American Textile Mfrs. Inst. v. Donovan - Oral Argument

ORAL ARGUMENT OF ROBERT H. BORK, ESQ., ON BEHALF OF THE PETITIONERS

Chief Justice Burger: We will hear arguments first this morning in American Textile Manufacturers Institute v. The Secretary of Labor, and National Cotton Council v. The Secretary of Labor; consolidated cases.

Mr. Bork, you may proceed whenever you are ready.

Mr. Bork: Mr. Chief Justice and may it please the Court:

These cases are here on writ of certiorari from the Court of Appeals for the District of Columbia.

That Court upheld a health standard promulgated by the Occupational Safety and Health Administration, and the standard specifies the maximum amount of respirable cotton dust that may be in the air of any textile plant.

It is intended to reduce the incidence of byssinosis, which is a respiratory condition associated with cotton dust.

Petitioner in one case are... American Textile Manufacturers Association or ATMI, a trade association, and 12 manufacturer members.

Petitioners in the other case are the National Cotton Council, which represents all seven segments of the cotton industry from farmers to textile manufacturing.

The standard is extraordinarily severe and costly; it requires textile manufacturers to reduce cotton dust within four years to.2 milligrams per cubic meter of air in all yarn manufacturing processes and to.75 milligrams per cubic meter in all weaving processes.

Now this standard was arrived at by OSHA by applying their carcinogen policy, which this Court remembers from Benzene.

The Benzene case requires that the exposure limit be set at the lowest feasible level.

It is ironic that just two days ago OSHA rescinded its carcinogen policy.

Unidentified Justice: Mr. Bork, how do you define the word feasible in that statute?

Mr. Bork: Well in a variety of ways, Justice Rehnquist.

In the first place, my first point will be that, to find a standard economically feasible, OSHA must have an estimate of costs which is based upon substantial evidence.

It must then find what those costs mean to the industry, what impact it will have upon the industry; how many jobs, how much investment will be lost because of that cost.

And finally, it has to have a legal criteria by which it is able to state that the impact it finds is economically feasible.

Unidentified Justice: And did you draw that definition from the Congressional language or legislative history?

Mr. Bork: From the Congressional language and also it seems to me, Justice Rehnquist, that it is impossible to say that something is feasible without knowing what it will do to the industry.

And OSHA has made no finding here of what it will do to the industry other than to say that some undefined number of plants may close.

Unidentified Justice: Well, and that the industry as such would not go... not cease to exist?

Mr. Bork: The industry as such, Justice Stewart, will not cease to exist is all they have said.

That finding is thoroughly consistent with 90 percent of the industry being left, or 50 percent of the industry being left, or 10 percent of the industry being left.

In fact, the literal language that OSHA uses would be satisfied if there were a single mil left.

That standard of the industry will continue to exist is not a standard at all.

Unidentified Justice: But it is the one that OSHA applied?

Mr. Bork: That's the only one, that's right, Justice Stewart.

And one of our contentions is that that standard, if that is considered to be a standard, means that nobody knows what OSHA is doing; judicial review is impossible, and you have the completely uncanalized power over industry that this Court found improper on the benefit side of the act.

Here, they are claiming the same power through their power to impose costs without limit, or without any real limit.

Unidentified Justice: Well Mr. Bork, if while the Benzene case was pending here, the Board had revoked its carcinogen policy, as you say it now has, would we have remanded that Benzene case for reconsideration?

Mr. Bork: I trust so.

Because--

Unidentified Justice: And are you suggesting that that should be done here?

Mr. Bork: --I'm suggesting that, but I have additional suggestions, Justice White--

Unidentified Justice: Yes, I know you do.

But this is a very recent development, I take it?

Mr. Bork: --Monday.

Unidentified Justice: Is there anything official--

Mr. Bork: I believe it's in the Federal Register as of Monday, is it not?

Unidentified Justice: --Have the parties given us anything, Mr. Bork?

Mr. Bork: No, I just learned about it last night.

Unidentified Justice: I haven't heard it until you just mentioned it.

Well could, I know you have other points but it's possible that would be dispositive--

Mr. Bork: I think it is, Justice White.

Unidentified Justice: --Mr. Bork, can you hypothesize the circumstances in which a major industry, producing things we regard as necessary, that is, the entire automobile industry and the entire lumber industry, the entire cotton industry... can you hypothesize any situation in which it could be simply closed down and stopped, by operation of law?

Mr. Bork: You mean that it would be proper to do it that way?

Unidentified Justice: Could it be done that way?

Could the Congress of the United States, through its mechanisms such as we have here, in effect say, no more automobiles shall be produced because automobiles kill 63,000 people a year and injure two million people a year, and therefore.

Mr. Bork: I think, Mr. Chief Justice, that I would agree that the Congress does have the power to do that.

There may be problems about compensation, but I think it has the power to do that.

However, one thing is clear; that Congress in the OSHA act did not intend just to shut down industries, because they required that the standard be economically feasible.

Unidentified Justice: Mr. Bork, the Chief Justice asked you if the Congress could through its technicians, accomplish this result?

My understanding of the act was that Congress had delegated to the executive branch the accomplishment of these particular results.

I don't know if your answer would be any different if the question were phrased in those terms or not.

Mr. Bork: Well, I think an additional problem arises, Justice Rehnquist, and that is the problem that Congress did not delegate the power to destroy an industry because it specifically required that economic feasibility be present.

So while Congress may have the raw constitutional power to do that, it is perfectly clear that in this statute it has not done that.

Unidentified Justice: Well, one of your points is that there was an overdelegation, in the sense that it's... a delegation without any standards, isn't it?

Mr. Bork: That is quite correct, Justice White.

But it is more than that, because it is a constitutional point in that sense.

Unidentified Justice: Right.

Mr. Bork: But it is also a statutory point, so that--

Unidentified Justice: Right.

Mr. Bork: --I think those persons who do not think that the delegation doctrine remains a part of constitutional law would nevertheless wish to reverse here, for a wholly inadequate set of findings about economic feasibility.

One simply cannot judge economic feasibility in any way from the record OSHA has made.

Unidentified Justice: The statutory word is feasible, isn't it?

Mr. Bork: Pardon me?

Unidentified Justice: The statutory word is feasible, I mean, not economically feasible?

Mr. Bork: That is correct.

That is correct.

Everybody who has looked at it, every Court who has looked at it has accepted the contention that feasibility requires both technological feasibility and economic feasibility.

Unidentified Justice: And maybe some other kind of feasibility.

Mr. Bork: Perhaps so.

Unidentified Justice: And along with the executives, along with OSHA, they think it includes economic--

Mr. Bork: Yes they do... no, OSHA does not contend that economic feasibility is not a requirement.

