CHAPTER NINE HEALTH AND SAFETY REGULATION: PROTECTING THE WORKER, CONSUMER AND ENVIRONMENT Congress, in the past 15 years, mandated a very significant change in the direction of Federal health and safety regulation. Those regulatory activities progressed, over that short period of time, from what was mostly a piecemeal approach to comprehensive and far-reaching action to protect the worker, the consumer, and the environment. Many laws were passed and a number of agencies created in that process. Equally important is the fact that each of those areas has undergone major structural consolidations since 1970. A principal purpose of those consolidations was to reduce or eliminate unnecessary overlap and duplication between Federal agencies concerned with these matters. Structural reorganization also implicitly discarded the piecemeal approach which had marked much of Federal health and safety legislation for decades. It is true that not all previous efforts constituted a such an approach: the Federal Hazardous Substances Act of 1960, to cite one example, was intended to be comprehensive in nature. But that was an exception, rather than the rule. It is clear that health and safety regulation at the Federal level has benefited from the consolidation which has taken place. Many organizational problems were addressed through creation of single agencies with broad mandates and effective enforcement powers. The hazardby-hazard or product-by-product legislation response inevitably resulted either in jurisdictional confusion or, even worse, regulatory gaps. Consolidation was advanced as a major remedy, but not as a complete solution to such conflicts. As our discussion will indicate, significant organizational problems. remain in the field of health and safety. Organizational conflicts have increased in proportion to the recently expanded Federal role in this. area. Comprehensive protection for American workers has not been. assisted by an ambiguous statutory mandate, and has resulted in continuing conflicts between agencies. Federal activities in radiation. safety, to cite another example, are sorely in need for legislative attention to clarify agency responsibilities and jurisdiction. In addition consolidation resulted in new conflicts between agencies. Broad mandates tended to have uncertain boundaries, thus creating some jurisdictional ambiguity. So too the problems these agencies confront, sometimes as shared responsibilities, are increasingly complex and difficult. Further legislative refinement was and still is-required. But the solutions are not solely to be found in more reorganization and more consolidation. What is needed is effective use of what presently exists, through development of successful coordination mechanisms. Congress, as this discussion will show, has already made important steps: S in that regard-advances which we believe merit further development and consideration in the future. A. BACKGROUND Worker safety, environmental preservation and consumer protection, though obviously different one from the other, share significant similarities insofar as Federal involvement. Common patterns mark the nature and course of each. And the context that development provides is important to a fuller understanding of the organizational problems that beset this area of Federal regulatory activity. First, protecting citizens from harm and injury constitutes a fundamental concern of government, a major premise for creation of an organized community bound by common rules. To "promote the general welfare" is a preeminent purpose of the Federal government, ranked only after justice and security in the preamble to the Constitution. Yet the general welfare clause aside, there is no express provision of the Constitution for Federal jurisdiction over health and safety. Rather it is an implied power, emanating from specific or enumerated constitutional responsibilities. Once a subject falls within an enumerated power, the Federal ability to legislate over that activity is complete and comprehensive. For example, the Constitution in express terms grants to Congress the power to regulate interstate commerce; and that necessarily involves considerations of public welfare in commerce between the states. The comprehensive potential of Federal health and safety regulation, pursuant to that authority, is suggested by the scope of the interstate commerce clause, as sketched by Mr. Chief Justice Marshall in 1824: It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.3 Federal legislation to protect the worker, the consumer and the environment rests upon that firm constitutional basis. Perhaps from that, and certainly from an instinct that government should protect its citizens in matters of health and safety, there is a popular expectation of effective regulation in these areas. In 1972 a House committee report on consumer protection legislation noted "the public's widely held assumption that the Federal government exercises broad authority in the interests of their safety." The expectation has only very recently been fulfilled, on any large scale, at the Federal level. For much of the Nation's history, Congress was slow to exercise its power in health and safety matters. "Vertical regulation" characterized much of that legislation; that is, regulatory action directed at a specific hazard, or a certain occupa 1 See Bernard Schwartz, Constitutional Law, pp. 42-46 (1972). 