to what what what we actually have to accomplish, which is getting to yes, across the board. And so there’s going to be some bitter with the sweet here. There’s no question about it. Saying yes to more projects means they’re going to be some bad projects that you’d prefer in an ideal world not to go forward, um but it also means you’re going to get a lot more good projects. And over time, I think that favors the progressive agenda. The last thing I’ll say is that, you know, the world in which we have uh a set of rules that are designed to favor one team or the over the other. That’s kind of what we’ve got right now. There are actually a lot of carve outs to important statutes that have become the target of a lot of concern in the state capacity movement. So you think about like NEPA, for example, well NEPA. Actually, there are big carve outs for new fossil fuel and new natural gas facilities that don’t apply to new geothermal or new wind facilities. So already we’ve got a set of procedural rules that are that are geared towards incumbents. So I think we just need to be a little less afraid about what the future might bear uh bring. I also will just point out like this is being done against a backdrop where it is just on the economics alone, cheaper to build wind and solar than it is to build fossil fuels. So if you want to level the playing field, we’re going to win. But you do have to actually do it. 

Brian Beutler: Why is that approach better than the one that I think is kind of happening organically? If if in a slightly disorganized fashion where I think like the liberalism that builds power is in effect in your state, in Michigan, in Minnesota, in California now. Um. And I feel like what was missing for a long time was some coherent sense of what do we want the liberal state where we have power to do? But now it feels like people are wrapping their heads around these issues that you’re talking about, like housing is a disaster and there’s like probably no federal way to fix it. So California is starting to use its power to try to make building easier. Um. And I, you know, I could run down the list of of the way the governors in all three of those states and the legislatures have started to get together to to to do things that they just weren’t doing ten years ago. Um. And it’s an impressive list. Um. And it also feels like you don’t you aren’t making a bunch of compromises because these are places where liberals control the government. And if you could just get like uh uh some level of consensus on what the big problems to be solved are and what priority they should come in, that you could do the climate change stuff without the natural gas stuff. And uh and it, you know, heads we win, tails they lose [laugh] and that sounds pretty good to me. 

Nicholas Bagley: Yeah. Well, so here’s how I think about it. Um so I think there’s that’s true. There’s a lot to like. But you have to remember that the legal system is designed in many respects to protect those who are not in power. Right. So what we’ve done is create a series of rules for those who are unhappy about what government is doing to take their complaints to a court. And so the people who are filing these challenges don’t need a broad base of political support. And so when you say let’s get a rough consensus around the need to build housing, well, that’s fine. You and I can have a rough consensus. Even the majority of folk in Michigan or California may have a rough consensus, but that rough consensus isn’t going to extend to the anti-development group down the block. And that anti-development group has all of these laws that they can point to and invoke in order to take their concerns in front of a judge. And the judge may halt whatever development may exist in its tracks, notwithstanding the broad base of political support that you might have. So I think that the the desire to say, let’s just let like let’s win some elections, let’s get our priorities straight, and lets push these projects through, I think may have there may be a bit of wishful thinking there given the structures that we’ve created, the kind of hurdles that we’ve put up to any kinds of these projects making it through. We’re so worried about the possibility that we might do bad stuff, that we’ve frustrated a whole lot of good stuff too. 

Brian Beutler: But but I don’t I don’t totally understand how these two things are different and like, this is like interesting back story here is like Nick and I got to know each other around a decade ago because conservatives kept looking for things that they could find in the Affordable Care Act and filing lawsuits so that they could get the law thrown out. And it’s like roughly analogous to to what you’re talking about. And I found that very frustrating. And I it like affected in a permanent way, the way I think about the Court and our juris– 

Nicholas Bagley: Oh me too, me too. 

Brian Beutler: Yeah, you know, just like all kind, you know, it was a very eye opening experience. Um. But when I think about it, um I think that the solution is kind of like what just happened with the Mountain Valley pipeline. Like if, if you can get the consensus among a majority to do the thing, that thing can include the streamlining and procedural changes that will make it much harder for the for the, you know, the NIMBY group down the street or whatever it is to file the lawsuit to just stymie your project. 

Nicholas Bagley: Yeah. I take your point. Yeah. Yeah. So, so look, um there’s truth to that, right? No question. If there’s consensus, you’re able to overcome a lot of these obstacles. Um trouble is [?], there’s less consensus on many of these issues than you might think, including among the progressive establishment. Right. So so one of the common complaints you will hear to proposals that I make is, well, gosh, you know, if you don’t allow us to bring suits under NEPA to challenge fossil fuel projects, we’re going to get a lot more of those projects and they’re going to be online for decades. And you’re going to create a bunch of more incumbents that are continue going to continue spewing out, you know, climate eh greenhouse gases for a long time to come. Um and the the view of the environmental groups that have gained power by exploiting procedural opportunities is that it would be too risky to give them up. And those environmental groups are very influential. They’re influential in Washington. They make they they they punch above their weight. And that’s good, by and large. But it means they’re wedded to a set of tactics that they honed in the 1970s in an effort to put a stop to what was at the time some extremely reckless development. Um. So then you say, okay, well, maybe we can get some of them on board. Well, okay, but maybe you can’t get all of them. And maybe that frustrates a deal, right? So I think that’s actually harder like when we all agree about housing, we actually don’t all agree at the level of like the mezzanine details and like, that’s where a lot of the shooting is. Then you want to say, okay, well, let’s look at what happened with the Mountain Valley pipeline. Well, a couple thoughts. Like one is that was a retail level change for a single project, so that’s not going to scale super well. There were actually some substantial changes to the National Environmental Protection Act. Um. And the idea was that NEPA review is taking too long. And so we’re going to place some time limits on NEPA review and we are going to make some create some page limits so that there aren’t going to be these extraordinarily long 4000 page reports and the like. And these were viewed as kind of modest steps in the direction of reducing the burdens on agencies to get to yes on important infrastructure developments. But the key thing they didn’t do is change anything about the availability of judicial review and the thing that’s driving the delays, the thing that’s making it impossible to get anything done is that the agencies are nervous as all get out, that they’re going to invest time and energy in something. And at the end of the day, the courts are going to going to come in and blow it up. And so they cross their t’s, they dot their i’s, they tie their shoes, they turn around in knots, they hire 17 different experts, and it’s an enormous amount of time, resources and energy. And the thing that’s causing that investment we still haven’t addressed because I don’t think there is deep agreement about the need to rethink the procedural rules that are gumming up the works. I think there is some high level agreement that there are some problems. But I think there’s much less agreement on how we should try to get at them. 

