Introduction

An examination of the regulatory challenges inherent in addressing climate change will reveal the need to rethink the goals and mechanisms of regulatory response and responsibility. The reality that hazards of significant scope and seriousness can escape regulatory attention and response for so long raises the question of why this occurs. This commentary will briefly outline a set of problematic patterns in the regulatory realm that have enabled other serious, though potentially less consequential, hazards to emerge without effective response. Those patterns are explored below, as well as potential ways to transform the current regulatory processes for the built environment.

Observations from over two decades working to incorporate issues of sustainability into US building regulatory systems, as well as engaging in code-related discussions in Europe (Belgium, Denmark, France, Germany, England, Scotland and Wales), Australia, New Zealand, Canada, Israel, Jordan and Saudi Arabia, provide insights into how significant emergent hazards are systematically excluded from consideration within current regulatory structures. Whether they result from changes in circumstances or the environment, new technologies, or new understandings about practices once deemed safe, the existing systems of codes, standards and other public policies in the US have not effectively recognized or addressed hazards occurring at larger scales, over longer timeframes, occurring away from the building site, or of types not previously recognized or addressed.

Historically, modern building and land-use regulations in the US and many other developed countries paid little attention to human health beyond basic sanitation, adequate ventilation and light, or the impacts of industrial processes on people and the environment. These regulatory systems were responses to disasters and serious failures, created through ad hoc processes aiming to avoid or minimize those problems.

Over time these systems developed into separate regulatory and functional silos, often without comprehensive, unifying goals or principles applying to the whole system and each of its parts. Designations of safety or acceptable risk given to mainstream practices by these regulatory systems can depend on which categories of risk are included or excluded from each particular scope of regulatory concern. That scope has often been determined in an even less integrated or well-informed process: the acts of legislative and political bodies establish and limit regulatory authority over activities thought to need regulatory control. The political influence of industries and private-interest groups on these processes is one of the most substantial barriers to addressing the changes needed for more effective regulation at every level of government.

In order to adequately address the hazards tied to climate change, a transition will be necessary to comprehensive systems-based regulatory structures. These would include, but extend well beyond, the goal of avoiding worst outcomes in specific areas of focus. There has been a growing recognition of the need for action at a larger scale to address climate change for both mitigation and adaptation. The concept of resilience is increasingly recognized by researchers and practitioners as an appropriate framework for thinking about how to deal with the increasing uncertainties tied to a changing climate and could be a useful addition to regulatory thinking (Hassler & Kohler, 2014).

What focus?

The modern history of regulation of the built environment is filled with well-intentioned codes, standards and policies followed by the discovery of unintended consequences and unrecognized hazards, and the eventual response to those newly identified problems. These responses often create their own unintended outcomes and the process repeats. To a degree this is unavoidable, since it is not possible to foresee all the connections and possibilities resulting from any action. However, such unintended outcomes are amplified in fragmented regulatory systems not intentionally designed as comprehensive and integrated systems with clearly articulated system goals and principles, and formal processes to identify and integrate emerging risks and hazards.

The issues stem from a form of myopia. Focusing on a problem to be solved can be exclusionary and does not automatically lead to the exploration of causal linkages or the possible chain of consequences of action or inaction. Rather, the tendency is to focus on and remain in the details. The relevance of this to building codes is illustrated in Figures 1^{Figure 2}–3. Looking at buildings through codes is like looking through a microscope. Important information about things such as site conditions, the design, characteristics of materials, structural integrity, fire safety, means of egress can all be viewed through that lens.