2 Art. I. sec. 8. a Gibbons v. Ogden, 9 Wheat 1. 196-7 (1824). 4 Committee on Interstate and Forejen Commerce. U.S. House of Representatives. 92₫ Cong., 2d sess., II.R. 92-1153, pp. 21-2 (June 1972). tion, or a particular concern-all too often with little consideration of the overall situation. Comprehensive Federal regulation of a "horizontal" nature-that is, regulation directed across-the-board at the variety of hazards or industries-is largely a development of the past 15 years or so. Previously the power was not necessarily denied; rather, the potential went only partially realized. The historical development is significant to this discussion for several reasons. First, because extensive Federal involvement occurred only recently, many of the organizational conflicts are comparatively new. Second, it is important to note that each of these areas-consumer, worker and environmental protection-has been, within the past 7 years, the subject of structural consolidations, in part fashioned to address organizational problems. The fact that integration has not been a complete solution, and has instead resulted in some new conflicts, is in itself revealing and, to some extent, unavoidable. Prior to the 1960's there were, it is true, sometimes significant Federal inroads on health and safety matters. Our present purposes do not require exhaustive review of Federal developments. The highlights are sufficient. Even the Federalist period witnessed some early steps. Perhaps the first Federal safety measure, which concerned conditions of life at sea, was adopted in July 1789, just 5 months after the opening of the first Congress. That legislation set requirements for the seaworthiness of vessels, and the supplies and provisions necessary for Atlantic crossings. In the same year Congress considered, and in 1798 adopted, legislation establishing hospitals for sick and disabled seamen. Both those early health and safety measures were probably enacted pursuant to the foreign commerce power. Of course where Congress governed directly, such as in the District of Columbia and the territories, health and safety regulations were frequently the subject of Federal action. For instance in 1891, Congress passed, "An Act for the protection of the lives of miners in the Territories," which provided for Federal inspection of mines." Traditionally Congress legislated health and safety measures only where the States were, in a legal sense, precluded from acting; the territories and the District of Columbia being examples of those areas. But the same was true of interstate commerce, regulation of which was by the Constitution reserved to the national government. To be sure no single State could effectively regulate commerce when it passed beyond its jurisdiction. All the same the principles of States' rights, coupled with a prevailing laissez-faire attitude toward business regulation, discouraged for many years what was considered to be Federal intrusion into State matters. For example the first major Federal environmental measure, the Refuse Act of 1899, was prompted by concerns of navigability rather than water pollution. The use of that statute to curb unacceptable discharges into waterways was a much later de 5 See Henry W. Farnam, Chapters in the History of Social Legislation in the United States to 1860, pp. 232-3, 243 (1938). Ibid., p. 124. Act of March 3. 1891, 51st Cong.. Ch. 564. Arnold W. Reitze, Jr., Environmental Law, p. four-34 (1972), velopment, coinciding with an expanded Federal involvement in environmental concerns.9 The first major breakthrough in Federal participation occurred 70 years ago, with the adoption of two laws concerning safe food and drugs. In 1906 Congress passed the Federal Food and Drug Act and the Meat Inspection Act.10 Both measures were grounded on important recognitions-justifications that would later serve as the basis for Federal involvement in other health and safety concerns. Federal control was prompted by a recognition that there existed serious. public health problems that the States were either unwilling or unable to address effectively. State action necessarily varies in approach and vigor; and is uneven and inconsistent by its very nature. As the Meat Inspection Act declared, meaningful protection depended on Federal action and intervention: It is essential in the public interest that health and welfare of [Fed eral action is] appropriate to prevent and eliminate bur- Aside from the important inroads they represented the food and drug acts along with other Federal enactments concerning interstate commerce in lottery tickets, prostitutes and stolen vehicles-served as the basis for significant legal tests of the strength of the commerce clause as a basis for Federal intervention in public