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Brian Beutler: Just as a matter of personal curiosity about how you came to be interested in this issue and also how you honed in on the solutions that you have honed in on is like separately, you’ve done a bunch of work about the sort of unprincipled doctrines that the Supreme Court uses to stymie agency action right like they are controlled by six very conservative or right wing justices who don’t want the federal government to be doing anything. And so they come up with legal theories about why those actions aren’t allowed. Um. And I mean, it strikes me that in separately writing about how state capacity can return to the United States, you’ve come up with a program or like are pointing in a direction that would circumvent that problem, and that doesn’t strike me as likely a coincidence. 

Nicholas Bagley: Yeah, it’s not at all a coincidence. So, personal history here. You know, I started my career as a government lawyer. I joined the Justice Department on the appellate staff in the Civil Division, where I was defending government actions from challenge. And I did it because I thought the work was likely to be interesting, which it was. And I’d work with wonderful people, which it which I did, um but I didn’t know how I’d feel today about the work because I, too had come out of a law school experience where, you know, Brown v. Board is, you know, one of the kind of canonical cases. And you read all these, um you know, kind of David against Goliath stories where where heroic ACLU or environmental lawyers hold the government to account, make sure that they’re they’re doing the right thing by the public. And these are familiar stories to us from television, from the movies and again in law school. Um and so I showed up at the Justice Department, and I’m now the man who is potentially the target of these lawsuits. And um the people I’m litigating against are, by and large, awful. Um. They are narrow interest groups that operate in grubby ways and attempt to get by hook or by crook, whatever advantage they can out of the legal process. And it felt virtuous in trying to stop them from securing unfair advantage in the courts. Um. In other words, the story that we were told about David against Goliath turns out not to be true. It’s usually Goliath against the government. And that made me pause and think, well, hold on. Are these are these these legal rights that we’re granting so promiscuously, are they actually serving the benefit of the American public or are they serving the advantage of the groups that are best able to exploit those opportunities? And then, like like you said, we we met in during the debates over the Affordable Care Act, and here’s a law passed in 2010, and it’s then litigated to the hilt in three existential challenges over the course of the next decade as the thing is rolled out in fits and starts. Medicare and Medicaid were adopted in 1965. There were no lawsuits challenging their constitutionality. They were up and operational the following fucking year. Like, it’s a different kind of world we live in where we have licensed private groups with narrow interests to exploit procedural rules to their advantage and to to to basically suborn the machinery of government to their own ends. Um. And I became convinced, too, that liberals just weren’t seeing this. And I think part of the problem is like there are so many damn lawyers around in liberal circles. And look, I like lawyers. My brother’s a lawyer. My wife is a lawyer, my dad’s a lawyer. I love them. Right. But but lawyers are oriented to problems in a particular way, which is if you’ve got a lawyer and there’s a problem, they think, well, let’s come up with some kind of procedural solution. Maybe the courts can help us. And I think to myself, gosh, like anybody who’s ever operated in an organization, nobody ever thinks like to make this organization run more effectively what I need to do is bring in more lawyers and more, more rules. Right. Like you think to yourself, like, gosh, maybe we need somebody who can manage effectively, someone who can run a meeting, somebody who can actually bring people to the table and work through common problems. Um. So all of that, I think, came together to to really drive home to me that they think that the people who I am, my tribe, we’re missing an important part of the puzzle that we as lawyers gain power through these procedures and through the courts. And we’re comfortable with them and they make us comfortable. Um but I think it’s a really bad way to try to run a country. 

Brian Beutler: So I have a few observations. First is that I think um Goliath versus Leviathan would be a great allegorical monster– 

Nicholas Bagley: Oh yeah. 

Brian Beutler: –movie. Yeah. [laughter] Um. Uh. Second is that lawyers solved a huge problem for Crooked Media in that we had a programming hole for legal affairs issues. And now we have a great legal affairs podcast with at least one of your colleagues um.

Nicholas Bagley: With my colleague Leah Litman. They do a– 

Brian Beutler: Yeah. 

Nicholas Bagley: –wonderful podcast. And and so, you know, in that sense, lawyers can we’re do– [laughing] we’re pulling our weight.

Brian Beutler: And you’ve been a wonderful guest for these first 25 minutes. But um uh so if if that’s if that’s your origin story, onto this topic, let’s step back even further and give listeners the bigger origin story of like the condensed history of America going from like the interstate highway system– 

Nicholas Bagley: Oh yeah. 

