Document Type
Article
Publication
Journal of Land Use & Environmental Law
Year
2017
Citation Information
Emily S. Bremer and Sharon B. Jacobs, Agency Innovation in Vermont Yankee's White Space, 32 J. Land Use & Envtl. L. 523 (2017), available at https://scholar.law.colorado.edu/faculty-articles/808.
Abstract
The literature on “agency discretion” has, with a few notable exceptions, largely focused on substantive policy discretion, not procedural discretion. In this essay, we seek to refocus debate on the latter, which we argue is no less worthy of attention. We do so by defining the parameters of what we call Vermont Yankee’s “white space” — the scope of agency discretion to experiment with procedures within the boundaries established by law (and thus beyond the reach of the courts). Our goal is to begin a conversation about the dimensions of this procedural negative space, in which agencies are free to experiment with new approaches without judicial oversight. We also explore some of the ways in which energy and environmental agencies are innovating within these boundaries.
Copyright Statement
Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required.
Included in
Administrative Law Commons, Constitutional Law Commons, Energy and Utilities Law Commons, Environmental Law Commons, Supreme Court of the United States Commons