⤴⤵ The rise and (maybe) fall of NEPA: A Quick Q&A with … law professor Nicholas Bagley

America needs to take a step forward toward a future of abundant energy (among other things we need more of)

My fellow pro-growth/progress/abundance Up Wingers,

In a recent Supreme Court case, Seven County Infrastructure Coalition v. Eagle County, the court solidified agencies’ significant power over NEPA, a landmark legislation that has stood as a roadblock to infrastructure development since 1970. Is this ruling simply the predictable outcome of a conservative-majority Supreme Court, or could it signal the rising tide of the Abundance movement and an era of deregulation? I asked Nicholas Bagley a few quick questions about the American administrative state and the opportunity to correct decades of overregulation.

Bagley is an administrative and health law expert. He is a professor of law at the University of Michigan and served as special counsel and chief legal counsel to Michigan Gov. Gretchen Whitmer in 2020 and 2022, respectively.

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1/ Tax rates go up and down, the national debt as a share of GDP goes up and down, but it seems that the administrative state does not retreat — the rules keep on coming. At the heart of the “Time to Build” movement in Silicon Valley and the “Abundance” movement on the left is this notion that there are too many rules. Do you think I have that right? How did this happen?

The Abundance movement is not primarily a criticism about the efflorescence of government regulations writ large. It's really about . . . the way we've made it much too hard and too difficult for government to get stuff done.

I might reframe it slightly. I think the core of the Abundance criticism is that we have layered too many rules on top of the government, made it much too hard for the government to get stuff done, and that has effects on the private sector in all sorts of ways.

On the one hand, it contributes to a kind of sclerosis that makes it very difficult for government to get new permits issued, to allow for the construction of new infrastructure, to support the development of nuclear energy, et cetera, et cetera. So some of the criticism is about the way we've strangled government.

At the flip side, there's also a criticism about the way that the rules that we've created to structure how government interacts with citizens have enabled private groups with disproportionate power to effectively hijack the process for their own purposes. That would be, for example, homeowner associations that make it very difficult to build new housing, or NIMBY groups that oppose any new construction in their areas, and stuff like that.

So it's not a criticism — which isn't to say there's not stuff to criticize. The Abundance movement is not primarily a criticism about the efflorescence of government regulations writ large. It's really about — at least as I understand it — the way we've made it much too hard and too difficult for government to get stuff done.

One of the reasons this is a little bit controversial, or at least it can be, is if you make it easier for government to do stuff, you make it easier for government to do good stuff and for it to do nasty stuff. There's no question, there are lots of regulations on the ground that make it difficult for private enterprise to do its own work. I think the Abundance agenda is really sensitive to that concern, but it's not primarily attuned to that concern. It's not adopting a libertarian or conservative legal-movement approach to too many regulations. What it's saying is we've made it much too hard for government to function. I think that does have implications for regulatory excess.

One of the things that we see is it's very hard for agencies to nimbly respond to the private sector, to get rid of old and outdated regulations that no longer do any good, to have the self-confidence to say that we no longer need to regulate X, Y, or Z because the costs of that regulation exceed the benefits and the like. But the Abundance movement, as I understand it, is primarily directed at a slightly different concern.