A pair of recent Supreme Court decisions are likely to have a significant effect on OSHA and other federal safety agencies.
However, the court also denied a challenge to OSHA’s authority to regulate workplace safety.
In the most significant decision, the high court struck down a 40-year precedent known as the Chevron deference. In a June 28 opinion on Loper Bright Enterprises, et al, v. Raimondo, Chief Justice John Roberts and the court’s five other conservative justices ruled that courts – not federal agencies – are the true decision-makers on resolving ambiguities in laws such as the Occupational Safety and Health Act of 1970.
The Chevron deference, stemming from the 1984 case Chevron v. Natural Resources Defense Council, called on courts to defer to an agency’s interpretation of its own statutes, as long as that interpretation is reasonable and Congress hasn’t addressed the particular issue clearly.
Roberts writes in the June decision: “The framers (of the Constitution) anticipated that courts would often confront statutory ambiguities and expected that courts would resolve them by exercising independent legal judgment.
“Chevron gravely erred in concluding that the inquiry is fundamentally different just because an administrative interpretation is in play.”
He claims that the Chevron deference also violated the Administrative Procedure Act of 1946, the law governing regulations. Roberts notes the APA “specifies that courts, not agencies, will decide ‘all relevant questions of law’ arising on review of agency action [5 U.S.C. 706] – even those involving ambiguous laws.”
Will judges now parse the meaning of every word in the OSH Act when ruling on present and forthcoming regulations? For example, what are “safe and healthful working conditions” with regard to any future regulations on indoor heat stress?
In a statement issued after the court’s decision was announced, Suzanne P. Clark, president and CEO of the U.S. Chamber of Commerce, said the decision is “an important course correction that will help create a more predictable and stable regulatory environment.
“The Supreme Court’s previous deference rule allowed each new presidential administration to advance their political agendas through flip-flopping regulations and not provide consistent rules of the roles for businesses to navigate, plan and invest in the future.”
In her dissent, Justice Elena Kagan notes that regulatory statutes often contain ambiguities and gaps. Sometimes, that open-endedness is intentional.
“Perhaps Congress ‘consciously desired’ the administering agency to fill in aspects of the legislative scheme, believing that regulatory experts would be ‘in a better position’ than legislators to do so,” Kagan writes.
For OSHA and other agencies, this decision comes with a number of unknowns.
“It certainly doesn’t make it any easier for OSHA to issue standards,” former OSHA Deputy Assistant Secretary Jordan Barab said. “It already takes OSHA between 10 to 20 years to issue a major standard. Because of the Chevron deference, when industry inevitably sues the agency over every regulation, the agency usually wins.
“This will obviously give the courts, especially the courts who don’t like the administrative state, a lot more leverage to overturn OSHA regulations.”
Will judges now parse the meaning of every word in the OSH Act when ruling on present and forthcoming regulations? For example, what are “safe and healthful working conditions” with regard to any future regulations on indoor heat stress?
Is it “safe and healthful” to have the indoor temperature/heat index threshold at 80° F? Could some party contend in a lawsuit that the threshold should be 85° or 90° F and have a judge – with perhaps little to no occupational safety and health expertise – agree or disagree?
Kagan contends that regulatory context often involves “scientific or technical subject matter.” Agencies have that expertise, she writes, and courts do not.
She provides a handful of examples:
“Congress directed the Department of the Interior and the Federal Aviation Administration to reduce noise from aircraft flying over Grand Canyon National Park – specifically, to ‘provide for substantial restoration of the natural quiet.’ How much noise is consistent with ‘the natural quiet’? And how much of the park, for how many hours a day, must be that quiet for the ‘substantial restoration’ requirement to be met?
“In each case, a statutory phrase has more than one reasonable reading.”
Another scenario: Will Congress now have to pass laws to specifically direct OSHA on which standards to develop (so those standards aren’t ultimately overturned in court)?
Whereas the Chevron deference covered when Congress was ambiguous, the Supreme Court’s recent “major questions” doctrine has called on Congress “to speak clearly” on a particular subject.
That doctrine, sometimes known as the “major rules” doctrine, is typically reserved for administrative actions involving “significant political or economic considerations.” The “major questions” doctrine was used to strike down OSHA’s emergency temporary standard on COVID-19 vaccination, testing and masking.
