The implementation deficits of adaptation and mitigation: green buildings and water security in Amsterdam and Boston

Abstract

Frameworks of environmental regulations are fundamental yet problematic factors in achieving climate mitigation and adaptation policy goals. Recent theoretical arguments claim the value of general legal frameworks to enable experimentation and contextual adaptation of policies. However, empirical research regarding the effects of both general and specific norms in the practice of urban intervention remains limited. In this article we empirically discern how city governments deal with the tension between control and flexibility in the implementation of urban climate change goals. We argue that policies of adaptation/mitigation face two types of implementation problems: non-adaptive implementation and non-implementation. The first stems from an excessively constraining use of rules, while the second derives from a too general and undefined regulatory framework. Analysing two empirical cases in Amsterdam, Netherlands and Boston, MA, USA, we conclude that there are three elements that affect the way actors deal with these deficits: the level of scale at which regulations are established, the degree of land ownership which provides margin of manoeuvre to public authorities, and the sense of political urgency behind mitigation and adaptation policies.

Keywords:

• Climate change
• green building
• water adaptation
• implementation deficit
• planning regulations

Introduction

The mitigation of and adaptation to climate change has become imperative for cities. Yet, their spatial realisation is often problematic, permeated by conflicts and political controversies or because proposed solutions are not carried out successfully (Davoudi & Shaw, 2012). City governments are the central agents faced with the challenge of increasing risks caused by climate change-induced weather hazards (McGranahan, Balk, & Anderson, 2007; Moriarty & Honnery, 2015). Both national and local governments acknowledge the necessity of taking a more proactive stance towards climate change. This urgency has driven numerous attempts of strategic policymaking and concrete urban interventions oriented to climate issues. However, while existent policies share a strong strategic approach to urban adaptation and mitigation to climate change and often combine different types of instruments to enable innovative actions, the results and their long-term impact might be debatable in practice (see for instance Fitzgerald, 2010; Fitzgerald & Lenhart, 2016;). While policies at national and international levels remain central in mitigating climate change, there is increasing agreement on the central role of cities in addressing the urban, economic and environmental sources of climate change. Cities have a prime responsibility with regard to zoning and land use planning, addressing policies of urban extension, sprawl and soil consumption, but also tackling issues of green areas preservation and domestic energy consumption. These are (some of the) highly relevant issues that today can be tackled at an urban scale.

Among the various instruments at the disposal of cities to mitigate and adapt to climate change, legal frameworks of environmental regulations provide important yet problematic tools for locally enacted policies. For example, while environmental and building laws offer opportunities to stimulate innovative initiatives, they also have the potential to hinder innovative out-of-the-box architectural and structural solutions. When looking at the capacities for spatial interventions, recent studies have strongly problematised contemporary approaches to spatial regulations, arguing that existent laws are often instrumentally used to control the risks of dangerous action rather than favouring the advantages of innovative solutions (Alexander, Mazza, & Moroni, 2012). In many cases the necessity to secure against environmentally dangerous developments seems to conflict with the imperative to increase adaptive capacities to cope with context-specific circumstances (Savini, Majoor, & Salet, 2014). An example of this problem lies in the incompatibility between existing environmental regulations, often dating from the mid 1970s, with new technological solutions for energy efficiency. Most existing legal frameworks are geared to control environmentally dangerous urban development, and eventually compensate for externalities (McLaughlin, 2012)

This inherent tension between innovation and control and between enabling and protecting characterises most of the regulations oriented towards spatial innovation and climate change. This tension becomes problematic when governments aim to increase the implementation capacity of strategic policies. Existent studies emphasise an implementation deficit of climate change adaptation and mitigation, showing how the outcome in concrete land development seems to insufficiently attain strategic climate objectives (McCormick, Anderberg, Coenen, & Neij, 2013; Uittenbroek, Janssen-Jansen, & Runhaar, 2013). This deficit is surprising in the light of contemporary opportunities to develop state-of-the-art sustainable and resilient prototypes in urban transformations (Williams & Dair, 2007) – especially considering the potential of regulatory requirements to attain more environmentally sustainable outcomes in real estate development. Even though legal rules might offer instruments to enable contextual solutions for strategic climate goals (e.g. subsidies), city governments often still use them in a directive manner to prioritise the control of risks rather than experimentation. The result is a long-term deficit in implementation, as it inhibits the capacity of different agents such as developers or citizens to achieve innovative solutions. Due to the local vulnerability towards climate change-induced weather events, the practice of urban development is surrounded by high environmental uncertainty. Under such conditions local governments tend to opt for precise and particular rules, which are at odds with the flexibility needed in order to allow an adaptive response to cope with this uncertainty (Chiodelli & Moroni, 2014). While strategic goals tend to be broad to capture larger societal and political challenges at the city or regional level, legal rules are often used to specify strict requirements of spatial interventions (Lebel et al., 2006).

Interest related to the conceptual tension between legal frameworks and context-specific agency is increasing in the literature which is searching for an approach to planning regulations that could be less instrumental and reflect a nomocratic approach to planning (Moroni, 2014). Nonetheless, systematic and comparative case studies focusing on the concrete conflicts between control and flexibility remain lacking. In this article we offer an empirical look at how city governments deal with the tension between control and flexibility in implementing climate change goals. We propose an analytical framework based on the assumption that policies of adaptation and mitigation face two types of implementation problems: non-adaptive implementation or non-implementation. The first stems from an excessively constraining use of rules, while the second derives from a too general and undefined regulatory framework. We build on Sabatier and Mazmanian’s (1979) analytical definition of implementation, which refers to the ‘insurance of compliance’ in the behaviour of a targeted group to policy objectives. In order to discover the key factors that drive their regulatory choices we empirically discern how city governments adopt different legal strategies to deal with these two implementation deficits in the practice of urban projects. Based on two case studies we conclude that while implementation deficits seem inherent in regulating sustainable development there are three factors that structurally affect the way cities deal with these regulatory challenges: the level of scale at which regulations are established, the degree of land ownership which provides the margin of manoeuvre to public authorities, and lastly, the sense of political urgency behind mitigation and adaptation policies.

