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

Two decades ago, Professor Richard Epstein fired a shot at the administrative state that has gone largely unanswered in legal scholarship. His target was the permit power, under which legislatures prohibit a specified activity by statute and delegate to administrative agencies the discretionary power to authorize the activity under terms the agency mandates in a regulatory permit. Accurately describing the permit power as an enormous power in the state, Epstein bemoaned that it had received scant attention in the academic literature. He sought to fill that gap. Centered on the premise that the permit power represents a complete inversion of the proper distribution of power within a legal system, Epstein launched a scathing critique of regulatory permitting in operation, condemning it as a racket for administrative abuses and excesses. Epstein\u27s assessment of the permit power was and remains accurate in three respects: it is vast in scope, it is ripe for administrative abuse, and it has been largely ignored in legal scholarship. The problem is that, beyond what he got right about the permit power, most of Epstein\u27s critique was based on an incomplete caricature of permitting in theory and practice. This Article is the first to return comprehensively to the permit power since Epstein\u27s critique, offering a deep account of the theory and practice of regulatory permits in the administrative state. This Article opens by defining the various types of regulatory permits and describing the scope of permitting in the regulatory state. From there it compares different permit design approaches and explores the advantages of general permits, including their ability to mitigate many of the concerns Epstein advanced. This Article then applies a theoretical model to environmental degradation problems and concludes that if certain conditions are met, general permits can effectively respond to many of the complex policy problems of the future. Finally, this Article adds to the scholarship initiated by Epstein by proposing a set of default rules and exceptions for permit design and suggesting how they apply to complex policy problems

Adaptive Management and the Future of Environmental Law

Adaptive management is the new paradigm in environmental law. It is omnipresent in scholarship and management documents and is even starting to appear in court opinions. There have been many calls for environmental law to adapt itself to adaptive management by becoming more flexible and dynamic. But does adaptive management really warrant a revolution in environmental law? Or is it adaptive management that might need to adapt to the world of environmental law? There has been an abundance of scholarship on the strengths of adaptive management, making the case for changing environmental law to embrace adaptive management. But answering the two questions above also requires a close examination of the limits of adaptive management and whether it is important enough for environmental law that wholesale changes in the legal structure are required. In this Article, I summarize the literature noting those limits, and my conclusion is that those limits are significant enough that we should be wary of wholesale revisions of environmental law to allow adaptive management to occur. Adaptive management has an important role to play, but there are many questions that it cannot answer. Moreover, the increased flexibility and dynamism that have been called for in environmental law would carry their own costs

The Permit Power Revisited

Two decades ago, Professor Richard Epstein fired a shot at the administrative state that has gone largely unanswered in legal scholarship. His target was the “permit power,†under which legislatures prohibit a specified activity by statute and delegate administrative agencies discretionary power to authorize the activity under terms the agency mandates in a regulatory permit. Describing the permit power, accurately, as an “enormous power in the state,†Epstein bemoaned that it had “received scant attention in the academic literature.†He sought to fill that gap. Centered on his premise that the permit power represents “a complete inversion of the proper distribution of power within a legal system,†Epstein launched a scathing critique of regulatory permits in operation, condemning the practice as a “racket†for administrative abuses and excesses. Epstein’s assessment of the permit power was and remains accurate in three respects. First, the permit power is vast. Regulatory permits reach into all corners of modern society and are one of the primary workhorses of the administrative state’s exercise of authority. Second, the permit power is ripe for administrative abuse. Like any government power, it must be closely monitored. Third, the permit power has been largely ignored in legal scholarship. Indeed, it does not stretch things to say that Epstein has had the first and last words on the permit power. The problem is that, beyond what he got right about the permit power, most of Epstein’s critique was based on an incomplete caricature of permitting in theory and practice. This Article is the first to return comprehensively to the permit power since Epstein’s critique and offer a deep account of the theory and practice of regulatory permits in the administrative state. Part I positions regulatory permits within the administrative state. We define what a regulatory permit is, outline the scope and scale of permitting in the regulatory state, and explain the different types and characteristics of permits. Part II compares the pros and cons of different permit design approaches and identifies the conditions under which one type of permit, known as the “general permit,†is most likely to offer significant advantages, including mitigating many of the concerns Epstein advanced. Using environmental degradation problems as examples, Part III applies the theoretical model in concrete policy settings, concluding that general permits, if carefully designed and administered, could be deployed and used to effectively respond to many of the complex policy problems looming in the future. We close by proposing a set of default rules and exceptions for permit design and suggesting how they apply to such problems

The National Park Service Organic Act and Climate Change

This article examines the future of the National Park Service Organic Act in a changing climate. Managers and scholars have raised questions about whether the Organic Act gives the Park Service sufficient authority to undertake the steps necessary to adapt to climate change. This article concludes that the Organic Act and park-specific enabling acts, as interpreted by the courts, grant the Park Service wide discretion to pursue management options for adaptation to climate change impacts on national park resources. It also concludes that the Organic Act, properly understood, does impose some necessary constraints on agency decision-making, constraints that prevent inappropriate development projects and that require thoughtful decision-making to minimize the risk of unintended management consequences. Overall, the Organic Act will remain relevant into the next century

Management for Mountain Pine Beetle Outbreak Suppression: Does Relevant Science Support Current Policy?

While the use of timber harvests is generally accepted as an effective approach to controlling bark beetles during outbreaks, in reality there has been a dearth of monitoring to assess outcomes, and failures are often not reported. Additionally, few studies have focused on how these treatments affect forest structure and function over the long term, or our forests’ ability to adapt to climate change. Despite this, there is a widespread belief in the policy arena that timber harvesting is an effective and necessary tool to address beetle infestations. That belief has led to numerous proposals for, and enactment of, significant changes in federal environmental laws to encourage more timber harvests for beetle control. In this review, we use mountain pine beetle as an exemplar to critically evaluate the state of science behind the use of timber harvest treatments for bark beetle suppression during outbreaks. It is our hope that this review will stimulate research to fill important gaps and to help guide the development of policy and management firmly based in science, and thus, more likely to aid in forest conservation, reduce financial waste, and bolster public trust in public agency decision-making and practice