This chapter connects economic regulators’ contribution to green transition and the environmental sustainability of the sector(s) they oversee to governance arrangements. The chapter focuses on both internal governance, the arrangements and tools the regulator itself chooses to implement (e.g., the structuring of internal resources, adaptation of existing processes, and capacity-building efforts), and external governance, the arrangements put in place or tools mandated by government or the legislature (e.g., institutional roles and responsibilities, new regulatory objectives, funding procedures, or guidance on impact assessment). Such arrangements and tools affect regulators’ potential to positively contribute. Throughout the chapter, OECD normative guidance relating to the governance and performance of regulators is highlighted, and analysis of survey data provides a view of the state of play.
The Role of Economic Regulators in the Green Transition
Abstract
The potential contribution of economic regulators to environmental objectives rests on several important considerations around governance. First and foremost, economic regulators require clarity on their role in relation to meeting environmental goals, including on the objectives that need to be met by the regulator and the sector(s) they oversee. This is ultimately a question for governments or legislators to address, as is the provision of appropriate powers to regulators to enable the fulfilment and achievement of regulatory roles and objectives. Where the remits of regulators may be expanded to include environmental objectives, co-ordination between regulators and other public institutions becomes increasingly important, as does guidance on the prioritisation of different policy objectives or the management of risks and trade-offs between policy objectives.
Regulators may need to adapt their tools and processes to better deliver against environmental objectives and may require further guidance, capacity, and resources to do so. Regulators may be required to engage more, engage differently, or with new stakeholders, in order to understand how to proceed with the delivery of new regulation relating to environmental sustainability. Finally, as noted in Chapter 1, all regulators will be impacted by a period of transition in network sectors. Therefore, economic regulators will need to consider organisational culture and how to manage the risks and opportunities that accompany a changing regulatory environment.
To achieve the desired regulatory outcomes, whether linking to environmental policy objectives or other policy areas, an effective regulator must have clear objectives, with clear and linked functions and powers, and the mechanisms to co-ordinate with other relevant bodies (OECD, 2014[1]).
Clear objectives
Providing clear objectives for regulators will motivate intervention, whilst setting clear roles and responsibilities within the institutional framework can help avoid misalignment regarding the delivery of those objectives and promote a whole-of-government approach. The OECD Best Practice Principles on the Governance of Regulators (OECD, 2014[1]) recommends the legislation establishing the regulatory framework should be written so that the purpose of the regulator and the objectives of the regulatory framework are clear to the regulator’s staff, regulated entities, and citizens (Box 3.1).
Clarity over the respective roles and responsibilities of regulators and government helps ensure accountability. Adequate processes of accountability need to be in place to ensure effective scrutiny of broader functions. It must be clear to regulated entities and the public at large which institutions are responsible for which decisions in order to know whom to hold to account.
The OECD Best Practice Principles on the Governance of Regulators recommends that legislation should clearly state policy objectives and the powers of the authority and that objectives should identify the ends to be achieved or the expected outcome, rather than specifying the means by which they will be achieved.
Without clear objectives the regulator may find it difficult to establish priorities, processes and boundaries for its work. Likewise, external bodies tasked with scrutinising the performance of the regulator require clear objectives to understand how to hold the regulator accountable. Regulated entities have a right to know the reason their activities are being impacted by regulation.
Source: (OECD, 2014[1]).
However, there is currently no standard approach to what the role of economic regulators should be regarding environmental sustainability, considering regulators’ defined objectives. As noted in Chapter 1, based on responses to the green governance survey, 42% of regulators report objectives have been set for the regulator in legislation, whilst 36% do not have any objectives defined. Yet the data also reveals instances where legal or regulatory frameworks may be creating some ambiguity for regulators: 22% of regulators do not have environmental objectives set in their establishing legislation or another piece of legislation yet report that they need to adhere to certain overarching objectives for public institutions relating to the environmental sustainability of the sector.
These overarching objectives may be interpreted to provide sufficient rationale for regulatory intervention. In other cases, lacking or unclear mandates to intervene regarding environmental sustainability may, for many regulators, limit potential action beyond information gathering and knowledge building. Examples discussed above evidence some regulators have been presented with vague definitions of what constitutes environmental sustainability and a broad set of objectives for their sector which require further interpretation and planning (see Chapter 1).
OECD guidance acknowledges that the level of detail and prescription in legislation is a matter of judgement. In some cases, deliberately broad strategic objectives are provided for the sector, following a principles-based approach, to deal with uncertainty and a fast-changing regulatory environment. In other cases, objectives are more granularly defined and regulators have discretion to pick between a range of regulatory and non-regulatory tools. In any case, the objectives and discretion provided to the regulator should still be clearly defined and not encourage or provide opportunities for “mission creep”. Furthermore, compliance should not be treated as an objective in its own right, but rather as a means to an end (OECD, 2014[1]).
The regulator’s own interpretation of its duties, powers, and priorities, and a concern for acting beyond remit, are factors that influence a regulator’s chosen path of action. From a regulator’s perspective, policymaking and regulatory delivery are connected but not the same, and it is important to maintain a clear distinction for the maintenance of integrity and independence. Legally minded leadership would take a cautious approach when determining the scope of duties and powers, for example in relation to data collection activities, if there is vagueness and associated costs and risks. The regulatory and legal culture in a jurisdiction may influence the scope a regulator has to interpret its duties to include environmental goals.
Furthermore, economic regulators would not be able to promote environmental goals, nor act in accordance with overarching sector targets, using the tools mentioned above (see Chapter 2) if doing so would compromise the attainment of their primary objectives, as defined in legislation.
Appropriate powers and functions
If the mandates of economic regulators expand to encompass environmental goals, regulators must be afforded the appropriate powers to deliver their objectives. The regulatory powers and other functions to be carried out to achieve the regulator’s objectives relating to environmental sustainability and the green transition should be clearly specified in the establishing legislation and be appropriate and sufficient to achieving the objectives. The OECD Best Practice Principles on the Governance of Regulators (OECD, 2014[1]) recommends that powers should be sufficient and neither stronger nor weaker than necessary for the regulator to be effective. This applies to regulators’ powers to investigate, enforce, and sanction but also gather and use information, for example to monitor the environmental sustainability of the sector. Different levels of regulatory powers will require corresponding accountability mechanisms to ensure the proper functioning of the regulatory regime.
