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

August 2016

Citation: ELR 10651

Author: Eric Biber and J.B. Ruhl

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. “Specific 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 agency issues a detailed permit tailored just to that applicant. “General permits” have the agency issue a permit, with no particular applicant before it, that defines a broad category of activity and allows entities engaging in that activity to take advantage of the permit with little or no effort on their part. General permits involve limited agency review of specific facts in any particular case unless the agency finds good cause to condition or withdraw the general approval. The question of interest here is where on the spectrum of approaches from extreme specific-permit design to extreme general-permit design a particular permitting program should fall given its policy goals, practical implementation context, and background concerns regarding agency exercise of permitting authority.

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.

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