Beyond regulatory capture: Coproducing expertise for critical infrastructure protection

Abstract

Complex industries such as petroleum production, civil aviation, and nuclear power produce “public risks” that are widely distributed and temporally remote, and thus tend to be ignored by the risk producers. Regulation is perhaps the most common policy tool for governing such risks, but requires expert knowledge that often resides solely within the industries. Hence, many scholars and policymakers raise concerns about “regulatory capture,” wherein regulation serves private interests rather than the public good. This paper argues that regulatory capture framing has tended to limit understanding of expertise and its role in governing public risks. Most studies of regulatory capture treat expertise as a source of knowledge and skills that are created exogenously to political processes, and which can therefore be politically neutral. By contrast, we draw on work in science and technology studies that highlight the value‐laden and relational nature of knowledge and expertise, showing how its formation is endogenous to political processes. Thus, we argue for both broadening analyses of regulatory capture to consider the historically contingent and uncertain process of creating expert knowledge, and going beyond the capture framing by considering the challenge of negotiating different epistemologies and ways of life. We illustrate this analytic strategy by examining the history of and current debate about critical infrastructure protection standards to protect the United States electric power grid from cyberattack. We conclude by considering the broader implications of these findings for governing public risks.

Disarmed principals: institutional resilience and the non-enforcement of delegation

“…Our paper contributes to wider scholarship on indirect governance (Tallberg, 2002a;Hawkins et al, 2006;Büthe and Mattli, 2011;Abbott et al, 2017;Weiss and Jankauskas, 2019), particularly to research on why principals tolerate agents' noncompliance with a delegation contract (Miller, 2005;de Bièvre et al, 2013;Kruck, 2016;Slayton and Clark-Ginsberg, 2018;Abbott et al, 2019). In addition, our argument on how the combination of institutional misfit and asymmetric interdependence produces resilience yields two broader contributions to historical-institutionalist theorizing.…”

Experts, regulatory capture, and the “governor's dilemma”: The politics of hurricane risk science and insurance

“…Such arguments appear to treat the relational underpinning of expertise as manageable, if not avoidable. On the contrary, Slayton and Clark‐Ginsberg () argue that the production and shaping of expertise is an intrinsic part of the regulatory process whereby regulation shapes knowledge processes and knowledge processes shape regulation; knowledge and regulation are coproduced (see also Jasanoff ). What becomes important for an understanding of whose values are indulged is an examination of the processes of negotiating the application of different knowledge areas that determine how risks are framed.…”

Performance‐based design, expertise asymmetry, and professionalism: Fire safety regulation in the neoliberal era

“…This all points to a potential problem of expertise asymmetry, whereby regulators must rely on expert opinion and on data or technical analysis that is mainly provided by the industry that they are seeking to regulate (Slayton & Clark‐Ginsberg ). For example, in many cases of drug approval the regulators rely not only on drug trial data provided by the drug companies, but also on adjudication by experts (typically from academia) who have conflicts of interest because they are in receipt of research grants from drug companies and/or are shareholders.…”

“…Several solutions have been proposed to address the expertise asymmetry problem posed by the use of PBD, but it is important to also consider how such solutions deal with the issue of the broader expertise deficit among fire safety engineering practitioners. One obvious solution to expertise asymmetry is to increase the expertise of regulating authorities so that they have the competence to provide adequate oversight – as suggested in the case of cyber security regulation by Slayton and Clark‐Ginsberg (). For example, deliberations over the state of Scottish building regulations following the Grenfell Tower fire have raised the idea of a “central review hub” for “complex and high‐risk buildings,” with the logic being that appropriate expertise could be brought to bear on these more challenging cases of PBD.…”