Ireland's procedure fetish

Overly stringent procedural requirements are hobbling the state's ability to deliver the infrastructure and housing we need

One of the things I listened to over the Christmas was an episode of Ezra Klein’s NYT podcast in which he remarked that the thing he’s changed his mind most about in recent years is:

how destructive bad regulations can be and how seriously I take it now when I hear that regulations or rules are ill constructed.

I think I used to have what in my view is a pretty standard liberal response. I was saying, Of course, some regulations could be bad, but look at these studies: We made the air a lot cleaner. We do a cost-benefit analysis. There’s always exceptions to the rule, but I sort of assume most of this stuff works.

And now I don’t. […] I am much more skeptical — not of regulation but of a lot of existing regulations.

I find myself feelingly pretty similarly about the situation here in Ireland, in particular about the way overly stringent procedural requirements are hobbling the state's ability to deliver the infrastructure and housing we need.

Consider BusConnects

Look at the glacial pace at which the BusConnects Core Bus Corridor project in Dublin is proceeding. Initially announced by the National Transport Authority (NTA) in summer 2018, sixteen “Emerging Preferred Routes” went through an initial public consultation through which 13,000 submissions were received and considered, with revised Preferred Routes for each corridor then going through a second round of public consultation. Further amended routes were then subject to separate formal environmental impact assessments, before 12 separate statutory planning applications were made by the NTA to An Bord Pleanála (ABP) for permission to build the corridors.

Each of these statutory planning applications required thousands of pages of documentation. For example, the Lucan to city centre scheme includes 4-volume environmental impact assessment report with 23 main chapters coming to 1,000+ pages (not counting the 33 appendices), alongside detailed drawings, a Preferred Route Option Report (50 pages plus 9 appendices), a Preliminary Design Report (195 pages plus 43 appendices), a Natura Impact Statement (290 pages plus 5 appendices) and a Public Consultation Report (567 pages, including a lengthy appendix) among other documents.

Perhaps, then, it shouldn’t be a surprise that it took ABP 2 years to make a decision on this application. Or that at the time of writing 2 of the 12 Bus Connect applications are still crawling their way through the planning system. Or that not a single scheme has started construction, with the first contracts not even expected to be awarded until next year.

This is a mind-boggling amount of regulation imposed by the state on itself in the form of procedural requirements to carry out detailed assessments for what should be the straightforward act of building a dozen bus corridors. Even moreso given that - despite the fact some of the corridors are largely reallocating existing road space from cars to buses and bikes at a time we are supposed to be rapidly reducing carbon emissions - much of these procedural requirements are imposed on environmental grounds. The net effect is to delay and increase the cost of delivering vital public transport infrastructure with the negative environmental and climate impacts that come from that.

It’s not just big transport projects

And by no means are the BusConnects corridors an outlier. The same is happening even for what should be small-scale, quick-to-deliver active travel interventions. For example, An Bord Pleanála recently decided - almost 18 months after receiving an application for a determination - that Dublin City Council’s plans for an improved bike lane along the Royal Canal between Ashtown and Phibsboro requires an Appropriate Assessment before it can proceed further.

As described by the National Parks and Wildlife Service, an Appropriate Assessment is a “detailed impact assessment of the implications of the plan or project, alone and in combination with other plans and projects, on the integrity of a Natura 2000 site”, in this case 5 different sites in a 15km radius: the South Dublin Bay Special Area of Conservation (SAC), North Dublin Bay SAC, South Dublin Bay and River Tolka Estuary Special Protection Area (SPA), North Bull SPA, and North-West Irish Sea SPA. Somewhat incredibly, there is “no prescribed method for undertaking [an Appropriate Assessment], or form or content for reporting”. Rather, past court decisions have established that an analysis of potential effects on the sites should be presented in what’s called a Natura Impact Statement with ecological specialists “required to undertake the surveys, research and analysis, with input from other experts (e.g. hydrologists or engineers) as necessary”. For improvements to a bike lane along a canal.

Even the recent minor changes to how cars can drive along the quays in Dublin required a Appropriate Assessment, though these changes are now being challenged in the courts on the basis that Dublin City Council “erred in law in ordering the implementation of the traffic calming measures without [a full] environmental impact assessment being carried out”.

The requirement to carry out such detailed Environmental Impact and Appropriate assessments leads to direct delays and costs associated with producing the associated reports, which as tenders show is an expensive business. But it also generates the potential for legal challenge with the associated risk of substantial further costs and delays. This is especially as the threshold for when such assessments should be undertaken and what they should include is determined by evolving case law rather than being clearly set out in legislation, leading to inherent - and costly - uncertainty.

It’s not just transport where these and other related regulations are generating additional costs, delays or even preventing delivery. There are endless examples of where applications for permission to build housing, water and energy infrastructure have been - after a lengthy delay - overturned by the courts.

Our procedure fetish

What’s most exasperating about all this is that the courts do not typically do so because they find some unacceptable adverse impact of a project. Rather, it’s because, - after a lengthy delay - they decide that some procedural step has not been complied with in a way they deem adequate: for example, because some part of the assessments was found to be incomplete or inadequate (as with permission for 220 homes that was overturned because a bat survey carried out was not posted online), or because they decide a more stringent level of assessment should have been carried out (as with the cycle lane along Sandymount Strand in Dublin).

Nicholas Bagley of the University of Michigan has called the prioritisation of strict procedural rules across the Atlantic as a procedure fetish, something I think describes the situation here in Ireland quite well. We have a system where costly and complicated procedures around review and assessment are given precedence over outcomes, including environmental outcomes.

Pointing to these issues as impediments is not just some quixotic or academic complaint by those of us in the ivory tower with too much time on our hands. In an interesting recent interview with irishcycle.com, outgoing Minister for Transport, the Environment, Climate and Communications Eamon Ryan identified these same issues as barriers to delivering infrastructure, saying:

“I think there is a real issue in our planning and legal development system, legal planning system where the common good increasingly seems to be losing out to individual rights and/or to legal processes.”

“That applies to cycling, but the same applies in housing, energy and water [infrastructure], and in so many different aspects. There is a real concern. I think that our legal system is increasingly probably the main block to developing our local environment in a way that really promotes the common good” .

He also points to local authority officials having to:

“write 500-page tomes on every tiny little intervention to protect against legal challenge and our entire system now spends a fortune and an age in trying to minimise the risk of legal challenge by just doing incredible amounts of reports.”

“Our entire system is now paying consultants small fortunes to write massive reports that wouldn’t be needed in other jurisdictions but are needed here to protect against legal risk.”

We need to take the costs of regulation more seriously

By no means am I saying there is no benefit to the regulations that require e.g. Environmental Impact Assessments and Appropriate Assessments (although I don’t think it is clear to what extent they actually help attain or improve the environmental outcomes they are supposed to). But we certainly need to take the delays and costs these and other regulations impose much more seriously.

In the United States, some pro-government progressives - like Ezra Klein, Jennifer Pahlka, and Derek Thompson - are doing just that, writing about the need to make it faster and cheaper to build the housing and infrastructure we need. Such debates aren’t really part of the discussion here in Ireland. They should be.