An Empirical Assessment of Agency Mechanism Choice

56 Pages Posted: 22 Jul 2019 Last revised: 1 Aug 2019

See all articles by David L. Markell

David L. Markell

Florida State University - College of Law

Robert L. Glicksman

George Washington University - Law School

Justin Sevier

Florida State University - College of Law

Date Written: March 12, 2019

Abstract

Administrative agencies rely heavily on the foundational legal mechanisms of the administrative state – rulemaking, licensing, and enforcement adjudication – to pursue their statutory objectives. These foundational mechanisms differ from each other in critical ways, including the applicable procedures (and the participatory rights that accompany them), the legal effect of their use, and the nature and extent of oversight (including judicial oversight) that accompany their use. As a result, an agency’s choice of which mechanism(s) to use to implement its statutory mission has significant impacts on key legitimizing features and values of the administrative state.

Despite its importance, agency mechanism choice occurs largely in the shadows of the administrative state. Congress typically gives agencies considerable autonomy to choose among legal mechanisms, and none of the three branches whose actions legitimize agency action pays much attention to how agencies make those choices. Scholars’ traditional conception of “canonical administrative law” similarly has generally given short shrift to agency mechanism choice. This neglect is a prominent example of the symptomatic lack of attention to what some have referred to as internal administrative law.

This Article helps to fill this gap in the literature through an empirical case study of how one agency, the U.S. Environmental Protection Agency (EPA), has used regulations, permitting, and enforcement adjudication to reform its enforcement program through implementation of an initiative called “Next Generation Compliance” (Next Gen). The case study demonstrates that at least five variables have influenced EPA’s agency mechanism choices to advance Next Gen – the key actors that participate in programmatic design and implementation (both within and outside the agency), the agency’s goals, the governance tools at its disposal, its authority under different statutory regimes, and what we refer to as “intra-mechanism” features (differences, for example, between administrative and judicial enforcement adjudication). Ours is the first empirical study in the law review literature of which we are aware that seeks to unpack an agency’s mechanism choices to advance understanding of the choices an agency made, why it made them, and what effects those choices had. Because we examine factors that have not been considered before in the literature, the Article holds special promise for significantly extending and enriching our understanding of critical factors that influence agency mechanism choice decisions. The provisional assessment of the implications of our findings that we provide should help guide policymakers interested in driving agency mechanism choices toward strategies most likely to accomplish statutory goals while promoting the legitimacy of administrative decisionmaking.

Keywords: administrative law, institutional design, mechanism choice, agency structure, inter-agency relationships, environmental enforcement, Next Generation Compliance

Suggested Citation

Markell, David L. and Glicksman, Robert L. and Sevier, Justin, An Empirical Assessment of Agency Mechanism Choice (March 12, 2019). 71 Alabama Law Review __ (2020 Forthcoming); GWU Law School Public Law Research Paper No. 2019-45; GWU Legal Studies Research Paper No. 2019-45. Available at SSRN: https://ssrn.com/abstract=3351105

David L. Markell

Florida State University - College of Law ( email )

Robert L. Glicksman (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4641 (Phone)

HOME PAGE: http://www.law.gwu.edu/Faculty/profile.aspx?id=16085

Justin Sevier

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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