Justice Thomas Hopes to Eliminate OSHA, But Can’t
What is Asbestos?
Asbestos is a naturally occurring mineral composed of thin, fibrous crystals. Once revered as nature’s “miracle mineral” due to its durability, strength, and heat-resistance properties, its use dates back thousands of years to ancient Egyptians, Greeks, and Romans, civilizations that used it in artwork, infrastructure, and tapestries. During the Industrial Revolution, the United States relied heavily on asbestos in industries such as shipbuilding, construction, manufacturing, automotives, textiles, and more. It was also included in residential homes in everything from floor and ceiling titles, insulation, and roofing shingles as well as kitchenware and appliances, arts and crafts, beauty products and many other household products.
However, despite widespread use in centuries past, asbestos has a rather sordid history, and its dangers are now well-known.
While it was being widely integrated into society during most of the 1900s, it has long been linked to numerous health complications. In the late-1980s, the Environmental Protection Agency (EPA) was only partially successful in its efforts to ban asbestos use, and today, while greatly restricted, asbestos remains present in auto parts, cement, and some construction and manufacturing items, and makes its way into the U.S. through imports from other countries. It is also still found in aging commercial, industrial, and residential structures.
When asbestos fibers become friable (or airborne), they can easily be inhaled, latching permanently onto the lungs, stomach lining, and in other areas of the body.
This can eventually lead to serious illnesses such as asbestosis, lung cancer, and mesothelioma—a rare but aggressive cancer. What makes exposure most insidious is that symptoms can take decades to manifest, making early detection difficult. Oftentimes, the fibers that have lodged themselves inside will begin to cause inflammation, which only gradually worsens until an asbestos-related illness develops. By the time symptoms are noticed, treatments are limited, and prognoses are poor.
The EPA has continued its efforts to eliminate asbestos use over the years, but it seems every time the agency makes progress, subsequent court decisions cause setbacks. Because certain applications of asbestos are still allowed, the EPA relies on other regulatory bodies like the National Institute for Occupational Safety and Health (NIOSH) and Occupational Safety and Health Administration (OSHA) to help it protect public safety, and even so, workers and others continue to be exposed.
OSHA’s Role in Regulating Asbestos
One of the regulators that has long partnered with the EPA to ensure parties remain in compliance and safety standards are adhered to is the Occupational Safety and Health Administration (OSHA). OSHA’s primary role is to ensure safe and healthy working conditions for employees across a variety of industries, including those using asbestos, by enforcing standards, and providing training, outreach, education, and other assistance.
Established under the Occupational Safety and Health Act of 1970, the agency plays a crucial part in regulating the use of hazardous substances, including asbestos, in the workplace. It sets and enforces acceptable toxin levels and handling procedures, and over the years, it has implemented strict exposure limits, requiring that airborne asbestos fibers be kept below a certain threshold.
Asbestos was the first substance regulated by OSHA to protect workers.
In addition to adhering to these limits, under OSHA’s enforcement, employers must also provide personal protective equipment (PPE) such as respirators and protective clothing to any employees tasked with handling asbestos, and spaces must undergo regular cleanings to prevent the buildup of asbestos dust. When asbestos-containing materials (ACMs) require removal, OSHA mandates stringent protocols for doing so. Any party found to not be in compliance is cited by the agency and could either be given a warning with a plan to execute while being closely monitored or is shut down entirely.
Historically, OSHA’s input has significantly helped protect both public health and the environment. Additionally, in court rulings, its warnings and guidelines have been central to establishing liability for secondary exposure to asbestos. Courts have cited OSHA standards to hold employers accountable for failing to protect not only their workers but their loved ones at home. Spouses, children, and other family members living alongside those employed in high-risk industries are also placed at risk by default. This is because fibers tend to be carried home on work gear and in family vehicles. Just as life-threatening as firsthand use, secondhand exposure has led to an uptick in asbestos-related illnesses and legal cases in recent years.
Because OSHA is so critical to making sure workers and their families are protected, any challenges to its existence are especially concerning. Nevertheless, the asbestos industry continues its attempts to deregulate use as much as possible, evidenced by a recent court decision.
