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Agency Innovation In Vermont Yankee's White Space, Emily S. Bremer, Sharon B. Jacobs
Agency Innovation In Vermont Yankee's White Space, Emily S. Bremer, Sharon B. Jacobs
Publications
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 …
Energy Deference, Sharon B. Jacobs
Energy Deference, Sharon B. Jacobs
Publications
Electricity law is complex, and the Supreme Court knows it. Lawyers are familiar with the adage that generalist courts tend to defer to agency decisions where the subject matter is complex or technical. But what features of a case make the Court more or less likely to defer to the agency's judgment? And how exactly do deference regimes work in the presence of complexity? This essay offers insights gleaned from Court's opinion in Federal Energy Regulatory Commission v. Electric Power Supply Ass’n (“EPSA”). It explains, first, that Courts are highly deferential in energy cases due to both the complexity of …