An Out-of-Control Administrative State Turns a Parking Lot into a Mine By Janet Levy
Between the law and the nitty-gritty of its implementation stands the diabolical bureaucracy — without constitutional authority but with seemingly unquestionable powers to frame rules and regulations. Sometimes, bureaucratic decisions are downright absurd — such as, most recently, designating a parking lot a coal mine!
But before we get to how the Department of Labor’s Mine Safety and Health Administration (MSHA) wrested jurisdiction over a parking lot and ludicrously holds on despite legal reversals, let us run through some examples of arbitrary administrative overreach, an enduring problem over the last few decades:
- The Environment Protection Agency (EPA) attempted to expand the definition of “waters of the United States” in the Clean Water Act to include wetlands on residential property. As a result, a landowner in Idaho was prevented from building a modest home on his property for 17 years until the Supreme Court ruled in his favor last year (Sackett v. EPA).
- The National Marine Fisheries Service (NMFS) randomly decided that fishing operators should transport, house, and pay the salaries of federal inspectors who accompany them on trips to monitor compliance with fishing rules. Previously, the NMFS itself bore those costs, as would be reasonable.
- The U.S. Fish and Wildlife Service (FWS) weaponized the Antiquities Act to increase the regulatory burden on ranchers and farmers, hinder normal agricultural operations, and seize land.
- The National Oceanic and Atmospheric Administration (NOAA) overstepped its bounds by arbitrarily banning a popular tourist activity — swimming with dolphins — citing disturbances to dolphins and their habitats.
The latest victim to raise a voice against such administrative overreach is KC Transport, Inc., a family-owned company based in Virginia and West Virginia. The company parks, maintains, and repairs trucks; some occasionally haul coal.
In 2019, an MSHA inspector visited the company’s facility in Emmett, West Virginia, and cited the company for repairing two trucks without using blocks to secure the wheels. The inspector claimed that the company’s sporadic coal hauling brought it under MSHA’s jurisdiction and declared that the trucks and the parking lot constituted a coal mine.
MSHA’s primary responsibility is to enforce the Federal Mine Safety and Health Act (Mine Act) of 1977 and the MINER Act of 2006. In other words, to manage mining hazards and enforce health and safety standards in and around coal mines.
The company’s property, by commonsense, is neither a mine nor near one. But the trouble lies in the nebulous clauses defining a mine — clauses (h) and (i) of Sec. 3 § 802 of the Mine Act of 1977. From a perusal of those clauses, there seems no reasonable justification for deciding that a parking-cum-maintenance lot for trucks (some of which may haul coal) is a mine.
So, the company contested the citations — of $3,908 and $4,343 — before an administrative law judge (ALJ) of the Federal Mine Safety and Health Review Commission. ALJs are the first office where an inspector or other official’s decision may be challenged, after which appeals are heard by the commission.
The ALJ disagreed with the company’s challenge, but the commission reversed the ALJ’s decision and vacated the citations. The commission held that if items listed under § 802 (h) (1) (C) must be considered a mine, they must be at an extraction site or on roads adjoining it. The trucks weren’t on such land; nor was the facility. So, they couldn’t be deemed a mine. KC Transport was not servicing a mine so that it couldn’t be defined as an “operator” under the Mine Act. In short, the commission ruled that MSHA had no jurisdiction over the facility.
But the Secretary of Labor appealed the decision in the U.S. Court of Appeal for the District of Columbia Circuit. The court threw out the commission’s ruling and remanded the decision to the agency, saying the secretary must develop an interpretation of the ambiguous sections. The court essentially washed its hands of the task of interpretation, leaving it to the bureaucracy.
Even so, the court’s decision — albeit divided — is nuanced. It says that, a) given the language and context of the statute, the commission’s interpretation was wrong, but it also adds that b) the secretary treats the relevant sections as if they were unambiguous and makes no meaningful effort to address the practical concerns that arise from such ambiguity.
As the Pacific Legal Foundation (PLF), which is taking KC Transport’s case to the Supreme Court pro bono, puts it: by the secretary’s reasoning, “once a piece of equipment is used in mining, federal jurisdiction attaches to that equipment and follows it where it goes. Every truck will become a rolling mine, and local diners and hardware stores could become mines.”
In cases like KC Transport’s, the contentious Chevron doctrine, drawn from the landmark Chevron v. Natural Resources Defense Council of 1984, is a stumbling block. It is a principle of administrative law requiring courts to defer to federal agencies’ reasonable interpretation of ambiguous regulations. Two steps are to be taken: 1) decide if the statute is ambiguous, and 2) if so, decide if the agency’s interpretation is a permissible one. This doctrine has guided more than 18,000 judicial opinions over 40 years.
KC Transport’s dilemma, though, is a classic instance of what law professors Daniel Hemel and Aaron Nielson have dubbed Chevron Step One-and-a-Half: the court defers to the agency to decide if the regulation is ambiguous, and if the agency finds it is not, the court remands the matter to the agency itself, asking it to acknowledge the ambiguity and provide a reasonable interpretation. So, courts essentially abdicate the judicial responsibility of interpretation.
Many jurists are skeptical of Chevron’s dominion, for it undermines the courts’ constitutional duty. They believe the Constitution gives courts — not administrative agencies and bureaucrats — the authority to interpret federal statutes. They suggest that the “major questions” doctrine be used instead of Chevron to decide on ambiguous statutes. This requires that agencies convince courts they have explicit congressional authorization for any authority they claim. Also, that courts be skeptical about whether Congress meant to give such sweeping authorization as demonstrated by the breadth of the agencies’ past assertion of authority and the economic and political ramifications thereof.
When the Supreme Court hears KC Transport v. Secretary of Labor, a 2017 case — Maxxim Rebuild Co., LLC v. Secretary of Labor — could be a pertinent precedent. In Maxxim Rebuild, the Sixth Circuit Court ruled that MSHA could not designate a repair shop not located on a mine site as a mine. The court refused to defer to the agency’s invocation of Chevron.
The Supreme Court is also hearing two cases — Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce — that could serve to weaken the Chevron doctrine. Both relate to NMFS regulations requiring fishing companies to pay $710 per day per person for the agency’s observers on board commercial fishing vessels. Both call for the court to overrule Chevron on the grounds that it takes away the court’s duty and prerogative to interpret the law; they also argue that Chevron violates the Administrative Procedure Act (APA) of 1946, governing how federal agencies develop, issue, and implement regulations. More than 70 amicus curiae briefs have been filed in these cases, indicating their significance for administrative law.
A decision is expected in July. The court could discard Chevron and leave the interpretation to judges, limit Chevron, or keep Chevron intact. But there’s growing consensus that Congress shouldn’t easily delegate its law-making power to unelected bureaucrats; similarly, courts shouldn’t give up their duty and prerogative to interpret laws.
For too long, bureaucrats, unelected and unaccountable to the people, have operated outside the restraints of the democratic process, willfully plying the interests of pressure groups and working to further political agendas. They must be checked.
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