Transforming building regulatory systems to address climate change

All authors

David A. Eisenberg

https://doi.org/10.1080/09613218.2016.1126943

Published online:

28 January 2016

Figure 1 Risk viewed through the microscope of codes. These are the categories of hazard of regulatory focus typically addressed by building codes

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Transforming building regulatory systems to address climate change

All authors

David A. Eisenberg

https://doi.org/10.1080/09613218.2016.1126943

Published online:

28 January 2016

Figure 2 The bigger picture of risk. The actual risk profile is much larger, including remote and longer timeframe of impacts, most of which are invisible when viewed through the lens of building codes

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Transforming building regulatory systems to address climate change

All authors

David A. Eisenberg

https://doi.org/10.1080/09613218.2016.1126943

Published online:

28 January 2016

Figure 3 Addressing these risks is not about either/or, it is about a balanced approach. With the full set of impacts and hazards in view, it becomes possible to consider them all together, across all regulatory boundaries and address them in a process that balances risks and seeks the best overall risk performance

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Stepping back to observe the larger set of impacts of a built project, other kinds of hazards and risks become visible. Though an individual project may contribute a small amount to a given hazard, the cumulative impact of all projects creates the larger hazard. As long as those remote, distributed, cumulative and longer-timeframe impacts are hidden from view, there is no way to understand what may actually be at risk or how those impacts might be addressed (Figure 3).

The broader basis for acceptable, safe practices can only result from considering the full risk profile and the wider set of impacts that arise. This capability is missing in most regulatory systems today. A process that can reveal the overall risks and promote actions to balance them is necessary in order to address climate change and the related emerging crises.

This larger context for understanding risk and responsibility corresponds with a systems-based approach to addressing problems (Meadows, 1999). Hawken, Lovins, and Lovins (1999, p. 117) state that ‘Optimizing components [of a system] in isolation tends to pessimize the whole system’. Most regulatory reform efforts to date have focused on optimizing the subsystems, without acknowledging that the nature of actual risks is not limited to the arbitrary boundaries of professional disciplines, regulatory silos, timeframes, scales or site-based impacts. One might say that optimizing parts of the built environment in isolation has been pessimizing the global climate system.

Today's regulatory systems are the cumulative result of thousands of essentially ad hoc efforts to address identified hazards and risks, taken at all levels of government and by agencies, organizations and groups of varied expertise, capability, authority, geographical location and focus. The products of those varied processes often become local, regional or national codes, standards and policies. Despite periodic review and improvement processes for building codes and standards, the overarching goals, principles and overall effectiveness are rarely examined. No formal, high-level process exists to identify gaps through which serious hazards have escaped regulatory attention. Even when major changes or reorganizations of regulatory entities occur, as with the consolidation of the three regional building code organizations (and their codes) in the US into the International Code Council, completed around the year 2000,¹ or with the shifts to performance- or outcome-based codes in some countries, the focus rarely goes beyond changes within the existing scope and the details already included. One might ask: where in the goals, principles and contents of existing regulatory systems is a continuous and explicit representation of the rights and welfare of future generations? Few gaps in regulatory responsibility could have greater significance or potentially graver consequences.

Regulatory patterns: disregarding large-scale unregulated hazards

Regulatory systems are reactive. Regulations and regulatory entities are typically created in response to serious disasters, failures or problems after they occur, not before. They respond to known, persistent and widespread problems serious enough to demand official response. Thus they are backward-facing by nature, with limited anticipatory capacity or authority. Emergent hazards and new understandings about practices previously viewed as harmless are often resisted or overlooked, sometimes long after they have become serious and widely recognized.

Most regulations are based on minimum requirements establishing thresholds for what is deemed to be allowable. Though logical and necessary, the result is a set of intricate, somewhat arbitrary, and often inflexible boundaries between illegal and barely acceptable practices. Minimums, unfortunately, tend to become the accepted standards of practice. They also shift the regulatory focus to the most particular level of hazard and away from assessing which hazards may present cascading risks to larger populations, rather than affecting only individual buildings and their occupants.

The widespread assumption by regulators is that the content already in codes and standards represents safe practice. Moreover, it is also assumed these codes and standards serve as the basis for establishing the criteria by which alternatives must be judged. A consequence of this thinking is that it limits or precludes the hazards which can be considered when evaluating those alternatives. While this seems plausible, it ignores the reality that a current classification of safety or acceptability may have been based on excluding certain categories of harm from consideration. These assumptions also impede the ability to assess the hazards and risks across categories of harm, or at different scales, by removing those other hazards from consideration.

