A couple of months ago, I wrote a piece about how industry associations are getting tired of suing OSHA to stop individual safety standards. Now they’re trying to completely eliminate OSHA’s overall ability to issue any safety standards.
Attorneys representing Allstates Refractory Contractors, which had been cited by OSHA for not protecting workers from falling objects, argued that when Congress passed the Occupational Safety and Health Act of 1970, it delegated too much authority to OSHA to decide which safety dangers needed to be regulated and what the protections should be: “OSHA does not have the constitutional authority to set those standards…and employers do not have a duty to comply with OSHA’s standards.”
Allstate was joined by several conservative advocacy groups such as the Pacific Legal Foundation and business groups including the National Association of Home Builders.
The case went to the 6th U.S. Circuit Court of Appeals and a decision against against OSHA would have struck down safety standards covering safety hazards dating back 50 years. No longer would workers be protected from falls, collapsing trenches, electrocution, or watching their limbs chopped off for lack of machine guards or failure to shut down a machine while it’s being serviced.
Happily, the 6th Circuit ruled in favor of OSHA today in a 2-1 ruling.
The 6th Circuit said that while the agency had been given broad authority, it was only allowed to adopt rules that are “reasonably necessary or appropriate” to address known health risks. “Congress aptly declared what purposes OSHA must consider and how the agency’s standards must be reasonably needed to respond to Congress’s concerns,” Circuit Judge Richard Griffin wrote. Griffin said the 6th Circuit was joining the 7th and D.C. Circuits, which respectively rejected challenges to OSHA’s rulemaking power in 1978 and 2011.
Joining Griffin in the majority was Deborah Cook who was nominated by President George W. Bush as was Griffin. Voting against OSHA was judge John Nalbandian, appointed by President Trump and a proud member of the conservative Federalist Society. Showing how little he knows about OSHA, Nalbandian “said the law granting OSHA’s powers requires no fact-finding by the agency before it takes action and provides no ‘intelligible principle’ limiting how OSHA exercises its authority.”
In other words, according to Conservatives and industry associations, Congress, not OSHA, should be issuing health and safety standards. And if Congress can’t do it, then workers just need to go ahead and die.
In reality, OSHA preforms extensive fact-finding — and receives abundant public comment, including written comments and hearings — in preparing every OSHA standard.
Nalbandian is taking up the argument of industry in a number of “non-delegation” cases that they hope will wind up with a favorable ruling from the Supreme Court: basically arguing that Congress does not have the authority to delegate powers — like issuing worker protection standards — to Executive Branch agencies. In other words, Congress, not OSHA should be issuing health and safety standards.
And if Congress can’t do it, then workers just need to go ahead and die.
Basically, Nalbandian, in challenging OSHA’s authority to issue standards, is arguing that the entire act — or at least the part authorizing OSHA to issue standards — is unconstitutional
Happily, cooler minds have prevailed. For now.