Regardless of whether regulators have had objectives defined, a significant proportion of regulators lack the legal power to consider environmental sustainability in decision making. A total of 78 regulators (42%) reported lacking the legal powers to consider environmental sustainability in regulatory decision making, regardless of the existence of statutory objectives. The survey results suggest this finding is more applicable to the rail transport and e-communications sectors, where 67% and 73% of regulators report lacking powers to consider environmental sustainability in their decisions respectively (Figure 3.2) (se also Box 3.3).
Furthermore, ten per cent of regulators that hold a mandate due to defined objectives in legislation lack the powers to consider environmental sustainability in their decision making (8 out of 78 regulators) (Figure 3.1). Of these 8 regulators, 3 have defined statutory objectives in their establishing legislation and 5 have objectives defined in other legislation. These findings suggest a mismatch between mandates and suitable powers for some regulators.
In reverse, there are also instances where regulators have legal powers to consider environmental sustainability but lack any defined objectives. Thirty-six regulators report having the legal power to consider environmental sustainability in decision making whilst also reporting they have no objectives explicitly defined either in establishing or other legislation. In this scenario, economic regulators are using their discretion to respond to identified societal needs and wider objectives with independent or collaborative action – one example is the case of Portugal’s e-communications regulator, ANACOM (Box 3.2).
Portugal’s National Communications Authority (ANACOM) has taken steps to consider environmental sustainability in its regulatory decision-making, despite the lack of national legislation with objectives for the regulator related to the environment.
ANACOM has established minimum requirements for infrastructure sharing between operators, encouraged mobile network sharing to meet environmental objectives, and simplified the administrative process to reduce paper usage. ANACOM has also established a forest fire working group to increase the resilience of electronic communication infrastructure and monitored the existence of adaptation plans to climate change by operators.
Additionally, it invites environmental civil society organisations to participate in consultations and is working with the Body of European Regulators for Electronic Communications (BEREC) to develop sector-specific indicators for sustainability.
Source: Information provided by ANACOM, 2023.
Note: A total 184 regulatory authorities provided an answer to the survey question, based on their country and sector context.
It is important that powers remain linked to the regulator’s objectives and functions, so that the regulator understands the scope of application of provided powers and is not presented with risks associated with acting beyond the remit provided by legislators (OECD, 2014[1]). All regulators have decision-making functions, subject to judicial review, which may impact the behaviour of actors within the sector they oversee, and may be provided with complimentary functions, such as the administration of market-based schemes, reward or educational programmes. Functions, powers, and objectives should be aligned and clarified to ensure both that the regulator has the capacity to perform the relevant functions and the most efficient and effective means to achieve objectives are identified and assessed.
Results from the green governance survey, analysed above, provide a view of the state of play in terms of how regulators understand and apply their powers to consider environmental sustainability in decision-making, considering both the nature of the environmental issue and decision area. With regard to environmental issues, regulators’ powers to consider environmental sustainability tend to apply to specific issues rather than across the full array of environmental challenges – more regulators report their powers apply to issues of greenhouse gas reduction (64%), decarbonisation (63%) and water and air pollution (54%) (see Chapter 1: How are economic regulators responding?). However, some regulators noted again the need to interpret how and where powers apply, following vague requirements in legislation to consider “sustainable development” in the delivery of their duties.
With regard to decision areas, more than half of regulators (54%) report powers apply in their decisions relating to regulating prices or issuing guidelines and/or codes of conduct. Close to half (45%) of regulators may consider environmental sustainability when issuing or revoking licenses or authorisations, but fewer report having the powers to consider environmental sustainability when issuing industry standards, issuing consumer standards, or providing binding guidance or reviewing and/or approving contract terms (see Chapter 2: To what extent are economic regulators utilising these tools today?). It is important to reiterate that, regardless of the existence of statutory objectives and regardless of the environmental issue or decision are in question, not all regulators hold the legal powers to consider environmental sustainability: around 58% of regulators report they hold the legal powers to consider environmental sustainability in regulatory decision making, but 42% lack these powers.
Complementary and supplementary findings
The OECD Recommendation on Broadband Connectivity highlights that for the future, the environmental sustainability of communication networks is of paramount importance [OECD/LEGAL/0322]. In this sense, the Working Party on Connectivity Services and Infrastructures (WPCSI)1 has placed priority in working on this pressing policy issue. In 2021, the OECD Secretariat surveyed countries on communication policy and regulation for two analytical reports on “Communication Regulators of the Future” (OECD, 2022[2]) and “Developments in Spectrum Management for Communication Services” (OECD, 2022[3]). An additional survey was conducted in 2023 to prepare the chapter on Access and Connectivity for the flagship publication Digital Economy Outlook 2024 (OECD, forthcoming). These surveys included a question on areas of mandates of communication regulators. Please note, the sample size and design differs from that of the Green Governance Survey.
Countries were asked whether “Yes”, “No” or “Partially” the communication regulator had a mandate in different areas (e.g. privacy, digital security, AI and IoT, etc.), with one area being: “Issues related to the sustainability of networks or ICTs more general”. In 2021, the Secretariat received answers from 40 countries (i.e. 38 OECD countries, Brazil, and Singapore). Almost half of communication regulators (48%) in the OECD, Brazil, and Singapore reported to have at least partial responsibilities (e.g. through their mandates, collaboration initiatives or lending their knowledge and experience in a whole-of-government approach) on issues related to the environmental sustainability of communication networks. One-fifth reported to have an explicit mandate in this area (OECD, 2022[2]). The mandate or responsibilities of communication regulators continue to evolve since 2021, including in the area of environmental sustainability (OECD, forthcoming**).
1. The OECD was one of the first organisations working on connectivity through the creation of Digital Policy Committee’s Working Party on Connectivity Services and Infrastructures (WPCSI) in 1988, dedicated to communication policy since the liberalisation of telecommunication markets in OECD countries. Throughout the years, the OECD has been strongly engaged with governments in topics related to communication policy and regulation to address digital divides, foster future-proof connectivity, provide tailored recommendations in communication policy regional and country reviews, and support the evidence base on broadband measurement (Broadband Statistics).
