Category: Opinion

  • Congress cannot regulate what it refuses to define

    Every artificial intelligence bill introduced this session leans on a definition broad enough to capture a spreadsheet. This is not sloppiness. It is the load-bearing compromise, and it is why none of the bills will work.

    The pattern is consistent. A bill defines its subject as a system that makes predictions, recommendations or decisions influencing real or virtual environments — language borrowed, with minor variation, from an international standards document. Then it carves out. The carve-outs run for pages and they are where the actual policy lives.

    Drafting this way has an obvious appeal. A broad definition survives contact with technology that has not been invented yet, and the carve-outs can be negotiated with the industries that show up. The cost is that the resulting statute means whatever the negotiation produced, which is to say it does not mean anything in particular.

    Regulated parties respond rationally: they hire counsel to determine which carve-out applies, and if none does, they hire counsel to argue for a new one. Enforcement agencies respond rationally too, by declining to bring cases where the definitional question is the whole case.

    There is a better approach and Congress has used it before. Regulate the harm, not the technology. Credit discrimination is illegal whether the decision came from an underwriter, a scorecard or a model. Medical devices are regulated by function and risk class, not by whether software is involved.

    Sector-specific regulation is slower and less satisfying. It produces no headline, no framework, no single bill that a member can point to. It also produces rules that mean something on the day they take effect, which the current drafts do not.

  • The permitting bill is an infrastructure bill in disguise

    The permitting reform package moving through committee is described by its sponsors as a process bill: shorter environmental reviews, tighter judicial deadlines, a consolidated lead agency. Nothing in it appropriates money, which is the entire basis of its bipartisan support.

    It is an infrastructure bill. The reason nobody calls it one is that calling it one means paying for it.

    Consider what the bill actually requires. Shorter reviews demand more reviewers — the delay in a typical transmission review is not deliberation but queueing, and a queue clears faster only when it has more servers. Consolidated lead agency authority requires the lead agency to have staff competent in the disciplines it has just absorbed. Tighter judicial deadlines require courts that can meet them.

    None of these capacities exists at current staffing. The Bureau of Land Management’s renewable energy programme has lost roughly a fifth of its permitting staff since 2021. The Council on Environmental Quality has fewer analysts than it did in 2010.

    The honest version of this bill would pair every process change with the appropriation that makes it achievable. That bill would cost perhaps $2 billion a year, a trivial sum against the capital it would unlock, and it would fail, because the coalition holding the current version together is held together precisely by the absence of a number.

    So the bill will pass, and the deadlines will bind agencies that cannot meet them, and in three years there will be hearings about why permitting reform did not reduce permitting time.

  • Water rights are the new zoning fight

    Watch a county hearing on a proposed groundwater withdrawal and then watch one on a proposed apartment building. Close your eyes for either and you will not be able to tell which is which.

    The structure is identical. An applicant with capital arrives with a technical study. Residents arrive with concerns about a shared resource and a suspicion that the study was commissioned to reach its conclusion. An elected body with limited technical staff must decide, and it decides on the politics, because the politics is the part it understands.

    The arguments rhyme down to the phrasing. Character of the community. Cumulative impact. Who was here first. Why should we bear the cost of growth that benefits somebody else. These are not bad arguments. They are the arguments people make when a decision affects them and they have no other lever.

    What is different is the physics. A zoning fight lost is a building that gets built and a neighbourhood that adjusts. An aquifer overdrawn does not adjust. Land subsides, wells deepen, and the water that was there is not there in any timeframe a county board can plan around.

    That asymmetry argues for deciding these questions at a level above the county, on hydrological boundaries rather than political ones, with technical staff that the applicant does not pay for. It is also the argument that has failed in every western state that has tried it, for the same reason regional zoning fails: nobody wants to be governed by a body they cannot vote out.