On June 28th, 2024, the Supreme Court ruled in a landmark decision to overturn the Chevron Deference. The decision to overturn the 40 year old precedent will likely have profound impact on the way that federal agencies, including OSHA, regulate and enforce their policies.
What is the Chevron Deference?
In 1984 the Supreme Court issued a landmark decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., commonly known as the Chevron Deference. This doctrine required courts to defer to a federal agency’s “reasonable” interpretation of ambiguities within the laws that the agency enforces, as long as the issue had not been directly addressed by congress. The deference gave agencies the power to interpret ambiguities within their laws without interference from courts.
What is “ambiguity” in a law?
A law or statute is considered ambiguous if it can be reasonably interpreted in two or more ways. For example, in 2011, OSHA issued an interpretation letter regarding its flammable liquids standard (29 CFR 1910.106(d)(3)(i)*) which stated, “Not more than 60 gallons of Class I or Class II liquids, nor more than 120 gallons of Class III liquids may be stored in a storage cabinet.” In the letter, OSHA acknowledges that this phrasing can be interpreted in multiple ways:
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storage cabinets used to store Class I or Class II liquids, but not both;
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storage cabinets used to store 60 gallons of flammable liquids or 120 gallons of combustible liquids, but no combination of flammable and combustible liquids; and
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storage cabinets used to store 60 gallons of Class I and Class II liquids and 120 gallons of combustible liquids, for a total volume of 180 gallons.
The interpretation letter then clarifies that “OSHA never intended to prohibit intermingling flammable and combustible liquids in a storage cabinet or to allow more than 120 gallons of any flammable and combustible liquids combination in a storage cabinet.” Prior to the Loper Bright Enterprises v. Raimondo ruling which overturned Chevron, if an employer was cited under this (ambiguous) standard and contested their citation in court, OSHA had the freedom to decide how the ambiguity would be interpreted.
OSHA still retains the right to interpret their own standards in response to inquiries from the public, such as the one listed above. However, due to the overturn of the Chevron Deference, OSHA will no longer have the full authority to interpret their standards in legal matters, and their interpretations will be more open to challenges.
How will the overturn of Chevron affect employers?
Due to the overturn of Chevron, OSHA and other federal agencies like the Environmental Protection Agency (EPA) are likely to lose a significant amount of power with regards to the interpretation and enforcement of their laws. Employers can expect more frequent challenges to OSHA regulations in court. Prior to the overturn of the Chevron Deference, when OSHA was sued over its regulations, it typically won and was able to interpret its regulations as it chose. Now that courts are no longer required to defer to OSHA’s interpretations of its standards, it is possible that as more challenges crop up, OSHA regulations could risk being overturned by the courts more frequently.
In her dissent of the Supreme Court’s ruling, Justice Elena Kagan wrote that one major concern with this ruling is that federal agencies, like OSHA, tend to have more knowledge of their subject, particularly technical or scientific knowledge, than courts. This could cause ramifications for protecting worker safety and health, as many of OSHA’s regulations are highly technical and specific to the particular industries that they cover, and courts may not have access to the same levels of expertise when deciding on rulings. As Representative Bobby Scott (D-VA) said in response to the ruling, “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.”
While some lawmakers are voicing concerns regarding the Supreme Court’s ability to weigh in on highly technical issues, others believe that the overturning of the Chevron Deference will remove unnecessary bureaucracy and help to stabilize the regulatory process. In response to the Supreme Court’s ruling, Senate Minority Leader Mitch McConnell (R-KY) remarked, “After 40 years of Chevron deference, the Supreme Court made it clear today that our system of government leaves no room for an unelected bureaucracy to co-opt this authority for itself. The days of federal agencies filling in the legislative blanks are rightly over.”
Post-Chevron, employers may have better chances of contesting OSHA regulations and winning, but with the potential costs of increased litigation, regulatory uncertainty, and possibly fewer protections for workers.
*29 CFR 1910.106(d)(3)(i) has since been updated, and currently reads: “Maximum capacity. Not more than 60 gallons of Category 1, 2, or 3 flammable liquids, nor more than 120 gallons of Category 4 flammable liquids may be stored in a storage cabinet.”