This conclusion results from a comparative embedded case study of climate change mitigation and adaptation strategies in Amsterdam and Boston, MA. We particularly scrutinised legal frameworks for urban water adaptation and for green building requirements. These cities show a high similarity in their strategic climate change ambitions, yet offer different administrative and public policy contexts when dealing with water and green building provision. Amsterdam combines a strong planning tradition with a fine-grained legal infrastructure for environmental protection, especially with regard to water and energy efficiency (Uittenbroek, Janssen-Jansen, Spit, Runhaar, & Runhaar, 2014). The city is an active player in establishing benchmarks and standards of land development with regard to environmental issues. Boston, on the other hand, traditionally executes less control when it comes to urban development as it relies more on the innovative capacity of real estate and land market actors. In both cases we analyse the relation of green building regulations to mitigation goals and urban water adaptation rules as they relate to adaptation goals in a particular urban development project.

The following section conceptualises the inherent tension between control and adaptation in the implementation of strategic climate goals. Second, we provide a clear heuristic model for the case comparison. With this model we aim to gain insight into the implementation of climate policy adaptation by incorporating the tension between flexibility and control in our observation of how strategic goals are translated to enable spatial realisations. We then address water adaptation measures and green building requirements for both cases. We conclude with a reflection on the key conditions that drive regulatory choices to address implementation deficits.

Policy goals and spatial realisation: non-adaptive implementation and non-implementation

Strategic goals are broadly formulated statements derived from wider societal and political principles. As a result the establishment of goals creates a multitude of potential ways of implementation that includes a wide array of actors and has a long temporal scope (Macleod & Goodwin, 1999; Miller, Hickson, & Wilson, 2008; Salet, Bertolini, & Giezen, 2013; Teisman & Klijn, 2002). In the case of climate change, however, there is a political urgency to create a more tangible connection between strategic goals and urban development to foster implementation. This requires a translation process where objectives defined at different levels are particularised into legal rules for directing action in urban development. The urgency of climate change often pushes governments to follow a rather linear implementation process based on control. Governments tend to stream different sets of decisions one after the other in order to organise subsequent negotiation processes on particular issues and progressively reach a certain spatial output (Teisman, 2000).

The use of regulatory control to steer specific outputs in urban development is problematic; precise control of spatial outputs does not account for dynamic, unexpected and contextual urban changes. More recently, there is increasing agreement that unexpected events, unplanned consequences of policies and bottom-up self-organised initiatives can be positive factors in addressing urban problems (De Roo & Silva, 2012). Alexander et al. (2012) have included these notions in their frameworks, demonstrating that output-based rules are often frustrating innovations because they are not sensitive to unpredictable events. In acknowledging complexity some argue that by changing norms into more general principles it is possible to provide room for contextual solutions to specific problems while maintaining overarching objectives of mitigation and adaptation (Van Rijswick & Salet, 2010). Furthermore, general rules can cope with the emergence of unforeseen contextual and technological opportunities (Alfasi & Portugali, 2007). In this view, broad principles of environmental adaptation and mitigation are considered to work as roadmaps in planning, supporting planners in their practice of exploration and navigation through complexity (Hillier, 2011; Balducci, 2011). Rather than defining a limited set of secure ones, these views emphasise the priority of planning to explore multiple solutions during implementation (Alfasi & Portugali, 2004).

While offering the opportunity for experimentation, principle legal rules entail the risk of non-compliance of private parties or opportunistic or free-riding behaviours, especially when not supported by precise sanctioning procedures. To avoid these behaviours, governments often opt for more directive and constraining regulations. Regulations oriented to precise outputs are effective in safeguarding the public interest against harm because they establish particular limits to individual actions (Alfasi, Almagor, & Benenson, 2012; Driessen & Van Rijswick, 2011). In many cases, private actors demand certainty and predictability on the physical conditions of their living and working environment in order to make decisions with acceptable risks (Ebbesson, 2010; Savini, 2016). With regard to environmental issues and water management, the provision of safety is an especially important attribute of control. In most cases, environmental safety is perceived as a public responsibility, meaning regulations are designed to be strict, interpretation averse and clear. The public sector itself also benefits from legal certainty as it provides a legal foundation for decision-making and public action (Salet, 2002). On the other hand, these directive coercive rules are based on a static representation of reality and tend to cater poorly to specific spatial implementation contexts, emerging innovative solutions and changing socio-economic conditions (Salet et al., 2013).

The static representation of urban dynamics entailed in any legalistic language and frameworks contrast with emerging policy goals of resilience and adaptive capacity. In the last few years, policy circles and academic research have been broadly concerned with concepts able to capture the dynamic and complex reality of urban policy-making and planning. Ideas of “active resilience” (Giezen, 2013, p. 727) or “evolutionary resilience” (Davoudi, 2012, p. 319) have been put forward to outline a major paradox of consolidated regulative frameworks: on the one hand policy increasingly aims at contextually constructing innovative collective action, enabling learning and incremental adaptations; on the other hand legal frameworks proposed to achieve those same ends recursively fall back into a legalistic dichotomy between specified possible/not-possible actions, eventually supported by a specific sanctioning system. Following Davoudi (2012, p. 63), “climate uncertainties have heightened the quest for control” rather than stimulated legal reform to enhance adaptive capacities.