Brian Beutler: –and the Manhattan Project to like, sorry, we don’t know how to build subways in actual Manhattan anymore. 

Nicholas Bagley: Oh. It goes back even further. I mean, this is this is where I get to be. I get to to put on my– 

Brian Beutler: Nerd out for us. 

Nicholas Bagley: –administrative historian hat. Um. So I think we’ve got this prevailing myth in the United States that the kind of jurist, you know, juristist that the court centric model that we’ve all got in our heads is a legacy of the founding generation. It’s Marbury against Madison, like we do things in the courts. And if that’s a little slower, well, that’s just how we that’s how we conduct our affairs. Um. And that turns out to be completely wrong, like completely bass ackwards. So at the beginning of the country and the beginning of the 19th century, there was a very strong legal norm that the different branches of the government, executive, legislative and judicial all operated in their own separate spheres. So just as like the executive branch couldn’t purport to overturn a Supreme Court decision, so too the courts couldn’t purport to overturn an executive branch action. You couldn’t go in there and say, well, that exercise of your discretion, I think it’s an abuse of your discretion. I think it’s arbitrary and capricious or even I think it’s unlawful in all of those cases, unless the executive branch was operating far outside the bounds of any reasonable understanding of what the law required. Unless that and that was the case, the court said, our job is done. We are we are hands off or we’re backing off altogether. There was a limited role for constitutional review, so they would review congressional statutes from time to time. There were um some kind of unusual statutes against individual officers that would come up and and would have effects on administration. But by and large, the court said this is not our business. And that really only started to ch– 

Brian Beutler: Vote vote them out. If you have a problem with it. 

Nicholas Bagley: 100% absolutely. 

Brian Beutler: Don’t come to us. 

Nicholas Bagley: It was like, look– 

Brian Beutler: Yeah. 

Nicholas Bagley: –like that’s the political branches. We’re doing our own thing over here. And if you have a complaint with the Biden administration, that’s why we have elections. Um. Beginning of the 20th century, we start getting we get the progressive era and rapid industrialization, urbanization, all these changes are afoot. And the progressive start adopting, creating these public utility commissions to regulate nearly all parts of American life. And these commissions, they look a little bit like um, you know, local electricity regulator, except their hands were in a lot of a lot of different lines of business. And their mode of regulation was pretty unusual given our historical pattern. And it made the lawyers especially really nervous. And so the lawyers started to say, listen, could we please try to get a handle on some of the um high handedness that we see in these commissions? Can we try to maybe make them a little more sensitive to rights courts? Can you maybe treat these commissions not like independent executive branch actors, but treat them as almost like lower courts? And then you can review their judgments and decisions. And then if it’s unreasonable, you can push back. And for a time that move was resisted. There was there was it was like, really? I’m not sure we can do this. And it sort of slowly worked its way into the way into the edges of um how the courts thought about these problems. And then you get the 1930s and the New Deal. And the New Deal creates a whole bunch more regulatory agencies and the lawyers start freaking out even more. So by the time the Second World War ends, Congress comes together and says, hey, you know what? We do need a framework statute to govern the proliferation of federal agencies. We do need some rules of the road, and we’re going to make sure that when agencies act, they have to answer for the courts. If they don’t, you know, follow the rules that we’re laying down, but we’re going to be pretty spare on the page. We’re not going to say very much so it’s 1946, you get the adoption of the Administrative Procedure Act, which is like the Bible for uh the way that the courts interact with the executive branch. Um. That’s still on the books at the time we get the international highway system, the time we get rapid industrialization in the postwar era. The time we get the big [?] 1950s boom. A lot of the development that we still rely on today, all of that, you know, great big water projects out west that build the cities that we now, you know, are now growing by leaps and bounds. All of that happens and people start again to get nervous about the growth that they’re seeing and that they are witnessing in a particularly you get a bunch of different kind of movements coming together. You get the anti-Vietnam movement, which drives a lot of distrust in the federal government. You get the anti uh Watergate, you know, the Watergate uh uh episode, which again drives institutional trust through the floor. You get a lot of environmental concerns and you get consumer safety advocates kind of coming to the fore for the very first time. And so the kind of Ralph Nader um sort of environmental revolution that occurs in the early seventies entails a commitment, first and foremost, to getting the courts involved, getting them to say, hey, listen, big business, big government, big labor, you guys have been inattentive to interests that we care about. We want you, the courts, to stand up heroically like you did during the civil rights movement, like you did to protect uh those whose voices were unheard. We want you to speak for the trees and for the consumers. And only through you can we be saved. Um. And that move made a lot of sense in the 1970s, But we haven’t rethought it in the 55, 60 years since. We’re still stuck with the same kind of framework that we had as our legacy of that era. And, you know, the costs of gumming up the works in that way were not all that salient for a while. Um. But they’ve become extremely salient in the past 5 to 10 years in a way that suggests that we need a new or new revised settlement in how we think about the extent to which we’re trying to push government through rigid legal procedures. 

Brian Beutler: Okay. I want to talk a little bit about like how feasible it is to like, have a big government that either struggles to do stuff or does stuff really efficiently. Like, can either of those things actually be viable for a long time? So I have a thought experiment for you. Um. Imagine two governments, uh each one is trying to build a widget factory. Um. The first one goes to great lengths to avoid any hint of abuse, right? So it undertakes competitive bidding. It does a lengthy cost benefit analysis. It’s amidst a judicial review. It does its own lengthy review of externalities. Um. It scrutinizes the builder’s labor practices to make sure that the people that they hired aren’t being exploited. Um. And then after three years of that, there’s still no widget factory and everyone’s mad and they all say government can’t do anything well. The second government decides they’re just going to execute, right? And they mow over those obstacles and build a widget factory very quickly. And then people get to work and they’re happy for a second. Um. But then it turns out that the the widget factory was was built by a major donor to the head of state, um and it leaked these forever chemicals into the water supply um and then covered it up. And so after three years with a widget factory, everyone’s mad and they all say the government can’t do anything well. Um. So you run a third government. Um. You also want to build a widget factory. How do you avoid either of those two pitfalls? 