Unidentified Justice: --Right.

But the statutory standard is feasible.

Mr. Bork: That is correct, Justice Stewart.

Unidentified Justice: Mr. Bork, could I be sure I understand your suggestion about the revocation of... OSHA's carcinogen policy?

I didn't understand... this is not a carcinogen that we're dealing with here, is it?

Mr. Bork: That's why I find it ironic that OSHA continues to insist upon a standard arrived upon the carcinogen policy for cotton dust which is not a carcinogen.

Unidentified Justice: Well, but did they expressly rely on their carcinogen policy here, or do you think their reasoning was--

Mr. Bork: As I understand it--

Unidentified Justice: --comparable to that used in the other cases?

Mr. Bork: --It was certainly identical, not just comparable, Justice Stevens.

And I think they expressly relied upon it.

Unidentified Justice: Was the lead case in this same Court of Appeals?

Mr. Bork: Yes.

Unidentified Justice: Is that a carcinogen or is it more akin to this?

Mr. Bork: The lead case is... the carcinogen policy was amended because of the Benzene case, and they said that the... that lowest, that carcinogen policy requiring the lowest feasible level was inconsistent with the act.

I would suppose this is too.

Unidentified Justice: My question was the lead case, in this same Court of Appeals?

Mr. Bork: Yes.

Unidentified Justice: Was that like this, a non-cancer-producing agent?

Or was it a cancer-producing agent?

Mr. Bork: No, it is not a carcinogen.

Unidentified Justice: Wasn't the reason for revoking the carcinogen policy, at least as applied in cases like Benzene, was the failure to make a finding that was made in this case, namely that there was a significant risk.

So does revocation really affect this case?

Mr. Bork: Well, I don't think the... I'll come to that, I don't think the significant risk--

Unidentified Justice: You don't contest the fact there was such a... the finding required by Benzene was made here, I don't think you dispute that?

Mr. Bork: --That first finding was, yes.

Unidentified Justice: Yes, and you don't challenge it as being adequately supported by the record?

Mr. Bork: Well there is a significant risk in cotton dust, it's a question of at what level and with what controls that risk disappears, is very much before us.

But my first point I have,... really want to argue two propositions.

The first one is economic feasibility.

And as to that, my point is that three things are required.

As I said, an estimate of costs based upon substantial evidence.

Our point here is that the estimate of costs is based upon no evidence, it is pure conjecture.

But the second two elements of economic feasibility aren't even present here, and that is, what do those costs mean for the industry, how much of this industry is going to be destroyed.

That isn't even addressed here, except to say the whole industry won't be destroyed.

And thirdly, there is no criteria of any sort; no policy judgment, no articulated policy judgment, nothing as to why whatever percentage of the industry is going to be destroyed should nevertheless be considered a feasible policy.

So that, two of the three elements which are inherent and inevitable in any finding of economic feasibility simply aren't present here, and that fact alone, I think, requires reversal.

Additionally, there is no substantial evidence to support the cost for the bases, so that we have economic feasibility requiring three elements, not one of which is present in this case.

And the government's brief I think, quite understandably, attempts to obscure this point which is present in our main brief, by speaking as if we are only arguing about the substantial evidence supporting the cost estimate.

We are not only arguing that.

We are also arguing that the other two elements which are required for any sensible judgment of economic feasibility aren't even addressed at this point.

Unidentified Justice: Well, Mr. Bork, none of this, I gather, as you've now stated, involves an argument that a cost benefit analysis was obtained?

Mr. Bork: That is my second proposition, Justice Brennan.

Unidentified Justice: That's your second point.

Mr. Bork: And these--

Unidentified Justice: Is that under the feasibility or under the reasonably necessary?

Mr. Bork: --I think it's under both, Justice Brennan.

Unidentified Justice: Under both.

Mr. Bork: Under both sections of the statute.

But I want to stress that these two propositions are logically independent.

The argument about economic feasibility would in and of itself justify reversal, quite aside from whether there was any requirement, which we contend there is, that there be a reasonable relationship between costs and benefits.

Unidentified Justice: And were these points presented this way to the Court of Appeals?

Mr. Bork: The Court of Appeals, the cost-benefit point was presented and the finding of economic feasibility was attacked, yes.

Unidentified Justice: But in these terms, in the terms that you are now putting... with the three elements?

Mr. Bork: I don't think it was that drawn out, in quite that sharp a form.

Unidentified Justice: You're inferring that the Court of Appeals dealt with these particular points?

Mr. Bork: No.

The Court of Appeals simply accepted the idea that if... which was challenged... that if the whole industry was not destroyed, that was sufficient.

The Court of Appeals articulated that standing.

But I think therefore, under the economic feasibility point, that the agency is claiming an unfettered power--

Unidentified Justice: Mr. Bork, can I ask you what you... for a little clarification of the second point in your three points that are required?

How much of the industry must be destroyed before it's no longer feasible?

Supposing that... say the figure is 25 percent and supposing 25 percent of the firms would go out of business but the remaining 75 percent would be able to expand their production and continue to produce the same aggregate amount of goods.

Would that be feasible or not feasible under your standard?

Mr. Bork: --Well, in the first place, Justice Stevens, I am not advancing any standard because I am not in a position to do so.

These things have never been addressed--

Unidentified Justice: No, but you are advancing a proposition that there must be measurement of the percentage of the industry destroyed.

What do you mean by destroying industry, is that to mean destroying existing firms or a portion of the total output?

Mr. Bork: --Oh, I think it means both.

For example, if... it may be that if there is a section of the country where all of the firms would be destroyed with drastic effects upon employment and so forth and so on, that might be considered not feasible, even though the production would shift to a different section of the country.

But I don't really wish to settle that.

We haven't... this is a process of developing this law which has not even been gone through by OSHA.

Unidentified Justice: It's just not there.

Mr. Bork: Pardon me?

Unidentified Justice: It's just not there.

Mr. Bork: It's just not there.

And I am really not prepared to spell out all of the conditions under which--

Unidentified Justice: Would you say OSHA is free to pick whatever approach to the word feasible makes sense, as long as it follows these three criteria?

Mr. Bork: --That's true.

Unidentified Justice: Because certainly there's no Congressional guidance on this precise point.

Mr. Bork: No, that's true.

I think the... while we're talking about practical concerns and so forth... I think it would be a common law development when OSHA began to give the reasons why it found a certain level of destruction feasible.

The Courts could then look at it and we would begin to get some rationality into OSHA's processes and we would know what they were doing.

And not least, that would make OSHA politically accountable to Congress, because Congress would know then what price we are paying for this kind of thing.

So I think it is a large function of this Court to introduce political accountability into processes, governmental processes, which lack them.