The challenge for planning practice is thus to combine elements of control to protect against the risks of undesirable development with elements of flexibility in order to harness innovative adaptive practices Table 1. In fact, any legal framework operates on individual and collective agency in a double way: binding action and progressive learning. On the one hand it involves a degree of control to enable security of outcomes. This is intrinsic in binding norms that steer or forbid behaviour. On the other hand, legal norms attempt to achieve progressive learning and adaptation. In our view the latter is a fundamental element for implementing climate adaptation and mitigation strategies in practice. Yet we also observe that an increased urgency for climate-proof cities pushes governments and planners to strengthen control that guarantees environmental security instead of opening up space for radically innovative thinking. In doing so they give privilege to short-term certainty through specific interventions. This, however, reduces long-term implementation of climate adaptation and mitigation.

Table 1. Summary of legal mechanisms oriented to control-security versus those oriented to enable adaptive implementation.

Orientation to controlled security	Orientation to adaptive implementation
Oriented to safety	Oriented to adaptation
Protect against free riding	Enables creative solutions
Binding action	Incentivises action
System of penalties	Systems of incentives
Conservative approach	Experimental approach
Instrumental to output	Non-instrumental durable principles

Implementation deficits: an analytical distinction

In order to understand how actors deal with the tension between short-term certainty and long-term implementation it is important to discern between three analytical fields. These fields are not spatial or territorial scales but analytical dimensions of legal frameworks, and feature distinct dynamics within the implementation process. The first is the policy field, where strategic goals are formulated and used to inform different actors, policies and regulations. At this level different governance processes at regional, municipal or national scale are organised and often result in sustainability agendas, climate adaptation strategies and road maps. From a political and administrative perspective, these goals can be general and inclusive or can already steer towards politically desired outcomes. The second field is spatial and land use regulations. Here a particularisation and operationalisation of strategic goals into spatial outputs occurs in order to guide action by private parties. At this level planners often struggle to define areas of urgency, priorities of interventions and to establish frameworks for different interventions in space. The third field is the project field – also referred to in this article as ‘projects’. At this level established rules tend to be dealt with, renegotiated and enforced in light of other priorities. They can be contested in the light of economic priorities or perhaps, when possible, adapted into specific contracts and agreements of realisation.

Our main critique to existing theoretical reflections on planning regulation is that most often legal frameworks are problematised without exploring this multi-scalar complexity of regulatory practices. Research often remains at the level of the second field, that of land use regulations, and less often looks at the other two, namely the policy frameworks that stimulate legislative processes or the practice of contextualisation within specific local practices. In practice, each of these fields of agency entails a different challenge for regulating collective action. By adopting a view that combines these levels it is possible to better appreciate how specific forms of regulatory frameworks find their origin in a particular set of political, social and economic conditions. At the policy level, for example, open, principle-based and general frameworks might bring advantages when put forward with a high degree of urgency. Political goals might therefore become embedded in processes of project development at the local scale. Conversely, very specific frameworks might be a necessary complement at the project level, where free-riding is a risk and where public authorities have little legal capacity to steer private investments. The ”legal articulation” of these three levels (Savini, 2016) is a key mechanism to explore which combination of specific and general norms can better appreciate the complexity of spatial policymaking. In our analysis we aim to include and discuss issues of land ownership, political urgency and institutional subsidiarity.

Implementation deficits occur when there is a mismatch between these fields of regulatory action. This can occur immediately or across a longer term. Immediate implementation deficits are caused by an excessively general definition of regulations or when policy goals are not operationalised in this field at all. In these cases general rules provide little direction to agents and have the potential to lead to conflict concerning the underlying goals and rationales or even leading to discretionary instrumentalism. We define this first problem of implementation as “non-implementation”. In practice, this is constituted as a detachment between the policy field and the project field. In other words, the practice of urban development does not recognise, or even respond to policy objectives.

Another implementation deficit can occur in the case of an overly binding regulatory process. Here legal frameworks execute directive control, resulting in unadaptable rules, which prescribe material outputs that do not represent contextual variations. We define this as non-adaptive implementation. The general formulation and long temporal scope of strategic goals differentiates from the regulation field because legal rules specify goals into requirements that guide short-term action. This problem occurs when strategic goals are too specifically defined in order to ensure control over behaviours (Solomon, 2007, p. 821). In this case, the policy field is not detached but overlaps symmetrically with the field of projects, leaving no room for an adaptive translation of strategic goals into practices. This is problematic in projects because the directive application of legal rules tends to result in suboptimal outcomes (McCormick et al., 2013; Salet, 2008). In this scenario more stringent legal rules provide a rigidity trap (see Carpenter & Brock, 2008) where environmentally specific, non-effective outcomes might be locked-in and binding for decades. Figure 1 presents the two extreme scenarios of a controlled and flexible implementation process.

Figure 1. Implementation deficits: the left arrows depict an extremely controlled implementation process, while the right arrows show an extremely flexible process: Source: authors.

The first implementation process illustrated in the model characterises the traditional process based on linearity and control which still prevails in many cities around the world (Alexander et al., 2012; Salet, 2010); the second sketches the risks of free-riding in those cases where open, flexible and highly ambiguous rules are preferred for catering to contextual variety (see also Van Rijswick & Salet, 2012). The tension between flexibility and certainty is expressed in the horizontal axis (regulation types) while the vertical axis emphasises the dialectic between short-term goals and long-term certainty in outcomes (e.g. implementation). An implementation deficit can occur in two ways. First, by excessive control of strategic goals, which frustrate collective and individual action in context. Secondly, a deficit can occur when strategic goals fail to define clear rules at the project level. The first represents a non-adaptive form of implementation of goals, while the second illustrates a form of non-implementation. The non-adaptive implementation process (left) is based on a large use of specific rules – often problem-oriented – and simplifies urban complexity. A non-implementation process instead establishes general goals, yet lacks substantive specificity in order to achieve any effective coherence with the original policy goals.

