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Duke Law Journal V OLUME 64 N OVEMBER 2014 N UMBER 2 THE PERMIT POWER REVISITED: THE THEORY AND PRACTICE OF REGULATORY PERMITS IN THE ADMINISTRATIVE STATE E RIC B IBER † & J.B. R UHL †† A BSTRACT Two decades ago, Professor Richard Epstein fired a shot at the administrative state that has gone largely unanswered in legal scholarship. His target was the “permit power,” under which legislatures prohibit a specified activity by statute and delegate to administrative agencies the discretionary power to authorize the activity under terms the agency mandates in a regulatory permit. Accurately describing the permit power as an “enormous power in the state,” Epstein bemoaned that it had “received scant attention in the academic literature.” He sought to fill that gap. Centered on the premise that the permit power represents “a complete inversion of the proper distribution of power within a legal system,” Epstein launched a scathing critique of regulatory permitting in operation, condemning it as a “racket” for administrative abuses and excesses. Copyright © 2014 Eric Biber and J.B. Ruhl. † Professor of Law, University of California, Berkeley. †† David Daniels Allen Distinguished Chair of Law, Vanderbilt University Law School. We are thankful for comments on early versions of this Article from Stavros Gadinis, Amnon Lehavi, David Markell, Anne Joseph O’Connell, Justin Pidot, Kevin Stack, Jim Rossi, Peter Schuck, and Mike Vandenbergh, and from participants in workshops at the Berkeley, Denver, and Vanderbilt law schools and the Environmental Law Institute. Waylon Bryson, Kyle Robisch, Alex Hardee, Liz Long, Cody McBride, Melissa Meghan See, Joshua Dimon, and Avery Masters provided invaluable research assistance, and our respective institutions provided the resources to support our research. Please direct any comments or questions to ebiber@law.berkeley.edu and jb.ruhl@vanderbilt.edu.

The permit power revisited: the theory and practice of regulatory permits in the administrative state