In that case, the Supreme Court’s opinion stated that Congress authorized OSHA to put forth workplace safety and health standards – not public health standards – per the OSH Act. Also, although Congress enacted COVID-19 legislation during the pandemic, it didn’t charge OSHA with promulgating the ETS.
“Without the 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,” Rep. Bobby Scott (D-VA) said in a June 28 press release. “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.”
Another majority opinion, handed down on June 27, may affect how legal disputes with OSHA or the Mine Safety and Health Administration are settled.
In a 6-3 decision on Securities and Exchange Commission v. Jarkesy, the court ruled that SEC may not use administrative law judges while seeking civil penalties for alleged securities fraud. Instead, the agency must take its cases to federal court, where parties alleged of fraud would have a jury trial – a right provided by the Seventh Amendment to the Constitution.
The decision could prove important for OSHA and MSHA because both agencies also use administrative law judges, along with review commissions, to settle disputes stemming from citations.
However, the majority opinion, written by the chief justice, references a 1977 case – Atlas Roofing v. OSHRC – involving the Occupational Safety and Health Review Commission. In that case, the Supreme Court ruled that Atlas Roofing didn’t have the right to a trial by jury because of the “public rights” exception to Article III of the Constitution.
That exception allows “legislative courts” to rule on cases. Those cases are conflicts that arise between a “private actor” (an employer, for example) and the government. They also involve civil law and not common law.
“Atlas Roofing, therefore, does not apply here (to the SEC case),” Roberts writes. He adds that SEC’s antifraud provisions “replicate common law fraud.”
Former OSHA Deputy Assistant Secretary Richard Fairfax, a principal consultant at the National Safety Council, doesn’t believe the case directly impacts other regulatory agencies. “It does, however, open the door for future challenges,” he said.
Because of this decision, it’s unclear if the “public rights” exception would apply in every case that comes before safety agencies’ administrative law judges, OSHRC, or the Federal Mine Safety and Health Review Commission. It’s also uncertain how a cited employer would get a change in venue to a federal jury trial from an administrative law judge.
A type of OSHA case that could see a change in venue in the future may be those involving certain General Duty Clause citations, said Alka Ramchandani-Raj, co-chair of the Littler law firm’s occupational safety and health practice group.
One example is a workplace violence injury caused by a third party who is unaffiliated with the employer.
“I think it depends on how the agency is pursuing its claims, to the degree that they’re pursuing statutory claims or they’re trying to pursue claims that are in the nature of a common lawsuit,” Ramchandani-Raj said. “There are grounds, under the Seventh Amendment, to potentially have [the claim] be adjudicated by a court rather than adjudicated by the agency.”
On July 2, the high court declined to hear a case regarding OSHA’s authority to issue and enforce safety standards.
The decision was for Allstates Refractory Contractors LLC v. Julie Su. The Cincinnati-based 6th U.S. Circuit Court of Appeals ruled against Allstates in a 2-1 decision in August 2023. The Northern District of Ohio did so, too, in September 2022.
The Allstates case had attempted to argue that Congress can’t delegate its legislative authority to the executive branch (of which federal agencies are part) because of Article I of the Constitution.
However, the Supreme Court has provided a framework for delegation in its rulings on other cases over the years, including J.W. Hampton, Jr. & Co. v. United States in 1928.
The court, led by former president William Howard Taft, ruled unanimously that Congress could delegate its legislative authority as long as it provided an “intelligible principle” as guidance for federal agencies.
The “major questions” doctrine also may have helped OSHA in this case. The OSH Act is likely an example of “speaking clearly” when it comes to the agency’s power to regulate workplace safety.
The high court already affirmed OSHA’s authority to issue and enforce health standards in 1980 in Industrial Union Department, AFL-CIO v. American Petroleum Institute, also known as the Benzene Case.
The July 2 opinion states that Justice Neil Gorsuch would have granted Allstates’ appeal to the Supreme Court to take up this case. Justice Clarence Thomas wrote a dissent to the denial of that appeal.
“I continue to adhere to my view that the intelligible principle test ‘does not adequately reinforce the Constitution’s allocation of legislative power,’” Thomas writes. “This case exemplifies the problem. Congress purported to empower an administrative agency to impose whatever workplace-safety standards it deems ‘appropriate.’ That power extends to virtually every business in the United States.”