It is important to note that this distinction is provided as an analytical construct for empirical analysis. In practice, the extent to which any realised project is not reaching environmental objectives, or instead it is doing so in a non-adaptive way, depends both on the expectations of the actors involved and on the initial conditions of intervention. When frameworks of environmental protection are lacking, coercive and specified norms might generate important initial results to govern urban change and address climate change.

Because they are context dependent, any strategy to deal with these deficits can vary, depending on the specific political and socio-economic conditions. Some governments might prefer to keep general goals and specify very few regulatory requirements for climate adaptation in projects. This might be the case when cities have other tools to control land use, namely public land ownership or particular procurement rights. Others might opt for more specific policy goals, leaving space for developing actors to define ways to implement these goals in projects as they see fit. As the case studies below show, this is more likely to occur where public authorities have less capacity to directly steer land use change. Below we show that the ways in which different actors deal with each of these depends on specific institutional and political conditions; in particular, on the political urgency and public responsibility, the land property and the (perceived) capacity of developing actors to achieve mitigation measures.

Methodological note

We examined the practical application of two sets of specific environmental regulations in two different cities: Amsterdam and Boston. The cases were selected according to a “most different comparative case design”, in order to maximise variation in regulatory approaches to climate change, while minimising variation with regards to policy objectives (Gerring, 2006, pp. 139–149). Two categories of climate change regulations have been studied: green building standards and urban water adaptation requirements. The first considers the collection of rules that determine the output of energy efficiency on the building level. These are legal frameworks oriented to mitigation. The second category considers the rules that direct an end result in urban development to cope with excessive rainwater, high groundwater and potential floods. These are legal requirements catered to adaptation.

Two strategic waterfront locations, Buiksloterham as part of the northern IJ banks in Amsterdam and the South Boston Waterfront, were selected on the basis of their adaptation requirements. Moreover, these cases feature real estate projects for the empirical study of the effect of the legal frameworks. In 2014 and 2015, a total of 23 respondents (12 in Amsterdam and 11 in Boston) varying from planners, policy advisors and project managers in the city government to external stakeholders involved in the selected projects were interviewed. Interviews were semi-structured with a focus on strategic goals, legal rules and implementation problems in the project (transcripts available upon request from the authors). The document analysis included strategic documents, regulations and project documentation such as land-use plans, development contracts and the use of building and zoning codes Table 2. Observations included on-site visits, attending public meetings regarding the citywide climate strategies as well as meetings for the specific projects. For the analysis of the qualitative data a coding scheme was developed in ATLAS.ti.

Table 2. Summary of the regulations which have been addressed in the two cases.

Scale	Amsterdam	Boston
Municipal	Land use plan Buiksloterham	Development Review Process (Article 80)
	Land contracts (building envelopes)	Zoning Code Article 37 ‘Green Buildings’ (part of development review process)
	Menu card for climate neutral building (part of land development contract)	LEED certifiability (part of zoning code)
	GPR green building assessment (part of land contract)	Resiliency Checklist (part of zoning code)
		Building Energy Reporting and Disclosure Ordinance
		Building design codes (land ownership)
Regional	Keur, keurbesluit en beleidsregels (Waterschap) (enacted by Waterwet)	State Building Code (reflects federal building code)
National/federal	Building Code	Federal Building Code
	Waterwet	Flood Insurance Reform Act

Setting mitigation and adaptation goals in Boston and Amsterdam

With regard to climate change, a first look at the respective adaptation and mitigation strategies of Amsterdam and Boston reveals two different policy histories. Early studies demonstrate that in Amsterdam environmental policy is oriented to governing processes rather than output, and is further built on open goals and strategies deemed to favour entrepreneurial policies at the project level (Uittenbroek et al., 2013). Boston, contrastingly, has developed a top-down approach to climate adaptation and mitigation, fostered through established public–private partnerships that operate within specifically defined regulatory frameworks (Dodman, Chu, & Carmin, 2013). There are both institutional and historical reasons for this difference. As we show below, Amsterdam combines a long history of active land policy, supported by public land ownership, with a gradual institutionalisation of climate adaptation and mitigation policies. Conversely, Boston relies on political urgency and constraining regulatory frameworks to govern property-led development. These different conditions inevitably influence the way the two cities deal with implementation deficits Figure 2.

Figure 2. Case study areas in Amsterdam (left) and Boston (right). Source: BING maps (2015), edited by authors.

Amsterdam’s overarching goal is to become a climate-neutral city. In order to do so, current policies feature comprehensive frameworks that include specific implementation goals. The city aims to reduce 40% of its greenhouse gas emissions by 2025, and 75% in 2040 as compared to the levels in 1990 (Municipality of Amsterdam, 2015). Achieving such goals requires energy efficiency with a focus on climate-neutral building construction, while deploying renewable energy sources. In terms of adaptation, Amsterdam strives to become a climate-resistant city by enabling a more resilient water management infrastructure. In 2008 the Delta Committee predicted that in case of a water hazard, the negative impact on the local level would accumulate as a result of system vulnerabilities (Veerman, 2008), leading Amsterdam to investigate the risk of water hazards and pursue a multi-layered strategy (meerlagenbenadering) based on prevention, reduction of harmful effects of development and strategic choice of locations (DHV, Urbanisten, Deltares, & Municipality of Amsterdam, 2012). The strategy mainly focuses on dyke improvements (layer one), followed by urban adaptation measures aimed to minimise damage in the case of flooding (layer two and the layer this research focuses on), and outlining the necessary infrastructures for emergency evacuation (layer three).

