Agency Innovation in Vermont Yankee's White Space
20 Pages Posted: 28 Aug 2017 Last revised: 23 Jul 2019
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: Suggested Citation