On July 2, 1980, the Supreme Court ruled in Industrial Union Department AFL-CIO v. American Petroleum Institute that the Occupational Safety and Health Administration must take economic considerations into account when issuing regulations. This 5-4 decision severely impacted the ability of the government to take an aggressive and preemptive stand against workplace health problems.
One thing that often gets left behind in discussions of OSHA is the health part of the agency’s mission. We focus on safety. That’s because those issues are easier to take care of. You put proper protection around a saw and it becomes a lot less dangerous. But health is a whole other issue. You have a couple of issues making it so. First is the long term impact of work upon health, which means that occupational illness can take decades to become apparent. Second is that remaking worksites so that workers aren’t exposed is a lot more expensive than the saw guard. Protecting workers from benzene, toxic gases, or dust has real challenges. And those solutions can be expensive.
The Occupational Safety and Health Act of 1970 charged the federal government with protecting workers on the job from industrial hazards. OSHAct stated, “no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life.” It built on the “Precautionary Principle” that was in favor during these years for dealing with workplace safety and health issues, addressing environmental uncertainties in the regulatory process before they became problems. That means in the case of workplace health trying to figure out what substances might cause health problems and preemptively eliminating them. That requires action even if scientific data doesn’t exist that suggests there is a problem, but only that there could be in theory. This principle drove the move toward environmental and workplace regulation during the 1970s in both the United States and Europe. But the political implications of this were not worked out in the legislation and Congress gave OSHA a lot of leeway in figuring out how the agency would actually operate.
OSHAct tasked the Secretary of Labor is bound to set out rules for substances like benzene, even if only one worker might become unhealthy due to exposure. It was benzene at play in Industrial Union Department. OSHA sought to regulate benzene, an carcinogen, but without really nailing down how many workers’ lives would be saved in doing so.
The American Petroleum Institute decided to fight this, even though the petroleum industry clearly had the money to protect its workers from benzene exposure (it didn’t even bother arguing otherwise). Industry had engaged in a court campaign to slow down OSHA from its beginning, challenging the agency at every turn. On the other hand, the AFL-CIO led the charge to save the Precautionary Principle, building on its significant progress in fighting for workplace health in the 1970s. OSHA finally was up and running at full capacity by the late 1970s with Jimmy Carter naming Eula Bingham as the agency’s head. Bingham, the first OSHA director who really supported the agency’s mission, sought to remake workplace environments around the nation, often with the active support of those unions who saw the agency as a way to empower workers on the shop floor to protect themselves and express workplace power at the same time. So defending the Precautionary Principle became a top OSHA priority after 1977. Bingham’s OSHA created standards for acrylonitrile, cotton dust, lead, arsenic, and benzene.
Yet for organized labor, this was very slow progress. By 1981, the National Institute on Occupational Safety and Health (NIOSH) had recommended 250 standards but OSHA had only implemented 21 of those. Only 4 of these standards dealt with cancer-causing agents. In my forthcoming book on timber unions, I discuss in some detail how the International Woodworkers of America (IWA) was frustrated that their concerns on a wood dust standard was not taken seriously enough by OSHA. So for corporations, these standards were outrageous and for workers, they were too little and usually too late. The Precautionary Principle was a great idea but workers in the 1970s were impatient and wanted immediate remediation of the problems of work.
In the case itself, more popularly known as the benzene case, the Court had two primary objections. First was to rule on the benzene standard itself, specifically the reduction of benzene at the workplace from 10 parts per million to 1 ppm. Second was whether OSHA needed to have a “reasonable relationship” between the costs and benefits of new standards. The Court’s majority (John Paul Stevens wrote the opinion with Burger and Stewart in the majority while Rehnquist and Powell wrote concurring opinions) decided to read Congress’ mind in interpreting the Occupational Safety and Health Act, assuming Congress couldn’t have meant to protect all workers from all health risks without cost consideration. Effectively, the Court rejected the Precautionary Principle as an unreasonable standard with which to hold business. A plurality tried to create a standard for workplace health that would activate OSHA action, rather unhelpfully noting that it should lie somewhere between a 1 x 1000 chance of illness and a 1 x 1,000,000 chance. What this did was allow the Reagan administration to effectively avoid health regulations on the job at all after it took power in 1981 by adhering to the 1 in a million standard. Thurgood Marshall wrote a blistering dissent (Brennan, White, and Blackmun making up the rest of the minority) saying the decision placed “the burden of medical uncertainty squarely on the shoulders of the American worker.”
Despite Industrial Union Department, American work is much safer and healthier today than it was decades ago. Unfortunately, a lot of the reason for that is the outsourcing of such work to Latin American and Asian nations where workers labor in health-destroying conditions making products for American consumption.
While researching this case, I ran across a celebratory essay about the decision by one Antonin Scalia in an American Enterprise Institute publication.
The roots of this week’s decision in Michigan v. Environmental Protection Agency can be seen in Industrial Union Department, as Scalia’s opinion relied heavily on the same cost-benefit analysis as that case.
I don’t think there is a single book that really deals with this case effectively, but it is mentioned in Gerald Markowitz and David Rosner’s Deceit and Denial: The Deadly Politics of Industrial Pollution, which is a very good book on the larger issue of workplace health. I also consulted Albert Matheny and Bruce Williams, “Regulation, Risk Assessment, and the Supreme Court: The Case of OSHA’s Cancer Policy,” in Law and Policy, October 1984.
This is the 149th post in this series. Previous posts are archived here.