Notice & Comment

Ad Law Reading Room: “Juristocracy and Administrative Governance: From Benzene to Climate,” by Rachel Rothschild

Today’s Ad Law Reading Room entry is “Juristocracy and Administrative Governance: From Benzene to Climate,” by Rachel Rothschild. Here is the abstract:

In a series of recent decisions culminating in West Virginia v. EPA, the Supreme Court relied on the newly named “major questions doctrine” to strike down agency regulations that protect public health and the environment. Despite employing this specific terminology for the first time, several Justices have argued that the doctrine is simply the latest iteration in a longstanding effort of the courts to curtail the explosive growth of the administrative state since 1970. The first, paradigmatic example of this line of cases is the 1980 “benzene” case, in which the Supreme Court set aside the Occupational Safety and Health Administration (OSHA)’s new workplace standards for benzene.

Since last term, the Supreme Court’s major questions doctrine has sparked intense, wide-ranging debates about whether it is rooted in principles of statutory interpretation and constitutional law or instead serves as a cover for the imposition of the Justices’ particular policy preferences. But these debates and the implications of the major questions doctrine cannot be properly understood without examining how and why the Supreme Court first began to aggressively police agency assertions of regulatory authority. To date, legal scholars have not probed the history of the Court’s invocation of the major questions doctrine to invalidate agency rulemakings.

Using internal agency documents, oral histories with government scientists and officials, and the papers of multiple Supreme Court Justices, this article provides the first in-depth study of the Supreme Court’s 1980 benzene case. It argues that the Justices’ misunderstanding of the agency’s scientific evidence and fears of overregulation led them to demand that OSHA use a specific analytical method to demonstrate benzene’s harms in order to avoid a constitutional delegation problem. Yet OSHA had decided not to utilize the method – now called quantitative risk assessment – because of insufficient data. The court instead deferred to industry-funded experts with little or no background in environmental and public health research, who argued that the method could be used and would reveal that the rule saved very few lives. As the paper shows, the Justices’ embrace of quantitative risk assessment contradicted Congress’s clear desire to avoid industry influence over public health research when passing the OSH Act as well as judicial precedent on deferring to agencies working at the frontiers of scientific knowledge.

Rather than upholding separation of powers principles or agency adherence to the text of its authorizing statute, the Supreme Court’s benzene decision is best characterized as a judicial power grab at the expense of both agency expertise and the democratically elected branches of government. The paper concludes by showing how the Supreme Court’s missteps in the benzene case have plagued recent litigation over environmental and public health regulations and provides suggestions for how the courts and agencies can better avoid these problems.

When I was a student, the first day of my “Administrative & Regulatory State” course featured discussion of a single case: Industrial Union Dept., AFL-CIO v. American Petroleum Institute, or, as it was described on our syllabus, “the Benzene case.” The professor was Richard B. Stewart, who recently passed away. I don’t know how many years Professor Stewart began his introduction to administrative law by plumbing the depths of the Benzene case, but I thought it would be a fitting time to highlight what is surely the most comprehensive treatment of the case ever written.

Not that “Juristocracy and Administrative Governance: From Benzene to Climate” isn’t worthy in its own right. Indeed, far from it. Rothschild’s article is almost staggering in its depth. It tells the history of the OSH Act and the Benzene case itself using vast and varied sources: internal agency documents, legislative history, oral histories, court records, judicial papers, this article has them all and more. That alone would make a compelling contribution. But the piece is also a carefully constructed case study in the perils of judicial overreach and the effects of industry influence. Rothschild traces these and other strands from the time of Benzene through the present, connecting the history up with the recent “major questions” cases that have drawn inspiration from the Benzene case. The article is at times a sobering read, but it’s well worth your time.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.

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