And this one certainly lacks them.

Unidentified Justice: Let me pursue the hypothetical question I put to you earlier, Mr. Bork.

In your view, would Congress have the constitutional authority to bar cigarettes, for example, unless they can demonstrate that all negative health factors were eliminated?

Could Congress do that itself via statute?

Mr. Bork: In my opinion, you have chosen the example, Mr. Chief Justice, that pains me a great deal, but I think they could.

Unidentified Justice: Second question: could they delegate that, by a structure somewhat like the usual pattern of creating a commission like OSHA, could they delegate that to a commission on tobacco hazards?

Mr. Bork: I think, again, Mr. Chief Justice, the answer is yes they could, if they told the agency what it was to consider in arriving at the conclusion whether or not cigarettes were to be banned.

Unidentified Justice: That is, do you mean by that if the commission, after hearings, made findings that it had this definite health hazard factor, carcinogen-producing elements, then the commission could--

Mr. Bork: I think so, if it's a canalized, structured delegation, so the commission isn't just roaming free.

Unidentified Justice: --And it would have nothing to do with... or Congress would not be limited by the fact that this would put a great many people out of business?

Mr. Bork: No, Congress would not be, nor would OSHA, if they had been delegated the task.

But they were delegated the task to do it to the extent that it is feasible, which we all, I think agree that it means economically feasible, and given that, I think they have to make the findings that go to feasibility.

And they have not.

Now the other point--

Unidentified Justice: Mr. Bork, before you proceed, does OSHA agree with your assertion that it has authority, under the act, to put 50 percent of a major industry out of business?

Mr. Bork: --Justice Powell, the difficulty is that OSHA has never addressed what it's authority is.

I think... well, I don't know--

Unidentified Justice: Are OSHA's findings in the papers that we have before us?

I couldn't locate them.

Mr. Bork: --OSHA's findings are simply that the entire industry will not be destroyed or industry as a whole will not be destroyed, that's all they said.

Unidentified Justice: And I'm sure the Solicitor General will respond to my question, but one of the examples you gave was that... I understood it, that under the standard before us in this case 90 percent of the industry could be put out of business and OSHA would still claim the standard was appropriate.

Mr. Bork: OSHA could still claim, under that form of words.

I don't know what OSHA would do in that case.

And a large part of OSHA's argument in its brief is that they don't really need to state a standard because they are very reasonable and prudent people.

And in effect, the brief argues, you can certainly trust us because we're reasonable and we're careful.

But that's the--

Unidentified Justice: Did OSHA make the sort of findings of fact that we expect from a trial court, and if so, where are they?

Mr. Bork: --I can't find them, Justice Powell.

I think it's an extraordinarily vague performance.

We don't know what they mean about feasibility, which is my entire point.

The... they did say, that some marginal plants will close rather than comply.

One, if marginal means plants that are close to the edge financially, that could be a very large part of the industry.

We don't know.

Some plants will close rather than comply, other plants may go out of business after they try to comply.

We don't know.

OSHA simply has not addressed that issue.

In a way, I think they have to, to have a rational process that can be reviewed by anybody.

The only thing they have tried to do, is state that they have found particular costs.

I think I will have to provide that subject in view of the time, because if a careful look is taken at their cost estimates it will be found that they rest upon nothing.

For example, in the spinning process, which is one of the most expensive to deal with in terms of getting dust levels down, it turns out that their own contractor, RTI, found 553 million dollars to get down to the.2 level OSHA insists upon, and said that local exhaust would be necessary; local exhaust ventilation.

Now it turns out, you can't put local exhaust ventilation on spinning frames, and the experts Hocutt and Thomas, who were our dust control experts, said it couldn't get down to.2 under any circumstances.

OSHA did two things: it made up its own technology, both experts agreed, you had to do it by local exhaust ventilation.

OSHA just decided no, you can do it some other way; we don't know how they think we can do it, except they speak vaguely about room ventilation, which the people agree won't work.

They also made up their own cost figures.

They rejected their own contractors' cost figures by about 500 million dollars, so that we... the one thing we do know about the cost that OSHA projects is that they have no relationship to the real costs.

Unidentified Justice: Are respirator masks a guarantee of protection, Mr. Bork?

Mr. Bork: They are not, Your Honor.

They may be used by some people, but not by others, and in cases where they may not be used, cannot be used, then transferred to a--

Unidentified Justice: But where they are used, are they a guarantee?

Mr. Bork: --As I understand it, yes, Mr. Chief Justice.

Now--

Unidentified Justice: What is the factor that renders them unfeasible?

Mr. Bork: --Well for some people, the standard sizes don't fit.

Some people have a little trouble breathing through them, other people can use them.

So you have to try it on the individual and see whether he is one who can use it.

One more point about costs which is simply that, I think it is quite clear that less cotton is going to be manufactured as a result of this standard.

In fact, the cotton production has been dropping every year since the standard was announced.

And OSHA decided it did not have to look at the costs imposed, for example, upon cotton farmers; there are 160,000 cotton farmers many of whom are no longer going to growing cotton and OSHA just simply ignored all of those costs in its standard and didn't even address them.

Which, I think, is also improper.

But I'd like to turn to the second proposition now, which is the question of whether there has to be a reasonable relationship between costs and benefit.

Unidentified Justice: Before you go on to that, Mr. Bork, is there anything in this record that would indicate that with dropping domestic production of cotton and cotton products--

Mr. Bork: The National Cotton... I'm sorry.

Unidentified Justice: --that there are imports that are taking up the slack?

Mr. Bork: That is correct, Mr. Chief Justice.

The National Cotton Council put in the evidence on what would happen to cotton farmers, it put in the evidence upon the decline of domestic cotton production which I think is about 2.5 percent a year for the last four years, and of course, the import of domestic, foreign textiles, cotton-made textiles, has been increasing and may increase at 6 to 7 percent a year, even under the restrictive trade agreements.

Unidentified Justice: Anything to prevent Congress from, or OSHA, from providing that no imports would be permitted in this country unless the sources complied with OSHA's standards?

Mr. Bork: Nothing that I can think of, Mr. Chief Justice.

Unidentified Justice: But, how would we, as a practical matter, how would we--

Mr. Bork: How would we effect it?

Unidentified Justice: --Yes, would we send inspectors over to--

Mr. Bork: Well, I addressed your question on the assumption that Congress has the raw power to try it.

I don't think it's a very practical effort.

Unidentified Justice: --That would take treaties.

Mr. Bork: It would, it would.

But on the relationship between cost and benefit, I think this is an ideal case to consider it, because--

Unidentified Justice: Excuse me for interrupting you again, Mr. Bork, we're not giving you much chance, I'm afraid.