The Supreme Court’s Decision on OSHA’s Authority
Just this month, a small Ohio-based construction contractor, Allstates Refractory LLC argued that Congress had “unconstitutionally delegated its legislative powers” to the executive branch by granting broad authority to OSHA. The challenge was backed by 23 Republican state attorneys general and libertarian legal groups and was rooted in the belief that OSHA’s extensive oversight across industries constitutes an overreach of authority. The company was represented by Don McGahn, former White House counsel to President Donald Trump (R).
SCOTUS Weighs In; Justice Thomas’s Dissent
A lower court rejected the challenge, so the contractor sent it to the Supreme Court. However, the high court couldn’t muster up enough votes to grant an appeal. Notably, Clarence Thomas and Neil Gorsuch, two conservative judges, said they would have been up to the challenge, but needed the support of at least two more of their peers.
Justice Thomas specifically wrote in his dissent that the grant of authority to OSHA was “an impermissible delegation of legislative power.” He stated further that other conservative justices, including Chief Justice John Roberts, and Justices Samuel Alito and Brett Kavanaugh, had previously expressed an interest in reevaluating Congress’s delegation of power to federal agencies, and called the contractor’s challenge an “excellent vehicle” to address potential constitutional issues with OSHA’s oversight.
Implications of the Decision on Asbestos Regulation
Despite the efforts of the justices who felt up to addressing the challenge, the majority declined to hear Allstates’ case, which may have led to a significant reduction in OSHA’s regulatory capabilities. This could have had a significant impact on asbestos use in industry, perhaps allowing for more extensive use, and new or reinstated uses, further exposing the public to health risks.
Many companies in the asbestos industry went bankrupt long ago amid mounting litigation charging them with negligence, and, as part of these bankruptcy proceedings, established trust funds to proactively address future legal woes. In doing so, the companies have not only been able to head off claims resulting from workers and their families who’ve been diagnosed with asbestos-related illnesses, but they’ve essentially admitted to wrongdoing without actually having to throw in the towel.
The importance of legislative enforcement to protect workers
Given that these companies were able to get away with exposing employees for many years and were only made to do something about it when evidence supporting health risks became well-known, if regulations were relaxed, there’s really no way to determine the extent to which they’d take advantage of this moving forward. As it stands, many were given a ‘slap on the wrist,’ and have been able to continue using the mineral to support their bottom line.
While the recent OSHA case failed, the fact that many justices were in support of allowing an appeal is concerning. This could open the floodgates for more challenges to be brought before the Supreme Court. Other recent court rulings could also weaken regulatory authority. Pushing forth another appeal in the current legal landscape could mean big changes ahead.
Overturning the Chevron Doctrine
The Chevron doctrine, established by the Supreme Court in 1984 as a result of the case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., required courts to defer to federal agencies’ interpretations of any ambiguous laws put into place by these agencies, as long as the interpretations were reasonable. In the 1984 case, there was a dispute over how to interpret the Clean Air Act, specifically as it related to pollution being defined by the EPA as a “stationary source.” The court ruled that the EPA’s interpretation be upheld, and moving forward, it stated that any confusing language would be up to the establishing agency to explain.
On June 28, 2024, however, in a 6-3 landmark decision, the Supreme Court overturned the long-standing doctrine, a move public health and environmental advocates feel could weaken the EPA’s authority in upholding its asbestos policies. By the same token, the new decision could pose challenges for OSHA’s ability to carry out its mandates.
The Bottom Line
Given the serious health complications associated with asbestos exposure, the need for vigilant oversight is clear. Protecting workers, and the public at large, from asbestos-related health complications requires an unwavering commitment to strict safety standards and proactive regulatory measures. Eliminating a key watchdog like OSHA would undermine these efforts, and most likely put countless lives in danger as a result.
With the Supreme Court making it clear many of its justices are now in favor of revisiting the power OSHA has over workplace safety, and the recent overturning of the Chevron Doctrine, many feel restricting asbestos could be at risk. The historic profitability of asbestos and ongoing opposition to the EPA’s elimination efforts also make for an uncertain future. For now, asbestos use continues to be largely regulated, and agencies like the EPA and OSHA are key players in enforcing these important regulations. But tomorrow could be an entirely different story. Unfortunately, only time will tell whether current restrictions remain in place.