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

• Date: 01 August 2016

8-2016 NEWS & ANALYSIS 46 ELR 10651

A R T I C L E

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.

2. 5 U.S.C. § 551(8).

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 https://www.acus.gov/research-projects/federal-licensing-

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