By: Matt Shudtz
By the time the first oil slicks spread from the Macondo Canyon to Barataria Bay, fouling nesting grounds and fisheries, eleven men had died in a massive explosion and fire aboard the Deepwater Horizon drilling platform. Workers are often the sentinels whose injuries and illnesses foreshadow the harms inflicted upon the environment and the broader public by our industrial economy. While the blue-green link is clearest during disasters like this summer's oil spill or the 1984 explosion at Union Carbide's plant in Bhopal, it is integrated into the field of environmental law in subtler ways even during times of relative stability.
On October 7-8, the Center for Progressive Reform (CPR) and the University of Maryland School of Law hosted the Ward Kershaw Environmental Law Symposium, a conference of legal and public health scholars which addressed occupational safety and health professionals to discuss reforms to federal laws and regulations that would better protect workers from the hazards that inevitably find their way from the workplace to the larger environment. Speakers also included several unions' health and safety officials, as well as former lawyers and medical officers from the Occupational Safety and Health Administration and Mine Safety and Health Administration.
Chemical regulations were a focal point of the two-day conference. Unlike EPA, with its $10 billion budget and dozens of statutes through which it can address environmental hazards, OSHA staff are responsible for protecting the entire American workforce with less than $600 million and a single, outmoded statute. Congress drafted the Occupational Safety and Health Act forty years ago with full faith in the administrative agencies' ability to set risk-based standards. But then the federal courts took up challenges to OSHA's risk-based standards, during the same period when they were hearing challenges to EPA's risk-based air standards and toxic chemical regulations. In one case after another, from workplace benzene standards to vinyl chloride regulations under the CAA to asbestos regulations under TSCA, the courts heaped additional evidentiary burdens on OSHA's and EPA's risk-based approaches to regulation. Congress responded to these decisions with amendments to the Clean Air Act that allowed EPA to use a faster technology-based approach to setting standards to reduce air toxics, but left OSHA to toil away at rulemakings that demand such extensive technical analysis that the agency has set only two standards in the last decade to protect workers from specific chemical hazards.
Participants at the Ward Kershaw symposium presented a variety of potential solutions to OSHA's standard-setting problem. Professor Sidney Shapiro of the Wake Forest School of Law suggested using the OSH Act's General Duty Clause, which requires employers to furnish each employee employment and a place of employment which are free from recognized hazards. Noting that EPA's characterization of public health risks from toxic chemicals are often derived from studies of occupational exposure and disease, participants suggested that recognized occupational hazards might be easily identified with greater collaboration between EPA and OSHA.
University of Maryland School of Law Professors Rena Steinzor (and Jane F. Barrett outlined enforcement-based tools that would establish stronger incentives for employers to identify and mitigate occupational hazards. Professor Barrett pointed out that the OSH Act's civil and criminal penalties are appallingly low-willful violations of the statute that lead to a worker's death can bring a statutory maximum $7,000 fine. She suggested that the government might look to other statutes for greater deterrent effect, such as the Alternative Fines Act or the general prohibition on fraud and false statements found in 18 U.S.C. §1001. Professor Steinzor proposed a new investigatory system for occupational fatalities, based on a program she came across while teaching in Scotland this summer as part of the law school's Summer Abroad Program in Comparative Law at the University of Aberdeen. The idea is to create an investigatory body that would hear testimony about the causes of all occupational fatalities and provide recommendations about new regulations or other protections that could prevent similar incidents from occurring in the future.
The conference also had a session specifically devoted to legislative reform. This summer, the U.S. House of Representatives passed a bill that would improve both OSHA's and MSHA's regulatory authority. But as with 419 other pieces of legislation passed by the House during the 111th Congress, the bill died in Senate negotiations before the election-season recess. The failure of that bill in a year when Americans witnessed the Massey mine disaster (29 dead), the explosion at a Tesoro oil refinery in Washington state (7 dead), and the BP oil spill (11 dead) provided a stark backdrop for the conference's discussion of legislative reform, which began with a presentation by Charlotte Brody, an organizer with the Blue Green Alliance.
The United Steelworkers and the Sierra Club launched the Blue Green Alliance in 2006 and have since opened their doors to other major unions and environmental groups. The Alliance's goals generally parallel the goals of the constituent organizations, but as Brody explained, the unions' and environmentalists' shared core values can occasionally run at cross-purposes in specific implementation. For instance, environmentalists often bristle at worker advocates' habit of criticizing the OSH Act's weak criminal penalties by comparing them to the relatively strong penalties under the Endangered Species Act.
The proceedings of the conference will be the basis for a new series of white papers by the Center for Progressive Reform, a network of scholars from around the country that promotes improved public health protections.