Nicholas Bagley: Yeah. So the first is to say, um I think you’re onto something important in suggesting that there is there’s not an all or nothing right answer here. There is a calibration problem, which is nobody wants Robert Moses, you know, mowing down big neighborhoods in New York City to push through his pet projects anymore, right like nobody wants to go back to that. At the same time, you can think that like maybe we’ve gone a little bit too far in the opposite direction about being afraid of the Robert Moses’ of the world. Um. In terms of the things that I think actually the reason I do think there is a bit of a third way available is that we have grown accustomed to thinking that the only way to protect against abuse is to force more and more procedural rules onto these, oh, you know, factories that want to open or the rules that need to get adopted by agencies. And I think to myself, well there really are other ways. If you’re concerned about environmental protection, you can adopt laws or rules governing specifically what you can or cannot do in a facility. You don’t need to put it through some weird, you know, you know, community benefits procedural process and then subject it to intensive judicial review. You can just develop better rules governing conduct. And I think sometimes we we use our procedural rules when we are afraid of doing that or when we’re nervous about doing that. So we say under NEPA, just consider all the environmental consequences. Just just think about them and then subject that to a long and tortured process of judicial review. And what I’d like to say is maybe we should just have better rules about what private actors can or cannot do in order to prevent them from imposing externalities on the rest of us and move a lot of this out of the courts um and move it back to the bureaucracy. The last thing I’ll say on this is just, you know, I think part of the reason I’m pushing uphill on this is I think people don’t really trust um our institutions and our bureaucracies. And I part of my project is to try to push back on that and to say, listen, if you want to have entities that broadly represent what Americans care about, not perfect, but you’d actually could do a lot worse than looking at our agencies. They’re staffed by people who want to serve, they’re staffed by people who generally don’t want to serve for highly ideological reasons, but because they want to advance people’s lives, who actually have to confront tradeoffs in their day to day jobs and who represent a pretty wide swath of people. Now, the rise of educational polarization in the country means that that’s not uniformly the case. There are certainly people who distrust agencies for some very good reasons. But at the same time, I do think that if you care about the values of environmental protection or environmental justice or workers rights, I don’t know why on earth you would think that the courts are the right entities to turn to to protect those values. Like, it just seems like a very strange move for progressives, especially, especially in a world where we now have a 6 to 3 ultraconservative Supreme Court and are likely to have it for the remainder of our productive lifetimes. 

Brian Beutler: That’s a really depressing uh last observation there. But setting that aside, um and I want to get back to the courts because it does feel like the court’s bloom extremely large in this analysis and thus probably point to at least a big piece of the solution. But like, you know, I’m I’m with you in that I I absolutely want to see Joe Biden’s infrastructure bill become bridges quickly, not just because I want him to get reelected, but because like he wouldn’t have passed the bill if there was no need– 

Nicholas Bagley: Yeah. 

Brian Beutler: –for it. Like there wouldn’t have been any demand for it. Right. Um. But at the same time that, like even if you take the judicial review question out of it, the grass is always greener kind of thing– 

Nicholas Bagley: Sure. 

Brian Beutler: –that I was alluding to with that thought experiment. It comes to light like that that thing that I I ran past you about the widgets was kind of based on um a different aspect of the health care reform uh fiasco um is I like I remember the failure of healthcare.gov um and how demoralizing that was, and a big part of what made it so demoralizing is it was like they launched it years after the law passed and they still couldn’t build the website right. Okay? Um. But I also remember that, like, the knee jerk response was, well, President Obama, why didn’t you just get Amazon to make the website? They know how to do that. Obviously, it’s just a marketplace. Like just have them do it. Why didn’t why didn’t you think of that? And President Obama said something like, like you think it would be better um if we passed this big law that allocated all this money and I and I took that money to people who donated to my campaign and said, here, build me a website. Um. And like in the pressure cooker of that moment where the website wasn’t working, I was kind of thinking, yeah, I would prefer that. But just as a general rule, like when I read stories about cronyism, it pisses me off. Like I I get genuinely angry at politicians who do that. Um uh. And I, I realized that like a big part of me, as much as I want Joe Biden to be able to, like, point to the stuff that he built by the time he faces voters next year. I also really do want the government to be making decisions about what they’re doing on some kind of neutral basis. Um. And that like whether it’s a liberalism that builds or is a liberalism that builds power, however you want to talk about it. But like you risk throwing out that baby with the bathwater and and you’re going to rile a bunch of people up with ultimately like decisions that are not maybe even venally corrupt, but it’s like– 

Nicholas Bagley: Yeah. 

Brian Beutler: You’re you you promised to go build something. And so you go to the people that you think you know how to build it best and you ask them to do it. But it turns out that you know them because you’re friends and now you’re now you’re just a corrupt politician. 

