Safety and Health Regulation

• Author: Eric E. Johnson
• Pages: 111-143

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15. Safety and Health

Regulation

“The atmosphere of officialdom would kill anything that

breathes the air of human endeavour, would extinguish hope

and fear alike in the supremacy of paper and ink.”

– Joseph Conrad, The Shadow-Line, 1915

“Before OSHA was created 43 years ago, an estimated 14,000

workers were killed on the job every year. … Today, workplaces

are much safer and healthier. We’ve gone from 38 fatal injuries a

day to 12. But there is still much work to be done.”

– David Michaels, Assistant Secretary of Labor for Occupational

Safety and Health, 2014

Introduction

Tort law generally works in an ex post manner. The phrase ex post is

short for ex post facto, which is Latin for “after the fact.” For the most

part, when tort law comes in, the damage has already been done.

Thus, tort law is largely about shifting the burden of loss from one

party to the other, thus making the best of a bad situation.

Nevertheless, because tort law provides a way of shifting the burden

of loss after the fact, it undoubtedly has a strong – albeit indirect –

effect of preventing harm: The anticipation of being forced to pay

after-the-fact damages will incentivize persons to be more careful on

the front end.

The courts do have a more direct role to play in the prevention of

accidents and injuries. Although rarely invoked, basic principles of

equity can be used to get a court to order an injunction prohibiting

conduct that is deemed unreasonably risky. In Harris Stanley Coal &

Land Co. v. Chesapeake & Ohio Railway Co., 154 F.2d. 450 (6th Cir.

1946), a railroad running on tracks above an underground coal mine

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won an injunction to prohibit the mine from conducting an operation

called “pulling the pillars,” in which columns of coal originally left

intact to support the mine’s ceiling would be demolished so that the

coal could be recovered. The railroad argued that pillar-pulling

operations could cause the ground underneath the train to subside,

leading to a derailment. The court agreed with the railroad, deciding

that when lives were at stake, an ex post award of damages would not

be adequate to set things right again.

Court orders to halt risky activities are, however, infrequent. By far,

the most common way for the law to try to directly prevent accidents

and injuries is through

administrative regulation

. Unlike the

relatively few general principles of tort law, government regulations

are legion, and their provisions can be extraordinarily specific.

The Code of Federal Regulations, which contains the federal body of

regulatory law, fills about 200 volumes when printed in book form.

Not all of that concerns safety. Many regulations govern the

distribution of various government-granted entitlements – everything

from patents to Social Security payments. Another large fraction

concerns taxes and tariffs. But notwithstanding these varied subjects,

it is fair to say that preventing injuries, accidents, health problems,

and other tort-type harms is a major preoccupation of federal

regulation. Safety regulations run the gamut from 49 C.F.R. §382.207,

which prohibits commercial-vehicle drivers from performing “safety-

sensitive functions” within four hours of drinking alcohol, to

21 C.F.R. §556.200, which limits concentrations of the antibiotic

dihydrostreptomycin in swine kidney meat to 2.0 parts per million.

Specific regulations of this sort are subordinate to a layer of law that

governs the authority of agencies to make and enforce regulations, as

well as the ability of citizens to challenge agency actions. This body of

law is known as

administrative law

, and it is the focus of an upper-

division elective course at most law schools.

The object of this chapter is not to comprehensively teach you

administrative law, nor to teach you the substance of the huge body

of regulatory law of the United States. Rather, the aim is to give you a

feel for how agencies use regulation to prevent injury and to allow

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you to see the regulatory system as counterpoint to the common-law

scheme of torts.

History of Administrative Regulation

Through most of the 1800s, there were fewer than a dozen federal

agencies. With industrialization, federal agencies began to multiply

and take on a greater role in governance and the economy. In this

earlier stage of the administrative state, much of the function of

agencies was rate regulation. The Interstate Commerce Commission,

for instance, established by the Interstate Commerce Act of 1887,

regulated the rates charged by common carriers such as railroads and

telegraph companies. The aim was to prevent such companies from

using their natural monopoly power to engage in rate discrimination

that would be unfair to consumers and that could stifle the economic

growth.

The blossoming of administrative agencies as a means of ex ante

prevention of personal harm occurred in the 20th Century. A turning

point occurred in 1906, when public disgust with the meat-packing

industry was brought on by Upton Sinclair’s novel, The Jungle.

Congress responded with a wave of regulation.

The true boom years of administrative agency creation occurred from

the 1930s through the 1970s. In response to the Great Depression,

Franklin D. Roosevelt’s New Deal programs massively increased the

size and scope of the federal administrative state. Then, after World

War II, Congress brought organization to the administrative system

with the Administrative Procedure Act of 1946. The project of

building the government bureaucracy continued through the

increasing economic sophistication of industry in the 1950s and 60s,

and the environmental movement of the 1970s.

The 1980s saw a growing skepticism of regulation, part of larger

movement against “big government.” A widely held sentiment of the

era is typified by President Ronald Reagan’s cynical quip about the

role of government: “If it moves, tax it. If it keeps moving, regulate

it. And if it stops moving, subsidize it.”