In Boston, former Mayor Thomas Menino has undertaken a more directive and executive strategy with regard to urban climate policy by establishing the 2007 Executive Order, which set the stepping stones for the 2007 climate action plan (City of Boston, 2007c). The Order proposed the reduction of the city’s greenhouse gas emissions by 80% by 2050. It further proposed the development of a climate action plan aimed at reducing vulnerability, which is updated every three years. The plan was adopted the same year as the Order, as were the first city-based green building requirements. The Climate Action Plan was a general policy statement, emphasising the appointment of a public-private green building task force, the adoption of green building zoning codes for assessment by referring to the US Green Building Council’s ‘Leadership in energy and environmental design’ (LEED) scoring system and an additional municipal point system for incentivising builder compliance (City of Boston, 2007b). Water adaptation goals were not present in the first climate action plan but were established in the 2011 Climate Action Plan Update (City of Boston, 2011). Reportedly, this policy built on an increasing sense of urgency and danger, especially in light of Hurricane Sandy that struck neighbouring city New York in 2012. This risk relates specifically to the rapidly developing South Boston Waterfront, which is detailed further in the section below.

It is important to note that Boston and Amsterdam reveal different political attitudes regarding how environmental concerns have been pushed on the agenda. In Boston, the mayoral leadership has framed climate change as an urgent problem. In a recent report, Boston’s executive approach has been assessed as particularly effective in raising the sense of urgency to adaptation among city officials and to stimulate top-down led experimentation (Dodman et al., 2013). In Amsterdam, on the other hand, local politicians have been less prone to generate this specific sense of urgency. Until 2014, Amsterdam environmental adaptation and mitigation strategies were a corollary of economic, urban and infrastructural policies. As we discuss below, this difference is also likely to have had effects on the approach used to establish regulatory frameworks to which projects must comply (see also Uittenbroek et al., 2013).

Amsterdam: general tender procedures, specific contracts and non-adaptive implementation

The case of Buiksloterham in Amsterdam reveals the city’s choice for an open legal framework made of specific contractual arrangements between the public government and private parties in regard to water adaptation and green building. To address the consequential risks of non-adaptive implementation in the long run, the city has leveraged its land ownership position, taking an active role in negotiating solutions for both green building and water security issues on a case-by-case basis.

Recent urban development policy in Amsterdam targets locations around the ringzone, the waterfront area and the de-industrialised northern IJ banks (Municipality of Amsterdam, 2013). The Buiksloterham area covers 100 hectares of land close to the centre of the city. The land is characterised by high pollution and a scattered patchwork of active small enterprises, and a rapidly growing landscape of third-sector industries. Moreover, the area is particularly suitable for innovative housing projects with regard to energy efficiency and water management (Dembski, 2013). The city has adopted a general land use plan (in comparison to its tradition) in order to regulate development in the different scattered plots of land, allowing a wide range of potential land uses (Municipality of Amsterdam, 2009a). The main logic behind implementing adaptation and mitigation measures is to promote and increase residential and workspaces in the area through market-led and citizen-led projects. Citizen-led development has increased in Amsterdam due to the allocation of lands solely purposed for individual or collective citizen developments, a practice which is set against the long tradition of large-scale public led development. As a source of adaptive implementation of environmental goals, the municipality aims to stimulate collaboration between energy, water, waste and housing development by tapping into the existing industrial functions, vacant plots and emerging citizen initiatives.

Within this frame, architectural structural innovation in new building projects is seen as the key opportunity to implement the mitigation goals of the city. Such projects are promoted through ad hoc incentives for energy efficiency such as green building requirements, which are firstly applied to the development rights allocation system. Amsterdam leverages the use of its position as a land owner to specify the conditions for tenders among developers. Through the “‘building envelope procedure” (van der Veen, Spaans, & Janssen-Jansen, 2010) the city provides specific minimal requirements to be fulfilled by the developers and can choose the winning proposal based on proposed energy usage. Introduced in 2005, the tender system is now being applied in other development areas because it allows the city to translate general policy frameworks into specific legal attributes at the project level. The working of this legal instrument relies on the positional power of the city as land owner, which makes it possible to modulate starting land prices and activate direct negotiations with developing parties.

The main rationale of a tender procedure relates to the fact that city governments cannot formally surpass national building requirements by means of added public legal frameworks¹. The national building code is one of the most important frameworks which frame municipal action, and it is enforced by national decree. Yet, at developmental plot level, the city has a margin of manoeuvre with regard to zoning and contractualisation of other structural conditions (e.g. weerstandnormen - resistance standards). While national policies provide requirements for any concessionary agreement at local level, the city can complement and further specify through zoning and ad hoc regulations. In practice, city-level politicians in Amsterdam have become highly concerned with green building standards, adopting a system that allows mitigation measures without adding public legal codes to developments. They made use of formal agreements enacted under a regime of private law, which apply to decisions at the level of the plot, defined above as operational level. The Dutch national energy efficiency standards prescribe minimum national requirements (Ministry of the Interior & Kingdom Relations, 2015). By allocating development rights, the proposed approach of a developer for green building is formalised into a contract as a binding agreement, the so-called bouwenvelop (building envelope). This contract is exclusively applicable to the project at stake and thus does not require a public procedure of adjusting and particularising citywide environmental regulations. As a binding agreement, developers are also required to realise unspecified water adaptation measures as articulated in the land contract.

