For over fifty years, the Occupational Safety and Health Administration (OSHA) has been a fixture in the battle between those who prefer government deregulation and those who prefer strong worker-protection laws. The Occupational Safety and Health Act (the Act) delegates broad authority to OSHA to promulgate “occupational safety and health standards” that are “reasonably necessary or appropriate to provide safe or healthful employment.” Throughout its half-century history, the Act has raised questions about whether it complies with the nondelegation doctrine.
The Supreme Court first confronted this question in Industrial Union Dept. v. American Petroleum Institute, 448 U.S. 607 (1980) (Benzene). While interpreting Section 6(b)(5) of the Act, a plurality of justices held that OSHA must find that a toxic material poses a “significant health risk” before promulgating a new standard. Applying this standard, the plurality suggested that OSHA setting exposure levels without first determining whether the toxic material posed a risk to employee health might violate the nondelegation doctrine. In a concurrence, Justice Rehnquist argued for invalidating the toxic-materials provision of the Act under the nondelegation doctrine because “the language of § 6(b)(5) gives the Secretary absolutely no indication where on the continuum of relative safety he should draw his line.” The Supreme Court implicitly affirmed the holding of Benzene in American Textile Manufacturers Institute, Inc. v. Donovan, 452 U.S. 490 (1981) (Cotton Dust), over the dissent of Justice Rehnquist.
Many, including Antonin Scalia and Cass Sunstein, have weighed in on the ongoing debate regarding whether OSHA’s standard setting authority complies with the nondelegation doctrine, insisting that neither Benzene nor Cotton Dust resolves the issue. Confronting this topic, in Allstates Refractory Contractors, LLC v. Su, a two-judge majority of the Sixth Circuit held that OSHA’s standard setting authority does not violate the nondelegation doctrine. 79 F.4th 755 (6th Cir. 2023).
While the Benzene case focused specifically on the toxic-material provision in Section 6(b)(5), Allstates Refractory considered whether Congress provided OSHA with an intelligible principle to exercise its general rulemaking authority to “promulgate, modify, or revoke any occupational safety or health standard.” 29 U.S.C. § 655(b). The majority concluded that the “reasonably necessary or appropriate” language in the definition of “occupational safety and health standards” satisfied the intelligible principle standard’s requirements. Drawing from Benzene, Cotton Dust, and similar decisions, the majority resolved any nondelegation concerns by interpreting the statute to require OSHA to find a “significant risk” before promulgating standards.
In a dissent, Judge Nalbandian accused federal courts and the majority of having “tiptoed around” the nondelegation doctrine. Synthesizing the Supreme Court’s precedent on the nondelegation doctrine, Judge Nalbandian concluded that Congress must provide an agency with either (1) “a fact-finding or situation that provokes Executive action” or (2) “standards that sufficiently guide Executive discretion—keeping in mind that the amount of detail governing Executive discretion must correspond to the breadth of delegated power.”
Judge Nalbandian concluded that the Act did not meet either of the intelligible principle standard’s requirements. First, he rejected arguments that OSHA’s general rulemaking authority required any sort of fact-finding. He distinguished Benzene and Cotton Dust on the grounds that Section 6(b)(5) included additional limiting principles relative to OSHA’s general rulemaking authority. He also dismissed arguments that the “reasonably necessary or appropriate” language sufficiently constrained OSHA’s standard setting authority. Although Judge Nalbandian conceded that the Supreme Court has upheld delegations to agencies to create “reasonable” or “just” policies, he argued that the statutory delegations in these other cases required fact-finding or included other criteria to guide agency authority. “How can we test what is appropriate given the broad field of delegated power? The simple answer: We can’t. That’s because Congress has not made clear whether any boundaries of authority exist.”
The Occupational Safety and Health Act is over fifty years old, and the Supreme Court has already considered the constitutionality of some its standard setting provisions. Any effort to strike down OSHA’s standard setting authority will raise healthy skepticism. Yet Judge Nalbandian’s dissent reflects a belief, echoed by Scalia and Sunstein, that Benzene has not resolved whether OSHA’s standard setting authority violates the nondelegation doctrine.
