Supreme Court Threatens the Earth and Safe Workplaces

First they came for your voting rights. Next they came for your gun safety laws. Then they came for your womb. Now they’re taking away your right to a safe workplace, clean environment and healthy earth.

An unbelievable apocalyptic novel? Of course not. It’s our Supreme Court, of course.

In yet another catastrophic decision in West Virginia v. EPA, the Supreme Court yesterday made significant progress in achieving the fever dreams of Donald Trump, Steve Bannon, Charles Koch and corporate America to “deconstruct the regulatory state,” a system that has existed since the New Deal where Congress authorizes regulatory agencies to issue rules that protect the public welfare.

Yesterday’s 6-3 decision limited the Environmental Protection Agency’s ability to regulate carbon emissions from power plants. The power sector is the second-largest source of emissions in the United States, after transportation. The Court decided that that the EPA lacked authority to regulate the power grid, vs. individual power plants, because this was a “major” regulatory action that Congress did not expressly authorize the EPA to take. The decision is obviously bad for the country, for the planet and for the Biden administrations efforts to address climate change.  But more significantly, this decision further erodes the federal government’s ability to create rules and enforce laws that protect not only the environment, but also workplace and consumers safety.

As the Wall St. Journal observed “The subject was climate regulation but the message should echo across the federal bureaucracy.”

And not in a good way.

While overturning Roe v. Wade has received most of the attention as Republicans have taken over the Supreme Court, an issue hiding just below the radar screen has been the fate of the “administrative state,” and government’s ability to protect our air, water, consumers and workers.

While overturning Roe v. Wade has received most of the attention as Republicans have taken over the Supreme Court, an issue hiding just below the radar screen has been the fate of the “administrative state,” and government’s ability to protect our air, water, consumers and workers.

Republicans in Congress, backed by the polluters, the workplace safety violators and the business community in general have been going after OSHA, the EPA and other consumer protection agencies since they were created.  Fortunately, they have never had the power in Congress to repeal or significantly weaken these laws.  But now they have found their savior in Supreme Court, most of whose members are there because of the backing of powerful anti-regulatory (and anti-abortion) interests.

This ruling — and likely worse ones to follow — are largely the result of long term campaigns by the Federalist Society to appoint business friendly judges to the courts, along with Koch Industries co-owner, chairman, and chief executive officer, Charles Koch and his buddies:

A number of energy magnates and fossil fuel trade groups pushed for the case that could kneecap the agency and boost their profits. But perhaps no one did more to bring West Virginia v. Environmental Protection Agency to the Supreme Court — or ensure that ultraconservative justices would be on the bench to decide in the companies’ favor — than Charles Koch….Today’s Supreme Court decision marks perhaps the biggest payoff yet for Koch’s decades of plotting against environmental regulations — and the most devastating loss for everyone else. Three of the extremist judges who joined the decision — Gorsuch, Barrett, and Kavanaugh — wound up on the Supreme Court in large part because of Koch’s activism and contributions.

But enough ranting. Let’s step back and simplify what this is all about and why it affects not just efforts to address climate change, but also workplace safety and a number of other protections.

How Are Things Supposed to Work

When Congress passes a law — an environmental law like the Clean Air Act, or a workplace protection law like the Occupational Safety and Health Act (OSHAct) — it generally expresses a broad vision and then gives the implementing agency discretion to issue the specific regulations and standards that enable the agency to achieve the goals of the law.

The OSHAct, for example, didn’t mention any specific standard that the Occupational Safety and Health Administration must issue, but rather directed the agency to “assure safe and healthful working conditions for working men and women; by authorizing enforcement of the standards developed under the Act.”

This makes sense because Congress, itself, obviously doesn’t have the expertise, time or resources to issue hundreds or thousands of regulations addressing the safety of individual chemicals or equipment safety or how deep a trench should be. That authority is given to the agency authorized by the original law, which employs experts, analyzes complex scientific and technical issues and gathers public input before issuing a new standard.

Agencies aren’t given Carte Blanche to do whatever they want. For example, the OSHAct, and subsequent court interpretations, lay out some required guardrails that OSHA must comply with in order to issue standards. OSHA’s health standards must be economically and technologically feasible, and must address, and reduce a hazard that presents a “significant risk” to workers.

Chevron Deference for Beginners

You don’t have to be a lawyer to understand legal decisions that reduce your right to a safe workplace.  Here we’re going to explain what the current law is and how the right-wing justices are undermining it.

Every time OSHA issues a major standard, the affected industries sue the agency, claiming that the new standard exceeds that mandate of the law, or that OSHA has not proven its case.  How do judges, who may be experts in law, but not in toxicology or epidemiology, decide whether a law is constitutional and consistent with the original legislation when the original legislation doesn’t mention specific permissible exposure limits, or required engineering controls — or COVID-19 vaccinations?

