Institutional Issues: Proactive and Reactive Regulations
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.
Pedestrian Observations 
I don’t think this article is very clear.
Enforcement clouds your examples. Just to review: for much transportation law in the US, unlike in Europe, regulators do not directly enforce regulations; instead private citizens enforce the law through threat of lawsuits. This technique is inefficient, because the punishment for violating regulations is not so much an adverse verdict (wherein an agency usually just agrees to change its plans), but rather the time delay and legal fees associated with resolving the lawsuit. The latter costs increase in proportion to the number of actors, and are (roughly) independent of the claims’ merit!
Once you quotient out by the inappropriate choice of enforcement mechanism, then (I think) what you criticize is a delegation of the regulatory process. Regulators don’t have the resources to determine adequate standards to achieve societal goals, so they rely on regulated actors to develop draft standards while attempting projects, and then crib from that work. Perhaps this is “proactivity-vs.-reactivity”, but I wouldn’t summarize it that way; I would just describe it as insufficient staffing and expertise at the planning agencies.
Moreover, while you suggest that the major flaw with a delegatory regulation technique is a failure to update: societal goals change, but the lack of state capacity means regulators haven’t the resources to review their old work. I’m not convinced that this is _the major_ flaw, although it certainly is one.
First, this governance model reminds me of “design-bid-build” contracts: the state sets a goal, asks private companies to suggests means for achieving that goal, and then uses the results to guide subsequent contracts with the private sector. Perhaps this is too high a level of generality, but could you comment on whether the flaws you see in DBB should be replicated in microcosm here (or not)?
Second, your discussion of amortizing project costs suggests that regulators do _not_ follow the idealized model above, because they do not adopt first movers’ draft standards for subsequent projects; instead, the state and the regulated sector must renegotiate each project. That is, suppose legislation changes the law, and initial projects lead the (private) contractors to develop tentative standards. Do regulators fail to record and apply those tentative standards? If so, why? (My guess is that the enforcement mechanism prevents this sort of “clearance reuse”…but isn’t that sort of reuse the point of stare decisis?)
I wonder about the assertion: “the punishment for violating regulations is not so much an adverse verdict (wherein an agency usually just agrees to change its plans), but rather the time delay and legal fees associated with resolving the lawsuit.” If that’s so, why do agencies fight lawsuits so viciously? Why does the MTA hire Paul, Weiss[1]–at a cost of thousands per hour–to fight elevator installation in subway stations, instead of just doing it? It’s because sometimes it works. The regulations are squishy enough (and subjectively enforced enough) that it pays to roll the dice on getting a judge who’ll free you of your responsibility.
I would argue instead that the lousy, inefficient mechanism of enforcement-by-lawsuit is working as intended: in the US (at least), regulations are occasionally passed to satisfy one set of political goals; but the more powerful political goals–of inertia/established practice; of entrenched interests, whether within the institutions of government or in those parts of the public with social and economic power–are then satisfied by ensuring that the regulations are enforced as poorly and non-uniformly as possible. This I think gets much more to the point Alon was making about the adversarial relationship between government and the citizenry that characterizes American governance. It’s why poor enforcement of regulations, and even of the law itself, shapes everything from the MTA, to the resolution of the subprime mortgage crisis[2], to patent issuance[3], to telecommunications[4]. In America, the system functions so that, when the law is inconvenient, wealthy and connected actors are permitted to just ignore it.
I agree that emphasizing the reactivity of this process (though it is necessarily reactive) may be burying the lede, but I’m not sure what property summarizes it better. There are of course good-faith explanations for parts of it–the lack of internal expertise that you mention, for instance–but I think it’s pretty intuitive that our system’s beneficiaries maximize their benefit by maximizing ambiguity, and that aim is very effectively achieved by avoiding clear regulatory rules, delegating the authority to shape regulatory practice, and relying on citizen-driven adversarial enforcement rather than having a strong state actively enforcing compliance. All of these are different sides of reactivity, or more precisely of *reluctance*: of a state that makes and enforces rules to constrain the powerful only when it absolutely must.
[1] https://gothamist.com/news/mtas-long-history-being-sued-over-subway-accessibility
[2] https://www.salon.com/2016/05/19/it_is_happening_again_david_dayen_on_the_epidemic_of_mortgage_fraud_and_the_rigged_economy_that_sets_it_in_motion/
[3] https://voxeu.org/article/revolving-doors-and-regulatory-capture
[4] https://www.cnbc.com/2021/01/26/net-neutrality-foe-and-departed-fcc-chairman-ajit-pai-stands-by-repeal.html
There’s a related problem, not just in transportation but generally: even if on paper you have a proactive system with clear rules, measurable standards, and actionable remedies, *how* could a regulator/higher-level agency enforce compliance against actors that passively or actively refuse to? With private actors (businesses, individuals, etc.) there are straightforward options like permit revocations, civil fines, criminal penalties, though powerful and connected actors (and noisy activists or NIMBYs) can still put up legal and political resistance, boosted by media/social media/propaganda to stir public opinion against big-bad-“tyrannical”-regulator (boo-hoo).
But public agencies are going to be a real tough nut to crack. Sure, a higher-level government (like the feds) can impose fines on a lower-level agency (like a state DOT) for violatons (like civil-rights discrimination), or funding can be revoked, or if the violation is severe enough specific individuals can be criminally charged. But if defiance continues, any further civil or criminal penalties pretty much have to go through the courts, and with our divided powers system there’s no clear path for more direct measures, such as removal/replacement of officials or reorganization/abolition/replacement of a persistantly defiant agency.