Source: OECD (2022[2]) “Communication regulators of the future” and OECD (forthcoming), Digital Economy Outlook 2024 (Volume 2), Chapter 2 on Access and connectivity.
Governments may choose to change the duties of regulators to explicitly encompass environmental objectives; or they may give the regulator guidance or directions on how to consider or facilitate environmental matters; or they may take action elsewhere to tackle the environmental challenges that economic regulators do not address (Owen, 2006[4]). Different approaches bring different advantages and disadvantages that each jurisdiction will need to weigh carefully based on policy objectives and context, while paying regard to important considerations such as independence, accountability and the purpose of economic regulators.
Managing competing objectives and functions
Many regulators have had a mix of objectives from the outset. For example, as well as controlling monopoly power and promoting competition, some regulators have a duty to consider the interests of vulnerable consumer groups, such as the elderly or rural populations (Owen, 2006[4]). Economic regulators therefore have a long experience of balancing different objectives.
Nevertheless, a broadened remit will require regulators to balance multiple objectives and may increase the complexity of the regulator’s tasks.
One challenge is the increasing complexity of a regulator’s tasks when additional objectives are added to its mandate. This complexity could risk stifling regulatory decision making and limiting the effectiveness of new duties (BEIS, 2022[5]) (Decker, 2010[6]). A key rationale for having economic regulators is to ensure predictability and stability in order to encourage long-term investment. Introducing new objectives could introduce uncertainty, both for the regulator in terms of how it is meant to meet several competing objectives concurrently, and for regulated entities.
Whilst there may be positive synergies between regulatory objectives, there will also be situations where reconciling economic, social and environmental objectives will entail managing trade-offs. Achieving environmental objectives in certain cases may run counter to other policy objectives such as promoting competition, cost effectiveness, or protecting consumer welfare. A report commissioned by BEREC (WIK-Consult and Ramboll, 2021[7]) notes the trade-offs that may arise when sustainability goals are juxtaposed with other objectives that European e-communications regulators must meet under EU1 and national legislation applying to electronic communications (Box 3.4).
A study commissioned by the Body of European Regulators for Economic Communication (BEREC) highlights cases where pursuing measures that would be beneficial for the environment might run counter to existing rules applying to the European electronic communication sector or require trade-offs to be made against socio-economic objectives. For example:
Although certain network technologies are known to be more energy efficient, European e-communications regulators are required to promote “Very High Capacity Networks”, which can include less energy-efficient legacy technologies, and to respect the principle of technological neutrality.
Encouraging or requiring network sharing could limit energy use but could create trade-offs with the objective to promote infrastructure competition and reduce incentives for operators to invest in their own infrastructure to achieve higher coverage and/or quality.
Strategies to reduce energy consumption might create trade-offs with network coverage and quality.
There may be trade-offs between environmental objectives and cost. For example, environmental considerations may drive the deployment of more costly technologies, when alternatives might meet the shorter-term needs of consumers.
Source: (WIK-Consult and Ramboll, 2021[7]).
Amongst economic regulators with the legal powers to consider environmental sustainability, nearly half have encountered or anticipate trade-offs between “green” objectives and other policy objectives. Considering the results of the green governance survey, a significant proportion (43%) of regulators with the legal powers to consider environmental sustainability (46 of 106) state they have encountered or anticipate trade-offs. Based on surveying that asked regulators to consider trade-offs with specified or other policy objectives, improving cost effectiveness is the policy objective most frequently identified as presenting a trade-off with environmental goals (36%), followed by promoting consumer welfare or social inclusion (28%) and promoting competition (27%) (Figure 3.3).
Note: Only regulators who responded they have the legal power to consider environmental sustainability in their decisions are included in this analysis – the relevant sample consists of 106 regulatory authorities.
Regulators may face demands to consider a range of issues related to environmental sustainability, presenting even more complex decisions on trade-offs. For example, regulators may not be concerned only with net-zero objectives, but also meeting biodiversity targets, social support measures and so forth. Of the 106 regulators with powers to consider environmental sustainability in decision making, 20 regulators (19%) encounter or anticipate trade-offs between environmental sustainability and all three policy objectives.
Other regulators encounter or anticipate trade-offs between environmental and policy areas beyond those tested by the survey. Twelve regulators specified other policy objectives as potentially conflicting, beyond those listed. A typical trade-off to be managed in the electricity sector between security of supply or grid stability and increased renewables penetration was raised by energy regulators. Air regulators, such as the Swedish Transport Agency (Transportsyrelsen), raised a trade-off with safety – safer flight paths or designs for airport approach can deviate from the most sustainable choice, considering emissions and noise pollution.
Trade-offs between policy objectives are most prevalent amongst rail transport regulators, and more likely to be reported by ministerial than independent regulators. Of rail transport regulators with the power to consider environmental sustainability, 58% identify at least one policy objective as a potential trade-off, a higher rate than for regulators in e-communications (18%), energy (39%), water (48%), and air transport (50%). In absolute terms, driven by the fact that energy, air transport, and water regulators are more likely to hold the legal powers to consider environmental sustainability, more regulators from these sector report trade-offs between environmental and other policy objectives overall (Figure 3.4). Likewise, amongst regulators with the legal power to consider environmental sustainability, 50% of ministerial regulators (14 of 28) identify at least one policy objective as a potential trade-off compared to 41% of independent regulators (32 of 78).
Note: Only regulators who responded they have the legal power to consider environmental sustainability in their decisions are included in this analysis – the relevant sample consists of 106 regulatory authorities.
Clear guidance from the executive or via legislation on priorities and resolving trade-offs should be provided, especially where there is wide scope for discretion. OECD guidance recommends that where trade-offs between objectives are likely to be necessary, there should be a means for the minister to provide an overall direction on priorities, or that legislation should include clear guidance as to how the regulator should resolve trade-offs between objectives (OECD, 2014[1]). Furthermore, it will be important to have transparency around these issues: the regulator should make explicit any trade-offs between objectives in decision making, and this information should be available to regulated entities in a clear and comprehensible format. Some countries have begun work on frameworks that map sectoral policy objectives and provide support to public institutions on how to manage trade-offs, as is the case in the transport sector in New Zealand (Box 3.5).