This procedure is considered highly effective in contextualising regulations, yet it also entails a risk of non-adaptive implementation when tender procedures for development concessions are based on standardised procedures. By establishing a comprehensive assessment checklist, the city aims to leave enough space for innovative ideas, while ensuring that the proposed project is realisable in compliance with policy goals of mitigation. The GPR methodology is used to assess proposals and is based on a point system to assess the engineering and design elements of a building design (Municipality of Amsterdam, 2012b). By using building specifications as input in the GPR assessment procedure, city officials can compare building proposals based on building requirements’ energy standards. In our interviews we discovered that experimental solutions were hindered by the excessive detail and comprehensiveness of this system. One of the competing developing architects clearly expresses this point:

the rules attached to the tender do result in less extreme [green building] visions, which is a shame because real innovation comes from an extreme narrative (Architect, June 2015).

Despite this risk of standardisation, the public-led system of tenders allows for stimulating innovative thinking by way of competition between developers. This is due to the fact that the City of Amsterdam can and does get engaged in direct negotiations on the delivery. Land ownership is, again, a key factor in enabling this capacity. The land contract legally ensures implementation of the proposals, as happened in the realisation of land plot number 41. Here an initial proposal made in 2008 had to be changed in light of real-estate market downturn. The city, however, had demanded the compliance of the initial tender’s green building scores despite the request by the developer for reassessing the proposal (Municipality of Amsterdam, 2009b). While the city referred to the original contract, they at the same time, allowed an adjustment to the building materials in order for the development to be able to continue. No public framework for specific regulation was added.

Land ownership and a long lasting tradition of land development provide with the basic capacity and political legitimacy to engage in public–private negotiations of this type. A similar approach is also applied to projects where citizen groups or individual households are the direct developers of plots. When the city markets land plots directly to citizens, it utilises a “menu card for climate neutral building” to ensure implementation of citywide mitigation goals (Municipality of Amsterdam, 2012a, 2012b). This card is a compulsory framework for green building and energy requirements. It includes requirements such as the instalment of a “hot fill dishwasher application”, “floor- and wall-based heating systems” and a “shower heat recovery system” (Municipality of Amsterdam, 2012b). This directive framework allows the city to avoid that developers bypass energy and water regulations and ensure climate-neutral standards, yet is often perceived by citizen self-builders as too detailed and rigid².

In water management, Amsterdam is forced to cope with a highly defined hierarchical framework developed in the past, which forces developers to manage waste water only through the sewer system. In particular, the Waterwet (Stadt der Nederlanden, 2009) provides the national regulatory framework for water management and the principles of subdividing responsibilities across levels. The national framework is further specified by regional water boards (Waterschap), which make use of a rather comprehensive list of rules, including forbidden actions (verboden) and requirements (geboden). Due to high groundwater levels and recent urbanisation in the area which challenges the old sewer system, Buiksloterham is relatively vulnerable to flooding in the case of extreme rainfall³ (Municipality of Amsterdam, 2009c, 2009d). Moreover, the management of rainwater is not yet an urgent policy issue in Amsterdam, primarily due to the fact that water safety is allocated to the national government and water authorities (Staat der Nederlanden, 2009) ⁴. Recent and extreme rainfall, however, is sensitising the city to this issue (De Fauwe, 2014) which has not yet opted for radical change of its infrastructure but for incremental improvements and enlargements⁵.

According to the land-use plan, all land must be raised to + 1 metre above the Dutch Normal Level (NAP) in order to deal with high groundwater levels (Municipality of Amsterdam, 2009a). Existing legal frameworks force developers to use the current sewage system, making it difficult to implement alternative water mitigation measures. Here, the city has again applied the tender procedure to stimulate innovative proposals from the developers instead of precise new compulsory regulations. The tender procedure indicates that it is the responsibility of the project developer to prevent water disturbances at neighbouring plots (Municipality of Amsterdam, 2009c, 2009d). Alternative forms of wastewater disposals are allowed only if there is no evidence of negative effects⁶. This has allowed for different solutions such as green roofs to hold water (plot 12) and a rainwater storage system (plot 22)⁷.

Boston: layers of specific codes used to avoid non-implementation

In contrast to Buiksloterham, the redevelopment of the South Boston Waterfront shows a different picture. Here, the city administration utilises citywide specific zoning frameworks, based on multiple layers of public requirements, to overcome non-implementation deficits, but with the consequential effects of generating a standardised realisation of urban interventions and, according to the interviewees, bringing little contribution to achieve the policy goals established at the city level. The combination of specific requirements based on quantified outputs with a similarly specified policy framework seem not to have stimulated innovative thinking among developers, which instead applied the minimum standards to obtain building concessions.

The South Boston Waterfront area was first created as a landfill in 1833 for the use of Boston’s port, and currently encompasses 1025 acres or four square kilometres (City of Boston & Boston Redevelopment Authority, 2000). Currently the area is in transformation whereby the working port co-exists with new mixed-use, mostly commercial, developments. The location close to the airport, downtown, the interstate, two relatively close subway stations and the Silver bus line, makes the South Boston Waterfront a landmark for the development ambitions of the city. The South Boston Waterfront has also been named the “Innovation District”, the title of the economic development strategy that also embraces the principle of sustainability (City of Boston, 2014a).

The most relevant legal framework for green building requirements in Boston is the Zoning Code Article 37 Green Buildings. Moreover, it is the main legal instrument used to affect new building construction (City of Boston, 2007a). The reason that Boston utilises its zoning code is because the building code, as in Amsterdam, is under state control and has to reflect federal codes (see US Department of Energy, 2014). The key rule requires all new buildings over 50,000 square feet/4645 square metres to be Leadership in Energy and Environmental Design (LEED) certifiable (City of Boston, 2007a). Developers are thus required to obtain sufficient credits within the LEED scoring system or a comparable green building assessment methodology. This zoning code was oriented to control and govern individual developer strategies by means of a general assessment framework. As one planner stated, “it was seen as the best mechanism […] having the greatest teeth if you will. […] And then there is an enforcement mechanism” (Planner, Boston Redevelopment Authority, November 2014).

