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.
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.
GW Paper Series
GWU Law School Public Law Research Paper No. 2019-45; GWU Legal Studies Research Paper No. 2019-45
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