Having clear guidance can help mitigate the risk of blurring the boundary between political and technical decision making. Bestowing regulators with a duty for environmental protection could risk blurring the boundary between political and technical decision making, which has important implications for democratic systems. Many environmental decisions are inherently political, as they involve value judgements about equity, distributional issues and the value of nature, in contrast to the “technocratic” decisions that economic regulators are traditionally tasked with (Foster, 1992[8]). Political questions are typically the remit of policy makers accountable to an electorate, in contrast with the execution of technical decisions made independently of government by regulators.
Governments need to consider whether and to what extent independent agencies should be given responsibility for these kinds of policy or political decisions. (Koop and Lodge, 2020[9]) raise the question of “how much ‘political space’ independent economic regulators can feasibly and legitimately occupy”, while (Harker and Reader, 2022[10]) note the criticism that governments have faced “for the imposition of complex, prolix, and contradictory objectives, often requiring regulators to make choices of an essentially political character, leading ‘agencies into high policy by the backdoor’”.
The Ministry of Transport in New Zealand has taken a proactive step to structure the outcomes the transport system needs to achieve to improve wellbeing and liveability by defining, in 2018, a Transport Outcomes Framework. Transport agencies in the country, including the Civil Aviation Authority, are expected to set out how they will individually and collectively contribute to the outcomes of the framework. The framework aligns and contributes to outcomes across the public sector. Therefore, this requires the transport sector to work with other sectors in a co-ordinated way to achieve broader government outcomes.
The framework includes environmental sustainability as one outcome of five:
Inclusive access: Enabling all people to participate in society through access to social and economic opportunities, such as work, education, and healthcare.
Healthy and safe people: Protecting people from transport-related injuries and harmful pollution and making active travel an attractive option.
Environmental sustainability: Transitioning to net zero carbon emissions and maintaining or improving biodiversity, water quality, and air quality.
Resilience and security: Minimising and managing the risks from natural and human-made hazards, anticipating and adapting to emerging threats, and recovering effectively from disruptive events.
Economic prosperity: Supporting economic activity via local, regional, and international connections, with efficient movements of people and products.
The framework encourages decision-makers across the public sector to identify and weigh the potential environmental, social and economic impacts of transport decisions. This is accomplished by considering the five outcomes and utilising 37 possible indicators to measure and report progress. By providing clear options for measurement, the framework helps regulators to understand and decide on trade-offs between different outcomes.
Most recently, the Transport Outcomes Framework has been utilised to guide the decision to invest in Sustainable Aviation Fuels (SAFs) made from renewable or waste materials.
Source: Information gathered by the OECD Secretariat based on information provided by the Civil Aviation Authority, 2023; https ://www.transport.govt.nz/area-of-interest/strategy-and-direction/transport-outcomes-framework/.
Powers to collect relevant data
Since a regulator’s ability to make accurate assessments and informed regulatory decisions, including on trade-offs, rests on its knowledge and understanding of the regulated sector, consideration should also be given to the regulators’ powers to collect and manage data and information. Regulators’ detailed knowledge and understanding rests on the data and information that they collect. Data, specifically relevant, timely and good quality data, is therefore a key enabler of evidence-based decision making and efforts to provide transparency. Data is also vital for facilitating continuing evaluation (see Regulatory Impact Assessment), which raises further questions around how to measure impact, what data is required, and how this data should be collected. Economic regulators with objectives relating to environmental sustainability should have access to the relevant data, via exercising powers to collect data from the regulated sector, or through other mechanisms of co-ordination and knowledge sharing.
Surveying shows that more than half of all regulators lack the legal powers to collect data on the environmental sustainability of the sector they oversee. Of the 184 regulators who responded, 45% of regulators stated they have powers to collect relevant data on environmental sustainability in their sector to inform decision making, leaving 55% without such powers. The proportion lacking powers to collect relevant data is higher among independent regulators (60%) than ministerial regulators (41%), and higher for regulators of e-communications (83%) and rail transport (67%) (Figure 3.5).
Moreover, data collection powers are lacking for more than a quarter of regulators who have been set environmental objectives, which could hamper their ability to deliver. Of the regulators with defined objectives related to environmental sustainability, 72% (56 of 78) report they have the powers to collect relevant data, but a significant 28% do not. Five regulators reported they have defined objectives but lack both the powers to consider environmental sustainability in decision making and collect relevant data from the sector they oversee. Seventeen regulators report they have defined objectives, the powers to consider environmental sustainability in decision making, but lack the powers to collect relevant data.
Whilst regulators may report holding the relevant powers to collect data, the extent of those powers and scope of data collected can vary widely between regulators. Many regulators hold powers only to collect data on environmental sustainability when it relates directly to their core regulatory functions, for example Brazil’s ANTT requests and monitors the contents of concession contracts in line with its duties for improving environmental sustainability through enforcing certain contract criteria (see Annex A). Other regulators can send specific requests to gather a wider set of information for reports and analysis, for example France’s Arcep and Finland’s Traficom may request data from the sector to inform regular market studies relating to sustainability. Still others rely on existing regulatory processes (e.g. license application processes) or third parties to gather data, in place of holding any direct powers to collect data themselves. Furthermore, there are situations where regulators have legal powers to collect relevant data, but powers are defined narrowly and focus on specific output metrics (e.g. GHG emissions in energy production), which can leave the regulator without all of the information required to deliver a comprehensive assessment to inform decision-making.
Note: “Yes” is a composite of regulators who answered they collect such data regularly, on an ad hoc basis, or do not systematically collect such data but have the powers to do so. A total 184 regulatory authorities provided an answer to the survey question.
