Agency Innovation in Vermont Yankee's White Space

20 Pages Posted: 28 Aug 2017 Last revised: 23 Jul 2019

See all articles by Emily S. Bremer

Emily S. Bremer

Notre Dame Law School

Sharon Jacobs

UC Berkeley School of Law

Date Written: August 24, 2017


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.

Keywords: Administrative Law, Procedure, Discretion, Environmental, Energy, Administrative Constitutionalism, Due Process

JEL Classification: K23

Suggested Citation

Bremer, Emily S. and Jacobs, Sharon, Agency Innovation in Vermont Yankee's White Space (August 24, 2017). Journal of Land Use & Environmental Law, Vol. 32, No. 2, 2017, U of Colorado Law Legal Studies Research Paper No. 17-22, Available at SSRN:

Emily S. Bremer (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States
5746311511 (Phone)

HOME PAGE: http://

Sharon Jacobs

UC Berkeley School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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