Worker Safety

Not a good week. And I’m not even talking about last night’s debate.

What’s been happening that you really don’t want to know about?  Republicans propose major budget cuts and regulatory rollbacks for OSHA and other labor agencies, and the Supreme Court deals a deadly blow to the ability of OSHA (or other regulatory agencies) to create standards and other regulatory safeguards.

Labor Budget: War on Workers

The House Appropriations Committee issued a draft FY 2025 budget that cuts OSHA’s tiny budget by 15% from $632.3 million in FY 2024 to $557.7 million in FY 2025 (FY 2025) starts on October 1, 2024.  I guess Congressional Republicans figure that OSHA’s current ability to inspect every workplace in the country once ever 187 years is too much. Workers already have to wait almost two centuries for an inspection; why not add another century to that?

For good measure, the bill also includes language prohibiting OSHA from enforcing its new walkaround regulation.

The Committee also made major cuts in the budgets of the Wage and Hour Division (which regulates child labor and wage theft among other issues) the Mine Safety and Health Administration, the National Labor Relations Board and the National Institute for Occupational Safety and Health. They also prohibited agencies from enforcing pretty much any recent regulations, include MSHA’s recent standard protecting miners from deadly silica dust.

The budget news may be bad, but remember that budgets need the approval of both houses of Congress and the President’s signature. So it’s unlikely that the current proposal will wind up on the President’s desk in its current form.

But that’s not the worst. Unlike budgets, the Supreme Court can do whatever it wants, and there is no appeal..

The Demise of Chevron Deference

The budget is bad, but the worst news is the Supreme Court’s decision today to overturn a 40-year-old legal precedent called “Chevron Deference,” critically weakening the ability of agencies to issue regulatory safeguards and fulfilling much of Donald Trump and Steve Bannon’s determination to “deconstruct the administrative state.”

Much of the concern about Trump’s judicial appointments has gone to the “sexy” issues like abortion and civil rights, but the real goal of the nation’s business community is freedom. Feedom for business: freedom to do whatever they want to increase their profits.

These regulatory and “deference”  issues are much more difficult for the public to understand than some other issues, but crucial to everyone’s lives. Overturning Chevron Deference has been the crowning achievement of the business community and a major reason for their support of a narcissistic autocrat wannabe dedicated to undermining democracy. The best way to ensure the business community’s conception of “freedom” is to attack “burdensome” regulations at their core — no matter the effect on workers, consumers or the environment.

Overturning Chevron Deference has been the crowning achievement of the business community and a major reason for their support of a narcissistic autocrat wannabe dedicating to undermining democracy.

I wrote a couple of pieces about Chevron Deference when the case was being argued earlier this year (here and here.) Read those for background, but in a nutshell

The origin of “Chevron Deference” is the 1984 Supreme Court decision, Chevron v. Natural Resources Defense Council which looked at how much authority agencies have to issue rules based on the legislation passed by Congress — the Occupational Safety and Health Act, environmental laws and consumer protections  — and what role Congress or the courts play in determining whether agencies’ rulemaking is constitutional.

The Court concluded in the Chevron case that where the specific language in the original legislation is ambiguous or silent, a court reviewing an agency’s action should defer to the agency if its action is “reasonable” based on the original legislation.

In essence, this is about deference to the expertise of scientists and other subject matter experts in the federal agencies that touch almost every aspect of our daily lives – from the food we eat, the air we breathe, the water we drink, the medications we take, the products we use, and the health and safety of our workplaces.  Without Chevron Deference, either judges get to decide whether a standard is legal based on their alleged expertise, or Congress would have to specifically authorize an agency to issue a specific regulation if it wasn’t specifically authorized in the law. Even if that law is over 50 years old, like the Occupational Safety an Health Act, or almost 100 years old like the National Labor Relations Act.

The worst news is the Supreme Court’s decision today to overturn a 40-year-old legal precedent called “Chevron Deference,” critically weakening the ability of agencies to issue regulatory safeguards and fulfilling much of Donald Trump and Steve Bannon’s determination to “deconstruct the administrative state.”