Of the regulators with the powers to collect data on environmental sustainability, nearly half do so regularly, but close to one third do not systematically collect such data. Whilst 39 of the 82 regulators (48%) with powers to collect data do so on a regular basis, 17 regulators (21%) only collect data on an ad hoc basis, for example for one-off publications, and 26 regulators (32%) report they have no systematic data collection process in place (Figure 3.6). The proportion of regulators collecting data on a regular or ad hoc basis is only slightly higher when considering those regulators with both defined objectives and powers to consider environmental sustainability in decision making – 53% of these regulators regularly collect data on environmental sustainability, but then only 16% on an ad hoc basis. This means that there are a number of regulators (17) who do not systematically collect data, despite having the powers to do so, as well as the powers to consider environmental sustainability in their decisions and with objectives set in legislation.
Note: A total 184 regulatory authorities provided an answer to the survey question.
The extent to which these various considerations around trade-offs and data collection are relevant will depend on the division of responsibilities between the executive and the regulator. OECD guidance considers governments should retain responsibility for key policy decisions, with the regulator assuming the role of implementer or administrator (for example, of schemes to improve environmental outcomes) (OECD, 2014[11]). Of course, regulators may also have the function of providing advice and insights to government, in which case more extensive powers to collect data may be merited, so as to match functions. For example, regulators may need to calculate the costs of meeting environmental requirements or to clarify potential conflicts between different economic, social, and environmental objectives (Owen, 2006[4]). In scenarios where regulators have a primary duty to deliver on environmental objectives, the responsibility for managing trade-offs and other questions with an important social or environmental impact (e.g. distributional issues) rather than technical decisions may still fall to the regulator.
Mechanisms for co-ordination
Co-ordination between economic regulators and other public institutions becomes increasingly important in the context of a broadened mandate that encompasses economic, social, and environmental objectives, given the complex interactions between these issues. At a minimum, joined up efforts can be useful to explore and understand how regulation can support environmental objectives (Box 3.6). In some cases, for example in jurisdictions with complex multi-level governance structures, more extensive and close co-ordination may be required (Box 3.7). Given the range of agencies and institutions involved in the environmental policy and regulatory landscape, institutional co-ordination also allows risks, such as the overlap of mandate, roles and responsibilities, to be identified and addressed. In the UK, long-standing networks, such as the UKRN, have helped to co-ordinate the work of regulators across sectors on particular issues, identifying opportunities for joined-up working but also reducing inefficient overlaps. The UKRN’s recent strategic priorities include “evolving regulation to promote sustainable economic recovery and growth, and enabling climate change mitigation and adapting responses that are consumer conscious” (OECD, 2022[2]). In the UK water sector, the Regulators’ Alliance for Progressing Infrastructure Development (RAPID) was set up in 2019 as a partnership between the UK’s three water regulators: Ofwat, the Environment Agency and the Drinking Water Inspectorate (DWI). It was established to help accelerate the development of new water resources infrastructure “in the best interests of water users and the environment” and design future regulatory frameworks.2
To help inform its work, in 2017 CRE created a Foresight Committee, which in 2023 became a Scientific Council. CRE’s Foresight Committee had been working for several years on enlightening the future of our energy system, with the help of about 200 external experts, including energy operators, academics, consumers’ associations and members of Parliament. This independent Committee had helped the French regulator, politicians, and industry players to anticipate changes and adapt their practices to contribute to the energy transition. This structure made it possible to draft reports on issues that, at the time, did not fall directly within the CRE’s remit: for example, the impact of clean mobility on the energy mix (2018), the hydrogen vector (2021), biomass and carbon neutrality (2023). The current working group, in its new form, is about to publish a report on carbon capture and storage.
Source: Information provided by CRE, 2024.
Less than half of regulators surveyed have formalised co-ordination mechanisms in place with other public authorities for issues related to environmental sustainability. Sixty-one per cent of regulators (112 of 184) report there are no formalised co-ordination mechanisms with ministries in charge of environmental policy or authorities in charge of environmental protection, to address issues related to environmental sustainability (Figure 3.7). Ministerial regulators are more likely to report formalised co-ordination mechanisms are in place (61%) than independent regulators (32%).
Air transport regulators are far more likely to respond that co-ordination mechanisms are in place. A higher proportion of air transport regulators (24 of 37, or 65%) report having formalised co-ordination mechanisms in place with ministries or other authorities, compared to regulators in other sectors, including water (52%), energy (42%), rail (28%) and e-communications (15%) (Figure 3.7).
Formalised co-ordination is more frequent for those regulators tasked with delivering on environmental objectives. Of the 78 regulators with defined objectives to consider environmental sustainability, 63% report formalised co-ordination mechanisms are in place to address issues related to environmental sustainability.
Note: A total 184 regulatory authorities provided an answer to the survey question.
In Colombia, the National Environmental Council (Consejo Nacional Ambiental, or CNA), created in 1993, is a key co-ordination mechanism and fora concerning the development and implementation of environmental policy. The CNA serves as the highest advisory body to the government on environmental policy matters. In addition to providing advice and recommendations on government policies, plans and programmes, the CNA facilitates co-ordination and collaboration among different government agencies, NGOs and other stakeholders involved in environmental issues. This co-ordination is crucial for effective environmental management and sustainable development. Since the CNA also oversees the implementation of environmental regulation and ensures that various government agencies are complying with laws and standards, it is important that regulatory agencies are included in the governance framework and can interact.
The Ministry of Transport is a permanent member of the council, and though the Civil Aviation Authority is not a permanent member, it is invited to the council when discussions on air transport policy or regulation are underway. The decisions of the National Environmental Council must be taken into account by the regulator.
There is also a National Water Council (Consejo Nacional de Agua, also CNA) co-ordinating water resource management, to which the Drinking Water and Basic Sanitation Commission (CRA) may attend as non-permanent member. The CNA shapes policies and regulation related to water conservation, usage and sustainability.
Source: Information gathered by the OECD Secretariat based on information provided by the CAA and CRA, 2023; https://www.funcionpublica.gov.co/eva/gestornormativo/norma.php?i=297; https://www.ins.gov.co/Normatividad/Decretos/DECRETO%200585%20DE%202017.pdf.
Beyond formal co-ordination mechanisms, overarching targets and objectives can be useful to guide action across government and within sectors, though these measures alone are not sufficient. A number of regulators consider quantitative targets relating to environmental sustainability in their decision making, and as noted above, may need to adhere to overarching objectives set out for public institutions. However, lacking, or unclear mandates to intervene regarding environmental sustainability may, for many regulators, still limit potential action beyond information gathering and knowledge building (see Chapter 3: Clear objectives).
