Action on Smoking and Health v. Department of Labor
| Citation | 307 U.S. App. D.C. 295,28 F.3d 162 |
| Decision Date | 12 July 1994 |
| Docket Number | No. 92-1661,92-1661 |
| Parties | , 16 O.S.H. Cas. (BNA) 1865, 1994 O.S.H.D. (CCH) P 30,481 ACTION ON SMOKING AND HEALTH, Petitioner, v. DEPARTMENT OF LABOR, et al., Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the United States Department of Labor.
John Banzhaf, III, Washington, DC, argued the cause for petitioner. With him on the briefs were Peter H. Meyers, Washington, DC and Kathleen E. Scheg, Hyattsville, MD.
Charles F. James, Atty., U.S. Dept. of Labor, Washington, DC, argued the cause for respondents. With him on the brief were Joseph M. Woodard, Associate Sol., Occupational Safety and Health Admin. and Ann Rosenthal, Atty., U.S. Dept. of Labor.
Before MIKVA, Chief Judge, BUCKLEY and WILLIAMS, Circuit Judges.
Opinion for the Court filed by Chief Judge MIKVA.
Action on Smoking and Health ("ASH") challenges, on several grounds, the Occupational Safety and Health Administration's ("OSHA") delayed and proposed regulation of environmental tobacco smoke ("ETS") as a potential occupational carcinogen. Due to justiciability and finality considerations, we deny ASH's petition.
On July 31, 1992, ASH petitioned OSHA to initiate a rulemaking pursuant to OSHA's Cancer Policy, 29 C.F.R. Secs. 1990.101-1990.152, to regulate environmental tobacco smoke, independent of other indoor air quality ("IAQ") contaminants, as a potential occupational carcinogen. On October 30, 1992, OSHA informed ASH by letter that it had not yet reached a final decision about whether and how to regulate ETS in the workplace but indicated that it was disinclined to focus on ETS in isolation from other indoor air quality contaminants. On December 22, 1992, ASH filed this petition for review claiming that OSHA has unreasonably delayed initiating a rulemaking to regulate ETS as a potential occupational carcinogen.
Before the parties completed their briefing for this case, OSHA initiated a rulemaking to regulate ETS and other indoor air quality contaminants. 59 Fed.Reg. 15968-16039 (April 5, 1994). In response, ASH claims that OSHA's proposed omnibus IAQ rulemaking will unreasonably delay promulgation of health and safety standards on ETS. ASH also claims that OSHA acted arbitrarily and capriciously and in violation of its own Cancer Policy by failing to initiate a separate rulemaking proceeding for ETS. We find petitioner's claim that OSHA unreasonably delayed initiating a rulemaking on ETS to be moot and find petitioner's claim of future delay not yet ripe for judicial review. Because final agency action is lacking, we do not reach the merits of petitioner's challenge to the omnibus nature of OSHA's proposed IAQ rulemaking.
The Occupational Safety and Health Act ("Act"), 29 U.S.C. Sec. 655(f), and Administrative Procedure Act ("APA"), 5 U.S.C. Sec. 704, respectively confer jurisdiction on this court to review health and safety standards that OSHA promulgates and other final agency action that OSHA undertakes under the Act. To ensure that agencies do not derogate their statutory duties and elude judicial review through agency inaction or delay, this court has recognized a narrow exception to the finality requirement upon which judicial review is ordinarily conditioned: this court may assert jurisdiction over suits seeking relief from agency inaction or delay that jeopardizes our future statutory power of review. See Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 75-76 (1984) ("TRAC ").
Although petitioner's allegation that OSHA unreasonably delayed issuing health and safety standards for ETS qualifies for this exception, we do not reach the merits of this claim. Petitioner based its claim upon the period of delay prior to the agency's April 5, 1994 issuance of a Notice of Proposed Rulemaking on Indoor Air Quality Contaminants. Because ETS is among the contaminants that OSHA proposes to regulate in that rulemaking, petitioner's unreasonable delay claim is moot. See United Steelworkers of America v. Rubber Mfrs. Ass'n, 783 F.2d 1117, 1120 (D.C.Cir.1986). Petitioner further claims that the proposed omnibus rulemaking will violate the Cancer Policy's regulatory timetable and will unreasonably delay regulation of ETS. We find this claim unripe for judicial review and decline jurisdiction over it at this time.
The Supreme Court's decision in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), provides the starting point for our ripeness analysis. In Abbott Laboratories, the Court explained that the "basic rationale" of ripeness doctrine is:
to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.
Id. at 148-49, 87 S.Ct. at 1515-16. These principles gave rise to a two-part test that "requir[es] us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Id. at 149, 87 S.Ct. at 1515-16. Under this test, "if the interests of the court and agency in postponing review outweigh the interests of those seeking relief, settled principles of ripeness squarely call for adjudication to be postponed." National Ass'n of Regulatory Util. Comm'rs. v. Department of Energy, 851 F.2d 1424 (D.C.Cir.1988) (quoting State Farm Mutual Auto. Ins. Co. v. Dole, 802 F.2d 474, 480 (D.C.Cir.1986)).
Under section 1990.142 of the Cancer Policy, a Notice of Proposed Rulemaking ("NPRM") on any given carcinogen In addition, "[w]ithin one hundred twenty (120) days from the last day of any hearing or ninety (90) days from the close of any post hearing comment period, whichever occurs first, the Secretary shall publish in the FEDERAL...
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