Litigation

Public health groups are defending their legal standing to sue OSHA over its rollback of Obama-era electronic reporting and recordkeeping requirements, saying the changes will injure them by hindering their ability to gather federally reported data on workplace injuries.

Federal appellate judges, in a split decision on an EPA policy memo, are outlining competing tests for how judges should assess whether OSHA and other agency guidance is a “final action” subject to court review, with the majority acknowledging that the decision is likely to spark a debate in this “somewhat gnarled field of jurisprudence.”

A pending challenge to a Department of Health and Human Services’ (HHS) liver transplant policy in the U.S. Court of Appeals for the 11th Circuit may be the first appellate case to test the reach of judicial deference courts grant OSHA and other agencies to interpret their regulatory authority under the high court’s recent ruling on the issue.

Federal appeals court judges appeared doubtful at recent oral arguments of citizen groups’ suit aiming to revive Obama-era rules from OSHA and other agencies the GOP scrapped using the Congressional Review Act (CRA) in the early days of the Trump administration, questioning claims that the CRA is unconstitutional and the repeals were unlawful.

Supreme Court observers expect lower courts to grant OSHA and other agencies narrower, agency-specific deference to interpret ambiguous regulatory language in the wake of the high court’s recent Kisor v, Wilkie ruling that generally preserved so-called Auer deference but reinforced limits on its use.

EPA is facing a possible suit from environmentalists after the agency rejected claims that a modified Toxic Substances Control Act (TSCA) significant new use rule (SNUR) for use of a specific chemical lacks adequate protections for oilfield workers that are exposed to the substance and any formaldehyde that may be associated with it.

Major industry groups including the National Association of Home Builders (NAHB), U.S. Chamber of Commerce, several livestock sector organizations and others are fighting OSHA’s bid for a federal court to dismiss their suit alleging the agency’s recordkeeping policy rollback rule does not go far enough.

A pending suit over EPA’s denial of environmentalists’ petition seeking to require reporting of asbestos uses under the revised Toxic Substances Control Act (TSCA) is testing plaintiffs’ ability to use remedies in both the toxics law and the Administrative Procedure Act (APA) to challenge such denials, potentially expanding plaintiffs’ litigation options.

The Trump administration is asking a federal district court to dismiss consolidated lawsuits filed by Democratic attorneys general (AGs) and other critics of OSHA’s rollback of Obama-era electronic reporting and recordkeeping requirements, arguing the plaintiffs lack legal standing and the agency is allowed to “change its mind” on policies.

In a move that seeks to bolster the lagging deregulatory agenda at OSHA and other agencies, President Donald Trump has announced his intent to nominate Eugene Scalia, a former Labor Department (DOL) solicitor, to replace exiting Labor Secretary Alex Acosta.