discretion

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discretion (dis·kreˑ·shn),

n in Native American medicine, avoiding the act of bragging or revealing a dream helper's identity. This is one way of circumventing a breach of taboo. See breach of taboo.
References in periodicals archive ?
For example, in the most recent of FEMA's trio of no discretion claim losses involving its flood insurance program, (235) the court noted that while FEMA on the one hand argued lack of discretion for purposes of ESA consultation, a finding that the agency indeed does enjoy "discretion to consider endangered and threatened species .
When an agency clearly has at least some discretion to exercise, a subtler discretion gaming strategy is to build flexibility into the reach of the nondiscretion claim by obscuring the boundary between discretionary and nondiscretionary actions.
To be fair to infrastructure and resource management agencies, the beginning and end of their discretion often is not as neat and tidy as issuing a one-off permit to build a home.
Another gaming tactic evident from the discretion aversion case law is to carve up a particular regulatory action into more granular decision components and tag threshold determinations as nondiscretionary, thereby squeezing as much of the ESA and NEPA out of the regulatory program as possible while still retaining sufficient discretion to effectively control the regulated activity at will.
Norton, the BLM used a similar approach in disaggregating its review of pipeline rights of way, though the discretion was phased out rather than phased in.
257) In this sense, use of a general permit by a qualifying project does not constitute an exercise of Corps discretion.
The point to be made for now is that, if the presence of discretion is to be the trigger for the ESA and NEPA, it can stretch credulity for an agency to characterize its threshold sorting decision as not demanding the exercise of discretion.
The final discretion gaming strategy is closely linked to the "if find/then shall" no discretion claim type.
269) Indeed, at one time EPA took the position that it must consult under the ESA when granting state delegation precisely because of the extensive discretion it wields over states, having changed its position prior to Home Builders.
We are not suggesting that the EPA gamed the nondiscretion claim by creating the firewall--Congress was responsible for the CWA's "if find/then shall" structure--but rather that it has taken full advantage of the firewall to substantially expand its discretion on one side while giving the appearance of being merely ministerial in function on the other.
After finding wide variations in the amount of capital that banks hold against a similar set of loans, the Basel Committee of banking supervisors published six examples of capital requirements where national regulators would no longer have discretion over whether to apply them or not.
Lawmakers, however, could try to seek a constitutional amendment, or propose legislation in which discretion to strike strikes would be taken away from prosecutors and judges.