The U.S. Supreme Court has overturned a 40-year precedent, commonly known as the Chevron deference, a ruling that some experts suggest will have a significant impact on how OSHA and other federal agencies regulate safety and health.
In the 1984 case that set the precedent, the Supreme Court ruled that courts should defer to a federal agency’s interpretations of its own statutes as long as they are reasonable and provided Congress hasn’t addressed the issue clearly.
In the majority decision on Loper Bright Enterprises, et al, v. Raimondo issued June 28, 2024, six justices agreed that courts are the true decision-makers on resolving ambiguities in laws, such as the OSH Act of 1970.
“The framers (of the Constitution) . . . expected that courts would resolve [statutory ambiguities] by exercising independent legal judgment,” Chief Justice John Roberts writes. “Chevron gravely erred in concluding that the inquiry is fundamentally different just because an administrative interpretation is in play.”
The court also concluded that the Chevron deference violated the Administrative Procedure Act (APA) of 1946, with Roberts stating the APA “specifies that courts, not agencies, will decide ‘all relevant questions of law’ arising on review of agency action — even those involving ambiguous laws.”
The ruling further notes that “Chevron cannot be reconciled with the APA by presuming that statutory ambiguities are implicit delegations to agencies. That presumption does not approximate reality. A statutory ambiguity does not necessarily reflect a congressional intent that an agency, as opposed to a court, resolve the resulting interpretive question.”
Supporters of the ruling, including groups like the U.S. Chamber of Commerce, believe it will create a more stable regulatory environment that will “provide consistent rules of the roles for businesses to navigate, plan and invest in the future.”
Others, including former OSHA Deputy Assistant Secretary Jordan Barab, expect the ruling will make it more difficult for agencies like OSHA to issue major standards, a process that already is considered long and slow.
Representative Bobby Scott (D-VA) also views the ruling as a detriment to worker safety. “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,” he says. “The issues at stake often involve very technical questions, such as . . . 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 legal battles wherein bad actors can use the courts to push their own political regulatory agenda.”
One rule that could be affected is OSHA’s recent Walkaround Rule (29 CFR 1903.8), finalized April 1, 2024, which allows both the employer and the employees to select a qualified representative (including a third party) to join OSHA for worksite inspections. This rule is under litigation from the Association of General Contactors (AGC) and the U.S. Chamber of Commerce; those groups believe the rule unnecessarily complicates the worksite inspection process. A challenge to a rule like this would now need to be interpreted by the courts, not OSHA, to decide if the statute should stand.
"There may be litigation on some issues in the future, and as those make their way through the court, they can be challenged,” states Courtney Malveaux, principal attorney with Jackson Lewis and Government Affairs Chair for ASSP’s Colonial Virginia Chapter. “This is not a 180-degree turn, but it is a 90-degree turn. The most important thing members need to know right now is to continue to follow OSHA standards as before. Nothing has gone away in terms of standards. Follow the rules and the interpretations.”
In related news, on July 2, 2024, the Supreme Court struck down an appeal from Allstates Refractory Contractors LLC, a construction contractor corporation located in Ohio, who questioned if Congress’ delegation on workplace safety rulemaking authority to OSHA violated Article 1 of the U.S. Constitution, which states that all legislative power shall lie with Congress. Despite some opposition among the judges, the Supreme Court declined the appeal. In his dissenting opinion, Justice Clarence Thomas argued, “The question where the Occupational Health and Safety Administration’s broad authority is consistent with our constitutional structure is undeniably important... because this petition is an excellent vehicle to do exactly that, I would grant review.”
ASSP will continue to monitor this issue and provide updates as it evolves.