Nicholas Bagley: Yup. No it, look, I think the risk of throwing the baby out with the bathwater is real. And you want to be cautious about being um about any kinds of changes that you’re going to make. Of course. But just because there is a risk of throwing the baby out with the bathwater doesn’t mean the bathwater is at the right level right now. And again, the question of calibration is really hard. I think people hear that what I say and they think, well, you just don’t want any rules at all. You just want to go to, you know, executive Fiat. You want Trumpian tyranny to rule the day. And that’s not at all where I’m at. What I do think is happened is that we have become too enamored. Like, if you have the your anxiety about uh cronyism, that the way that that is expressed in our political um culture is for you to adopt some cumbersome rule that every agency across the board then has to follow into perpetuity and then has to, you know, devote resources and personnel to managing and then can be subjected to judicial review and is amplified again, not just across like a particular project that you might care about, but every project and everybody becomes defensive and cautious in a way that actually ill serves us across the board. So you might say, hold on, Brian, I understand that you’re really worried about cronyism. Let’s create some pretty, um you know, uh either sort of more moderate safeguards on that. Maybe what we’re going to do is focus on bringing in good, high quality personnel to our agencies and making sure that they’re not subject to direct political influence on these kinds of decisions, but not subjecting their decisions to like outside double checking by the courts. Right. You might think of it as a management problem, bringing high quality people who are unlikely to be corrupt. Maybe if you’re afraid about cronyism, you think, well, hold on, how does this happen? Well, it happens because, you know, maybe they’re you’re worried that civil servants are going to get bought off. It turns out that kind of corruption in the United States is very rare. But to the extent you’re worried about it, well then, come up with better rules about how to compensate people fairly so that they’re less tempted to do that and create systems of accountability internal to agencies where that kind of behavior is going to get caught. I think we have this temptation to think that there’s a problem, there’s got to be some kind of procedural solution. And often like that’s just not the way things work. And it’s more complicated than that. I’ll add, you know, like one of the one of the ways you see this in, like, operation, it drives you crazy when you work in government. I just got done with a stint working for Governor Whitmer. Um. Conflict of interest rules are so pervasive across government for exactly the reasons that you give. And obviously nobody wants a sharp conflict of interest on a decision of importance. But some of these conflict of interest rules are so broad that they make it impossible to bring in anybody who actually has expertise in the thing that you care about. And again, it’s not that you want to get rid of all the conflict of interest laws. You want to think carefully about the costs and benefits of those particular structures. 

Brian Beutler: Yeah. I mean, just actually hearing you run through that, I was reminded that the Supreme Court is more or less like legalized corruption and like perhaps a better uh remedy for this concern that rebuilding state capacity will lead to a boom in corrupt practice is to criminalize corruption again, quite apart from the rules and procedures that go into an agency implementing a law and creating a dam or whatever. 

Nicholas Bagley: Yeah, I mean, look, one of the big questions lurking underneath my project and I think is a genuinely hard one, is if you care about state capacity, you have to think hard about personnel, about who you bring on and how you hire them and how you fire them. Um. And one of the big problems for government agencies across the board is it’s hard to fire people. And that is a very serious problem. We do that for good historical reasons. We don’t want President Trump to come in and mow down the civil service. Uh. At the same time, we do have to ask ourselves questions about the costs of that approach, and we want to think about whether we’re getting the balance right. And that’s a hard thing to say in the current environment where the attacks on the civil service are coded as right wing, but you can be left wing and care about government performance and think it’s really important to have the ability to say to somebody who’s not performing, you’ve got to go. [music break].] 

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Brian Beutler: Do you think your project would be much easier if we had a robust record of executives and government actors who were being held to account for violating laws, whether they be corruption laws or for polluting or whatever it is? And like, you know, it’s like I feel like it’s a little flip to be like nobody went to prison for the financial crisis and to and to use that as like a metonym for the whole government. But I do think that if if the norm was more like if you do bad deeds with lots of public resources, you risk going to jail. And you had a framework that proved that that we would put people in jail who did stuff like that, that there would be less resistance among liberal skeptics of state capacity or progressive skeptics of state capacity because they’d think, okay, we can hand this over to the political branches and it won’t be a huge risk because if a corrupt administration comes in or whatever, there’s there’s a backstop, which is that when they get caught breaking the law, they’re– 

Nicholas Bagley: Yeah. 

Brian Beutler: They’re going to [?]. 

Nicholas Bagley: Well I think the move is the is at a high level the right one which is asking about alternative methods of accountability for bad conduct. I’m very skeptical about the criminal justice system being an effective mechanism because it tends to work episodically. It has a very high burden of proof, and that’s very difficult to overcome. It’s a bazooka. You can’t fire all that often, and it can be a little bit capricious in that way, um I might think of it, actually. And I should say also that many of the things that people worry about most that government might do are not plausibly um criminal under any by any stretch of the imagination. Right. People are very upset that you might want to open a mine near them. Well, like that’s not unless there’s out now corruption, it’s unlikely to be itself criminal. So you’re going to need to come up with other mechanisms to make sure that folk who are making these decisions are taking the public interest into account. Um. And I would think that the more supple mechanisms are things like elections. One of the reasons that I think this debate is so hard is that we, especially at the local level, where a lot of these decisions are made, like the democratic systems that we have in place, the level of accountability on the public, given the dearth of local journalism, given the way that people aren’t paying close attention, I think that’s a much bigger problem. And that’s where I would focus our efforts in revitalizing state and local democracy. 

Brian Beutler: When you say that, that like some of the things the government might do, like, for instance, build a mine somewhere that people don’t want, aren’t illegal, or aren’t aren’t plausibly violations of criminal law, like I agree. But also isn’t that sort of just like a product of the snapshot of today, like you could you could say, go ahead and build your mine? But it is illegal to leach a bunch of heavy metals into the water supply. And if you get caught doing that– 

Nicholas Bagley: Yeah. 

