Litigation

South Carolina is preparing to resume its challenge to OSHA’s mandate for state plans to match federal OSH Act penalty levels, after the Supreme Court eased the Administrative Procedure Act’s (APA) six-year deadline for suits against the federal government that the agency previously touted in a bid to dismiss the case.

House lawmakers are planning a hearing next week to evaluate their options in the wake of the Supreme Court’s landmark decision overruling the longstanding Chevron deference doctrine, with some seeking to bolster Congress’ resources and oversight to provide more-detailed legislation though many conservatives are pushing deregulatory measures to limit ISHA and other agencies’ authorities.

A broad coalition of employers is arguing that OSHA’s rule allowing employee representatives to participate in enforcement “walkarounds” outside of their own work sites violates multiple statutes and Constitutional doctrines, in their first formal bid for a federal court to overturn the policy.

OSHA and Dollar General have agreed to settle a years-long enforcement suit over claims of widespread unsafe conditions such as faulty emergency exits at the discount retail chain, including a $12 million monetary penalty and commitments from the company to improve worker protections across its stores.

Legal experts are warning that the Supreme Court’s recent decision holding that defendants are entitled to jury trials when contesting Securities & Exchange Commission (SEC) administrative enforcement actions seeking civil penalties could tee up challenges to many agencies’ programs, and potentially make them less aggressive even if those suits do not succeed.

Chemical-sector groups suing EPA over its rule overhauling the requirements for TSCA risk evaluations of existing chemicals are previewing broad arguments that the rule is unlawful or even unconstitutional, though they are not yet naming specific provisions they will seek to overturn.

An employer attorney says the Supreme Court’s reversal of its long-standing Chevron deference doctrine bolsters the odds that a court will reverse OSHA’s new rule governing employee representatives’ roles in inspection walkarounds and will encourage the targets of enforcement actions to challenge whatever standards the agency cites them for violating.

The Supreme Court will not take up an employer’s suit that claimed OSH Act provisions giving OSHA authority to craft long-term safety standards as “appropriate” are unconstitutional, denying a bid to drastically expand the “nondelegation” doctrine limiting Congress’ ability to grant agencies rulemaking discretion.

The Supreme Court has held that the Administrative Procedure Act (APA) does not require lawsuits over OSHA and other agencies’ rules and “final agency action” to begin within six years of their promulgation but rather within six years of when a party was first injured by a particular policy -- a precedent that could open the door for a “tsunami” of wide-ranging challenges to long-settled policies.

The Supreme Court has overruled its 40-year-old Chevron doctrine granting deference to OSHA and other agencies’ interpretations of ambiguous statutory language, scrapping a principle that was the basis for countless decisions on the lawfulness of agency rules, guidance and other actions.