The Permit Power Revisited: The Theory and Practice of Regulatory Permits in the Administrative State

Date01 August 2016
8-2016 NEWS & ANALYSIS 46 ELR 10651
The Permit Power Revisited: The
Theory and Practice of Regulatory
Permits in the Administrative State
by Eric Biber and J.B. Ruhl
Eric Biber is a Professor of Law, University of California, Berkeley.
J.B. Ruhl is the David Daniels Allen Distinguished Chair of Law, Vanderbilt University Law School.
I. Introduction
Regulatory permits are ubiquitous in modern society, yet
receive little attention in legal and policy commentary and
law school curriculums. Broadly speaking, there are two
contrasting approaches to permitting. “Specic permits”
entail the agency engaging in extensive fact gathering and
deliberation particular to the individual circumstances
of an applicant’s proposed action, after which the a gency
issues a detailed permit tailored just to that applicant.
“General permits” have the agency issue a permit, with no
particular applicant before it, that denes a broad category
of activity and allows entities engaging in that activity to
take advantage of the permit with little or no eort on their
part. General permits involve limited agency review of spe-
cic facts in any particular case unless the agency nds
good cause to condition or withdraw the general approval.
e question of interest here is where on the spectrum of
approaches from extreme specic-permit design to extreme
general-permit design a particular permitting program
should fall given its policy goals, pract ical implementation
context, and back ground concerns regarding agency exer-
cise of permitting authority. We answer that question in
three stages. Part II outlines the nuts and bolts of permit-
ting and describes the permitting program attributes that
dene the spectrum of general permits, specic permits,
and intermediates, as well as hybrids. Part III examines the
trade os in herent in shifting the design of a permitting
program along the spectrum. We close in Part IV with a
summary of permitting design choices and a set of recom-
mendations for agencies to use when designing a permit-
ting program.
II. The Practical Dimensions of
Regulatory Permits
To reach an informed assessment of the nature, scope, and
impact of the use of permits as a regulatory instrument, one
should understand what distinguishes permits from other
government regulatory instruments, such as nes, inspec-
tions, and taxes. We rst describe the nature of permits as
a matter of administrative law. We then dene the spec-
trum of permits and what dierentiates general permits
from specic permits. We close with a deeper examina-
tion of design attributes essential to any permitting system
and a discussion of the administrative law consequences of
adjusting these attributes between their general and spe-
cic settings.
A. What Are Permits?
Exactly what constitutes a regulator y permit in the
admini strative state is not self-e vident. For example, the
Admini strative Procedure Act (APA)1 refers to permits
only once, in the denition of a “license.”2 All that ca n be
extracted from the A PA is from that denition of license,
which, in addition to agenc y permits, includes “the whole
or part of an agenc y . . . certicate, approval, registr ation,
charter, member ship, statutory exemption or other form
of permission.”3
1. Administrative Procedure Act, 5 U.S.C. §§ 551–59, available in ELR S.
A. P. Our focus is on federal agency permitting and administra-
tive law; however, most of the analysis herein is directly applicable to state
administrative law and practice.
3. Id.
e full version of this Article was originally published as: 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 (2014). at ar ticle became the source for a project of the
Administrative Conference of the United States on federal licensing
and permitting, culminating in a written report based on the
article and a set of recommendations to federal agencies. See ACUS,
Recommendation 2015-4—Designing Federal Permitting Programs,
available at
and-permitting. e ACUS report has been excerpted and updated
with permission of ACUS, Duke Law Journal, Eric Biber, and J.B.
Ruhl. Please see the full article for footnotes and sources.
Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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