Why the Supreme Court’s Decision in NFIB v. OSHA May Be Even Worse News for Climate Regulation than You Thought

Supreme Court rejected the Occupational Safety and Health Administration emergency vax or-test mandate. This decision showed that a majority of Supreme Court members are skeptical about broad assertions of agency authority. The Court could have invalidated the OSHA rule on narrower statutory grounds but the brief per curiam was more broad. Although the Court didn’t fully exonerate OSHA of its ability to lower workplace Covid-19 risks (although loud claims to the contrary), it adopted a narrow view of agency delegated authority. This limited OSHA’s ability, on the margins, but suggested that there may be wider shifts in administrative law.

The Court’s decision was based on a “major question” reasoning — that Congress must authorize broad agency authority — which would mean bad news for OSHA in its case against the EPA regarding greenhouse gas regulation. A majority of Court members would not have ruled that OSHA cannot impose a vax on large employers to enforce an urgent occupational health standard. It’s unlikely that OSHA’s power to regulate emissions from power plants gives the EPA the authority to make wider changes in energy systems. In fact, OSHA’s major questions doctrine as it is currently applied by Court seems to be a perfect fit. West Virginia v. EPA. But NFIB v. OSHAThis could have more serious consequences than expected for any future regulation efforts to reduce greenhouse gases.

The oral argument as well as per curiam opinions are in NFIB v. OSHA It was suggested that at most some justices, and the Chief Justice in particular were worried that OSHA’s workplace safety authority could be used by the Biden Administration to pursue the larger (and more worthwhile) goal of increasing Covid-19 vaccines. The Court seemed to be concerned about the “pretext”, as Michael Dorf suggested. Dorf explained that the OSHA ruling was a result of a majority Court judgment that President Biden, and his administration, were exercising their power below. [the OSH Act] pretextually.” With no clear statute authority to enforce a Covid-19 nationwide vaccination requirement, Biden Administration tried to use OSHA rules as part of what the President called a “new plan to require that more Americans be vaccinated.”

Administrative law is not without its problems. However, pretextual concerns can be common but rarely are they enforced. If an agency is able to give a rational explanation for its actions, and justify the decisions it made according to its legal authority, then that will usually be sufficient to survive judicial scrutiny. Chief Roberts advised courts to look closely when an agency’s explanation seems “contrived” in the case of census. Roberts stated that judicial review demands agencies to provide genuine justifications for crucial decisions, and not distractions or subterfuge. The Court wasn’t as concerned about the OSHA ETS being driven not by concern for occupational safety but more so, an imperative to boost vaccination. Contra Dorf, there was an “mismatch” between OSHA’s rule and Covid-19 at work. This result was supported by the fact that Covid-19 was calculated based on the payroll of the company and did not consider any other relevant characteristics of workplaces.

While pretext analysis may be useful in identifying truly criminal motives like racial and religious discrimination it is here that the Court reinforces its concern that agencies should only use that authority to which they were delegated. While some may believe that the Court applied such analysis to the Census case because of concerns over invidious discrimination in this instance, the Chief Justice did not support that claim.

The Court repeatedly noted that OSHA’s jurisdiction only covers occupational safety and health, not general public health. The Court had good reason to believe that OSHA’s regulation wasn’t adopted with an emphasis on occupational safety. This was further reason to wonder if Congress actually granted the authority to the agency. (Once again, it is clear that the Chief raised such concerns during oral argument.

This has to do with regulation of climate change. This is the message that NFIB v. OSHAThe Court should ensure that all agencies exercise the powers Congress has given them. If not, the Court will likely conclude that section 111 is too limited for the EPA to use to lower greenhouse gas emissions in the power sector. It may also suspect EPA of trying to repurpose pre-existing authority to regulate air pollution in order to reduce GHG emissions.

The EPA’s only direct means of reducing GHG emissions, if there is no new legislation to be passed, is to enforce existing regulations regarding coal plants and other significant sources. For example, tightening the national ambient quality standard for particulate material would reduce fine particles and soot in the air. This would reduce GHG emissions by putting pressure on big GHG producers. Courts could see these efforts as workarounds and make EPA’s job more difficult, just like they saw the OSHA ETS.

These concerns are not necessarily fatal to further EPA climate initiatives, but they will be another hurdle with which agency has to deal (as if it weren’t enough already). A carbon tax would make it even more beneficial for Congress.