The Internationalization of Agency Actions
U.S. agencies routinely base their domestic regulations on international considerations, such as the benefits of coordinating U.S. and foreign standards or the foreign policy advantages of a particular policy. I refer to this phenomenon as the internationalization of agency actions. This Article examines what the internationalization of agency actions means for agency decision-making processes, institutional design, and legal doctrine. It creates a stylized model of how agencies determine whether to coordinate their standards with foreign regulations. Among other institutional design findings, it shows that court opinions that reduce the stringency of judicial review when agencies implement internationally coordinated standards make such coordination more likely to occur, but they simultaneously deprive the executive of bargaining power because U.S. agencies cannot credibly threaten that any coordinated agreement must align more closely with U.S. values or else risk being overturned in U.S. courts. This Article also develops a taxonomy of international factors relied on by agencies and applies that taxonomy to help clarify the doctrinal issue of whether and when agencies can use international factors to justify their actions in court. This taxonomical approach shows how the Supreme Court’s opinion in Massachusetts v. EPA can reasonably be read to allow agencies to invoke a far broader range of foreign policy rationales than some prevailing views suggest.
The Irrelevance of Politics for Arbitrary and Capricious Review
This article presents a nuanced understanding of reasoned decisionmaking review to evaluate the propriety of judicial consideration of political influence on agencies when reviewing agency rulemaking. It contends that, properly understood, judicial review of agency action under the reasoned decisionmaking standard precludes a court from considering such influence, but nonetheless allows an agency to consider such influence in rulemaking. It does so by identifying two fundamental attributes of such review, as courts have traditionally applied it, that have eluded scholarly focus and perhaps recognition altogether. The first attribute is that agency reasons, which are what courts review, are justifications rather than motivations for agency action. From this attribute it follows that the irrelevance of politics for judicial review does not preclude politics as a legitimate agency consideration in rulemaking. The second attribute is that reasoned decisionmaking requires an agency to make manifest the trade-offs generated by its rulemaking. This attribute facilitates political accountability by reducing barriers to public awareness of these trade-offs. The article argues that permitting an agency to credit politics as a justification for a rule would interfere with this facilitation by relieving the agency of its obligation to reveal the full implications of its rulemaking. The implications of this article are thus profound both for the reasoned decisionmaking standard of review in general and for how politics fits within it.
Prevalence of lice on dairy cattle in England and the bordering counties of Wales
A postal questionnaire was used to collect information on the prevalence of lice on cattle on a random sample of dairy farms in England and the bordering counties of Wales. Replies were received from 1040 (52.8 per cent) of the 1970 farms which were mailed. Fifty per cent of farmers reported having ever seen or suspected lice in their herds and 29 per cent reported possible infestations in the winter of 1996/97. Visits were made to 24 farms in the south west of England during February 1998. Twelve of the farmers said that they had seen or suspected lice in their herd since October 1997, and that lice were more frequently observed on the adult cattle. However, examination revealed lice on 18 of the 24 farms, and adult cattle were the least likely group to be infested.