In addition to a point score system, the Boston Redevelopment Authority added the “Boston green building credits” as a way to score more points. This particular instrument was in fact oriented to stimulate innovative projects among developers, beyond the minimum requirements of the LEED framework. Similarly to Amsterdam, this credit system complements, and does not derogate, state and federal requirements. Even with a system of awards, developers have tended to comply with the minimum standards required by the LEED system with little incentive to propose new solutions. In order to contrast this behaviour, city officials adopted further layers of restrictive regulations, namely the Building Energy Reporting and Disclosure Ordinance in 2013 (City of Boston, 2014b). The ordinance indicates, quantitatively, the energy efficiency standards of both new and old building will be reassessed five years after the ordinance.

Aware of the difficulty in promoting innovative experiments by private developers and under conditions of high political urgency, Boston has thus added more public regulations and assessment frameworks to control the compliance of developers. While compliance to the LEED system is compulsory to obtain a building permit, the current LEED levels provide only basic requirements for building concessions instead of incentives for innovative behaviour. While the most sustainable buildings are not really rewarded, the least sustainable comply with the minimum standards. Commercial developers who sell their buildings compete on price rather than energy quality of the building and this is not surprising in a capitalist regime of real-estate investment. However, it appears that regulation based on premiums also has no effect in stimulating innovation by developers who are naturally prone to applying requirements automatically. The introduction of the green building credits did not, in fact, stimulate adaptive behaviour. The city government limits itself to regulating these initiatives through further compulsory requirements. For example, city officials are now exploring raising the green building level to LEED silver (50–59/110 credits), and to lowering the building size threshold to 30,000 square feet/7787 square metres in order to diminish the implementation gap observed (City of Boston, 2014a).

A closer look at the implementation of water adaptation measures shows how, when cities lack capacities (e.g. land ownership) to directly engage in negotiations on land, a system of non-legally binding standards might also have little effect. Urban water adaptation is crucial in the South Boston Waterfront due to its vulnerability to sea-level rise and northeasters, while, in contrast to the Netherlands, federal and state responsibilities with regard to flood protection are limited. Political urgency surrounding water adaptation has increased since the effects of hurricane Sandy in New York City (Flood Emergency Management Agency, 2015).

The first measures addressing water adaptation were promulgated through a “Resiliency Checklist” for reviewing projects from 2013 onwards (City of Boston, 2013). Responses from developers were surveyed in order to determine their preparations for future climate change. This opened a dialogue concerning the topic of urban water adaptation between the project review team of the city and developers, which eventually led to the prohibition of installing any mechanical component in the basements of South Boston Waterfront buildings⁸. Reportedly, this review process had an effect on the design of new constructions, including retractable sea walls or other solutions⁹. However, the use of open review processes as a framework for enforcing and guaranteeing compliance remains too general, instead depending on the price strategies and risk perceptions of individual developers.

Currently, city employees are searching for ways to specify building requirements and enrich the project review process with more stringent measures by referring to internationally recognised water adaptation standards. Specific proposals include a minimum floor height, availability of potable water, a shelter place and the aforementioned deployment of building mechanics on higher floors¹⁰. These specific measures appear to work only in cases where the city can prove necessity before adding measures as a precondition for building permits. Just as with the plots where the city of Amsterdam has land ownership, regulations regarding property belonging to the Massachusetts Port Authority tended to be used in an instrumental way to secure compliance. In these cases, specific design codes were used to ensure high water adaptation standards, especially when the urgency of climate adaptation increased after Sandy.¹¹ Consequently, public land ownership is seen as an opportunity to control the implementation of water adaptation measures in the built environment. In Boston the layering of specific binding requirements on building and water management has not stimulated developers to design innovative solutions, and in our opinion this is explained by the lack of public capacity to negotiate development contracts. In those cases where a dialogue between the city and the commercial developers was possible, the high standards required have been combined with more innovative solutions to water adaptation.

Conclusions

Planning research is increasingly concerned with the institutional implications of particular legal frameworks, especially with regard to adaptation and mitigation measures to cope with climate change. Numerous theoretical argumentations address the value of general legal frameworks and the issue of over-regulating individual behaviours. In order to achieve sustainable urban change, public authorities are exploring forms of incentivising contextual solutions in the field of energy consumption, land use change and building innovation. Despite climate mitigation surpassing urban borders, the urban scale remains one of the main spheres of policy innovation and institutional reform today. More aware of the complexity of human behaviour, legal approaches today strive to combine norms which appreciate the capacity of markets, individuals and households to adapt to mutated environmental conditions without losing the capacity to govern long-term urban dynamics. Yet, there is a surprising lack of in-depth comparative case analysis regarding the viability of these theoretical assertions. In fact, by scrutinising specific case studies, a much more nuanced picture emerges. As we showed in this paper, both general legal frameworks and particular codes seem to lead to specific problems of implementation, depending on the specific conditions under which they are used and constituted.

To empirically make sense of the complexity of regulating sustainable development practice, we proposed an analytical distinction between implementation deficits: non-implementation and non-adaptive implementation. These two problems represent different practical expressions of the inherent dilemma between control and flexibility proper of any planning regulatory framework. In practice they occur at different moments within the same practices. While generic or non-compulsory legal norms might be better geared to enabling a contextual realisation of environmental objectives, more specific and particular output-based codes might instead ensure compliance in behaviour, securing against opportunistic strategies put forth by developers. A non-implementation problem occurs whenever there is no compliance with policy objectives by stakeholders. In our view, this occurs when policy objectives are too general, without being substantiated by precise requirements, incentives, or disincentives for behaviour. When this occurs, policies tend to remain at the level of statements or missions and barely stimulate materialisation of goals in new developments. A problem of non-adaptive implementation instead occurs when overly precise regulations frustrate individual initiatives and fix them against possible changes of economic, social or environmental conditions. In this case, policies for climate mitigation and adaptation lose their inspirational capacity and turn into mere technocratic ways of ensuring compliance. Finally, it has to be considered that the extent to which implementation deficits are problematised or even considered by city governments depends on the starting political and economic conditions in which they operate. This paper aimed at uncovering (some of) these conditions.

