Pursuing Regulatory Relief: Strategic Participation and Litigation in U.S. OSHA Rulemaking

Abstract

Administrative agencies in the United States have developed highly formalized and complex processes for public participation in rulemaking, especially in areas of social regulation such as the environment and workplace safety and health. This case study considers the significance of participation in formal rulemaking processes by connecting the quality of participation to the strategic possibilities in litigation between private interests and regulatory agencies. Specifically, the strategic possibilities of the leading interest groups engaged in the Occupational Safety and Health Administration's major “Lockout/Tagout” rulemaking illustrate how legal resources are created through the development of evidence and claims in hearings. Written and oral presentations, apparently aimed directly at persuading the agency, indirectly affect agency deliberations by increasing the possibility that courts will constrain agency decisionmaking, thus creating opportunities for negotiated alternatives. The case ultimately serves as a paradigmatic example of how bargaining arises at the micro level of policy systems that are infused with broader legal structures.