Brian Beutler: –you could go to jail or you–. 

Nicholas Bagley: Sure. 

Brian Beutler: –xould face a huge fine and it’ll put your mind out of business and will use the money to to you know clean up your mess. Um. Like that would be a huge deterrent effect to somebody building a mine without, like, thinking through how to do it. 

Nicholas Bagley: Yes. And and and we–

Brian Beutler: And in an environmentally sound way. 

Nicholas Bagley: So I have we do have those laws on the books. They are uh enforced sometimes uh and sometimes not as aggressively as you’d like. But we do have those and those do serve as a check. Um. I thought you were directing your attention more at like, how do you make sure that government officials aren’t um screwing around, aren’t making decisions that benefit their cronies at the expense of the public? 

Brian Beutler: I’ll just make that point in the most general possible way is is that at the outset you mentioned that like a good way to to do this would be to stop putting everything in review processes and just be a little bit more explicit about what is and– 

Nicholas Bagley: Yes. 

Brian Beutler: –isn’t allowed. 

Nicholas Bagley: Yes. 

Brian Beutler: And if your concern is cronyism, illegalized cronyism, if it’s your concern is like– 

Nicholas Bagley: Yes. 

Brian Beutler: –the way we build– 

Nicholas Bagley: Yes. 

Brian Beutler: –mines now, as a environmental [?].

Nicholas Bagley: I I am on the same page. yeah, 100% on the same page. 

Brian Beutler: Okay. So if you were God/emperor of America, but a benevolent one and you didn’t just want to to wield state power for your own self-aggrandizing purposes, um what institutions would you set up or take down to make it possible for um the government to do big things quick, quickly, but insulated from some of these problems? And also like for the benefit of the poli–, you know, for for the benefit of the public and the politicians, so that politicians who promise to do X have a fighting chance to do it before they go back to the voters. 

Nicholas Bagley: Yeah, so a lot of my recommendations are negative, which is that law should do a whole lot less than it does, which is to say we should eliminate the ready availability of judicial review for a lot of categories of agency action. This kind of suggestion is greeted with horror among my lawyerly colleagues. But NEPA, when it was adopted, um didn’t contain a provision about judicial review. The courts just made it up. The courts said, we’re going to review this and say that uh if you’re actually if you didn’t adequately take into account environmental concerns, we’re going to blow up your agency action. Like the courts made that up at the time. They can unmake it today. Um. They’re unlikely to, but they could and we certainly could curtail the availability of the ready availability of judicial review for a wide range of agency actions. I think that would help both at the state and local level and at the federal level. Um. Beyond that, uh you know, I think we need to be thinking hard about placing time limits on some of these permitting regimes, um which is to say not just uh making it a little bit easier to get through them, but also basically saying that once you pass a certain point, like the default is, yes, the default is not no. Um. [sigh] In terms of other changes that I’d like to see, I’d like to see the national– nationalization’s the wrong word, but but a more adroit use of federal law to deal with real federal problems. By with that, I mean, right now we have a big issue with um uh electric trains, like transmission lines across state lines. So there’s a lot of wind and solar out west. And we want to sight things out there because there’s a lot of available space and a lot of available natural um benefits out there. But in order to get that power out east, you need big interstate transmission lines. And right now, there’s no federal system akin to the way we do interstate pipelines, for example, to allow us to easily pull off that kind of interstate transmission. That’s an urgent priority and something that that we should take out of the hands of state and locals. I think states should start thinking hard about moving more housing policy out of local hands. So you see this in California most aggressively, but those moves involving builders’ remedies, involving saying to localities, we’re not going to let you get away with foreclosing all building in your communities. Those strike me as healthy and responsive to genuine concerns of the broader statewide electorate and not just likely to be captured by by local interests. Um. So that’s part of part of that, the the package of changes that I think would help. 

Brian Beutler: Are there un or underutilized powers of the federal government or state governments that exist now that you think could overwhelm some of these obstacles um and we’re just not using them because people are scared of the political– 

Nicholas Bagley: Yeah. 

Brian Beutler: –ramifications or whatever, or they just don’t know they have the power. 

Nicholas Bagley: Some of some of that, right? So so when you’re talking about states preempting local laws, that gets politically very hard, very quickly. Right. So that’s what the response to Kathy Hochul’s effort to im– to uh improve housing availability in New York. The suburban legislators in Long Island in particular pushed back hard. Um. So politically, a lot of these efforts are very challenging. In terms of the powers that are on the books and of governors, including Governor Whitmer when I worked for her, are working to the extent that they can. So there’s a fair amount of like what you might think of as like nitty gritty organizational work, making sure that the agencies are all talking to each other. Having somebody coordinate timelines so that we’re all on the same page about how things are supposed to proceed. Um. Trying to make sure that that one person has visibility in different permits that might at different points become roadblocks or bottlenecks to particular construction. So you kind of put all of that together and that’s helpful. But at the end of the day, the governors and mayors and president are subject to laws. And unless and until you want to think about getting rid of those laws, it’s going to be sort of baby steps. Um. You know, you mentioned Josh Shapiro at the beginning of the the the hour and in reconstructing the highway, what he did was he he exercised his emergency powers to say, we have an emergency. We’re going to waive all of the normal laws that would otherwise impair us from moving forward quickly. Um. I wrote a lot of executive orders that looked like that during the COVID pandemic working for the governor that said, we’re also going to waive all these laws in this particular context to deal with a genuine emergency. And indeed, the governor of Hawaii just issued a an emergency order, an executive order declaring an emergency pertaining to housing for exact on exactly this basis. Um. And I love the creativity. I really do. Um. But when you’re thinking about the day to day actions of governing, when you’re thinking about housing policy or energy policy, you can’t do that under emergency authority. That’s not a sustainable approach in the long run, and it’s probably not legal in the short run. Um. And so you really are going to have to you’re going to have to to create a change in the way we think about um overseeing the government and making sure it stays within bounds. It’s really a change in legal culture and broader political culture. And I think that’s going to be something that has to be has to come through the legislatures at the end of the day, it’s got to be something we all collectively support. 