But, in connection with your argument, I gather what you're now addressing is a little different than the costs discussion you've been giving us as to unfeasibility--

Mr. Bork: --It's entirely different.

Unidentified Justice: --it is independent, isn't it?

Mr. Bork: That's right.

Unidentified Justice: The cost benefit?

Now isn't cost benefit analysis a... that's an expression of art, isn't it, some kind of--

Mr. Bork: No, Justice Brennan, I think it is what we all do every day, and in about every decision we make.

And OSHA has been doing cost benefit analysis when they chose to go after cotton dust before noise, when they chose a.2 level and chose a.75 level for other processes, they did it because they--

Unidentified Justice: --Well, yet, what we're concerned with here, I gather, is what the relationship is of cost to benefit, and how do you define benefit here?

Mr. Bork: --We define benefit in what additional worker health protection will be provided by the--

Unidentified Justice: Production of the PEL, is that it?

Mr. Bork: --Well, that's not a benefit, unless it provides additional protection to workers.

Unidentified Justice: From this... cost question?

Mr. Bork: That's right, and here I think the real case to be decided... the reason I think this is a case that's almost ideal for this kind of discussion, is that byssinosis is not a carcinogen, it develops slowly, it can be caught by a variety of tests long before it gets to the irreversible stage, so that I think there is no benefit, but I don't have to say that... I think there's no benefit, to reducing the PEL from.5 to.2 when you have a medical surveillance plan which catches these things and the workers can be transferred or put in respirators.

But at least OSHA should have addressed the question, whether moving from... down from.5 to.2....5 is a reduction in dust levels, I mean, that's our proposal, whether coming down from.5 to.2 with a medical surveillance plan which OSHA itself has said these tests would insure that any significant change from the baseline determination will become apparent before material impairment occurs.

Unidentified Justice: Well even if you are right, where in the statute is the requirement that OSHA do what you're now suggesting OSHA should have done?

Mr. Bork: I think this comes under the reasonably necessary language, and under the requirement of feasibility, and indeed, it comes I think from the language that OSHA's counsel seem to think goes the other way, which is no material impairment of health to the extent feasible.

That isn't a standard about, that isn't a criteria about a single health hazard, that is the worker and the total amount of risks he faces in the marketplace, and you can't come close or as close as is possible--

Unidentified Justice: Well, I guess we'd all be better off if Congress had said in express terms that OSHA should have done a cost benefit-analysis.

What kind do you suggest?

Mr. Bork: --Justice Brennan, I would stress that I'm not suggesting a computer or a slide rule and a straight weighing.

I think OSHA should be allowed... required, is required to state what range it is dealing with in cost-benefits--

Unidentified Justice: Well are we going to... if they must do a cost-benefit analysis, are we not going to have to define what we mean by cost-benefit analysis?

Mr. Bork: --In the sense that you want OSHA to articulate the... because they have never done it, the additional benefits from.5 with medical surveillance to.2 with medical surveillance, and I think there are no additional benefits.

But they've never articulated it if there are any.

And I don't think this is reading something into the statute in any heroic fashion, Justice Brennan, because this is a less heroic reading of the statute than, for example, reading the rule of reason was into the Sherman Act, whose text simply doesn't allow the rule of reason.

But in order to make that a rational and useful statute, rather than a wholly destructive statute, this Court read the rule of reason in it.

So, here, I think the text of this statute easily allows and indeed, compels the finding that... and I want to stress this, OSHA says in its brief, that it is comparing all these factors.

So it's not resisting thinking about cost-benefit.

On page 57, they give you a list of all the cost-benefit analyses they do, what they are resisting is disclosing their thought processes.

Unidentified Justice: Spelling it out.

Mr. Bork: That's right.

So that anybody, Justice Marshall, can review it, or find out what they're talking about, or so that Congress can find out what they're talking about and what kind of--

Unidentified Justice: Mr. Bork, do you think they can do it in a meaningful way without putting a value on human life?

Mr. Bork: --Certainly, Justice Stevens.

In the first place, I would stress that human life is not at stake in this case, because at the levels we're talking about and the medical surveillance we're talking about, this stuff can be caught before it becomes irreversible and human life is not at stake in this case, nor is material impairment of health at stake in this case.

Unidentified Justice: Well, would it not have to put a dollar value on the irreversible stage of the disease at least?

Mr. Bork: Not in this case, Justice Stevens, and not in most cases, I think.

Not a dollar value.

But... and nobody expects that.

We expect them to state... we expect the following benefits, they're going to cost so much, and that seems to us reasonable--

Unidentified Justice: But one side of the equation is all measured in dollars.

Mr. Bork: --But we're not asking, Justice Stevens, that they come up and say, look, the benefits in dollars outweigh the costs in dollars.

What we want is an articulation of what they expect to get for how much money, and over time, they will develop a common law and Courts will begin to understand what--

Unidentified Justice: So, to that extent, I gather, what you're suggesting is judgmental?

Mr. Bork: --It is judgmental.

Unidentified Justice: The ultimate conclusion has to be judgmental.

Mr. Bork: It is.

Unidentified Justice: But not in dollar terms, based on the benefits?

Mr. Bork: No.

That is correct, absolutely correct.

We don't expect that kind of analysis at all.

But if their process is to be rational, and if we are to know that it's rational... if industry is to know, if the Courts are to know, if the Congress is to know, I think they ought to spell out what it is they expect to get for how much money.

Here,--

Unidentified Justice: You think the statute requires that they do so?

Mr. Bork: --That is correct, Justice Stewart.

Unidentified Justice: And is it your further contention that if the statute doesn't require they should do so, that the statute, there may be constitutional doubts about the statute itself?

Mr. Bork: I would think so, because at that point we don't know what OSHA is doing.

Unidentified Justice: A successive delegation standard for this delegation--

Mr. Bork: At that point it is, at that point.

Unidentified Justice: --Unless the statute requires them to do what you indicated?

Mr. Bork: I think so.

Of course, the alternative strategy, Justice Stewart, is to help them develop the criteria to save the statute, rather than striking it down; or to interpret the statute so that it is done to avoid that constitutional problem.

But I don't think we're asking anything peculiar, or anything they don't say they're doing; we are asking that they tell us what they are doing, that's all.

Unidentified Justice: One final question, if I may, Mr. Bork.

Do you contend that this is a toxic substance case under Section 6, or whatever the number is, do you contend there is any difference in the cost-benefit analysis in a toxic substance case than in any other standards?

Mr. Bork: No, I don't think so, in that sense.

Because this is not, there are toxic substances that produce harm that can't be reversed.

