In April of 2023, the Occupational Safety and Health Administration reviewed a petition brought by seven State Attorneys General urging the agency to issue an emergency rule addressing deadly workplace heat exposure. The agency acknowledged the acute hazards that heat poses to workers but decided against emergency intervention. A few months later, extreme heat waves garnered national attention, and President Biden faced sharp criticism for failure to take stronger action to prevent heat-related workplace deaths.
This Article draws on the example of OSHA’s consideration of an emergency heat rule to offer a new way of thinking about the use of emergency power by federal administrative agencies in the climate context. The Article adds to the emerging body of literature comparing the COVID-19 pandemic to the climate crisis and presents a new pathway for navigating existing debates over administrative agency decision making and democratic legitimacy surrounding the use of emergency powers. The Article then offers new recommendations for federal administrative agencies that may be called upon to deploy emergency powers to address the climate crisis in the future. The Article argues that agencies should begin compiling lessons learned from the COVID-19 pandemic now and proactively plan for climate emergency responses that will withstand judicial challenge. Overall, these recommendations are designed with a focus on community engagement as a means of protecting democratic legitimacy and yielding more impactful and equitable governmental responses.
Christine Billy, Preparing for the Climate Crisis: OSHA, Deadly Heat, and Emergency Powers, 51 Ecology Law Quarterly 57 (2024).
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