Less red tape, more trains: SCOTUS boosts the ‘abundance' agenda
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Some environmentalists decried the ruling. 'This disastrous decision to undermine our nation's bedrock environmental law means our air and water will be more polluted, the climate and extinction crises will intensify, and people will be less healthy,' Wendy Park, an attorney for one of the environmental groups that challenged the railway, told Reuters.
But the more interesting story here was the dogs that didn't bark — the liberals that a decade ago probably would have lambasted the ruling, but were notably silent. It's also interesting that the court's three liberals joined the 8-0 ruling (one justice recused himself).
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Broadly speaking, the abundance theory is that Democrats need to show they can do stuff and build things if they are going to win the trust of voters. For too long, progressives have said they believe in the power of government to help people — to build housing, transit lines, clean energy, etc. — but then hobbled the ability of either the government or the private sector to actually do any of those things. Now voters just don't believe their promises — and they're right to be leery, since progressive rules too often turn progressives priorities like the California High Speed rail project into quagmires.
Indeed, parts of Kavanaugh's ruling sound eerily like the words of a Democratic policy wonk.
Because of overly onerous reviews, he wrote, 'fewer projects make it to the starting line. Those that survive often end up costing much more than is anticipated or necessary… And that also means fewer jobs, as new projects become difficult to finance and build in a timely fashion.'
The original 1970 environmental-review law was never intended to work this way, he said.
'A 1970 legislative acorn has grown over the years into a judicial oak that has hindered infrastructure development 'under the guise' of just a little more process,' he wrote.
'The goal of the law is to inform agency decision-making, not to paralyze it,' he wrote.
A rail overpass being built in Hanford, Calif., that may or may not carry high speed trains at some point.
IAN C. BATES/NYT
The gist of the ruling is that projects can't be expected to analyze every imaginable environmental impact. It's one thing for backers to study the immediate, predictable environmental impact of a construction project on wildlife, for instance. But environmental groups also wanted the Utah review to include an analysis of the extra greenhouse gas emissions the project
could
lead to
if
it led to more global oil production and use that pushed up emissions, something that was outside the control of either the railroad or its regulators.
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It's easy to see how that thinking can lead to absurd outcomes. The further from the actual project, the more an analysis of environmental 'impact' is built on speculation and conjecture. At an extreme, it's like asking the butterfly to study its environmental impact on the hurricane. There has to be some limiting principle on the scope of reviews to avoid the kind of paralysis that Kavanaugh warned about — and that California's rail project in fact experienced.
You probably won't find a Democrat willing to say it, but Kavanaugh and the court did them a big favor. They can spend less time fighting among themselves now that the decision has been made for them to narrow the scope of environmental review. And the next time progressives run on promises to build transit lines or green energy, the ruling makes it a little bit more likely they'll actually be able to deliver.
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Alan Wirzbicki is Globe deputy editor for editorials. He can be reached at
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