I think that's a very different case, than this case where, despite some confusions upon the topic--

Unidentified Justice: Well, we've got to decide which section of the statute we're working with, and Section 6, where the word feasibility is found, is in the toxic substance section.

Do you... first of all, do you agree that that's the appropriate section for purposes of statutory analysis?

Mr. Bork: --I think--

Unidentified Justice: Assuming it's a toxic substance.

Mr. Bork: --I think Section 6 is the appropriate section, but I think all standards are also governed by Section 3.8.

Unidentified Justice: So that if, if they are governed by 3.8, and that's the source of the cost-benefit requirement, then I don't think you can rely on the word feasibility.

Mr. Bork: No, I rely, Justice Stevens, on both of those sections.

It seems to me that both 3.8 and--

Unidentified Justice: But you can't rely on both if it's not a toxic substance case, and that's why it seems to me we've got to think through the question whether the rule is different for a toxic substance than it is for a non-toxic substance.

Mr. Bork: --Well, we agree it is a toxic substance.

And it seems to me that if one wants to discuss 6(b)(5) alone, that the requirement of a cost-benefit comparison, and articulation of reasons, is to be found in 6(b)(5).

Unidentified Justice: Well no, my point is somewhat different.

My point is, when one is confronted with a non-toxic substance and therefore doesn't have the benefit of the language in 6(b)(5), is there also a cost-benefit requirement.

And if so, that requirement is found independently of the feasibility language.

Mr. Bork: That's right, I think it would be found, Justice Stevens, in the reasonably necessary language of the section.

Unidentified Justice: If that's enough, then you can't really rely on the feasibility language.

Seems to me you're in somewhat of a dilemma and I don't know what the right answer is, but I--

Mr. Bork: I confess, Justice Stevens, at the moment I don't quite perceive the dilemma I'm in.

Unidentified Justice: --Well if the reasonably necessary language requires cost-benefit analysis for all standards, then we don't even have to look at the feasibility language.

Mr. Bork: That's right.

Unidentified Justice: On the other hand, if you must look at the feasibility language in order to justify or to support your argument that cost-benefit is appropriate, then you do not require cost-benefit in non-toxic substance cases, which would be somewhat ironic, because that would mean that you have a more strict standard, the agency has a stricter burden, in the toxic substance case than in the non-toxic substance case.

Mr. Bork: Well Justice Stevens, if I may ask, it would seem to me, and perhaps I'm wrong, that if it was a toxic substance case you can derive it and should derive it from 6(b)(5) to the extent feasible.

If it is a non-toxic substance case, it seems to me it can be derived and should be derived from the language that a standard must be one which is reasonably necessary or appropriate.

Is that... am I still in a dilemma?

Unidentified Justice: Well I think you are, but I won't take up any more of your time, because--

Mr. Bork: My time is gone, Justice Stevens.

Unidentified Justice: --It seems to me that the... that one has to decide whether Congress intended a different standard for toxic substances than it did for non-toxic substances.

Having made that decision, then one must decide which portions of the statute will support your argument.

Mr. Bork: I do not think that Congress provided cost-benefit for toxic substances alone.

It seems to me it's a general requirement of the act.

Chief Justice Burger: Very well.

Mr. Geller.

ORAL ARGUMENT OF KENNETH S. GELLER, ESQ., ON BEHALF OF RESPONDENT MARSHALL

Mr. Geller: Thank you, Mr. Chief Justice, and may it please the Court:

The textile industry has presented two main challenges to the cotton dust standard in this case.

The first is the cost-benefit issue, second is the factual claim that the administrative record does not support the Secretary's findings of economic feasibility.

Unidentified Justice: Excuse me, Mr. Geller, are you going to address this development of a couple of days ago?

Mr. Geller: I'd be happy to.

I was just about to do it.

I wanted to say about the second part of Petitioner's argument, the substantial evidence, that we think the Court of Appeals correctly analyzed that factual question.

But I do want to point out that Professor Bork is incorrect in saying that the cotton dust standard was issued pursuant to any sort of carcinogen policy.

It doesn't... it was not at all.

It was issued pursuant to substantial evidence of a significant health risk at the current exposure level.

The pre-standard current exposure level.

There were 105,000 pages of record in this case, and they pointed conclusively to a substantial risk of material health impairment at the 1,000 microgram level.

Dr. Merchant produced a dose-response curve, it was not subject to serious challenge at the administrative hearing, showed that at that level 26 percent of the workers would be exposed to some risk of byssinosis.

Also showed that at the level that the Secretary proposed that risk would be cut in half, to 13 percent.

There's no question in this case we think, both that the Secretary satisfied the Benzene standard, and that he issued the standard pursuant to substantial evidence of the significant health risk that the standard would reduce, not pursuant to any so-called policy.

This is just another industry red herring.

Now Professor Bork made another... a number of other misstatements about the record that are purely factual.

I want to just mention them very briefly.

The answers are all in our brief.

I don't think it's very useful here to replay the evidentiary disputes that the Secretary resolved and that the Court of Appeals found were supported by substantial evidence.

The respirators are not feasible, the record quite clearly shows that.

Secondly, the industry's approach in this case, and certainly the basis for the so-called ATMI alternative was this notion that the low-grade of byssinosis were no more damaging than the common cold.

That's absolutely incorrect.

There was substantial evidence in the record of material health risk even at low levels of byssinosis, and more important, the Secretary found that it's a continuum of disease.

Dr. Harley, the industry's main witness, testified that byssinosis is a continuum of disease, but it doesn't progress in a rational fashion.

Unidentified Justice: Is it possible to tell from OSHA's announcements in this case what it understands feasible to be, to mean?

Mr. Geller: Yes, well, the Secretary has always taken the position--

Unidentified Justice: Is it something more than affordable?

Mr. Geller: --It means economically affordable by the industry as a whole, not by every individual employer in the industry.

Unidentified Justice: So what... just as long as it's affordable by the industry as a whole?

Mr. Geller: That's right.

That it won't materially impair the industry's financial condition, industry will be able to maintain long-term competitiveness and profit levels.

And here, the Secretary found, the industry as a whole will not be threatened by the capital requirements of the regulation, that's page 27378.

Unidentified Justice: Well, do you mean by that, that if the record showed that compliance would increase the cost of cotton to the ultimate consumer by 500 percent, that then we could go ahead?

Mr. Geller: No, because in that situation--

Unidentified Justice: You didn't put any limit on the economic feasibility in your earlier statement.

Mr. Geller: --Well, it would not be feasible if people would no longer buy cotton, the industry would go out of business.

But in this case--

Unidentified Justice: Well, that would depend upon the elasticity of the--

Mr. Geller: --Well that's right, and the Secretary went into all of that.

