Manufacturers’ Regulatory Litigation Update

Over the past eight years, manufacturers have been forced to contend with a series of burdensome and damaging regulations, from unwise union rules, to counterproductive worker safety policies, to reckless environmental plans. The National Association of Manufacturers’ (NAM) Manufacturers’ Center for Legal Action (MCLA) has fought back in court, using our expertise and the power of our legal community to stop harmful actions and make important progress. And today, it’s clear that we’re not only succeeding but also inspiring others in Washington to take up the charge.

Promising Developments

Last week, the Trump administration released its Unified Agenda of Regulatory and Deregulatory Actions, which provided an up-to-date forecast on the work that administrative agencies are doing to reform regulations across the government. The news was encouraging for manufacturers. On a variety of fronts, the administration is marching in lockstep with the NAM’s advocacy efforts. And at three agencies in particular—the Department of Labor (DOL), the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA)—the Trump administration is tackling issues that the MCLA has long been working to address in court.

DOL

At the DOL, we’re seeing increased efforts to enact smart, commonsense reform along the lines we’ve advocated. Leadership is expected to review issues around the “persuader” rule, which required employers to report to the DOL anytime they consulted with labor relations experts on union-organization efforts—a clear violation of manufacturers’ constitutional rights and the subject of the NAM’s successful litigation in Associated Builders & Contractors v. Perez. We expect the DOL to publish a Request for Information about the expensive and problematic “overtime” rule, which the NAM challenged and stopped in Plano Chamber of Commerce v. Perez—a case that the DOL examined before deciding to take action. In both cases, the administration is building on the MCLA’s efforts in court.

OSHA

We’re also hearing promising news from OSHA. In the coming days, the agency will issue a proposal to reconsider, revise or remove provisions of the “injury and illness rule”—a rule that harms workplace safety by restricting employer safety incentive programs and drug testing programs. OSHA will also be addressing beryllium exposure standards that apply to construction and shipyard operations in a move that we hope will pave the way for similar work on fair beryllium regulations for manufacturing. And while the OSHA agenda doesn’t address the new “silica” rule, which halves the permissible exposure limit and mandates costly engineering controls, we’re optimistic that OSHA will consider reasonable modifications to the current silica standard. Addressing these issues, which the NAM has litigated in Texo ABC/AGC, Inc. v. Perez, Airborne v. OSHA and North America’s Bldg. Trades Unions v. OSHA, will make workers safer, processes more efficient and manufacturers better able to succeed and thrive.

EPA

Finally, the EPA is making significant strides in rolling back harmful regulations and streamlining unruly processes. The EPA, along with the Department of Defense, intends to review and rescind or replace the “Waters of the United States” rule, wading through issues that the NAM has litigated in American Farm Bureau Federation v. EPA, Murray Energy Corp. v. EPA and NAM v. U.S. Dep’t of Defense. The EPA has also proposed to withdraw the Clean Power Plan—a set of regulations that the NAM challenged in West Virginia v. EPA—and to address implementation requirements for the 2015 National Ambient Air Quality Standard for ozone, which the NAM argued in Murray Energy Corp. v. EPA would be difficult and expensive for manufacturers.

The Ongoing Fight

These are important strides forward. At the NAM, we’re excited about the progress we’ve made, and we’re pleased to have partners in the Trump administration who are dedicated to our priorities. But we’re not about to get complacent or rest on our laurels. It will be up to manufacturers and the MCLA to defend the progress we’re making when outside organizations and interest groups try to stand in our way by launching litigation of their own. We must be ready—and well-funded—for that fight. We intend to redouble our efforts in court—to protect your interests, to advance your priorities and to stand up for manufacturers across America.

Patrick Forrest

Patrick Forrest

Vice President and Deputy General Counsel at National Association of Manufacturers
Patrick Forrest is the vice president and deputy general counsel for the National Association of Manufacturers (NAM). As part of the Manufacturers' Center for Legal Action, Forrest works to strengthen the NAM's ability to promote manufacturing policy objectives through litigation. Mr. Forrest's background includes legal, policy and government relations experience on a wide range of issues.
Patrick Forrest

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