Federal agencies and officials (or even Congress or courts) have no constitutional or statutory authority to remove state officials, and most state governments don’t (under their state constitutions*) have little or no authority to directly remove local officials and somewhat limited authority to directly alter local agencies/governments, save the politically-risky blunt instrument of completely abolishing (or dividing) an entire county. And in today’s polarized climate, changing the law/Constitution(s)* to grant or expand that authority would often be weaponized in partisan/racist/classist/authoritarian ways. Just look at the law Georgia passed this year placing the statewide election commission more firmly under the partisan legislature’s control and empowering it to remove local election officials, and replace them with a potentially partisan puppet of the state.
https://www.gpb.org/news/2021/03/27/what-does-georgias-new-voting-law-sb-202-do
Scroll down to the header “Changes affecting the State Election Board”
https://www.gpb.org/news/2021/07/29/how-does-georgias-election-board-takeover-law-work-not-quickly
The elaborate and time-consuming official process is marginally (microscopically) reassuring from a partisan-abuse standpoint, but also limits the law’s effectiveness at legitimate rule-enforcement and problem-solving.
And the Flint water crisis was caused by the short-sighted decisions of state officials, appointed by Michigan’s then-governor (from one party) to takeover the bankrupt city of Flint (long run by a rival party), officials who chose to cover up the results of their decision when they found out they had inadvertantly lead-poisoned the city they were supposed to be “fixing’.
So, long story short if we want a more competent and proactive regulatory state (and lots of us do) without opening up new–or enlarging old–avenues of power-abuse and corruption (ditto), we’ve got to think through a whole lot of potential consequences very thoroughly and prepare the new system very carefully, which is going to take more time than, say, Alon, will be at all happy with. And even the best result we (Americans) can come up with, will still almost certainly be more adversarial/litigious, more decentralized, and more nudge-y than European systems.
*Every U.S. state has it’s own internal constitution spelling out its structure, powers, functions, and limits, seperate from (though subordinate to) the nationwide U.S. Constitution. Which doesn’t appear common to provinces in unitary-state countries, or even states in most other federal countries AFAIK
Gap fillers aren’t the worst outcome if it enables level boarding. Also, most of American rolling stock that doesn’t have level boarding is also old and ripe for replacement.
Unfortunately, this entire essay is of of the “if we assume the actual problem has been solved, then the problem would be solved” variety.
The history of disability law in the US *is* instructive. Disability advocates, uniformly, and without exception, started by asking to be heard upfront and proactively. And some places, the people in power did. And a proactive planning process followed. You don’t hear that much about those places, do you?
The existing legal system of disability is largely a result of trying to deal with the obstinate, obstructionist holdouts. And until you can change the institutional culture in a place like NYC, you don’t have an option other than adversarial actions, to deal with the jackasses in control of the institution. And the jackasses are only going to act reactively because *they don’t actually want to fix the problem at all*. The leadership of NYC Transit, prior to about 5 years ago, WANTED to discriminate against disabled people. They would never do anything proactively.
Boston MBTA and Chicago CTA have both changed cultures more than 20 years ago to a culture which WANTS to make things accessible. And now they *have* proactive planning when it comes to accessibility.
You get “reactive planning” when the planners *don’t want to do it*. You get “proactive planning” when the planners *actually want to do it*. It’s the initial attitude of the institution which causes this. The most extreme cases involve a judge actually sequestering funds and controlling the budget of an agency (not always under a consent decree — sometimes under a guilty verdict!), but under the US system this cannot happen if the *state legislature* is the one with the bad attitude — judges can’t order legislatures around, for good reason.
Environmental law has similar results. A company or local agency which goes in with a good attitude, *trying* to deal with environmental problems, will generally have a reasonably easy time with their EIS — unless they encounter property-value-nut NIMBYs, which is its own issue. A company which goes in trying to pollute is going to end up with an adversarial relationship, and reactive planning.
So I guess what I’m saying is that a proactive regulatory culture arises from having people in power who actually want to solve the problems.
If you had people at the MTA who actually wanted to make things handicapped-accessible, you wouldn’t have any of the current problems.
There are pretty clear and straightforward bright-line proactive rules for “best practices” in ADA-compliant construction, and MTA just decided not to follow them because they were jerks.
There are clear and straightforward bright-line proactive rules for environmental protection in many areas, and many chemical companies just break them.
The problem is not one of “proactive vs. reactive culture”. That is merely a side-effect.
The problem is one of whether the people in power actually want to solve the problem or not. You keep hinting at this, but it needs to be made explicit. The federal government offered a helping hand to Boston to build transit improvements; for decades, Boston and Massachusetts insisted on slashing transit and building highways instead — even to the point of trying to weasel out of their legal commitments to build transit as a condition for the environmental damage from the Big Dig.
Finally, new government got in place, and now they actually *want* to build mass transit, and why, suddenly the exact same projects are progressing. The proactive option was always available — the federal government offers lots and lots of assistance in design and planning and construction, as do many not-for-profits — but Boston chose to be adversarial because they *didn’t want to do it*.
For another example: NYPD is notoriously corrupt, parking on the sidewalk and letting their buddies do the same. This is already illegal. This is already a felony. This is already a RICO conspiracy.
The problem is not one of empowering the highest-level civil servants to do the right thing. The problem is one of having someone at the highest level who WANTS to do the right thing. Mayor Eric Adams likes parking on the sidewalk, so he’s not going to do anything to fix NYPD’s sidewalk-parking corruption.