Employer lawsuit claims OSHA has too much authority
An employer got a day in court for challenging OSHA’s authority to create safety regulations. The employer (plaintiff) argued that Congress unconstitutionally delegated OSHA too much discretion to create safety standards.
When Congress passed the OSH Act of 1970, it granted OSHA the authority to create regulations “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.”
The plaintiff argues that since Congress did not define “reasonably necessary or appropriate,” OSHA decides for itself whether a safety standard is necessary or appropriate. The plaintiff argued that, in effect, OSHA has no limits on its rulemaking authority. The plaintiff requested a permanent injunction to prevent OSHA from enforcing its standards.
The case Allstates Refractory Contractors, LLC v. Walsh questions the extent to which Congress can delegate legislative responsibility to federal agencies. The case started in a district court, which ruled in OSHA’s favor in September 2022. The plaintiff appealed to the Sixth Circuit Court of Appeals, where three justices heard oral arguments on April 27, 2023. The three justices include two appointed by President George W. Bush and one appointed by President Donald Trump. That ruling had not yet been issued at publishing time, but the judges appeared skeptical about the validity of the plaintiff’s case.
OSHA’s defending arguments
The government’s attorneys argued that OSHA does have limits. The agency must determine “that significant risks are present and can be eliminated or lessened by a change in practices” before creating a safety standard. In addition, those standards must be economically and technologically feasible.
The government also noted that courts have imposed limits, such as the United States Supreme Court overturning the Biden administration’s COVID-19 Emergency Temporary Standard (ETS). In that case, the Supreme Court held that the so-called “test or vaccinate” rule was beyond OSHA’s jurisdiction.
Of course, OSHA presumably created the COVID ETS on the belief that it was necessary, appropriate, and within the agency’s jurisdiction. In fact, OSHA defended the ETS before the Supreme Court. This potentially raises the question of whether employers must go to court (incurring substantial legal fees) to argue that an OSHA standard was beyond the agency’s scope.
Regarding the constitutional issue, some organizations filed briefs to support the government’s position. One brief claimed that the Constitution does not limit Congress from delegating its legislative authority. Another claimed that OSHA does have limits, so the delegation is acceptable.
Potential outcomes
The plaintiff is challenging only OSHA’s authority to create safety standards, not health standards, because a previous Supreme Court ruling held that OSHA does have appropriately limited authority to create health standards. Since that ruling, however, changes in the Supreme Court have created a shift in perception regarding the non-delegation concept.
Whatever the outcome, the Sixth Circuit’s ruling will likely be appealed to the Supreme Court. The Supreme Court could decline to hear the case, effectively affirming the Sixth Circuit ruling. Or, the high court could accept the case and schedule arguments; if that happens, the Supreme Court’s ruling would likely be a few years away. A permanent injunction seems unlikely, so outcomes could range from upholding OSHA’s current status to a modest reduction or clarification of OSHA’s authority.
Key to remember: Although this lawsuit has enormous potential impact, the Supreme Court would have to accept the case and agree with the plaintiff. A less dramatic outcome seems more likely.
