No Judgment was Used

Just stumbled across this:

We built our government to have a lot of surface area for objection from those outside it, for obvious reasons. If you believe someone is going to object to the decisions you make, you try not to make them. A culture emerges in which the goal is to have decisions be the outcomes of processes, not people. You want to be able to defend any decision from criticism by demonstrating strict adherence to a process in which no judgment can be questioned because no judgment was used.

The passage appears to come from a book by Jennifer Pahlka called Recoding America: Why Government is Failing in the Digital Age and How We Can Do Better.

Pahlka is very astute. This is exactly how the regulations I work under are supposed to work, notably NEPA and Section 106 of the National Historic Preservation Act. These regulations do not specify outcomes, they only lay out who has to be consulted and what information has to be considered. (Also, that more than one alternative has to be considered, including the option of doing nothing.) In a typical Section 106 consultation process there will be "consulting parties," some of whom are legally obligated to participate (federal and state agencies), some of whom have a legal right to participate (Indian tribes, certain local governments), and some of whom have just asked to participate (local historical associations, preservation groups, self-proclaimed representatives of ethnic groups). Those last are usually allowed a seat at the table because 1) letting them have their say smooths acceptance of the final result, and 2) if they are unreasonable you can just ignore them. 

So a lot of time and money is spent holding meetings and producing reports and briefings for the consulting parties.

The thing is, regardless of what anybody says in the meetings, the lead federal agency has the absolute right to do whatever they want. I have seen cases in which they just say "forget all of you" and go ahead. I have in fact urged this course on my clients from time to time, although generally without success, because the agency leads almost always try to reach consensus in the meetings. This makes everyone's lives nicer, and they can feel better about what they are doing. But also, as Pahlka says, because the real decision makers like to hide their power behind the process. That is how the best and most effective bureaucrats operate, guiding things toward the outcome they want without making anyone mad or drawing attention to their own ambition.

But what I would ask is, what would be better? Just going ahead with every idea anyone ever came up with for a new road or what have you? 

I have seen cases in which bad ideas were halted by this process. Every instructor who teaches people how this stuff works has a long roster of projects that went badly because the process was not taken seriously, in particular the requirement to weigh different alternatives. I have also seen cases in which political decision-makers used the process to overcome objections from the public to a development they wanted; NEPA and Section 106 give them a way to fire back at people who claim (someone always does) that this project would destroy uniquely important environmental or historic resources.

I get it that the process is expensive and time-consuming. But one of the most corrosive problems in our world is that millions of people think big changes happen without their having any say, or any chance to voice their objections. These laws give them that chance, as do all other laws requiring public hearings before actions are taken. 

If it were up to me I would make a lot of changes to this process, since in some ways I think it has gotten absurd. But I would not abolish it, because in a democracy we really should let the people have a chance to speak.