We define what a regulatory permit is, outline the scope and scale of permitting in the regulatory state, and explain the different types and characteristics of permits.
Rather, given how little attention legal scholars have paid to the permit power, our main objective is to articulate the theory and practice of permitting so that such comparisons can begin to be made on deeper levels than they have been.
All of these actions could be described as acts of permitting. But what is a permit?
The definition demands that the act of permitting (1) be explicitly delegated or implied by statute, (2) administrative, (3) discretionary, and (4) judicially reviewable, and that (5) it provide an affirmative grant of permission (6) allowing an act that would be otherwise statutorily prohibited.
(58) Most recently, for example, a court rejected the EPA's administrative exemption of "discharges of a water transfer" from CWA pollution discharge prohibitions, which would have relieved those discharges of the need to obtain National Pollutant Discharge Elimination System (NPDES) permits--and thus exempted millions of water transfers from regulation--on the ground that "courts have consistently held that the EPA does not have statutory authority to create NPDES [permit] exclusions." (59) Hence, both form and function matter when it comes to defining when an administrative act is or is not permitting, and to evaluating the consequences thereof.
Permitting is one of the workhorses of the administrative state from top to bottom, and for centuries it has reached into every corner of life in America.
State permitting schemes can be just as, if not more, robust and wide-reaching as their federal counterparts.
Permitting schemes permeate local governmental regulatory programs as well.
(191) The environmental review process can thus be seen as an expansion of the information requirements for the permitting process, and a significant increase in the complexity and difficulty of any specific-permitting system.
For instance, generic drugs have a streamlined permitting process; unlike new drugs, which must provide clinical data on the drug's safety and efficacy, generic drug applications must only demonstrate that the generic is "bioequivalent (i.e., performs in the same manner as the innovator drug)." (200) Because the original name-brand drug has already shown its safety and efficacy, requiring that information would be redundant and would impose needless obstacles on the provision of cheaper generic drugs.
Several of the general permits issued by the Corps for the section 404 permitting program appear to be examples of relatively high-risk and high-benefit projects that might justify a more tailored permitting system, such as the nationwide permits for various coal mining activities, (209) the permits for transportation projects, (210) residential developments, (211) and Commercial and Institutional Developments.
The way in which a permitting system is structured might help to address political constraints or reduce resistance to a regulatory scheme.
(232) The fixed costs of permitting might simply be politically impossible to impose on frequently pursued activities, (233) especially if there is a general expectation that the activity should be permitted.
In fact, although the EPA did not refer to political considerations, its development of the NPDES general permit system was intended as a phased process in which the agency would move over time from permitting a wide range of agricultural, stormwater, and silvicultural sources under blanket general permits, to permitting more tailored general permits and even individual specific permits.
Circuit to reject the EPA's efforts to carve out regulatory exemptions from the NPDES permitting program:
