Agency discretion and the dynamics of procedural reform

How effective are procedural controls? Why are they effective or ineffective! One way politicians and courts try to influence the decisions of administrative agencies is by imposing procedural requirements on the agency decision process. During the 1960-1990 time period, Congress and the courts imposed a succession of increasingly rigorous procedural requirements an the Federal Energy Regulatory Commission's hydroelectric licensing program in an attempt to make the agency move responsive to environmental concerns. In this paper, I examine the agency's reaction to these three "procedural controls" in an attempt to explain why these attempts met with only limited success. I find that each time Congress or the courts imposed a new procedural requirement on the FERC decision-making process, the agency war able to construe the new requirement narrowly and to use its retained substantive discretion to minimize the policy effects of the new procedures.