Brian Beutler: And not for nothing. You know, the the use of emergency powers, maybe not in the Josh Shapiro example, but in the Governor Whitmer example, I mean, like there’s backlash [laugh] sometimes it’s really ugly. 

Nicholas Bagley: There was some really ugly backlash. There was. 

Brian Beutler: But like, here’s the thing, is that. I mean, obviously, I think what happened in Michigan was disgusting, but um not which not what Governor Whitmer did, but the backlash. But like um but in general, like, I think I would be appreciative as just a citizen. If I had leaders that I thought were a bit more willing to court some backlash to do important things on an emergency basis if they weren’t just clearly breaking the law. You know, I one thing we haven’t talked about is just like the the the culture of Democratic Party liberalism today um is that like a lot of it, I feel like is built around trying to avoid that kind of conflict. Right. Like like we have we’re moving in this direction, but there’s still a lot of resistance to just abolishing the filibuster. And the– 

Nicholas Bagley: It’s a great example. 

Brian Beutler: –and the concern is all like these these questions about, like, are we going to get along and like, what’s going to happen if we pass this bill without a filibuster, They’re just going to come repeal it. And so we’re going to have this seesaw of power and like we’re going to live to regret it, um and that the rules that they are reluctant to change are ones that are in some sense meant, I think, in a often in a vain way to avoid that kind of dissension. And the and the the you know, the procedures and rules and the things that you think that we need less of. And I, I think I tend to agree. Wherever their origins are, they they serve a similar role. Or at least I think that that’s what the people who support them think, is that these obstacles to building things um is to prioritize consensus over execution so that, like half the people aren’t pissed off all the time and then trying to tear down what the other half built when the tables turn. And if that’s the case, like where is the will to have a more, you know, damn the torpedoes attitude towards governing come from? 

Nicholas Bagley: Yeah, it’s a great question and I wish I had a better answer for you. Um. The damn the torpedoes approach is not at the current moment I think, the dominant position in the Democratic coalition. And in order to get there, we’re going to have to pick some fights with friends. And it’s hard to fight with friends. Nobody likes to fight with friends um and– 

Brian Beutler: You have to fight with enemies, too. I mean you got to want to do that. [laughing]

Nicholas Bagley: Yeah, I mean, but it’s always more convenient to to to fight with the other team. And on this one I think there’s like cross, it’s hard because there’s no natural political home for the damn the torpedoes approach. I mean, there’s a certain kind of libertarian um sort of let’s get rid of some government regulation uh inflection to a lot of what I say and not because I’m a libertarian, but because they see some of the same problems that I see. And so there’s common cause to be made with some right thinking folk who are also frustrated at the way the government impairs progress. Um. But that that means that, like you’re looking at a cross coalitional movement that doesn’t command a majority among either Republicans or Democrats. Um. How do you how do you get to a yes when when they’re really just kind of a rump part of the party that’s kind of screaming in the the wilderness? I don’t know the answer to that. I think the YIMBY movement in California has had pretty remarkable success at moving the needle. Um. I think they’ve been strategic and pretty relentless at trying to achieve their goals. And I wonder if that’s a model that will um start to seep out into the environmental movement when it comes to some of these renewables. Or if it’ll seep out into the broader conversation, but I’m pretty confident about my analysis of the problems and that I’m pretty confident we’d be better off if we could move to the place that I’d like to be. I am much less confident that I know how to get there from here. 

Brian Beutler: I mean, just as a as a persuasion question, like for how do you how do you pick these fights without permanently rupturing the coalition? Is that I feel like a lot of the the people who are skeptical of charging ahead to a more state capacity forward system are people who ten years ago when you and I were talking about health care, looking at the new health care system and thinking we put all this effort into compromise, it got us zero votes. Now we have this kludgy health care framework that was designed not to disrupt anyone’s like status quo ante. People were still furious. It took years to roll out. There’s still 20 million uninsured people or whatever it is. And if we had just done what we said and built a single payer health care system, we would never have to revisit the health care financing question again. It’d be done. Um. And like I’m very sympathetic to that. But it runs at cross-purposes to this idea that we should mire everything in rulemaking and and and like never just trust the state to do the right thing. In fact, like, if anything, you would think that the state capacity uh liberals and the single payer progressives would be on the same page about this stuff. But it seems to me like they tend not to be. 

Nicholas Bagley: That’s interesting. 

Brian Beutler: But maybe you could you could maybe persuade them of the– 

Nicholas Bagley: Yeah. 

Brian Beutler: Of the of the value proposition you bring as like it applies to health care as much as it applies to– 

Nicholas Bagley: Yeah it’s a simplification measure. Sure. 

Brian Beutler: –pipelines and b– yeah. 

