CINCINNATI (CN) — The significant amount of discretion afforded to the Occupational Safety and Health Administration to craft nationwide workplace safety standards is not an unconstitutional delegation of legislative power, an appeals court panel ruled Wednesday.
The decision is consistent with other rulings, including in the D.C. and Seventh circuit courts, and upheld a federal judge's ruling that language in the Occupational Safety and Health Act of 1970 places sufficient constraints on the agency.
Allstates Refractory Contractors, a company based in Toledo, Ohio, that provides furnace services in the glass and petrochemical industries, sued the U.S. Department of Labor and OSHA in 2021, seeking a nationwide injunction to neuter the agency's rulemaking authority.
In September 2022, U.S. District Judge Jack Zouhary, a George W. Bush appointee, granted the government's motion for summary judgment and cited language in the OSH act as evidence of the limitations on OSHA's power to promulgate safety standards, including the phrase "reasonably necessary or appropriate."
Allstates appealed and the case was argued in April 2023.
Wednesday's decision, written by fellow Bush appointee U.S. Circuit Judge Richard Griffin, found "the act comfortably falls within the ambit of delegations previously upheld by the Supreme Court."
Griffin focused on the "intelligible principle test," established in the 1928 U.S. Supreme Court case Hampton Jr. and Co. v. United States, which he cited in his opinion.
"'If Congress shall lay down by legislative act," the Hampton court said, "an intelligible principle to which the person or body authorized to [act] is directed to conform, such legislative action is not a forbidden delegation of legislative power.'"
Griffin cited numerous Supreme Court decisions that upheld "broad delegations" of rulemaking authority to federal agencies, including Hampton, United States v. Grimaud and Yakus v. United States, and found the OSH Act followed with this line of precedent.
"To begin, the OSH Act sets forth a host of principles, purposes and goals that the agency must consider or fulfill," he said.
"Then, the act directs OSHA to set standards to further these purposes," Griffin continued in his decision. "These goals guide the agency's decision-making in setting its standards, and they provide 'overarching constraints' on its discretion. In particular, these guidelines limit OSHA's oversight to the workplace and restrict its standards to those that facilitate workplace safety, not, for example, public health policy in general."
He emphasized the agency cannot simply "issue any standard it likes" but must pass standards only if a safety issue "requires" a response.
"OSHA must act when a particular hazard 'requires' its action, and it cannot issue any standard when the risk does not rise to that level," he said (emphasis in original).
"While Congress gave OSHA significant discretion," Griffin's ruling continued, "that does not render the delegation unconstitutional. The agency's standards must still be reasonably needed — that is, not more or less stringent than is needed to respond to, but not eliminate, a safety risk in the workplace."
Allstates cited two Supreme Court decisions, Panama Refining and A.L.A. Schechter Poultry, to bolster its argument.
Griffin admitted the cases are binding precedent, but he emphasized two decisions in isolation cannot overcome the standard established by so many other cases that fall in favor of the government.
"Moreover," he continued, "these two cases are readily distinguishable from the present case. For one, this case does not involve a delegation with no standards, as in Panama Refining. ... And this is distinguishable from the 'virtually unfettered' delegation in Schechter Poultry. There, the president could regulate essentially the entire economy and make whatever law he desired so long as it promoted 'fair competition.'"
U.S. Circuit Judge John Nalbandian, a Trump appointee, wrote an expansive dissenting opinion in which he criticized the majority for continuing a "trend" of refusing to strike down acts of Congress that grant federal agencies overly broad authority.
"Because OSHA's permanent standards provision (1) does not require any preliminary fact-finding or a particular situation to arise to trigger agency action and (2) does not contain a standard that sufficiently guides the exercise of this broad discretion OSHA delegates to the secretary, the provision does not have an intelligible principle," he said.
Senior U.S. Circuit Judge Deborah Cook, another George W. Bush appointee, rounded out the panel and joined in Griffin's lead opinion.
Neither party immediately responded to a request for comment.
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