Agency Innovation in Vermont Yankee's White Space

20 Pages Posted: 28 Aug 2017 Last revised: 8 Nov 2017

Emily S. Bremer

Notre Dame Law School

Sharon Jacobs

University of Colorado Law School

Date Written: August 24, 2017

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.

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: https://ssrn.com/abstract=3025887

Emily S. Bremer (Contact Author)

Notre Dame Law School ( email )

Eck Hall of Law
Notre Dame, IN 46556
United States
5746311511 (Phone)

Sharon Jacobs

University of Colorado Law School ( email )

401 UCB
Wolf Law Building
Boulder, CO 80309
United States

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