The answer has been rooted in a legal concept that has come to be known as “Chevron Deference.” Chevron deference, is named after the 1984 legal case, Chevron U.S.A. v. Natural Resources Defense Council, which addresses what courts should do when Congress passes a law with an ambiguous interpretation.  Chevron deference essentially admits that judges don’t have the necessary expertise in the substance of regulations and that the courts therefore “defer” to  the agency’s interpretation of the law. The Chevron decision says that the agency’s interpretation of technical and complex issues “is entitled to deference” as long as the agency’s interpretation of the statute in question is a “permissible construction” of the law’s meaning and the agency complies with procedural and other requirements of the original law (e.g. feasibility determination, gathering and analyzing public input), as well as the Administrative Procedure Act, which governs federal government rulemaking.

If people have a problem with an agency’s decision, rather than depend on judges who have no expertise, they can work through the agency or go back to Congress for a clearer law.

Question: What is a “Major Question?”

In the name of economic freedom for business, several Republican-appointed members of the Supreme Court would like to eliminate Chevron deference, allowing the Courts to have the final say in all regulatory decisions, rather than deferring to the expertise of Executive Branch agencies. Some would go much further:

Conservatives have also argued for a more robust version of the so-called nondelegation doctrine, under which the Constitution can bar Congress from giving regulatory power to agencies at all — even if lawmakers unambiguously sought to do so.

Happily, the Supreme Court did not go quite that far yesterday although there are several more cases soon to be on the Court’s docket that could get them there incrementally. Stay tuned.

Yesterday’s decision was limited to the so-called “major questions” doctrine that had formerly been a minor exception to Chevron Deference, which also contributed to the overturning of  OSHA’s emergency temporary standard that required unvaccinated workers in large companies to be tested weekly. In that case, the court concluded that the1970  OSHAct did not expressly authorize the agency to impose a COVID-19 vaccine or test mandate (and anyway, the majority said, OSHA had never issued a vaccine mandate before, and COVID was “not an occupational hazard” in most workplaces.)

Under the Major Questions doctrine, the court basically states that, agencies only have deference in small matters, but in large matters “of vast economic and political significance,” the Court “expects  Congress to speak clearly” if it wishes to assign decisions to an executive agency.

And how do you determine which issues are “of vast economic and political significance?”  Well, it’s kind of like the well-known characterization of “pornography” by former Supreme Court justice Potter Stewart: “I know it when I see it.”

And just as Congress, when it passed the OSHAct in 1970 could not have foreseen an infectious disease pandemic that might require vaccines, Congress also did not foresee the death of the earth due to climate change when the Clean Air Act was enacted in 1970. But the OSHAct does authorize standards that will “assure safe and healthful working conditions for working men and women.”  Just as Congress, in the Clean Air Act, gave the EPA authority to establish the “best system of emission reduction” for stationary sources of pollution like power plants. As Blake Emerson writes in Slate yesterday, Congress “presumably included the word ‘system’ for a reason. It was looking for big, structural change.”

Note that there is nothng in the OSHAct or the Clean Air Act (or any other law) that mentions “major questions,” or directs any federal agency to go back to Congress for additional authorizations if any rule is considered “major.”  Basically, the Court made it up as a useful club against regulatory protections.

According to Ian Millheiser in Vox,

The bottom line after the West Virginia decision is that agencies may still exercise regulatory authority, but only subject to a judicial veto. The Supreme Court has effectively placed itself at the head of much of the executive branch of the federal government.

Wither Safe Workplaces?

How does all of this affect workplace safety?

We’ve already seen the Court rely on this faulty doctrine “major questions” doctrine (among other suspect legal justifications) when it overturned OSHA’s vax-or-test emergency standard.  What lies ahead? Heat is likely responsible for 170,000 work-related injuries and 600-to-2,000 worker fatalities every year. An OSHA heat standard is likely to protect lots of workers and apply to lots of employers. Will that be interpreted as a “major question” that Congress didn’t expressly authorize because the word “heat” doesn’t appear in the Occupational Safety and Health Act?

What about an overall infectious disease standard? Or a future Process Safety Management standard that requires chemical plants and refineries to adopt inherently safer technologies?

“The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of many things more frightening.” — Justice Elena Kagen

And what if, as is feared, the Supremes in a future decision, go all the way an eliminate Chevron Deference or all Executive Branch rulemaking completely, sending almost all OSHA standards back to Congress for approval. Congress has already given itself the power under the Congressional Review Act to repeal OSHA standards, thanks to Newt Gingrich.  Happily, that power is time limited to a short period after issuance,, and in practice only applicable when both houses of Congress and the White House are held by the same party. But what will stop a radical run-away Supreme Court from doing the bidding of the business community and vetoing every OSHA standard that our dysfunctional Congress didn’t expressly authorize?

Today they came for our air. Tomorrow our workplaces. Water, food, banks and baby toys are surely soon to follow.

As Justice Elena Kagen said in her dissent:

The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of many things more frightening.