Unidentified Justice: --finding that it was an absolutely inelastic demand, and it could be increased 1000 percent--

Mr. Geller: Well perhaps then if the costs--

Unidentified Justice: --amount of purchasing.

Mr. Geller: --And if the costs could all be passed along to the consumers, the consumers would still be able to buy, would still buy the product, then the health costs are the cost of doing business.

Unidentified Justice: Are you suggesting that Congress contemplated that the whole country wait until we find out whether it's going to make the cost go up 1000 or 500 percent?

Mr. Geller: Well the Secretary has the burden of proving economic feasibility, he does... he does analyses, in this case, for example, the evidence showed that there would be a decrease in demand for cotton of only about 1 or 2 percent under the Secretary's proposed standard, and that costs could rise to keep the same profit levels, only--

Unidentified Justice: Mr. Geller, you refer to the word... the phrase that the Secretary has the burden of proving economic feasibility, as I recall, the statute simply says if feasible, doesn't it?

Mr. Geller: --That's correct.

Feasibility though, is a requirement before Section 6(b)(5)--

Unidentified Justice: Well why do you read the word economic into it?

Mr. Geller: --Well, I think that I agree with Professor Bork and certainly with the lower court, that Section 6(b)(5) has construed the word feasible to mean both technologically and economically feasible.

That's what we think Congress meant.

That's... in other statutes, such as the Clean Air Act which was passed the same week as the Occupational Safety and Health Act, Congress specifically said economically and technologically feasible, and in this statute, that's--

Unidentified Justice: But wouldn't that be almost an argument against your position, if Congress the same week, when using the word feasible, had modified it with the words economic and technologically, and in this statute it simply said if feasible--

Mr. Geller: --Well I don't think, Congress doesn't act in computer-like fashion, but I think that when in the same week they used the word feasible and define it to mean both economic and technological feasibility, that that's what they mean when they... the same week, used the word feasible without the modifiers.

There's no suggestion in very lengthy legislative history, Mr. Justice Rehnquist, that they meant anything other than economic or technological feasibility.

Unidentified Justice: --Incidentally, Mr. Geller, you just mentioned pass the cost on to the consumer, was there any finding to that effect?

Mr. Geller: Yes, there were substantial--

Unidentified Justice: Well, I know there was an extreme assumption, I think that's the language, but what was the supporting evidence that it could be passed on or would be?

Mr. Geller: --There was testimony by experts in the field that--

Unidentified Justice: No well, I'm asking, what finding other than the expression extreme assumption?

Mr. Geller: --No, no, no.

There were express findings in this case, Mr. Justice Brennan, in cent per profit cent, how much each garment would go up, these are all of course speculations, but informed ones, OSHA did not talk in vague generalities.

The preamble to this standard takes up some 40 or 50 pages of three column, small type in the Federal Register, justifying every single finding that the Secretary made, and the Court of Appeals took 100 pages analyzing the record very carefully to conclude that the Secretary's findings as regard to these Petitioners were supported by substantial evidence.

The... anyway, I just want to mention another one of the misstatements I think that was made, because I think it's important, the Secretary does not engage in the cost-benefit analysis under Section 6(g), he sets priorities, by statute he sets priorities.

And it didn't take very much sophistication for the Secretary to realize that the number one priority facing the textile industry in terms of health was cotton dust.

He didn't engage in any cost-benefit analysis to make that decision; it was obvious it--

Unidentified Justice: Well, you instinctively do, as Professor Bork suggested.

Every decision that every person or institution makes is instinctively or implicitly inherently... a cost-benefit decision.

Mr. Geller: --Not with the same set of--

Unidentified Justice: Even in the setting of priorities.

Mr. Geller: --Yes, but not, I don't think, Mr. Justice Stewart, with the same sort of mathematical precision that these Petitioners are going to require--

Unidentified Justice: Whether or not you're going to play an extra rubber of bridge, you weigh the pleasure of playing an extra rubber of bridge with the loss of sleep that's going to be incurred.

Every decision that's made is a cost-benefit decision, is it not?

Every rational decision?

Mr. Geller: --Every rational decision takes into account costs and benefits, perhaps, but it doesn't weigh them the way the Petitioners suggest the Secretary has to weigh them in some sort of fine balance in this case.

Unidentified Justice: In the setting of priorities, it's a cost-benefit decision.

Mr. Geller: And the Secretary does that under Section 6(g), and therefore there's no reason to think that when the standard is issued, that under Section 6(g) and under Section 6(b)(5), and under Section 3(8), that it's going to be irrational.

Let me also mention--

Unidentified Justice: Mr. Geller, Mr. Bork mentioned the fact that there were no findings and I can't find any findings.

Now will you tell me where they are?

Mr. Geller: --The findings are in the preamble to the standard which is published in Volume 43 of the Federal Register.

We have supplied--

Unidentified Justice: I'm talking about the findings in this case.

Mr. Geller: --Yes, that's what I'm talking about.

The Federal Register contains--

Unidentified Justice: Well, do you want us to go read that, to take judicial notice of that?

Mr. Geller: --It's in the Federal Register and we have supplied a copy to every Justice of this Court, that these are the Secretary's findings to justify the standard.

And the Court of Appeals found that each of those findings, with regard to these Petitioners, was supported by substantial evidence.

I don't understand--

Unidentified Justice: Well what finding did they make on economic feasibility?

What was the quote and end-quote finding?

Mr. Geller: --Well, the discussion of economic feasibility is at page 27378, Federal Register, and the key finding that was backed up by a great deal of evidence and cost figures, is that industry as a whole will not be threatened by the capital requirements of the regulation.

That these cost--

Unidentified Justice: Do you know of any other case that we've decided that we didn't have papers we were deciding it on?

Mr. Geller: --I'm not quite sure what you're referring to, Mr. Justice Marshall.

Unidentified Justice: We're referring to what's in the Federal Register and is not in this Court.

Mr. Geller: Well--

Unidentified Justice: Period.

Mr. Geller: --Let me also address the statement that Mr. Justice Stevens was making to Professor Bork at the very end, about Section 3(8)--

Unidentified Justice: Before you do that, I think just as a matter of mechanics, I don't recall ever seeing the copy of the decision that is... the findings that you say are in the Federal Register and were supplied to each of us individually; I don't think they were.

Mr. Geller: --Well,--

Unidentified Justice: I frankly assumed they were in the Joint Appendix--

Mr. Geller: --No, they were not... reprinted in the Joint Appendix, but they are in the Federal Register which is of course a public document, and we did supply, or we sent it up to the Clerk... I'm surprised it hasn't been distributed with the cover letter.

Unidentified Justice: --Well I don't think it was.

