SCOTUS overturns Chevron deference: What does it mean for OSHA?

Washington — The Supreme Court has struck down a 40-year precedent that will likely affect how OSHA and other federal agencies regulate safety and health.

In the high court’s decision on Loper Bright Enterprises, et al, v. Raimondo, issued June 28, Chief Justice John Roberts and the court’s five other conservative justices overturned the Chevron deference. That precedent stemmed from the 1984 case Chevron v. Natural Resources Defense Council.

In that case, the Supreme Court ruled that courts should defer to an agency’s interpretations of its own statutes as long as they’re reasonable and if Congress hasn’t addressed the particular issue clearly.

Roberts writes in the majority’s decision that courts are the true decision-makers on resolving ambiguities in laws, such as the Occupational Safety and Health Act of 1970.

“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,” Roberts continued. “Chevron gravely erred in concluding that the inquiry is fundamentally different just because an administrative interpretation is in play.”

He adds 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.”

In a statement issued after the court’s decision was announced, Suzanne P. Clark, president and CEO of the U.S. Chamber of Commerce, writes that 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.”

‘Ambiguities and gaps’

In her dissent, Justice Elena Kagan writes that “the regulatory statutes Congress passes often contain ambiguities and gaps. Sometimes they are 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.”

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? For example, what are “safe and healthful working conditions” with regard to any future regulation 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 also 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, such as “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.”

‘We are now at greater risk’

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, while 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.”