Do Sam Alito or Clarence Thomas have degrees in toxicology? Should Congress have foreseen COVID in 1970 or that Workplace Violence would be such huge problems in 1970?

Today,  in the case of Loper Bright Enterprises Et. Al v. Raimondo, the court overturned Chevron which is good news if you’re comfortable allowing judges to determine what a safe level for silica or asbestos is, or if you think Congress these days is capable of authorizing an agency to issue worker protection regulations.

For workers or anyone concerned about the environment, climate change, safe food or consumer protections, not so much.

Rep Bobby Scott (D-VA), Ranking Member of the House Education and Workforce (sic) Committee summed it up:

“Today’s decision has taken a wrecking ball to the regulatory systems that have served our country for decades. Agency interpretation of vague statutes is necessary to ensure Americans across the country can have reassurance that their food and medication is safe for consumption, workplaces are safe and secure, student borrowers are not defrauded, and so much more.

“Without Chevron deference, we must rely on Congress or the courts to regulate complex policy issues, without the expertise or technical assistance of the agencies that are responsible for implementing the law. The issues at stake often involve very technical questions such as, what constitutes a significant risk to workers’ health from a cancer-causing chemical, what kind of job is too hazardous for children to be allowed to do, or how far a septic tank should be from a tree. We are now at greater risk of falling into politicized legal battles wherein bad actors can use the courts to push their own political regulatory agenda.

The “Courts Do Not”

Writing for the majority, Chief Justice John Roberts stated that Courts’ decades-long deference to agencies on standards and regulations is “misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.” He went on to note “Chevron was a judicial invention that required judges to disregard their statutory duties.”  He explained that Chevon is inconsistent with the Administrative Procedure Act (APA), which directs courts to “decide legal questions by applying their own judgment” and therefore “makes clear that agency interpretations of statutes — like agency interpretations of the Constitution — are not entitled to deference.

Under the APA,” Roberts concluded, “it thus remains the responsibility of the court to decide whether the law means what the agency says.”  He rejected any suggestion that agencies, rather than courts, are better suited to determine what ambiguities in a federal law might mean. Even when those ambiguities involve technical or scientific questions that fall within an agency’s area of expertise, Roberts emphasized, “Congress expects courts to handle technical statutory questions” – and courts also have the benefit of briefing from the parties and “friends of the court.”

So just because you have a PhD in toxicology and have spent your entire career focusing on workplace toxins, you have no more expertise than Sam Alito or Clarence Thomas who have law degrees.

So just because you have a PhD in toxicology and have spent your entire career focusing on workplace toxins, you have no more expertise than Sam Alito or Clarence Thomas who have law degrees.

Supreme Court Justice Elena Kagan who dissented from the majority opinion (along with Justices Sonia Sotomayor and Ketanji Brown Jackson), predicted that the ruling “will cause a massive shock to the legal system.” Kagan observed that

For 40 years …the answer to that question has generally been “the agency’s,” with good reason: Agencies are more likely to have the technical and scientific expertise to make such decisions. By overruling the Chevron doctrine, she concluded, the court has created a “jolt to the legal system.”

But more broadly, Kagan rebuked her colleagues in the majority for what she characterized as a judicial power grab. She lamented that, by overruling Chevron, the court had, in “one fell swoop,” given “itself exclusive power over every open issue — no matter how expertise-driven or policy-laden — involving the meaning of regulatory law.”

Kagan’s reasoning echoed the original Chevron Decision which, according to her,  relied on the original intent of Congress to leave technical reasoning to the expert agencies where the original law was ambiguous or didn’t expressly authorize an agency to issue a specific regulation.

Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes. It knows that those statutes will inevitably contain ambiguities that some other actor will have to resolve, and gaps that some other actor will have to fill. And it would usually prefer that actor to be the responsible agency, not a court. Some interpretive issues arising in the regulatory context involve scientific or technical subject matter. Agencies have expertise in those areas; courts do not.

Some demand a detailed understanding of complex and interdependent regulatory programs. Agencies know those programs inside-out; again, courts do not.

And some present policy choices, including trade-offs between competing goods.