Mr. Geller: It's all, it's easily accessible to the Court.

Unidentified Justice: I don't have it before me... saving money by not putting it in the Appendix?

Mr. Geller: It's... the Federal Register, June 23rd, 1978, Federal Register, beginning at page 27350 and I'm sure the Clerk will be happy to--

Unidentified Justice: Does it look like what you have in your hands?

Mr. Geller: --Yes it does, it's--

Unidentified Justice: I've never seen it.

Mr. Geller: --I'm sorry, Your Honor.

We sent that up about 10 days ago.

Unidentified Justice: Does that comply with our rules with respect to type size and page... pagination?

Mr. Geller: Well I'm not sure that we had an obligation under the rules to reprint all of this, it would have been very burdensome.

We thought it would be useful for the Court, rather than simply to have the Court go to the library to get a public document, that we give Xerox copies.

We understand... the Petitioner's of course, had the burden of producing the Appendix, and not the Respondents.

Unidentified Justice: Which if any of the questions presented by the Certiorari petition do you think raise a question that requires us to decide whether there's substantial evidence to support a finding?

Mr. Geller: I think the way that this case was argued in the Court of Appeals was that there was no substantial evidence to support the economic feasibility argument.

Unidentified Justice: I didn't ask you about how the case was argued in the Court of Appeals--

Mr. Geller: And I think that is one of the questions presented in the petition that the Court granted certiorari on.

The Court did not grant certiorari on one of the four questions, which just went to whether the Court of Appeals in fact applied a substantial evidence test.

I'd like to spend my limited time discussing what I think is the key issue in the case, which is the cost-benefit issue.

It's become something of a rallying cry for industry forces in this area.

Simply stated, Petitioners claim that the Secretary may not issue an Occupational Health Standard for toxic substances till he first determines, on the basis of substantial evidence, that the benefits of the standard bear a "reasonable relationship" to the attendant costs.

I think it's important to begin this discussion by repeating what the Court said just a month ago in the Crushed Stone case.

That is that the question here is not what the Court thinks is generally appropriate to the regulatory process.

Congress is, the question is what Congress intended.

We've heard a great deal from the textile industry, both in its briefs and from Professor Bork today, about wise policy choices.

The issue here--

Unidentified Justice: --Congress didn't say anything about cost-benefit analysis, did it?

Mr. Geller: --It did not, and that is our point, that there is, that the construction statute adopted by the Court of Appeals we think, reflects wise policy, but that's not the point.

The point is that there's nothing in the statute, either expressly or by reasonable implication that requires the Secretary to engage in so-called cost-benefit analysis before issuing a health--

Unidentified Justice: Well was there anything in the statute then, that sets any standards at all?

Mr. Geller: --Yes, there is.

Unidentified Justice: And if the answer to that is no there isn't, then, is my brother Rehnquist's opinion in the Benzene case, is a telling one.

Mr. Geller: If, I think that if Justice Rehnquist were right about the statute, he would be right about his conclusions.

But the statute sets criteria that the Secretary has to follow.

There is first of all, Section 6(b)(5), which says that the Secretary can't issue any standard unless he first finds that there's a significant risk of material health impairment in the work place, that it's an unsafe work place.

Unidentified Justice: Well, but the... there, as we held in Benzene, misconstrued that requirement.

Mr. Geller: And that the standard would substantially reduce that risk.

Unidentified Justice: Well those were... that's what was involved in the Benzene case.

Mr. Geller: That's right, that's right.

That's a substantial--

Unidentified Justice: In which we had to correct the misapprehensions of OSHA.

Mr. Geller: --That is a substantial check on the Secretary now, he can't issue--

Unidentified Justice: Well it wasn't understood by OSHA to be any check at all, until the Benzene case, isn't that correct?

Mr. Geller: --I don't want to re-argue the Benzene case--

Unidentified Justice: Well of course you don't.

Mr. Geller: --but, be happy to if I thought the result might change.

But, the point is that in light of Section 3(8) as construed by this Court in Benzene, the Secretary now in issuing health standards, has to find that there's a significant risk of material health impairment and his standard will reduce that risk.

He also has to find that it's technologically and economically feasible.

Unidentified Justice: Mr. Geller, I'd like to come back with a question that I put to Professor Bork, is it the government's position that this standard would be perfectly valid under the act if it destroyed 50 percent of the cotton industry in the United States, whether you measure it by number of companies or by total output, was that the government's position?

Mr. Geller: It's not the government's position, but--

Unidentified Justice: Suppose 10 percent, would that--

Mr. Geller: --Well, the one thing that I agree with Professor Bork about, is that these are not issues that can be decided in the abstract.

The economic feasibility determination is that basic factual determination by the Secretary--

Unidentified Justice: --Yes, but--

Mr. Geller: --with judicial review--

Unidentified Justice: --Yes, but what troubles me and perhaps others, is that we're not getting any guidance, at least I've found none so far in this case, as to what the impact of... economically speaking, you admit that that's important... in view of the competition that our industry, our major industries are now suffering from industries in foreign countries, I would have thought OSHA would have taken a better, closer look, to ascertain whether 50, 20, 25, 45 percent of the cotton industry was going to be put out of business.

Mr. Geller: --Well, but the Secretary did make findings in this case, Justice Powell.

Unidentified Justice: Where are they, specifically?

Mr. Geller: Well, I think, once again, page 27378 is the prime discussion of this issue.

The Secretary found that only certain marginal employers, very close to the margin... first of all, the Secretary found that there was a concentration process going on in this industry, wholly regardless of health standards, that firms at the margin, because of economies of scale or other reasons, were simply not making it and going out of business.

It's not a very heavily concentrated industry by the way, by and large.

There are--

Unidentified Justice: Mr. Geller, did the Secretary consider in these findings that we haven't seen, whether these standards would materially affect the capability of the industry to modernize and expand and improve its production facilities?

Mr. Geller: --Yes.

Yes, he did.

He found that there was great excess capacity in the industry as it was, there was not going to be a great deal of expansion going on--

Unidentified Justice: But we have excess capacity in the steel industry, but it's suffering from competition for more modern facilities in Japan and Germany.

I just don't know whether OSHA considered or considers that the act requires it to weigh factors of this kind.

Mr. Geller: --Yes, it does.

Unidentified Justice: It does?

Mr. Geller: It does, and OSHA must consider, in making the economic feasibility determination, the industry's capital needs, the industry's costs of doing business.

And it has to determine if, by adding to those costs, the costs of the proposed standard, the industry as a whole will be able to function much the same way it was functioning prior to the issuance of the standard.

It's no suggestion that the Secretary thinks that the way to solve health problems is to take away the productive activity that causes the health problems.