Considering survey responses on the use of sector targets, around one third of regulators report that the sectors they oversee have quantitative targets relating to environmental sustainability that the regulator takes into account in its decision-making. Considering all regulators surveyed, 30% responded there are quantitative targets defined and these are considered in decision-making. The rate is higher for ministerial regulators (43%) than for independent regulators (26%) and higher among regulators of water (52%) and air transport (41%).
Whilst overall more than a half of regulators (55%) oversee sectors where quantitative targets have been defined, a quarter (25%) do not consider these targets in their decision-making (Figure 3.8). This proportion is consistent across sectors and similar for independent and ministerial regulators.
Furthermore, a higher number of regulators report there are quantitative targets defined for their sector than are required to assess impact. Whilst 55% of regulators (102 of 184) report there are targets for the sector defined in legislation relating to environmental sustainability, only 20% (36 of 184) are required to conduct ex ante or ex post assessment of the impact of their regulatory decisions. Looking at just those regulators that consider targets in decision-making, the proportion is still higher than those required to conduct impact assessment (30% vs. 20%) (Figure 3.8 vs. Figure 3.9).
Note: A total 184 regulatory authorities provided an answer to the survey question.
For most regulators however, decision-making is not impacted since no quantitative targets have been set for the sector they oversee. Around 45% do not have quantitative targets relating to environmental sustainability defined for their sector. E-communications (76%) and rail transport (53%) regulators are most likely to report that no such quantitative targets apply in their sector, but the lack of targets is also significant for many water and energy regulators (33% in both cases).
Regulators with the legal powers to consider environmental sustainability are more likely to take into account quantitative targets in their decision-making. Whereas one third (30%) of all regulators consider quantitative targets relating to environmental sustainability in their decision-making, a higher proportion (46%) of regulators with the legal powers to consider environmental sustainability in decision-making report that these quantitative targets are considered.
Of the 184 regulators surveyed, 15 regulators still consider quantitative targets relating to environmental sustainability in their decision making, despite lacking either relevant defined objectives or powers. Fifteen regulators have quantitative targets defined for their sector which they consider despite lacking relevant objectives relating to environmental sustainability, the powers to consider environmental sustainability in their decision making, or both: there are 5 regulators who lack both objectives and powers but still consider quantitative targets, a further 2 regulators who lack only powers but consider targets, and 8 regulators who lack only defined objectives but considers defined targets.
Regulators could take advantage of regulatory management tools to support the delivery of broadened remits relating to environmental sustainability and the green transition. Regulatory impact assessments, ex post review of regulations, stakeholder engagement and risk-based regulatory delivery can bring significant value. A more detailed discussion of regulatory management tools can be found in the paper Better Regulation for the Green Transition (OECD, 2023[12]).
Regulatory impact assessment
Regulatory impact assessments (RIA) that encompass cost benefit analyses can help to reveal potential trade-offs and identify solutions with the greatest net benefits for the environment. RIA is a powerful tool for the development of regulation that serves to integrate environmental alongside economic and social concerns. Furthermore, a robust appraisal of different options and their impacts on the environment as part of RIA helps to minimise unintended consequences and therefore the need to change the regulation after implementation. Embedding environmental consideration at early stages of decision making is crucial for the development of new regulation that can positively influence environmental goals – regulators can assess the costs and benefits of different options and consult with relevant stakeholders to identify the option most aligned to environmental goals (balancing other objectives at the same time) (OECD, 2020[13]).
At the other end of the regulatory policy cycle, ex post evaluation can help ensure that regulations stay fit-for-purpose and support environmental goals. Moving away from the traditional “set and forget” approach to regulating, an “adapt and learn” approach will be required to support a more dynamic policy and governance environment as network sectors and society as a whole transition to a more sustainable state. In this context, evaluations will need to assess more than just the marginal impacts anticipated in ex ante assessments but consider the indirect and second order impacts for the environment (OECD, 2023[12]). At the same time, the cumulative effect of regulation for a given network sector (e.g., transport) needs to be considered. The evaluation of individual regulations can be complemented with sector-wide reviews to this effect, which may require collaboration between regulators, and between regulators and the executive, depending on the relative roles, responsibilities, and powers (OECD, 2020[14]).
It is important that regulators are aware of the impacts of their regulatory actions and decisions. This helps drive improvements and enhance systems and processes internally. It also demonstrates the effectiveness of the regulator to whom it is accountable and helps to build confidence in the regulatory system. Where economic regulators begin to regulate in accordance with new mandates associated with environmental sustainability, and with new objectives in mind, there may be a greater need or justification to conduct internal and external reviews. Post-implementation reviews of new regulations can be included alongside a review of the effectiveness and efficiency of any new systems, procedures or processes the regulator may have introduced to deliver on its new mandate.
Evidence from the green governance survey of regulators shows less than a quarter of regulators are required to assess the impact of the regulatory framework or regulatory decisions on environmental outcomes. Whilst 20% (36 of 184) responded they are required to assess impact (ex ante or ex post) in terms of furthering environmental sustainability, 80% reported they do not have such a requirement (Figure 3.9). It is slightly more likely for ministerial regulators to report a requirement to assess impact (25%) than independent regulators (18%).
The requirement to assess environmental impact is more common for air transport regulators. In most sectors, regulators are not required to assess impact in terms of furthering environmental sustainability. E-communications regulators are the least likely to report requirements of this nature (only 5%) while 35% of air transport regulators (13 of 37) are required to assess impact (Figure 3.9).
Note: A total 184 regulatory authorities provided an answer to the survey question.
Stakeholder engagement
Regulators may need to reassess the design of stakeholder engagement processes to support the delivery of broadened remits. Whilst most regulators have established mechanisms for engagement with stakeholders as part of achieving their objectives, and this is good practice, regulators may need to engage with a more diverse range of stakeholder groups if their remit extends to consider environmental goals. For example, there may need to be more explicit efforts to include environmental civil society organisations in engagement processes, or representatives of vulnerable groups that tend to be disproportionally affected by environmental threats.
