Recently I presented a new paper at the annual Society for the Advancement of Socio-Economics conference in Chicago (US). The paper seeks to better understand the widespread involvement of non-governmental organisation in the regulation and governance of the built environment. This paper sits in a larger research project organised by Professor David Levi-Faur on regulatory intermediaries. Regulatory intermediaries are
regulatory actors with the capacity to affect, sometimes control, and sometimes monitor relations between rule-makers and rule-takers via their interpretations of standards and their role in the increasingly institutionalized processes of monitoring, verification, testing, auditing, and certification. … Regulatory intermediaries include individuals and organizations positioned to play a more consistent and systematic role in the regulatory regime, unlike ad hoc regulators that are ad hoc alarmist. These actors are increasingly entrusted with ongoing regulation because of their intimate familiarity, often as expert professionals, with the processes of rule-making, rule-intermediaries, and rule-enforcement (Levi-Faur and Starobin, 2014, pp. 21-22)
Strikingly, the regulation and governance of the built environment is crowded by such regulatory intermediaries. In the paper I discussed a sample of 50 of such intermediaries that I selected from the various studies I have been involved in over the last years. In itself this sample of 50 regulatory intermediaries in the regulation and governance of the built environment stresses Levi-Faur and Sharobin’s point: no longer is government the sole or final authority in this field.
To give some examples, a number of regulatory intermediaries that I have come across over the last years are:
- Private sector or non-governmental organisations that are involved in the development of building codes. Examples are the German DIN or the international ISO. These take up rule-making roles, as per the above definition.
- A range of private sector inspectors, certifiers and accreditors that inspect and assess building plans and construction work against building codes, and sometimes issue building or occupation permits. Typical examples are private certifiers in Australia and certified professionals in Canada. These take up rule-enforcement roles, as per the above definition.
- A range of non-governmental organisations that were founded to develop a series of voluntary building assessment tools, such as BREEAM and LEED. These often take up rule-making and rule-enforcement roles, as per the above definition.
Yet, my studies have uncovered additional types of regulatory intermediaries in the regulation and governance of the built environment. I typify these as ‘rule bridges’ and ‘rule pushers’. Rule bridges are regulatory intermediaries that bring together rule makers (say, government) and rule takers (say, architects, engineers, developers, etc), and to close the gap between these two.
A typical example of a rule bridge is is the Peer Experience and Reflective Learning Network (PEARL); India’s first national network of cities. It was introduced to support cities (as rule takers) in implementing India’s progressive city modernisation scheme the Jawaharlal Nehru National Urban Renewal Mission (JNNURM), and to support them in complying with requirements set by the Government of India (as rule maker) for obtaining funding for implementing the JNNURM. PEARL builds on city to city collaboration and cities to national government collaboration, and is supported by international organisations such as the World Bank and Cities Alliances. PEARL fosters peer learning amongst cities, promotes replication of best practices, and seeks to identify and address knowledge gaps and regulatory barriers by initiating dialogues between the cities (as rule takers) and the national government of India (as rule maker).
As rule pusher intermediaries may seek regulatory change, without actually proposing or developing regulation themselves. This role is closely related to traditional lobbying for regulatory change by industry and interest groups. Yet, it differs from it in that this rule pushing is done in a highly transparent and publicly visible way, often by bringing together a number of rule makers and rule takers to study a regulatory problem and propose a solution to it. Typical examples from my studies are ICLEI (Local Governments for Sustainability), the Mexico City Pact, the World Mayors Council on Climate Change (WMCCC), and the C40 Cities Climate Leadership Group.
These are global networks of cities that seek to address environmental and resource sustainability of cities. Through such networks cities share information and knowledge on their regulatory approaches to urban sustainability, and experiment with alternative regulatory approaches. Whilst not setting standards themselves these networks (as regulatory intermediaries) support cities (as rule makers) to learn from each other what regulatory approach may work best, where and why. Yet, it is particularly on an international level that these networks have a strong impact on pushing ahead regulation for urban sustainability. Because of the participation of a large number of cities (over a 1,000 in ICLEI alone), including the world’s major cities, these networks have significant political voice. This becomes evident, for instance, in these networks’ participation in United Nations’ international climate negotiations where they (as rule takers) push nation states (as rule makers) to implement stronger regulatory requirements for urban sustainability and resilience.
Now, why is a focus on these regulatory intermediaries and their roles important? The answer to that question is not all too complicated: they have a very strong impact on the regulation and governance of the built environment. This impact may be positive and negative. Some positive impacts that I have uncovered in my research are:
- The advantage for governments (as rule makers) to have these intermediaries involved is that the latter can address gaps in regulatory regimes. Typical gaps in such regimes is a lack of resources at government level to develop and implement building regulation and construction codes. Governments may lack the technical expertise, the manpower, or both. Involving intermediaries such as national standardisation institutes and private sector enforcers are a relatively easy ways to address these gaps for governments, without having to commit to a large workforce (i.e., it fits an ongoing trend of neo-liberalism and lean government).
- The involvement of rule bridges by governments may help built networks of rule takers and rule makers, and ease the development of future regulation or improve existing regulation.
Yet, not only positive outcomes may result from the involvement of regulatory intermediaries. In my studies I have come across some considerable constraints as well. Some of these are:
- Regulatory intermediaries clusters often have much to gain from regulatory change; may it be a reduction of regulatory barriers that eases doing business for them or opens up new markets, or the raising of barriers that makes doing business more complicated for their competitors. This self-interest may stand in the way of these intermediaries seeking to act to the larger public interest.
- Also, through active engagement with rule makers they may seek to capture the process of developing and implementing regulation, aiming for regulation and regulatory change that is in their private interest. Including these regulatory intermediaries may also result in a situation where already strong actors are given more voice (and power) in the process of rule making and rule implementation. This may result in a situation where these strong actors are overrepresented in such processes at the cost of weaker actors.
- Finally, by being highly active and highly visible in their activities these regulatory intermediaries may give the impression that they take sufficient action to address a regulatory problem. This may, in some circumstance, create an illusion that governments (as rule makers) do not have to take up regulatory roles themselves, for instance introducing statutory regulation.
In conclusion, regulatory intermediaries fulfill key roles in ensuring a safe, healthy and sustainable built environment, and a well-functioning construction sector. Yet, may paper also shows that too much reliance on regulatory intermediaries may be harmful.
Are you interested in reading this paper? Please send me an email and I will send you a copy.