Confined Space

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Deconstructing the Administrative State OSHA

Kill OSHA: Then Shoot, Stab, Suffocate and Drown the Agency

ByJordan Barab

May 5, 2023
osha

I just finished a post about how a hidden provision of the Republican debt limit extortion bill would kill OSHA rulemaking, and the ability of other environmental and consumer protection agencies to issue regulatory safeguards.

Unfortunately, the debt limit fight and legislative attempts to eliminate OSHA aren’t the only recent attempts by Republicans and their business community friends to undermine the ability of workers to come home alive, safe and healthy from work every day.

Back to the Stone Age

Last week a court hearing was held in the US Court of Appeals for the Sixth Circuit to determine whether hundreds of OSHA workplace safety requirements are illegal.

Allstates Refractory Contractors filed the lawsuit two years after OSHA cited the company for two violations found during an inspection at a glass plant project in Charleroi, Pa. OSHA at first proposed an $11,934 fine for not protecting workers from falling objects, however the case was settled and Allstates paid a $5,967 fine for one serious violation

But Allstates, which is being represented by the anti-OSHA law firm Jones Day, argued that although Congress, in the Occupational Safety and Health Act, specified that OSHA safety standards must be “reasonably necessary or appropriate, Congress offered no guidance on what makes a rule ‘reasonably necessary or appropriate.’”

Instead, it left that weighty policy question entirely to the agency. Well, yes, that’s what Congress does. It passes laws that authorize agencies with the appropriate expertise to issue regulations as long as they follow the requirements set out in the law.

But in the opinion of Allstates (and the business community), that kind of authority being left to an agency like OSHA was inappropriate and must be overturned.

Makes sense, right?

At issue during oral arguments at the US Court of Appeals for the Sixth Circuit is whether when Congress passed the Occupational Safety and Health Act of 1970, it delegated too much authority to the Occupational Safety and Health Administration to decide which safety dangers needed to be regulated and what the protections should be.

If judges with the Sixth Circuit rule against OSHA, the decision could strike down safety regulations covering hazards from falls to electrocution dating back 50 years.

In other words, if the court decides in favor of Allstates, it will mean no OSHA fall protection rules, no trench safety standards, no requirement to put guards on machines, no safeguards against electrocution or programs to lock machines down before workers stick their heads or arms in to repair them.

The “good” news is that the lawsuit only applies to OSHA safety standards because the Supreme Court already ruled that OSHA is authorized to issue health standards.

We tried protecting workers using workers comp, industry consensus standards and lawsuits before. They didn’t work. That’s why Congress passed, and Richard Nixon signed, the Occupational Safety and Health Act in 1970.

Who would write safety standards if OSHA can’t?

According to Catherine Ruckelshaus, general counsel for the National Employment Law Project, Congress and courts would be forced to write the rules if OSHA is not allowed to do it. I’m sure that would work great.

Can you imagine Mitch McConnell or or maybe Clarence Thomas sitting down to write a trench safety standards or fall protection requirements?

Or maybe we don’t need any stinkin’ standards at all?

State laws, workers’ compensation, industry consensus standards, and fear of lawsuits will fill the OSHA regulatory gap, said David Tyron, director of litigation for conservative legal think tank The Buckeye Institute, which filed a brief in support of Allstates.

“The mere fact that these industries are regulating themselves more effectively than OSHA,” Tyron said, “indicates the court need not fear that if it strikes down these OSHA regs—the OSHA mandate; that suddenly these places will become unsafe.”

History lesson: We tried protecting workers using workers compensation, industry consensus standards and lawsuits before. They didn’t work. That’s why Congress passed, and Richard Nixon signed, the Occupational Safety and Health Act in 1970.

But now, 50 years later, I guess workers don’t disserve a legal right to a safe workplace. Just let Congress do it.

The case is being heard by two judges appointed by George W. Bush, and one appointed by Donald Trump

What could go wrong?

Eliminating Chevron Deference

And if that’s not bad enough, a Herring fishing company, Loper Bright Enterprises, is appealing a ruling to the Supreme Court that could take away agencies’ discretion to issue regulations by overturning an almost 40 year old doctrine known as Chevron deference. In the 1984 case Chevron U.S.A. v. Natural Resources Defense Council, the Supreme Court said that if a law, such as the Occupational Safety and Health Act, was ambiguous about what specific standard or regulations an agency can issue, the courts should defer to agency’s expertise, as long as their actions are reasonable.

This was back in the day when we could trust the courts to rule according to the law and common sense, rather than pre-existing political prejudices. According to the Chevron decision:

Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices — resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities. (emphasis added)

And that’s reasonable. The OSHAct and most of today’s environmental laws were passed in the 1970s and although some of these bills are thousands of pages long, it would have been impossible for Congress to anticipate every specific detailed issue that agency would have to deal at that time, and certainly for the next half century or longer.

Who could anticipate COVID, the threat of workplace violence, or climate change in 1970? How could Congress anticipate the various ways that environmental controls or safe workplace practices could be administered?

Not being psychics or experts on everything in the world, Congress wisely authorized the responsible agencies, and the experts in those agencies, to determine what “reasonable” protections should be issued.

“This would have the potential of being one of the most destabilizing decisions that this court has issued, if it chooses to go there.” — James Goodwin, Center for Progressive Reform

Needless to say, business interests and conservative Republicans have never been crazy about Chevron deference, and a conservative Supreme Court majority now makes it possible to — in former Trump advisor Steve Bannon’s words — deconstruct the regulatory state.

The Wall St. Journal is delighted. Calling the Supreme Court’s decision to take up the case “More potentially good news from the High Court,” the Journal is  looking forward to a decision “which would strengthen the separation of powers and individual liberty.”

Conservative Washington Post columnist Henry Olson argues that the Chevron decision “authorized a massive shift in power from Congress and the courts to the president” and that “Chevron’s demise would be only one step in a long effort to return genuine power to Congress and thereby enhance democratic legitimacy.”

In the real world, where workers go to work in dangerous jobs every day, overturning Chevron deference would take authority to issue worker safety and health standards (or environmental and consumer protection rules) out of the hands of the expert agencies and place authority in the courts or in Congress.  And as we’ve seen, Congress is unable to approve or disapprove every OSHA standard and (as the Supreme Court admitted in Chevron) “Judges are not experts in the field.”

“This would have the potential of being one of the most destabilizing decisions that this court has issued, if it chooses to go there,” according to James Goodwin, a senior policy analyst at the Center for Progressive Reform.

By Jordan Barab

53 thoughts on “Kill OSHA: Then Shoot, Stab, Suffocate and Drown the Agency”

  1. I don’t understand why if the Allstates case was settled it is still being litigated. BTW: Thanks for for your ongoing work on “Confined Space”. It is always excellent!

    Reply

  2. … add this to the “independent state legislature theory” case and we can just go back to the wild, wild west approach.
    So sad. Well written Jordan.
    Thank you

    Reply

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