Admin Law, 2008
i.Subject matter: ESA’s subject matter is more narrow thanNIRA/national economyii.Discretion: “fair and equitable” seems as vague as “unfaircompetition” but probably has more meaning by this point inhistoryiii.No delegation to private groups here.iv.APA has passed so less unsure about agencies by now.
Industrial Union v American Petroleum Institute
(The BenzeneCase)A.Occupational and Safety Hazard Act:
3.8: the std requires conditions or practices,
reasonably necessary or appropriate to provide safe or healthfulemployment and places of employment
6(b)(5): for toxic materials, the std is set at that which
most adequately assures, to the extent feasible, on the basis of thebest available evidence, that no employee will suffer materialimpairment.
B.Facts:i.OSHA has defined benzene to be a carcinogen. OSHA hasdefined carcinogens to be a type of toxic material. Thusbenzene = toxic material. OSHA’s policy is that carcinogenshave no safe levels thus lowest feasible level is best.ii.In 1971, per the Occupational Safety and Hazard Act, SoL setthe permissible exposure level to benzene at 10 ppm. OSHA’sresearch said that 10 ppm would require millions in compliancecosts but did not quantify the amount of the benefits to eachcategory of workers (but according to their studies, the benefitsare probably small).iii.OSHA recommends further limiting exposure level to 1ppm. (Ctreasonably assumes that further limitations drive upcompliance costs.) OSHA did not have scientific evidence onthe effects but rather, assumed a direct correlation b/texposure and harm: the less exposure, the less harm, thusOSHA wanted to lower as much as they could. They solicitedcomments as to whether 1 ppm was feasible; did not solicit onwhether exposure to less than 10 ppm would produce healthbenefits or not.
Held: SC says that as a threshold matter, SoL must find thatbenzene poses a
significant health risk
and that a new, lower std isreasonably necessary to combat that health risk.D.Reasoning:
If the Ct agrees w/ the govt’s interpretation that the Act doesnot require the risk from a carcinogen to be sufficientlyquantifiable and understandable, then that would amount to asweeping delegation of power and it “might beunconstitutional” under
, thus Ct implies anintelligible principle into the statute in order to avoid theconstitutional question. (It’s not clear though that the SC’sinterpretation is unreasonable so plurality probably didn’tabuse its authority.)
The purpose of the Act was to eliminate
of harm, not to create a risk-free workplace. Congress could nothave meant to OSHA the power to regulate merely b/c the