So far, in this series on institutional factors behind differences in the quality and cost of public transportation infrastructure, I’ve gone over procurement, public-sector oversight, and transparency. These three posts can be read together as a series: procurement is the keystone, and to get it right it is critical to have high-quality in-house supervision of the work, and to get that right in turn it’s important to cultivate transparency.
Today I’m going to turn the camera 90 degrees and talk about another relevant issue: that of proactive versus reactive state regulation and supervision. This is related to the issue of oversight, in that proactive regulation requires deeper in-house expertise and detachment from politics, so that the state can effectively make changes as necessary based on changes in travel and social patterns and advances in knowledge by scientists and practitioners.
Nudging and doing
One of the distinctions I’ve noticed regarding different regulatory traditions is whether the regulators do things or merely nudge. This is related to the issue of oversight, in that strong engineering bureaucracies that do design and planning in-house also come up with their own sets of clear rules.
The Italian civil service does rather than nudges: there are clear proactive rules by the Ministry of Culture about the protection of historical monuments, limiting the permitted building settlement in sensitive areas to 3 mm. Such proactive clear rules lead to a more predictable legal situation since it’s easy to measure what is and what is not legal, reducing risk. Long-term standards that impose real costs on business also soon sprout innovation for how to follow them while minimizing costs, as is the case for Japanese and Chinese zoning standards for light; ad hoc rules instead impose new costs every time, since the investment in trying to adapt to them would be spread across just one project rather than many.
The American regulatory apparatus has a mixture of doing and nudging. Environmental protection is almost entirely adversarial: the National Environmental Protection Act requires agencies to prepare environmental impact statements (EISes) before every project, but those are not judged by regulators but instead subject to lawsuit, and soon the nudge turns into red tape with hundreds of pages in an EIS aiming to anticipate every possible legal objection. Labor law is largely adversarial, but some states have passed triple damages statutes, in which the penalty for violation is specified at three times the missed wage and therefore workers do not have to litigate against much better-resourced employers.
The disability rights regime in the United States is a mix but include a significant amount of doing. There are clear standards for elevator accessibility, longest path of travel for people in wheelchairs, and maximum permitted gaps between the platform and the train; more recently, the FRA has wanted to mandate automatic gap fillers on mainline rail in order to permit passengers in wheelchairs to board unaided even across small gaps.
This is related to the issue of adversarial legalism, but is not exactly the same. There is plenty of adversarial legalism in the American disability rights regime, in which agencies refuse to follow the law and dare advocates to sue them.
Moreover, federal regulations in the United States remain a matter of nudging more than doing whenever there is any interaction with state and local authorities; instead of coordinating different authorities from a position of being able to engage in planning things itself, a federal agency will often try to nudge through offering incentives.
Two examples of equity
There’s a sense in much of the planning world in both the United States and Europe that it is necessary to proactively plan cities and transportation for the benefit of disadvantaged groups, or else even well-meaning planners would make unquestioned assumptions that harm such groups. It’s worthwhile examining the differences between the approaches to such planning, because one is proactive and the other reactive.
Before going on, I would like to point out a huge difference that is not about proactive planning: in the United States, the Title VI process for egalitarian planning (currently in revision, for which I’m very likely to submit comments make this and other points) centers racial equity, as a legacy of the civil rights movement that it came out of. In Europe, planners persistently ignore the problem of racism, and people of color are severely underrepresented in the civil services that I’ve seen, which issue is so glaring it makes Americans discount any European experience. However, European planners do look at class equity (for example, in Paris) and gender equity (for example, in Sweden), and there, they aim for proactive changes to reduce barriers to access.
The Swedish system is accessible to the English speaker, because feminist writers in English have occasionally looked to the Nordic world for inspiration, and outlets like Streetsblog have examined gender-based planning in Sweden. In 2015, Stockholm examined travel patterns by gender and found that women walk and take public transportation more and drive less than men, and as a result, it changed its snowplowing patterns to prioritize sidewalks over roads.
I was similarly told that when Swedish cities do surface construction, such as the cut-and-cover stations of Västlänken in Gothenburg or the cut-and-cover entry halls into the deep mined stations of the Stockholm T-bana extensions, by regulation the contractors must preserve sufficient sidewalk space on the street for pedestrians. If they need to open up most of the street, they can take car traffic lanes. The reasoning isn’t corrective discrimination, but rather that past planners, who prioritized keeping roads open over sidewalks, had erred because of conscious or unconscious discounting of the experience of women. The change in snowplowing practices led to a fall in injuries, since three times as many people in Sweden were injured walking in icy conditions as driving.
The Swedish system is proactive: the municipality or the state comes up with actionable, concrete changes based on its understanding of travel pattern. Researchers working for the city, perhaps in partnership with activists, notice a discriminatory practice, and come up with an alternative.
Now consider the American system. Title VI does not offer a clear set of practices for anti-racist transportation planning. It instead requires agencies to engage in review of their practices whenever they propose a change, leading first to status quo bias and second to arbitrary enforcement of rules. Much of the enforcement is not done top-down by regulators who are apolitical subject matter experts, but bottom-up from lawsuit or the threat thereof with supervision by judges trained in law but not in the specifics of transportation.
Status quo and reactivity
The worst aspect of reactive planning is that it leads to status quo bias. American regulations for civil rights and environmental protection require review of changes, but not of the status quo. The process can stop an agency from implementing a change or delay implementation until mitigations are done, but it cannot compel an agency to take an action it does not wish to take.
To nuance this somewhat, a judge can put an agency under a consent decree. But that already assumes an adversarial relationship between the state and itself. The process can imposing fines and constraints on an agency that does not want to do something, such as following ADA law and installing elevators at every subway station (something Berlin, an older system than New York, is about to complete systemwide). But it cannot literally build elevators there itself. It’s akin to the Jewish concept of a get, in which a rabbinical court can impose arbitrary fines on a husband who refuses to grant his wife a divorce, where what is needed is to permit women to initiate divorce without their husband’s permission.
A more proactive and less reactive regulatory culture can break out of the status quo trap. The first thing it must do is create a system that does not privilege the status quo: if a change is subject to review on such grounds as accessibility, racial equality, and environmental protection, then current practice must be as well. If it turns out that current practice falls short or is discriminatory, as Sweden’s snowplowing priorities were a decade ago, the agency must change its ways based on clear, concrete standards.
More proactive regulations are more obtrusive and visible, but they reduce costs and improve service quality. They are more sensitive to the current economic and social conditions and to the state of present-day knowledge than to the conditions and knowledge of a generation ago. They are more legible to the public and to contractors, who can then come up with ways to follow them without gambling on favorable judicial or political rulings. And they are less likely to surprise agencies deep into the process with a sudden imposition.
A state that acts as a helping hand rather than a grabbing hand helps more by governing more. Making it easier to ditch a status quo that worked for the world of yesterday but doesn’t for that of today or tomorrow, or one that never worked but was falsely believed to work, allows it to govern more efficiently. It’s necessary then to ensure that the highest-level civil servants who regulate transportation be empowered to make concrete decisions and coordinate lower-level agencies rather than just nudging in the right direction.