Nearly one quarter of regulators send a specific request to environmental CSOs to invite them to participate in their consultation processes. Overall, 22% of regulators surveyed responded that they invite environmental CSOs to contribute during the consultation process: 17% of regulators do this for some consultations and 5% of regulators do this for all consultations. It is more likely water (38%) and air transport (30%) regulators report they send a specific request to environmental CSOs, whereas it is least likely that e-communications (9%) or rail transport regulators (9%) do so (Figure 3.10). It is also more likely that ministerial regulators (32%) send a specific request to environmental CSOs than independent regulators (19%). Among regulators with the powers to consider environmental sustainability in decisions and with relevant defined objectives, the proportion inviting input from environmental CSOs specifically is higher (36%).
For most regulators, environmental CSOs do not receive a specific request to participate but are nevertheless able to respond as part of an open call for comments. More than half of regulators (58%) do not make a specific request but launch an open call for comments to all stakeholders, to which environmental CSOs can respond. This proportion is consistent for both ministerial and independent regulators. Furthermore, this situation is the most likely scenario across all sectors, though particularly common in the energy sector – 69% of energy regulators reported environmental CSOs can participate through an open call for comments.
However, there are cases where environmental CSOs have no avenues to provide input into the regulatory decision-making process. For 20% of regulators, due to the lack of any open call for comments or specific requests, environmental CSOs are not invited to participate in consultations and therefore excluded from providing input to inform decision-making. This proportion is even higher in some sectors: 39% of rail transport, 26% of water, and 24% of e-communications regulators provide no avenues for environmental CSOs to input into regulatory decision-making (Figure 3.10).
Note: A total 183 regulatory authorities provided an answer to the survey question.
Following OECD guidance on the governance of regulators, regulator’s engagement practices should be purposeful and structured, the relevant procedures and mechanisms institutionalised and transparent, and engagement should be undertaken regularly (OECD, 2014[1]). The knowledge of regulated entities, business, citizens and other stakeholders impacted by environmental issues and the regulatory regime assist the regulator to make efficient and effective decisions. Furthermore, good engagement processes help to protect against potential conflicts of interests and the regulator from being seen as captured by special interests.
Foresight and regulatory experimentation
Approaches to managing regulation and the regulatory design process may need to adapt to better support environmental objectives and ensure regulation remains fit-for-purpose. This is especially the case where economic regulators are provided with a broadened mandate and therefore have responsibilities to manage new risks on the horizon. The use of outcome-based regulatory approaches, agile methods, risk management, horizon-scanning, regulatory experimentation, enhanced regulatory delivery functions and other techniques can bring benefits in terms of enhancing regulators’ ability to adapt and deliver on environmental goals. As discussed in Chapter 1, economic regulators will face common challenges, emerging risks, and will remain accountable as key state actors, but there are a number of solutions ready to implement to help mitigate these risks and meet the challenge of a changing environment.
For example, innovation can be stimulated through outcome-based regulation, where regulators set envisaged outcomes rather than dictate procedures for how operators should achieve them. Furthermore, regulatory experimentation through regulatory sandboxes, pilot projects and pilot regulations can also be used to harness innovations that will have a beneficial environmental impact (see Chapter 2: Choice of regulatory approach; Box 2.1. Regulatory experimentation in France’s energy sector).
Regulators with licensing and/or inspection functions relevant to environmental outcomes could reap the benefits of a risk-based system of regulatory delivery (OECD, 2023[12]). Risk analysis is of particular importance to environmental regulation, yet the concept of risk is not systematically reflected in the policy making processes of OECD countries – 10 of 36 OECD countries require systematic risk assessment for environmental regulation, according to the OECD Indicators of Regulatory Policy and Governance (OECD, 2021[15]). For the design of regulatory authority processes, permitting requirements, inspections and enforcement should be proportional to the level of risk associated with a given service, product, or activity.
The OECD Recommendation for Agile Regulatory Governance to Harness Innovation underscores the importance of supporting agile and future-proof regulation by developing institutional capacity and capability for systematic and co-ordinated horizon scanning and scenario analysis, anticipating and monitoring the regulatory implications of high-impact innovations, proactive stakeholder engagement, and continuous learning and adaptation (OECD, 2021[16]). The French energy regulator’s Scientific Council (formerly Foresight Committee) brings together energy industry stakeholders to consider the implications of the energy transition and digital revolutions (ox 3.6). The Colombian regulator, CRC, has established an Innovation and Foresight unit, as well as a Data Analytics Intelligence unit, to meet the evolving challenges in relation to data and innovation.
Beyond purpose-built institutional co-ordination and stakeholder engagement practices, there is also the opportunity to integrate agile and innovative approaches in regulatory tools such as regulatory impact assessment – recent guidance for the European Commission developed by the European Parliamentary Research Service’s considers existing practices and ways forward for the use of strategic foresight in impact assessment (EPRS, 2024[17]).
Providing for appropriate resourcing and capability
Regulators will need to build sufficient capacity and capabilities to deliver on new or expanded mandates for environmental protection. Close attention will be needed around regulators’ staffing and funding arrangements – such as its ability to hire new staff, allow existing staff to build new capacities, re-organise itself internally, or to manage resources autonomously – as these can have an important bearing on its agility to respond to new roles and expectations. The OECD’s Principles on the Governance of Regulators recommend the relevant enabling legislation should identify the skills set and experience relevant to the regulatory functions that need to be represented on the governing body (OECD, 2014[1]).
As may be expected given the diversity of situations in which regulators find themselves, in terms of their mandate and relevant powers for considering environmental sustainability, regulators are divided between those that are building capacity and capabilities in this area and those that are not.
More than a third of regulators have built internal capacity in environmental sustainability expertise or plan to build capacity in the near future. Around one third (58 of 183, 32%) of regulators have recruited staff with environmental expertise in the past five years. A further 7% are planning to hire such staff for the future (Figure 3.11). As may be expected, the proportion of regulators building or planning to build capacity is higher amongst regulators with defined objectives relating to environmental sustainability (56%), the legal powers to consider environmental sustainability in regulatory decision making (51%), or both (54%).
Note: A total 183 regulatory authorities provided an answer to the survey question.
