Chief Judge Sutton's En Banc Dissent On The Merits Of OSHA's Emergency Temporary Standard

• Published date: 21 December 2021
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Health & Safety, Trials & Appeals & Compensation
• Law Firm: Squire Patton Boggs LLP
• Author: Colter Paulson and Shams Hirji

We've previously discussed the procedural arguments for and against taking the case en banc that Judge Moore and Chief Judge Sutton (briefly) debated in their respective concurrence and dissent. As we noted in our earlier post, the Court split evenly on the en-banc issue, keeping these cases with the current three-judge panel. This post reviews Judge Sutton's analysis (which was joined by seven other judges) of the merits issue at the center of all these cases: whether OSHA exceeded its authority in promulgating the ETS. Judge Sutton focuses his dissent on that issue, and it's likely that his careful analysis will affect the panel's review, and perhaps the Supreme Court's likely review, of these cases going forward'whichever way they come out.

Judge Sutton argues that the clear-statement rule dooms OSHA's ETS. Under that rule, Congress must clearly delegate to OSHA the authority to issue an ETS. He concludes that Congress did not clearly delegate that authority to OSHA in its enabling statue (the Occupational Safety and Health Act) or anywhere else. Judge Sutton traces the lineage of the clear statement rule to two constitutional principles articulated in Supreme Court precedent. The first principle is that Congress must "speak clearly if it wishes to assign to an agency decisions of vast economic and political significance." Util. Air Regul. Grp. V. EPA, 573 U.S. 302, 324 (2014). The second is that Congress must "enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power." Ala. Ass'n of Realtors v. Dep't of Health & Hum. Servs, 141 S. Ct. 2485, 2489 (2021). According to Judge Sutton, the clear statement rule must apply because OSHA's ETS covers 80 million American workers and encroaches upon the States' traditional police power.

Having found that the clear-statement rule applies here, Judge Sutton explains why he thinks Congress failed to supply that clear statement. Analyzing the Occupational Safety and Health Act, he concludes that it addresses "only occupational health and safety risks," like "a chemical used to make a plastic product or the heat generated at a steel foundry." It does not address "any risk facing the country and every citizen in it." This is true, as well, for the Act's narrow emergency-rulemaking exception. Judge Sutton reasons that the exception, like the Act's other provisions, is directed only toward dangers arising out of work or work-related activities. He also emphasizes...