Agencies report to a President, who in turn answers to the public for his policy calls; courts have no such accountability and no proper basis for making policy. And of course Congress has conferred on that expert, experienced, and politically accountable agency the authority to administer—to make rules about and otherwise implement—the statute giving rise to the ambiguity or gap. Put all that together and deference to the agency is the almost obvious choice, based on an implicit congressional delegation of interpretive authority.

How Will This Play Out

It’s unclear how this decision will affect OSHA rulemaking. It already takes OSHA between ten and twenty years to issue a major health or safety standard. Much of that time is taken up working closely with Department of Labor Solicitors to ensure that the standard is legally solid. And that attention, while extremely time-consuming and resource intensive, is generally successful. OSHA standards are almost always upheld by the Courts these days.

  • Will this decision mean that judges will use their own expertise over OSHA’s scientists to determine that the “safe” level of silica exposure to really twice what OSHA had determined. Will they decide that 85 degrees is not a good level to trigger a heat standard? 90 degrees is better? Or will they decide that nothing in the Occupational Safety and Health Act say anything specifically about heat and therefore OSHA is not authorized to issue a heat standard unless and until Congress authorizes it?
  • How does this decision relate to the court’s recently invented “Major Question’s” doctrine which states that if an administrative agency makes a decision with substantial economic and/or social impacts, and the decision is not based on explicit statutory authority, then the agency bears the burden of proving that its action reflects Congress’s intent. The current court pretty much just made up the “major questions” doctrine as a way to weaken Chevron without discarding it. For who is to say what constitutes “substantial economic and/or social impact?”  The Supreme Court used the Major Questions doctrine as one reason to overturn OSHA’s “Test of Vaccinate” COVID Emergency Temporary Standard.
  • How will this decision affect past standards? Will businesses go back and sue OSHA over its Silica standard, its Bloodborne Pathogens standard, its fall protection standard? Is anything (or anyone) safe? Roberts says that the decision will not affect past standards, but can we really trust that future Court decisions won’t undermine that promise?
  • Will this add another ten years to the time needed to issue an OSHA standard?

It’s possible there’s a bright(er) side. The Court Majority also wrote that

In a case involving an agency, of course, the statute’s meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes. For example, some statutes “expressly delegate” to an agency the authority to give meaning to a particular statutory term. Others empower an agency to prescribe rules to “fill up the details” of a statutory scheme,… or to regulate subject to the limits imposed by a term or phrase that “leaves agencies with flexibility,” such as “appropriate” or “reasonable.”

The OSHAct does provide “for the development and promulgation of occupational safety and health standards” and that standards must be “reasonably necessary or appropriate to provide safe or healthful employment and places of employment. And Section 6(b)(5) of the act lays out specific criteria for standards that have been upheld by the courts (after adding numerous burdensome conditions to those requirements.) Does that mean that the OSHAct authorizes OSHA to “exercise a degree of discretion” or that Congress has delegated OSHA adequate authority to issue standards not explicitly mentioned in the Act? Does the language of Act give OSHA authority to issue standards as long as they are “reasonably necessary or appropriate?”

I can’t answer those questions. First, I’m not a fortune teller.  Second, I’m not an attorney. And third, even if I had a law degree, I don’t think anyone, regardless of their legal credentials,  can predict how today’s Trump courts will decide on any given issue.

Conclusion

OSHA’s budget is great news if you think a worker’s right to a safe workplace should exist only on paper and the agency designated to enforce workplace safety should not have the resources to accomplish its mission.

And the Supreme Court ruling is good news – a veritable gift —  for anti-regulatory zealots and those viewing government as an out-of-control administrative burden on business and corporations, who think government scientists and experts are deep state, faceless unelected bureaucrats determined to undermine capitalism.

But it’s bad news for the rest of us who value and rely on agency rules to protect and promote the health and safety of our families, our homes, our  communities, our workplaces, and our built and natural environments.

I know I’ve said this before, but the election this November will largely determine the future of workplace safety, workers’ rights and so many other important issues. If you think the Supreme Court if bad now, the next President could have the opportunity to appoint two or three (very young) Justicies. So if you’re depressed about last night’s debate (and who isn’t), just remember to keep your eyes on the prize.

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And special thanks to Kathleen Rest for her help on this

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