The Washington PostDemocracy Dies in Darkness

Opinion Can America ‘do big things’ again? Ask the regulators and lawyers.

President Biden and adviser Mitch Landrieu, who oversees the distribution of $1.2 trillion in infrastructure funding, in a White House meeting, April 29. (Demetrius Freeman/The Washington Post)
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With a shaved head atop a solid slab of a body, Mitch Landrieu is built like a bullet. But an amiable one, whose happy job is to efficiently dispense $1.2 trillion from a legislative cornucopia to the federal agencies, governors and mayors. Which is easier said than done.

He was lieutenant governor of a red state, Louisiana, 2004-2010, and mayor of a blue city, New Orleans, 2010-2018, and since November has been President Biden’s choice to oversee implementation of the infrastructure legislation. Landrieu became mayor with much post-Katrina reconstruction remaining to be done. And Biden knows that after the 2008-2009 recession, President Barack Obama concluded that the stimulus funding for “shovel-ready” infrastructure projects proved that “there’s no such thing”: His projects had to surmount nearly 200,000 environmental approvals. Lawyer-ready, not shovel-ready.

Two months ago, Georgia celebrated the completion of an almost $1 billion infrastructure project, the deepening of the 38-mile Savannah River channel through which container ships, the symbols and enablers of globalization, approach the nation’s third-busiest port. The five-foot deepening involved not some recondite engineering challenge; essentially it required moving muck. And it took almost seven years — after 14 years consumed surmounting environmental and other regulatory hurdles.

Time was, the nation did things quicker. Beginning in 1930, it built the Empire State Building, then the world’s tallest building, from a hole in the ground to its topping off, in 410 days. It built the Pentagon, the world’s largest low-rise office building, in 16 months — during World War II. That was then. This is now:

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Nine years of permitting processes, 2003-2012, were required before the construction of a San Diego desalination plant. Philip K. Howard, a Manhattan attorney (Covington & Burling) and student of coagulated government, notes that five years and 20,000 pages of environmental and other compliance materials (there were 47 permits from 19 federal, state and local agencies) preceded the project of raising the roadway on New Jersey’s Bayonne Bridge, which involved no serious environmental impact because it used existing foundations.

“Everything,” Landrieu acknowledges, “is a slog.” In his first six months on his current job, he pushed $110 billion “out the door.” About half of the $1.2 trillion will fund what most people think of as infrastructure — roads, bridges, airports, ports. The other half will fund infrastructure capaciously defined — expanded access to high-speed internet, cleaning the Great Lakes, the Everglades and other waters, installing 500,000 electric vehicle charging stations (about 10 percent of what will be needed, Landrieu says), etc.

The word “infrastructure,” denoting shiny new things everyone can see and use, polls well, so the phrase “human infrastructure” was coined to give momentum to social programs. Landrieu, however, defends at least some of this semantic legerdemain. Unemployment is low, workers are scarce, and so federal spending for day care is infrastructure at one remove because it gets more women into the workforce.

Commentator Ezra Klein, arguing that America needs “a liberalism that builds,” says the nation “is notable for how much we spend and how little we get.” This tendency will be made worse by Biden’s “buy American” policy. His liberal industrial policy will make the $1.2 trillion buy fewer construction materials: The Peterson Institute for International Economics estimates that buy American requirements probably cost taxpayers more than $250,000 for every job supposedly saved, and the Heritage Foundation cites a report that “deregulating procurement” would add 363,000 jobs.

Klein says Japan, Canada and Germany build a kilometer of rail for $170 million, $254 million and $287 million, respectively. The United States: $538 million. “The problem,” he says, “isn’t government. It’s our government … Government isn’t intrinsically inefficient. It has been made inefficient.”

But perhaps the U.S. government is unusually susceptible to being made so because of what University of Michigan law professor Nicholas Bagley calls “the procedure fetish.” (“Inflexible procedural rules are a hallmark of the American state.”) The result is what Howard calls “rule stupor.” All this is made in America by a homegrown chimera: the progressive aspiration to reduce government to the mechanical implementation of an ever-thickening web of regulations that leaves no room for untidy discretion and judgment. Nowadays, add “equity” and “environmental justice” to the lengthening list of ends that an infrastructure project must include.

“We are,” Landrieu says, “in a short-term world solving long-term problems.” One such problem is that Americans no longer believe what Biden says the infrastructure law will prove: that the nation “can do big things again.” Landrieu’s task is to make the law prove rather than refute this.