In the current US building code development processes, several significant issues are deemed to be outside the scope of building codes, e.g ., the toxicity of materials throughout their lifecycle and their human and environmental health impacts. Attempts to introduce some of these issues through proposed code changes have been rejected by the building codes community based on assertions that these hazards are beyond their scope of concern, and other, more appropriate regulatory entities exist to address them. However, no formal process exists to ensure that another entity exists with the authority and capacity to perform that regulatory role, or to assess whether code provisions and referenced standards result in the use of materials that pose serious hazards, yet go unregulated.

The success of regulatory systems in addressing the specific hazards they were designed to address reinforces confidence in their adequacy. With no formal processes to consider potential risks from significantly changing circumstances such as those associated with the mitigation of and adaptation to climate change, ad hoc processes remain the only way to address them. Even with serious emerging hazards, it takes considerable time and effort to begin to get these issues the attention they deserve. This includes issues like the decreasing availability, reliability or quality of essential resources (energy, water, materials or the utility systems that buildings rely upon for safe operation), or the inadequacy of historical climate, flood, seismic or other data on which hazard assessments and requirements are based.

Finally, effective enforcement is essential for regulations to provide their intended outcomes and benefits. Many issues impede optimal enforcement, including staffing and training, and the unreliable funding mechanisms that support building, planning and other regulatory agencies. Enforcement of energy codes is key for addressing climate impacts. In the US, enforcement of energy codes has been an ongoing issue, in part because these codes were largely developed and viewed as outside the traditional remit of building codes on life safety. As a consequence, many building officials view them as beyond their core responsibilities. As energy codes became more complex and stringent, resentment was more widely expressed that they were time-consuming, complicated and seen as interfering with the their central mission of life safety. This was a failure to develop awareness about the full range of benefits and impacts of highly energy-efficient buildings, including climate impacts. This failure provides an important lesson about the care required to seek alignment and buy-in at the start of new efforts.

Potential pathways forward

As observed, current regulatory ‘systems' for the built environment are rarely fully designed, comprehensive, integrated systems. What would a fit-for-purpose regulatory system look like? It would be grounded in systems thinking, and be based on positive system goals and principles. It would include formal processes to identify, assess and balance hazards across silos of regulatory authority and responsibility, including emergent hazards and new knowledge about previously unrecognized impacts of accepted practice. It would treat innovative approaches, materials and designs aiming to reduce systemic risks as worthy of full and immediate consideration. The shift in thinking about the purpose and role of the regulatory system could be characterized as becoming community and public resources enabling the best and most regenerative built projects, which includes the essential traditional policing function to prevent the worst outcomes, but not as the lone focus of their mission.

It is not possible or reasonable to require all built projects to meet the highest performance standards. It is possible and reasonable to look for ways to discourage practices with the greatest large-scale impacts and encourage better practices that reduce them. Once there is awareness of the harm created by conventionally ‘safe' projects and the risks emanating from the entire enterprise of creating built projects, it is a shorter step to grasping the benefits of allowing projects that do not follow the old minimum standards and practices.

To date, most efforts to address these larger impacts have been voluntary – market-based – rather than mandatory government regulations. They include green building programmes, rating and certification systems, incentive programmes, and a few reach or stretch codes. Sometimes they incorporate green provisions into mainstream codes and standards. These systems share the same basic goal as regulations: to reduce or eliminate harmful outcomes. The International Living Future Institute's (ILFI)² Living Building Challenge (LBC) certification system differs from nearly all others by aiming to shift development, design and building practice to net-zero negative impact or better (positive impact, net-positive) across the spectrum of impacts of built projects: not just energy or water, but carbon footprint, land impact, materials, toxicity and more.

