Today the process is interminable, because any naysayer can complain that some pebble was left unturned—and who knows what will happen in court? Far better to give an environmental official responsibility to decide when important facts have been set forth instead of letting the process spin its wheels for a decade and then end up in court. For other permits—for instance, for land-use regulations, navigable-waters approval, landmarks review, and the like—there should also be a “one-stop shop”—a lead agency with the job of coordinating all regulatory concerns. That’s how other greener countries such as Germany are able to approve new infrastructure projects in a fraction of the time it takes in the United States.
Civil Service: More than 20 million people work for federal, state, and local government. Most of them perform needed services. But the accretion of antiquated and unjustifiable work rules has rendered them practically unmanageable.
Hiring and promotion is largely based on written tests, not demonstrated competence. Promoting an exemplary employee is often impossible. Work rules can prevent supervisors from asking workers to pitch in. In New York City, how to use a new copying machine and who can use it is subject to collective bargaining. Firing an incompetent employee under civil-service bureaucracy is almost impossible.
Any critique of this regulatory jungle is met with sanctimonious remonstrations about workers’ rights and the return of the spoils system. But the only relevant criterion for any regulatory structure should be whether it is in the public interest. By that standard, the current civil-service system is indefensible.
The solution is straightforward. Scrap the system and replace it with principles designed to achieve the original goal of a merit system. Avoiding spoils is not hard: Funnel hiring through an independent agency. Work rules should be replaced by general principles, overseen by a neutral review board. Eliminate the presumption of lifetime service, as recommended by the Partnership for Public Service. Terminating a public employee should trigger a safety net, not years of litigation.
Principles, ironically, are less susceptible to abuse of state power and gamesmanship than precise rules. One of the many paradoxes of “clear law” is that no one can comply with thousands of rules. With principles, a citizen can stand his ground to an unreasonable demand and have a good chance of being supported up the chain of authority.
There is still a place for precise rules. Rules are effective in situations where the protocol is more important than context and balance—say, with age limits or effluent discharges. Management expert Brenda Zimmerman makes the distinction between the legal framework for “complicated” activities—such as engineering or rocket launches, where a small error might have disastrous results—and “complex” activities, such as running a health-care system or regulating nursing homes. For “complicated” activities, rules and checklists can impose the discipline to avoid disastrous error. For “complex” activities, general principles are far superior, because they allow people to adapt to many moving parts. The more complex the area of oversight the simpler and more flexible the regulatory framework must be.
But what about human error and venality? Does law based on principles mean we must trust people? Of course not. That’s why accountability is still important. Moreover, for important decisions, a structure can require approval of several people. Nothing can get done sensibly or fairly, however, until we reconstruct government with a legal framework which liberates people to roll up their sleeves and make things happen.