By comparing two different cases we showed that municipal governments continuously face implementation deficits of both kinds while regulating urban development. Based on its planning traditions, we expected that Amsterdam would apply directive rules to govern the choices of developers of water and green building. In Boston, a tradition of public–private partnership suggested instead that general rules would provide more favourable ground for private innovation to occur. Surprisingly, we discovered that Amsterdam has coped with the risk of non-implementation by combining open legal frameworks with a procedure of legal particularisation through competition and land tenders. In Boston, contrastingly, the government is developing a complex and layered system of legal codes, assessment measures, and requirements to overcome the risk of non-implementation. This has led to highly standardised behaviour by developers complying to basic standards without attempting any experiment. In the case of Buiksloterham, a public–private contract-based procedure rapidly encountered risks of non-adaptive implementation, making projects difficult to adapt in the light of changing conditions. Conversely in Boston, the introduction of precise legal requirements was not coupled with buildings and water management requirements above the set standards. The way Amsterdam has dealt with these risks shows that under certain conditions it is possible for municipal authorities to directly influence implementation at the operational (project) level.

The problem of non-adaptation or non-implementation might appear as an irresolvable conundrum. The extent to which they are seen as a problem might even vary across different local experiences, depending on the policy goals. The aim of this article was to examine the theoretical tension between control and flexibility by linking regulations, policy goals and practices of decision-making at the project level. This is a necessary analytical exercise in order to connect legal institutions with other fields of norms, such as political and social. First of all, we added a level of scale. The problem of regulation does not have the same features at different levels. Policies which are open to interpretation might be a condition for inspiration for localities and stakeholders for sustainable development. More precise regulations might instead be unavoidable at the project level where realisation is conditional to operational contracts and agreements between landowners and the municipality. In Amsterdam broad policy goals have been coupled with precise regulatory requirements and active negotiations to enable contextual implementation. We therefore advance the argument that it is not simply important to address the design of rules (i.e. principle versus specific) but to contextualise it within the political context at hand. The key for a legal framework which does not frustrate innovative action lies in a coherent and integrated system of layered regulations. The subsidiarity of regulations seems a crucial issue to address in legal and policy reform.

Second, the two cases show that the capacity of public authorities for governing land development and engaging in direct negotiations at the project level is a crucial variable in explaining how implementation deficits are coped with. Public land ownership in Amsterdam and, to a smaller extent, in Boston, allowed the municipality to stimulate experimentation, using tender procedures and directly assessing creative proposals from developers. In Boston, the system of regulating through quantitative requirements seems to have little effect in incentivising creative solutions by developers. Land ownership seems instead to provide the positional capacity for public agencies to ensure compliance to general policy objectives and avoid non-implementation deficits. In these cases, precise output-based rules are defined at project level to directly and actively make decisions regarding plot development. Land ownership seems to allow governments to navigate the tension between flexibility and control across levels.

Lastly, the two cases suggest that political framing of climate mitigation/adaptation goals is crucial in influencing the functioning of planning regulations. Political urgency can give public authorities capacity to direct action but it might frustrate innovation when combined with specific and quantifiable goals. In Boston, the local government has rapidly embarked on a straightforward policy of regulating development after the threat of hurricane Sandy. A strong political urgency combined with a top-down regulatory approach has stimulated an overreliance on precise and sophisticated systems of assessment criteria. This seems to have frustrated proposals from developers, which instead opted to simply comply with set standards. In Amsterdam, the city has instead integrated sustainability in existing policy frameworks. Within the existing rules and requirements for both water security and green building, the city combined general and long-term policy objectives with case-based negotiations on the plot level.

While this empirical and in-depth case study comparison does not provide enough confidence to generalise these results, it does put forward the evidence that positional land ownership, the political atmosphere behind urban interventions, and the multi-scalarity of environmental regulations are key issues to address when assessing implementation of mitigation and adaptation policies.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes on contributors

Maarten Markus is currently working on sustainable building projects within the company AM-Developers.

Federico Savini is assistant professor in urban and regional planning at the University of Amsterdam. He specialises in urban politics, urban development and institutional analysis of planning.

Acknowledgements

The authors kindly thank Joan Fitzgerald from Northeastern University and Willem Salet from the University of Amsterdam for their guidance and comments in the early phases of this research. The authors would also like to thank all respondents interviewed for this article and the three anonymous reviewers for their constructive and precise comments.

Notes

1. Legal Advisor I, Municipality of Amsterdam, June 2015.

2. Project Manager II, Municipality of Amsterdam, May 2015.

3. Project Manager III, Municipality of Amsterdam, June 2015.

4. Policy Advisor, Waternet, May 2015; Legal Advisor, Waternet, May 2015.

5. Legal Advisor, Waternet, May 2015.

6. Project Manager, Developing Party, June 2015.

7. See for example: http://www.cityplot-buiksloterham.nl/#!plan/c1le6, http://noord4us.nl/woongenot/groen/, http://www.blackjackbsh.nl/blackjack/blackjack-en-duurzaamheid, date accessed: 2–6-2015.

8. Architect, Boston Redevelopment Authority, December 2014.

9. Planner II, Boston Redevelopment Authority, December 2014.

10. Architect, Boston Redevelopment Authority, December 2014.

11. Program Manager, Massachusetts Port Authority, November 2014.