Heat is the leading weather-related killer, but historically, it has not been treated as an emergency under federal law. There is no federal standard for occupational heat exposure. In February of 2023, in anticipation of a dangerously hot summer for workers, a coalition of seven Attorneys General petitioned OSHA to issue an emergency rule for occupational heat exposure to take effect in the summer of 2023. In April 2023, OSHA denied the petition, noting the legal challenges it had faced in the past when promulgating temporary emergency standards, including National Federation of Independent Business v. OSHA, in which the Supreme Court stayed OSHA’s enforcement of an emergency rule regarding COVID-19 vaccination and testing requirements for private employers, finding that the federal agency lacked the requisite statutory authority. Had OSHA granted the petition and issued an emergency rule targeting high-risk workers in time for the summer of 2023, the administration would likely have been in a much stronger position to mitigate workplace injuries and deaths resulting from heat waves and protect workers.
OSHA’s consideration of an emergency rule addressing hazardous workplace heat presents a fruitful case study for other federal administrative agencies who may be confronted with questions surrounding the use of emergency powers to respond to emerging climate hazards and other aspects of the climate crisis. This Article adds to the existing literature by offering a new way of thinking about federal agency emergency power in the climate context, based on lessons from the real-world example of OSHA’s consideration of an emergency heat rule.