Nicholas Bagley: I I I’d buy that. I’m not sure that speaks to people at the level of like the the level of emotion that you want to grab members of you know, like people care about these issues because they it moves them deeply. And I’m not sure that kind of I’m for simplicity kind of argument is what’s going to do it. I, I the one that I wonder about is really going to move the left, I view the issues that I write about as social justice issues and questions of equity in the sense the broad sense that if you make housing too expensive for people, it’s going to hurt the poor and the disadvantaged. If you don’t transition to to clean energy, the folk who are going to suffer the brunt of climate adaptation are the poor and disadvantaged. If you do not actually shut down coal fired power plants and new and natural gas plants, the folk who are going to get harmed by um the smoke and fumes that are coming out of those facilities are the poor and disadvantaged. Um. If you can’t build reliable public infrastructure, the folk who are going to be harmed the most are those who depend most on it. So I think of this as a way of helping, um you know, the most disadvantaged among us, including racial minorities, but also including future generations, our kids, our kids kids, and I think that’s a message that the Democratic coalition can hear. Um. I don’t think that the folk who care about those issues the most who are centered around those issues share my um attitude about what what’s holding us back. My concern, like I think many of them, are doubling down on some of these procedures in an effort to protect what’s what they care about most. But that’s how I think about the project. 

Brian Beutler: Well, I guess I in my experience with wih progressives and and people on the left generally, is that like that the emotional resonance of the of the simplicity thing isn’t the simplicity, it’s the panacea. Like there is a major injustice and we are going to bring one hammer down. 

Nicholas Bagley: Got it. 

Brian Beutler: And it’s going to be fixed. 

Nicholas Bagley: Yeah. 

Brian Beutler: Right? 

Nicholas Bagley: Yeah. 

Brian Beutler: And that’s that’s the appeal of single payer. I think that people also want a big panacea for climate change, right? They want they want the Green New Deal, right? They want one bill. And we’ve done it like we’ve done everything we possibly can to do this and there’s like a hopeful future. And I think similarly in the housing realm and other things that so much so many obvious, visible, tragic problems that like if if if you can approach them with this, like, look, if we just make some changes to how we allow government to operate, we can solve this problem much, much, much, much, much faster than if we don’t. Um. And that it’s a there’s a coherence there. 

Nicholas Bagley: Yeah. I am sympathetic. 

Brian Beutler: They see it in breaking up the big banks and in single payer health care. But it’s it’s a very similar concept I [?]. 

Nicholas Bagley: Yeah. I mean, I think there’s there’s something to be said for valuing simplicity because complexity has costs that are hard for you to always see or acknowledge and that you may otherwise paper over. And so, you know, part of my concern here is that people think, you know, adopt NEPA and people just think about the environmental consequences. It’s no big thing. But it turns out in practice, when it’s institutionalized in an agency. It becomes paralytic. Right. It actually makes it very much harder than you would expect on the outside. By the same token, the complexity of our health care system creates unbelievable problems that we would love to be able to wave a magic wand and get away from. Um. So I’m sympathetic. I will say, you know, like. I think in all of these contexts, progressive might progressives might just want a big hammer, that wasn’t on the table in 2010, as much as I wish it were. Um. And there’s not going to be a big hammer for the green energy revolution. There’s not going to be a big hammer for housing. There’s not going to be a big hammer for infrastructure. These are all individual fights that we’re going to have to fight relentlessly, doggedly, day after day, day after day, day after day. And it’s tiring, it’s exhausting, it’s hard. But that’s politics. 

Brian Beutler: Okay. Last question then. Do you think that by, say, like September of next year, there will be enough big developments, big projects either underway or completed from Biden’s first two years for him to be able to go campaign not just on like the normal stuff, but to be able to point to big cool things and say you want more of that or you want to go back to the wall on the border that never got built. Is that a feat? Like, is that possible or is are things like NEPA, judicial review, whatever else going to leave Biden in September 2024 saying, trust me, these things are coming unless you vote me out. 

Nicholas Bagley: It’s a little bit of both. Um. There have been extraordinary investments in bringing industrial plants to mainly red states. But here in Michigan as well, we’ve got new EV plants, we’ve got new chip plants coming online. They’re going to be sites where they’ve broken ground at least, and sites where they’ve even made more progress. No question about it. Um. Will there be all of the jobs that are promised, will they have materialized by next year? No. Um. Will there be um, you know, new bridges that are coming out of the ground that weren’t there at all two years before? No. Um. Will there be massive new renewable facilities and sites that were not even under contemplation before the Inflation Reduction Act? No, um but we’re making progress in all these fronts. He’ll have something to point to. The question is whether that’ll resonate with people or whether they’ve just written off, you know, politicians who make these promises as if they’re empty. I think when tragedy if that were to be the case, is that like you said at the beginning, Joe Biden’s promises here have not been empty. I mean, the amount of money that he put behind some of these initiatives is extraordinary. Um. There hasn’t been commensurate thought given yet to getting rid of some of these procedural roadblocks, but there is thought and effort being put into that. And I am optimistic that the trajectory is the right direction. Whether he’ll get credit for that is another question altogether. 

Brian Beutler: We shall see. Nicholas Bagley, thank you for spending so much of your time with us this week. This was a really edifying conversation. 

Nicholas Bagley: Oh, I mean, it was an honor. Thanks for having me on. [music break]

Brian Beutler: Positively Dreadful is a Crooked Media production. Our executive producer is Michael Martinez, our associate producer is Emma Illick-Frank and a hearty send off to our intern, Naomi Birnbaum. Evan Sutton mixes and edits the show each week. Our theme music is by Vasilis Fotopoulos. [music break]. 

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