We all know the Deepwater Horizon oil spill of 2010 was caused by a regulatory failure. But what if the failure was too much regulation?
Regulations are set up to be as extensive as possible, a series of if/then propositions meant to remove any human element — any thinking or judgment. If this happens, you must do this. If this goes wrong, you respond in this way. When a crisis arrives, you may be thumbing through the rulebook instead of using common sense.
When the oil rig started leaking mud and gas, the crew should have simply directed the flow over the side. Dumped it in the gulf. That would have been a small oil spill, of course, and no oil spill is a good thing. But in trying to avoid that, the crew caused a gigantic oil spill. Eleven lives were lost.
Safety protocol called for the men to aim the flow into a safety gizmo called an oil and gas separator, but that became backed up and made matters worse. Explosive gas filled the air around the rig, which finally exploded.
Then some workers who escaped in a raft almost died. Why? They were tied to the burning rig, and regulations forbade them to carry knives so they couldn’t cut themselves free.
Such regulatory horror stories are the basis of Philip K. Howard’s alternately measured and sickening book “The Rule of Nobody.”
The book is a plea to get things done, and an explanation of why they aren’t.
In New Jersey, the Bayonne Bridge is too low to admit the forthcoming new generation of taller container ships to Newark Harbor (the largest port on the East Coast). Jobs linked to the port will evaporate if the bridge isn’t modernized, and an alert Port Authority manager named Joann Papageorgis figured out how to do it: Raise the existing span in stages (instead of building a new bridge, with all of the ramps and street clearances that go with it).
But the project has been mired in environmental-impact studies since 2009, painstakingly acquiring 47 permits from 19 governmental agencies. The PA was required to waste time on a historical survey of every building within a two-mile radius of the bridge, even though no buildings will be affected by the construction. Work finally started this year.
And don’t even think about replacing the rusty, inefficient national electrical grid.
“The main reason is that government cannot make the decisions needed to approve it,” Howard writes. “New transmission lines would go through forests and across deserts. Some people will object. Multiply the Bayonne Bridge bureaucratic hurdles a hundredfold.” Only a hundred?
Howard points out that many of the philosophical building blocks of the regulatory maze were manufactured by conservatives. Austrian economist Friedrich Hayek, one of the godfathers of free-market thinking, declared that “government in all its actions . . . should be bound by rules announced and fixed beforehand — rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances.”
Conservatives deride mindless, slothful bureaucrats shuffling through endless corridors of regulation — but we also fear what would happen if the law freed them up to take some initiative.
Howard’s proposed fix is witty, and intriguing: a follow-up to the Bill of Rights called the Bill of Responsibilities. These would be five new Constitutional amendments aimed at making government work better.
For instance, a sunset amendment that provides for the expiration, every 15 years, of all laws having budgetary impact. Criminal laws would be exempted. This amendment would have the great added benefit of moving Congress into a permanent catch-up mode to renew old laws, decreasing its ability to do new mischief.
Another amendment would give the president the authority not to spend budgeted funds, another would allow him or her to fire civil servants (providing hiring was done in a nonpartisan way).
To limit frivolous litigation, another amendment would provide that no one would need to respond to a lawsuit until a judge determined its claims were reasonable.
As seen through the eyes of Howard, who runs the reformist government group Common Good (“After a few hours on Capitol Hill, I need a shower to wash it all off”), government has, like SkyNet in “Terminator 2,” become self aware.
It’s a matrix that long ago became detached from us and now operates mainly to preserve itself. Unlike the national power grid, though, it has figured out how to keep strengthening every strand in its web.