Regulatory capture is a critical risk in regimes designed to protect the environment. Captured environmental agencies are more likely to serve vested interests than uphold the public interest in a healthy biosphere.
Globally, the way capture and corruption constrain climate mitigation, biodiversity protection and addressing inequality is increasingly highlighted.
It’s great to see this growing recognition, particularly because it helps to focus attention on addressing underlying drivers of environmental harm where focus on proximal drivers is easier and less politically challenging. We set about providing some depth and context to this issue in Aotearoa, supporting regulators and other actors to better moderate excessive influence in practice.
This past summer, myself and co-authors Dr Theo Stephens and Geoff Bertram developed two papers that unpack what regulatory capture is, how to identify it and ways to mitigate its impact.
We have proposed a wide-boundary definition of regulatory capture that encompasses the entire policy process from agenda setting and ideation through to implementation and review.
Our definition is:
"The processes and conventions by which vested interests excessively influence a regulatory system, becoming particularly problematic if the public interest is undermined for the benefit of regulated parties. Capture may range from subtle to blatant and have impacts from individual transactions to constitutional settings. It can occur at all stages of the political and policy cycle and at agency and individual levels. Its impacts are typically cumulative in increasing the likelihood that the public interest outcome(s) of the regulatory system will be compromised."
We proposed this definition because regulatory systems have a tendency to
- Fail to recognise the excessive influence of vested interests on the policy (including operational policy) processes
- Focus on operational mitigations such as auditor rotation without applying the same scrutiny to other actors in the system, especially further up the chain
- Blame frontline staff in the event of regulatory failure when the imbalance that underpinned the failure was rooted in capture earlier in the process (thus outside of their control).
Given that it is not possible to enforce our way out of poorly conceived policy, we urge a broader focus in both identifying and mitigating regulatory capture. Unless we can identify capture in all the places it prospers, it will be challenging to marshal in the public interest outcomes of any environmental regulation.
Indicators of capture include warped agenda setting (meaning policy processes appear to favour or entrench privilege for vested interests), narrow engagement (focused on powerful actors who are or may be regulated parties), weakly managed conflicts of interest (for decision makers and other actors) in addition to systemically weakened regulators more likely to cower than enforce.
Antidotes to capture include
- robust regulatory stewardship (the careful oversight and management of regulatory systems)
- ensuring policy and regulatory agencies demonstrate good professional practice
- the reasoned advocacy of civil society organisations and
- effective performance reporting of regulatory systems.
Fundamentally, we encourage policy and regulatory agencies to proactively manage regulatory capture as an ever-present risk in systems designed to safeguard the public interest in the environment. Equitable and transparent design, delivery and evaluation of regulatory systems should be a minimum not a stretch goal.
Quite apart from the long-term outcomes where the life supporting capacity of the environment is not safeguarded by the captured regulatory system, there are other compelling reasons to pay close attention to the prevalence and management of capture. These include protecting the integrity of democratic processes, upholding the reputation of policy agencies and regulators and protecting the safety of staff who often bear the brunt of uncontrolled capture in a regulatory system.
Papers where you can read more
Marie Doole, Theo Stephens and Geoff Bertram “Navigating Murky Waters: characterising capture in environmental regulatory systems” (2024) 20(4) 44 View of Navigating Murky Waters: characterising capture in environmental regulatory systems (“Paper 1”)
Marie Doole and Theo Stephens “Drain the Swamp to Save the Swamp: mitigating capture in environmental regulatory systems” (2025) 21(1) Policy Quarterly 21 Drain the Swamp to Save the Swamp: mitigating capture in environmental regulatory systems | Policy Quarterly (“Paper 2”)
Bio
Dr Marie Doole is the Director of Mātaki Environmental and Adjunct Research Fellow, Victoria University of Wellington.