welfare matters.12 In case after case the Supreme Court affirmed the power of Congress to legislate such matters pursuant to its enumerated powers.13 By 1925 that constitutional issue was largely resolved. Following adoption of the pure food and drug acts, Federal involvement proceeded largely on a piecemeal basis for more than 50 years: bit by bit national jurisdiction was expanded, as Congress adopted legislation tailored to address specific problems. The New Deal brought a wave of legislative action. The food and drug laws-still the principal consumer protection activity on the Federal level-were strengthened in 1938, by granting authority to require premarket testing of new drugs to substantiate claims of safety, and by subjecting cosmetics to regulatory controls. Safety in the workplace was the subject of several enactments: the Walsh-Healey Public Contract Act of 1936,15. the 1938 amendments to the Lonshoremen's and Harbor Workers' Act,16 14 For a complete discussion of the development of Federal involvement in water pollution, see: N. William Hines. "Not a Drop to Drink: Public Regulation of Water Quality," 52 Iowa L. Rev. 186, 432. 799 (1966-67); Frank J. Barry, "The Evolution of the Enforce ment Provisions of the Federal Water Pollution Control Act: A Study of the Difficulty in Developing Effective Legislation." 68 Mich. L. Rev. 1103 (1970). 19 34 Stat. 768, 1260. The latter statute was reenacted in 1907. 11 21 U.S.C. 602. 12 See Paul R. Benson, Jr., The Supreme Court and the Commerce Clause, 1937-1970, pp. 55-58 (1970). 13 Champion v. Ames, 188 U.S. 321 (1903); Hipolite Egg Co. v. U.S., 220 U.S. 45 (1911); Hoke v. U.S., 227 U.S. 308 (1913)); Brooks v. U.S. 267 U.S. 432 (1925). 14 21 U.S.C. 301. 15 29 T.S. 557. 41 USC 45. 16 33 U.S.C. 901 et seq. and the Fair Labor Standards Act of 1938 17 all contained Federal safety standards for American laborers. The Fair Labor Standards Act, among other things, made it unlawful to ship, deliver or sell any goods in interstate commerce which were produced under substandard labor conditions. Within 4 years, that authority was upheld by the Supreme Court as a proper exercise of Congressional power, thereby sanctioning the far-reaching ability of the Federal Government to prescribe working conditions in nearly every facet of economic life.18 Catastrophes compelled other action. For example, after some 250 miners died in a single year in four different methane gas explosions, Congress in 1941 strengthened Federal regulation of mine safety by allowing inspection powers to the Interior Department.19 A large number of child fatalities from "torch" or "exploding" sweaters, and the public outcry that attended those tragedies, led to the passage in 1953 of the Flammable Fabrics Act.20 The first step in that area was hesitant, fashioned to meet the immediate problem and little else: the original act applied only to certain types of wearing apparel; expressly excluded such items as hats, gloves, footwear and interlining fabrics; and the act had no application to other potentially flammable fabrics such as drapes, carpets, bedding and upholstery.21 Step by step-at first gradual in the 1940's and 1950's, then at an accelerated pace in the past 20 years-Federal involvement became more certain, more definite. Though greatly expanded, the Federal response continued to be, with some exceptions, piecemeal in nature. A comprehensive, organizational approach is a development of only the past 7 years. Those actions were prompted by conflicting and unclear mandates, overlap, confusion, inconsistent regulation, jurisdictional squabbles-energies, in short, consumed by organizational rather than substantive problems. The scope of the problem can be glimpsed by simply listing the principal health and safety measures adopted by Congress between 1956 and 1970. In the 1960's, hardly a year passed without a major enactment by Congress in each of these three areas In worker health and safety.-Public Service Contract Act of 1965, Arts and Humanities Act of 1965 (grant conditions), Federal Metal and Non-Metallic Mine Safety Act of 1966, the Federal Coal Mine Health and Safety Act of 1969, and Federal Construction Safety Act of 1969. In consumer product safety.-Refrigerator Safety Act of 1956, Federal Hazardous Substances Act of 1960, National Traffic and Motor Vehicle Safety Act of 1966, Child Protection Amendments of 1966 and Child Protection and Toy Safety Act of 1969, Flammable Fabrics Act (as amended in 1967), Poison Prevention Packaging Act of 1970, Lead-Based Paint Poisoning Prevention Act of 1970, and Egg Products Inspection Act of 1970. In environmental protection.-Federal Insecticide, Fungicide and Rodenticide Act (as amended in 1964 and 1970), Water Pol 17 29 U.S.C. 201-219. 18 A. B. Kirschbaum Co. v. Walling, 316 U.S. 517 (1942). 19 See Committee on Education and Labor, U.S. House of Representatives, 95th Cong., 1st sess.. H. R. 95-312, p. 4 (May 1977). 20 15 U.S.C. 1191-1200. 21 See Committee on Interstate and Foreign Commerce, U.S. House of Representatives, 90th Cong., 1st sess., H.R. 90-972 (1966). |