On Jan. 20, 2017, President-elect Donald Trump will take the oath of office to formally become the 45th president of the United States. But what happens after the inauguration, and how will it affect the mining industry? While the answer to this question is largely unknown, we can expect a significant departure from the Obama Administration’s aggressive regulatory and enforcement agenda.
Throughout his campaign, Trump indicated that economic growth and job creation are top priorities of his administration. Specifically, he plans to create 25 million new jobs and grow the economy at 3.5 percent annually. Although the devil is in the details, Trump will attempt to accomplish this goal by reducing the federal government’s influence in the workplace. His administration will likely take a hard look at current regulations and any regulations that the Mine Safety and Health Administration (MSHA) may try to promulgate prior to the transition of administration to determine which regulations create the greatest burden for companies.
In the waning hours of the Obama Administration, it is likely that the industry will see a significant increase in the number of issued regulations. This phenomenon, known as “midnight rulemaking, is well established in history and typically used by the outgoing administration to achieve certain policy goals before the end of its term. For example, one week after the election, on Nov. 15, 2016, the Obama Administration published 527 pages of new regulations in the Federal Register. This included a Methane and Waste Prevention Rule published as part of the Interior Department’s agenda to create a cleaner and more sustainable energy future. Moreover, on Nov. 18, 2016, the Occupational Safety and Health Administration (OSHA) issued a Final Rule to update the general industry Walking-Working Surfaces and Fall Protection Standards. Among other things, the new OSHA rule updates general industry standards addressing slip, trip, and fall hazards (subpart D) and adds requirements for personal fall protection systems (subpart I).
To this end, we expect MSHA will have tried to finalize two rules prior to the end of the Obama Administration, namely: (1) the Examination of Working Places in Metal and Non-metal Mines rule, and (2) the Respirable Crystalline Silica rule. Both rules have drawn significant criticism from a number of industry and business groups, which claim that key components of the rules are burdensome and compliance is nearly impossible. The Respirable Crystalline Silica rule would likely be modeled after the OSHA rule, which is currently being litigated. As such, the Trump Administration could re-open the rulemaking process to revise and nullify these rules.
While the 527 pages published in the Federal Register shortly after the presidential election on Nov. 8, 2016, likely signify the start of an onslaught of new regulations by the Obama Administration, current Republican leaders have expressed their disapproval of these actions. On Nov. 15, 2016, Republican leaders, including House Majority Leader Kevin McCarthy, sent a letter to the current heads of all regulatory agencies cautioning them against “midnight rulemaking.” They stated:
“We write to caution you against finalizing pending rules or regulations in the Administration’s last days. By refraining from acting with undue haste, you will ensure that agency staff may fully assess the costs and benefits of rules, making it less likely that unintended consequences will harm consumers and businesses. Moreover, such forbearance is necessary to afford the recently elected Administration and Congress the opportunity to review and give direction concerning pending rulemakings. Should you ignore this counsel, please be aware that we will work with our colleagues to ensure that Congress scrutinizes your actions and, if appropriate, overturns them pursuant to the Congressional Review Act.”
This letter clearly outlines the mentality of the Republican-controlled Legislature, a view that is expectedly shared by the Trump Administration.
In addition to reviewing regulations, the new administration may mark the start of differing policy objectives, ranging from changing enforcement to changing the burden of proof for discrimination claims. From an enforcement standpoint, we may potentially see an MSHA that stresses compliance assistance and fosters cooperative programs, rather than focusing strictly on enforcement. This could potentially affect the way MSHA utilizes its pattern of violations (POV) authority under the Federal Mine Safety and Health Act of 1977 (Mine Act). Moreover, the Trump Administration may attempt to scale back whistleblower programs and claims by heightening the threshold for a claimant to establish a prima facie claim. This increase in the burden of proof would signify a significant shift towards protecting employers from false discrimination claims.
Finally, the Trump Administration will likely overhaul the Federal Mine Safety and Health Review Commission (FMSHRC). The FMSHRC is an independent adjudicative agency that provides administrative trial and appellate review of legal disputes arising under the Mine Act. It currently has a vacancy, and while operating with quorum, the administration could move to name a Republican to fill that vacancy. Additionally, the terms of two additional members of the FMSHRC will expire on Aug. 30, 2018, opening up the chance for a Republican majority on the Commission.
All in all, it is impossible to know exactly how much emphasis the Trump Administration will place on MSHA considering his campaign only targeted the coal industry. However, based on Trump’s views of labor and employment and government involvement in business, it is likely that the mining industry could see some significant changes starting in 2017.
Ross J. Watzman is counsel in Jackson Kelly PLLC’s Denver office, practicing in the firm’s Occupational Safety and Health Practice Group. He can be reached at 303-390-0189 or ross.watzman@jacksonkelly.com .