Water and air transport regulators are more likely to report that they have recruited staff with relevant expertise in the past five years or are planning to hire such staff in the future. More than half (21 of 37, or 57%) of air regulators and 59% of water regulators (16 of 27) have hired staff with expertise in the environmental sustainability of the sector in the past five years or plan to do so for the future. In contrast, only 13% of e-communications regulators (5 of 40) and 28% of rail transport regulators (10 of 36) report the same. Only one energy regulator reported plans to hire such staff for the future, but 40% (17 of 43) stated they had already recruited such staff in the past five years (Figure 3.12).
Some regulators have not built internal capacity, instead making use of external expertise. Overall, 15% of regulators reported they make use of external expertise, either professionals or academia, having not hired, or made plans to hire, internal staff. This proportion is slightly higher among regulators with defined objectives related to environmental sustainability (17%), with the legal powers to consider environmental sustainability in decision-making (19%), or both (19%) – for these regulators, who also are more likely to have hired or plan to hire internal staff with expertise, there is still a significant proportion, close to a third, reporting no plans to hire internal or external staff. The use of external expertise rather than internal capacity is slightly below the average among rail transport and water regulators (8% and 7% respectively).
However, a sizeable share of regulators are not building capacity in this area. Close to half (47%) of surveyed regulators have not hired nor plan to hire staff with expertise in areas relating to the environmental sustainability of the sector, nor do they plan to make use of external professionals. The proportion of regulators stating this response is higher amongst independent regulators (52%) than ministerial regulators (32%), and much higher amongst e-communications (68%) and rail transport (64%) regulators than for regulators in other sectors (Figure 3.12).
Note: A total 183 regulatory authorities provided an answer to the survey question.
Regulators with mandates relating to environmental sustainability will need to continually update and enhance the skills, knowledge, and capacity of their staff to keep pace. Changes in the sector, including relevant technological developments, and the possibilities available to all regulators due to digitalisation and the use of big data require the continuous assessment of capacity and capabilities. While the professions of engineers, economists and lawyers remain central, regulators are looking to reinforce their workforces with a range of additional specialist skills and professions. For regulating for the green transition, the capabilities and capacity regulators may require, to develop internally or procure, may relate to the following:
Expertise in environmental sustainability data measurement and data management
Expertise in specific environmental issues areas (e.g., biodiversity, pollution, decarbonisation, and so forth)
Expertise in risk management
Expertise in IT, digital, and data-based solutions (including AI) to enhance efficiency and provide new data sources for regulatory decision-making.
These skill areas may be targeted as part of a comprehensive future hiring strategy which aims to tackle the requirements associated with evolutions in technology, markets and policy ambitions, which are arising simultaneously. In addition, or as an alternative to hiring, upskilling is a viable approach for meeting the needs of both digitalisation and expanding remits into environmental sustainability. Upskilling will be key to supporting the formation of interdisciplinary teams, an ambition held by German regulator BNetzA, for example.
Regulators, alongside other public sector institutions, can find it especially difficult to hire well-qualified staff in these areas. The OECD’s report on Equipping Agile Regulators (OECD, 2022[18]) found that many regulators report difficulties in hiring well-qualified staff, especially IT and data specialists, which can affect their ability to execute regulatory activities. This reality is often a consequence of the hiring terms offered by public sector employers, particularly less competitive salaries, which increased job security is not always to mitigate.
Some skill needs could be met by contracting specialist companies. In the context of the OECD’s report Communication Regulators of the Future, regulators cited the need to strike a balance between outsourcing and the development of in-house resources, but at the same time, outsourcing arrangements can be used to supplement or build-up in-house skills (OECD, 2022[2]). In Australia, the ACMA utilises partnership arrangements with the IT sector to supplement capacity and develop long-term capability, both through skill sharing and job rotation opportunities. In Lithuania, the “GovTech Lab” initiatives has allowed the communications regulator to bring in external skills to innovate public sector processes by engaging start-ups and innovative tech companies to develop digital solutions. Such approaches may also play a role in building capacity in expertise relating to the environmental sustainability of the sector.
At the same time, funding levels should be adequate to enable the regulator, operating efficiently, to effectively fulfil the objectives set by government, including obligations relating to environmental sustainability and the green transition. Where those obligations have been introduced as new duties, funding levels should be reviewed to ensure they are fit-for-purpose. Funding processes should remain transparent, efficient, and as simple as possible, and new funding arrangements for new duties should not unduly influence regulatory decisions, the technical decision-making and prioritisation of objectives, or otherwise impact impartiality (OECD, 2014[11]).
Organisational culture and change
Broadened remits and new objectives for economic regulators relating to environmental sustainability may require new ways of thinking and working. As discussed in Chapter 1, a changing context and role for economic regulators may bring with it organisational challenges, as well as a need to overcome technical or operational barriers to regulatory delivery which necessitate the review, restructuring and development of capacity and capability within the organisation. Efficient and effective delivery will be essential based on the urgency with which governments are seeking action from institutional partners.
Regulators should identify the need for organisational change, diagnose the current state, and take steps to anticipate and understand the potential implications of change. Existing staff within the regulator may be asked to solve problems in new areas, deal with new data, or new processes. The regulator may recruit a substantial volume of new staff, or make changes to its senior management, impacting the nature of the organisation and its identity. These organisational changes need to be properly managed to avoid negative impacts and to enable the organisation to deliver on its new remit effectively and efficiently. Change management strategies that prepare the organisation to adapt and support staff through periods of change appear to be at the heart of cases of successful organisational transformation (OECD, 2020[19]). When building capacity or managing change, sufficient thought should also be given to the diversity and inclusiveness of the organisation, since increasing these realities holds the promise of increased performance (Nolan-Fletcher, 2019[20]).
Pressure for change can also come from within the regulator. Some regulators have experienced pressure to address issues such as climate change and take the initiative from its staff. In this case, the regulator needs to understand the risks and opportunities discussed in this chapter before acting, considering changes to governance arrangements, or advocating for change.
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← 1. Notably under the EU Electronic Communications Code (EECC) and the Broadband Cost Reduction Directive (BCRD).
← 2. For more information please see: https://www.ofwat.gov.uk/regulated-companies/rapid/.