Permitting and Innovation in the Digital Age

• Date: 01 August 2016

46 ELR 10662 ENVIRONMENTAL LAW REPORTER 8-2016

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

(2014).

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”).

C O M M E N T

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®, http://www.eli.org, 1-800-433-5120.