Permitting and Innovation in the Digital Age

Date01 August 2016
Co-authors Eric Biber and J.B. Ruhl should be com-
mended for providing a thoughtful framework
for when agencies should consider individual ver-
sus general permitting regimes. ey presented a simi-
lar framework for the Administrative Conference of the
United States, which is a helpful forum for airing perspec-
tives on important administrative law topics. While Biber
and Ruhl discuss some of the key factors for agencies in
designing a permitting scheme, we identif y some areas
where they may have relied on overly generalized assump-
tions and suggest additional considerations they could take
into account in their model.
In particula r, we want to highlight the extent to which
the Environmental Protection Agency (EPA) is exploring
innovation in permitting. Taking advantage of advances
in digital information technology, EPA ha s been pursu-
ing initiatives like electronic reporting and seeking ways to
advance t ransparency and public participation to address
environmental justice. ese modern approaches ma ke
permitting work more eciently and eectively.
We also note that the longer version of Biber and
Ruhl’s article is a response to Richa rd Epstein’s 1996 arti-
cle, “e Permit Power Meets the Constitution.”1 Epstein
paints an extreme picture of the permitting power that
is not, i n our v iew, reect ive of reality, and is ba sed on a
number of unwarra nted assumptions.2 As Biber and Ruhl
note, Epstein “employed a c aricature of permitting t hat
bears little resemblance to per mitting in ac tion today.”3
ey recognize that the “reality is that the permittin g
system has evolved into a far more exible, nuanced,
and innovative institution in the modern ad minist ra-
tive state.”4 In their longer piece, Biber and Ruhl oer
1. Richard A. Epstein, e Permit Power Meets the Constitution, 81 I L.
R. 407 (1995).
2. We disagree with many aspects of Epstein’s critique. For example, while Ep-
stein paints permitting as ripe for abuse, checks and balances in the permit-
ting process—including rulemaking to set up permitting programs, public
participation requirements, and judicial review—constrain agency discre-
tion and provide meaningful protections for permit applicants.
3. Eric Biber & J.B. Ruhl, e Permit Power Revisited: e eory and Practice
of Regulatory Permits in the Administrative State, 64 D L.J. 133, 138
4. Id. at 138-39.
increased use of general permits as an antidote to some of
the problem s depicted by Epstein. But in so doing, they
risk implicitly acc epting certain premises of Epstein th at
are not necessari ly accurate.
To tackle these points in a succinct and hopefully enter-
taining way, we have organized our comment around some
of the fa llacies or misperceptions about permitting that
are, unfortunately, repeated in many dierent contexts and
deserve some rebuttal. We hope t hat Biber a nd Ruhl will
parse some of these misconceptions as they further develop
their framework.
I. Misconception #1—Agencies Do Not
Make Suff‌icient Use of General Permits
Biber and Ruhl’s recommendation encouraging greater
consideration of general permits could be read to imply
that agencies like EPA are not doing enough to take advan-
tage of general permitting as a regulatory approach. To the
contrary, EPA is well aware of this tool and uses it where
legally authorized and appropriate.
EPA recognizes that general permits can create ecien-
cies for regu latory agencies and regu lated entities a like.
ey can reduce paper work on both sides, ensure con-
sistent permit conditions for si milar facilities, and lower
transact ion costs, delays, a nd uncertainty. General per-
mits can serve the statutory goal of protecting public
health a nd the envi ronment and provide the agenc y with
useful in formation about regulated facilities.5 In some
situations, general permits may be the only realist ic solu-
tion to meeting statutory goals without creating a crush-
ing administrative workload.6
5. e term “general permit” itself embraces a variety of permit structures.
Some general permit programs provide automatic coverage. Others solicit
certain information about the facility and type of discharge, and may also
require monitoring and regular reporting. General permits can also have
tiered conditions to address dierences within a category of permittees. e
NPDES permit regulations at 40 C.F.R. 122.28 provide an example of the
variety of general permits.
6. NRDC v. Costle, 568 F.2d 1369, 1380 (D.C. Cir. 1977) (recognizing that
EPA may rely on general permits under the Clean Water Act as a “means of
coping with administrative exigency”).
Permitting and Innovation
in the Digital Age
by Ethan G. Shenkman and Aditi A. Prabhu
Ethan G. Shenkman is the Deputy General Counsel, and Aditi A. Prabhu is an Attorney-Adviser, at the U.S.
Environmental Protection Agency. e views expressed herein do not necessarily represent the views of EPA.
Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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