LBC projects embrace a wider, higher set of performance criteria than anything required by current regulation. Therefore, one might assume that they would move more easily through regulatory review and approval processes. Experience has shown this is not the case. To achieve those higher, deeply integrated goals, project designers are pulled toward innovative designs, materials, equipment and methods of construction outside typical practice. Although the designs exceed what is required by regulation, the regulators often demand greater evidence of the validity of proposed performance. These projects use integrated project delivery systems, with integrative design processes that include early design charrettes. One strategy to address proactively the regulatory challenges is to invite representatives of the regulatory agencies to participate in design charrettes. The regulators then learn what the designers are trying to accomplish, how and why, and the designers have the benefit of the regulators’ concerns and ideas about how best to address them early in the process, creating collaborative relationships rather than adversarial ones.

Unlike regulatory systems that require obtaining approvals before a building is occupied, LBC projects must operate for a year before they can certify, making the goals measurable and outcome based. The ILFI has sponsored research³ into regulatory challenges,⁴ case studies of solutions, and collaborative efforts with local governments supporting such projects, including the extensive report Code, Regulatory and Systemic Barriers Affecting Living Building Projects (Eisenberg & Persram, 2009) One possible improvement to the LBC system in dealing with regulatory issues would be to incorporate by reference the International Code Council's Performance Code for Buildings and Facilities ⁵ as the building code of choice for LBC projects. If the requirements for certification even informally included code compliance, it would make clear that the goal is for the highest levels of both performance and safety. The use of this code by designers creating the most regenerative projects would help improve the performance code and could influence and lead the trajectory of the rest of the codes.

The Rocky Mountain Land Use Institute (RMLUI) at the University of Denver Sturm College of Law created the Sustainable Community Development Code Framework (2009)⁶ that compiled a broad spectrum of precedents, ordinances, best practices and other resources into a usable framework to help communities incorporate more sustainable land-use policies that align and better support sustainable building and development practices. The framework could be expanded to include building-related best regulatory practices as well. Coupled with the idea of reimagining the purpose of building and development regulation to support the best community and overall outcomes, one could envision a comprehensive regulatory resource covering the spectrum of regulations affecting built projects with basics (the minimum standards and requirements), and good, better, and best practices and links to precedents, incentives and relevant resources. Such a resource could expand regulatory possibilities and aspirations; reframing the notion of a regulatory arena to be more inclusive and constructive than the present narrow boundary between what is legal and illegal.

Conclusions

The imperative to address the impacts of climate change is a public safety issue for both mitigation and adaptation. What appears reasonably certain is that climate change is already happening and it is accelerating. The long lifespan of buildings and infrastructure means that everything designed and built today will exist in different conditions than exist now. Given the long timeframes involved in changes to codes, standards, regulations and policies, the urgency of acting now is clear.

A process is needed to identify, evaluate and consider hazards across categories, timeframes, locations of impact and impacted populations. The regulatory realm has an important role in the provision and encouragement of alternatives to mainstream practice that can provide an improved overall risk-performance profile.

Initiating a process of change will require clear and bold leadership – to transform these systems and to share progress (including setbacks and unintended outcomes that arise). The regulatory systems that emerge must be able to adapt to changing realities, and respond to risks larger than any current systems were designed to address. This is not a call to abandon what has been learned, but rather a call to integrate it into the larger context of risk and responsibility needed today. There are leadership roles for those inside regulatory agencies at all levels. The design community (architects, engineers, consultants, interior designers, planners) can play a more direct and active role in changing codes and standards and influencing lawmakers and state and local officials to provide leadership and support for regulatory changes. The design community has a distinct advantage of a ‘middle out' role (Janda & Parag, 2013) as they are situated between policy/regulation and clients/occupants and therefore have the possibility to transmit ideas and insights in both directions. Forward-thinking developers, landowners and builders have much to contribute to the process as well. There is also a need for more citizen involvement to help elected officials understand that support exists for addressing these issues in proactive and aggressive ways.