Interpreting mine safety regulations no simple business

By and |  October 16, 2019
If 21st century technology can improve both jobsite safety and production, there’s no reason not to embrace change. Photo:

Courts should be more critical of inconsistent interpretations between MSHA districts to change a regulation meaning. Photo:

A common complaint we hear about Mine Safety & Health Administration (MSHA) enforcement is that the agency keeps changing the meaning of its regulations without submitting the matter to notice and comment rulemaking. A variation on this is the longstanding concern with inconsistency.

The fundamental concern is with fairness – how can a mine operator know what the law requires if the law is not clearly written and not consistently enforced? And particularly with an industry as highly regulated as mining is, the rights and opportunities afforded by notice and comment rulemaking – to provide input in the drafting of regulations and to understand fully how they will be applied – are essential.

Past precedent

For many years when deciding what a regulation means, courts have deferred heavily to the issuing agency’s interpretation. After all, the argument goes, the drafter is in the best position to know the meaning of what he wrote.

This logic stacks the deck against the regulated community, giving the prosecuting agency the power to make the law and interpret it without any meaningful, independent review.

This longstanding, weak judicial review of agency regulatory interpretations is often referred to as “Auer deference,” in reference to a 1997 Supreme Court decision, Auer v. Robbins, 519 U.S. 452 (1997). In Auer, the Court reinforced the framework in place since the decision in Bowles v. Seminole Rock, 325 U.S. 410 (1945), for how a court is to determine the meaning of a regulation.

First, a court is to determine whether the regulation’s meaning is plain and unambiguous. If the regulation’s text is clear, the court will apply the plain meaning of the regulation, regardless of what the drafting agency says the regulation means. If the meaning is unclear, however, the court will defer to the agency’s reading of the regulation as long as that reading is “reasonable.”

This may sound simple, but courts frequently uphold the agency’s reading, particularly where the agency can claim special expertise, as MSHA often does. Once a court finds a regulation is ambiguous and the Auer test is applied, the agency’s interpretation almost always wins, even if the agency’s interpretation of the regulation has changed over time.

A new outlook

This last term, the Supreme Court decided a case that many were hopeful would lay the groundwork for more critical judicial review of agency regulatory interpretations. The Court did not go so far as to throw out Auer deference entirely, but it did limit its use to a significant degree.

In Kisor v. Wilkie, a case concerning regulations pertaining to veterans benefits, the Supreme Court emphasized the limited application of Auer deference by stating that the regulation at issue must be “genuinely ambiguous.” In judging ambiguity, a court is to use all of the traditional rules applied to interpreting statutes and is to “carefully consider” the text, structure, history and purpose of the regulation. The Court instructed that, under this analysis, Auer deference should not often apply.

The Court further advised that even if the regulation is genuinely ambiguous, deference to the agency still is not automatic; the agency’s interpretation must also be “reasonable.” Even if the agency’s interpretation is reasonable, it still may not be accorded deference if the agency has not actually interpreted the regulation that way before. Further, this must be the agency’s “authoritative” or “official position” and not just an ad hoc interpretation made for purposes of litigation.

Going forward

What this means for MSHA cases remains to be seen, but, under the Kiser framework, we expect the Federal Mine Safety & Health Review Commission and federal appellate courts to be more cautious in abdicating their oversight powers and allowing MSHA to morph a regulation into something it was never meant to be.

After Kiser, courts should be more critical of inconsistent interpretations between MSHA districts to change a regulation’s meaning and thereby sidestep the critical notice and comment rulemaking process. We should see a shift toward more meaningful judicial checks and balances on the agency’s enforcement power so operators have a fair chance to know, before any citation can be written, what the law requires.

Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins.

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