The purpose is to try to reach some reasonable accommodation.

The word feasibility does that, and I think the other standards of the statute do that.

Let me, I do want to address this one question that Justice Stevens asked Professor Bork about Section 3(8) because I think it's an important question in the Court's determination of the answer to this case.

That is, that Section 3(8) could not have been thought to have any cost-benefit analysis in it, because if you recall, Section 3(8) was a definitional section, it was in the statute in precisely the same form it exists today from the very beginning, and yet, Senators Dominick and Senator Javits and others were quite concerned during the latter stages of the legislative history, that the statute might require absolute hell for spending a lot of money for things that weren't worth it, and they restructured Section 6(b)(5) to take account of that, by adding the feasibility language and material health language and all the rest, there would have been no reason for them to have engaged in that discussion if anybody thought that a cost-benefit analysis was already in the reasonably necessary or appropriate phrase in Section 3(8).

But nobody suggested that, during a length of an exceedingly lengthy legislative history, not one person suggested that 3(8) meant that.

Section 3(8)--

Unidentified Justice: Well there wasn't really any discussion of cost-benefit as such, was there?

Mr. Geller: --That's... no one suggested that the statute was going to require that, that's exactly right.

And that's why we think it's totally--

Unidentified Justice: The discussion was whether this was some sort of an absolute requirement?

Mr. Geller: --And there would have been no need for that discussion if someone thought that Section 3(8) already imposed a cost-benefit analysis in setting standards.

Section 3(8) tells the Secretary when he may issue a standard, it doesn't tell him where along the various alternatives he should issue--

Unidentified Justice: Do you think this raises no delegation questions under Schechter and other cases?

Mr. Geller: --No, I don't, Mr. Chief Justice.

Unidentified Justice: And your time doesn't permit you to go beyond that,--

Mr. Geller: I'd be happy to answer, but--

Unidentified Justice: --you're in your colleague's time now.

Mr. Geller: --Thank you.

Chief Justice Burger: Mr. Cohen.

ORAL ARGUMENT OF GEORGE H. COHEN, ESQ., ON BEHALF OF UNION RESPONDENTS

Mr. Cohen: Mr. Chief Justice, and may it please the Court:

My name is George Cohen, I'm appearing on behalf of the Union Respondents.

Although I'm not sure this is the point to put the proper focus on it, I would like to point out to Mr. Justice Powell that, in response to your questions, Your Honor, that the Research Triangle Institute studies which were the contractor working for the Department of Labor at Joint Appendix pages 118, 120 and 123, discuss precisely the question that Your Honor raised, and basically concluded that insofar as achieving the costs necessary to achieve the standard that the Secretary set, the demand, the total demand for cotton products in this country would go down approximately one percent, and the impact on employment would be approximately.6 percent.

Unidentified Justice: Mr. Cohen, excuse me.

No, go ahead.

What is your definition of the word if feasible, in the statute?

Mr. Cohen: Mr. Justice Rehnquist, the words of the statute are to the extent feasible, there's a bit of deja vu in this, because we do this together in the Benzene case, our... my answer then and my answer today, as further enlightened by this Court's decision in Benzene, is that the Congress of the United States was not seeking to impose impossible, impossible health... a solution that would be impossible as far as industry would be concerned, and that impossibility has been translated into two dimensions.

Number one, that it must be achievable in the sense that there is the technology and work place practices available, so-called technologically feasible.

The economic feasibility aspect which has also been imported into the statute, is in essence what this case... or what--

Unidentified Justice: Well, imported into the statute by this Court, or by--

Mr. Cohen: --No, I don't think it's been imported into the statute by this Court, I think Senator Dominick--

Unidentified Justice: --You mean yet.

Mr. Cohen: --Well, I thought the question, Mr. Justice Marshall, was does the origin of the importing come out of this Court?

I think the answer to that is no, I think this Court properly concluded that the legislative history as reflected most precisely by Senator Dominick, the leading spokesman for the Nixon Administration as this bill was passing through the halls of Congress, who made it very clear that what he was most concerned about... and this then became the consensus of the Senatorial concern, was that in the name of providing safety and health what would happen would be that you would drive industries as a whole out of business and ban occupations as a whole in the course of that process.

And it was that concern, whether one wants to then put in terms the word economic, feasibility which I am perfectly comfortable with and all the reviewing Courts have used, and this Court--

Unidentified Justice: And OSHA, and OSHA.

Mr. Cohen: --And OSHA, yes.

Unidentified Justice: And that feasible includes economically feasible, everybody agrees?

Mr. Cohen: Yes, everybody agrees there.

The question, among the questions presented here is in order for something to be feasible, must this magical cost-benefit analysis be done, we of course reject that argument.

We reject it because we say, number one, it's not there on the face of the statute, and number two, it is not there in the legislative history.

Unidentified Justice: What do you mean by cost-benefit analysis?

What do you think the other side means by it?

Mr. Cohen: Mr. Justice White, I must confess that the more one studies this issue the less, I think, one comprehends it.

Unidentified Justice: Well then you are very... so far, what you have said is meaningless.

And so--

Mr. Cohen: Well I--

Unidentified Justice: --apparently then, what your opposition is saying, you think, is meaningless?

Mr. Cohen: --I do that, yes.

And I'll be glad to, I'll be glad to explain why.

We've been told that, let's take the industry position.

They have rejected the notion that "formal" cost-benefit analysis should be done.

They've rejected the notion that anything more than saying there's a reasonable balance between costs and benefits is necessary.

They've rejected the notion that you're going to place a value on human life.

Now let's take this case as a frame of reference.

We know, as government counsel--

Unidentified Justice: Well let me ask you, you say the statute does not require a cost-benefit analysis.

Now, you tell me what you think you're saying the statute doesn't require?

Mr. Cohen: --Yes.

Unidentified Justice: What do you think that it doesn't require?

Mr. Cohen: It doesn't require, after the Secretary has laid the... has done the following: has met the threshold determination, made a threshold determination that we have a significant risk of health involved, and that that risk can, through a variety of procedures, be dramatically reduced.

Unidentified Justice: Right.

Mr. Cohen: That the Secretary must select the most protective way to achieve that result, consistent to the constraint or consistent with a constraint and the constraint is that it must be feasible, it must be technologically achievable and it must be feasible in the economic sense, namely, that as a result of complying with this standard industry as a whole's financial viability will not be challenged.

And that, at that point, Mr. Justice White, our position is the Secretary's obligations are over and the standard is entitled to--

Unidentified Justice: Well, I think Mr. Justice Stewart may have suggested before that... well, isn't that a cost-benefit judgment in itself?

Mr. Cohen: --All right.

Now--

Unidentified Justice: That the benefits that you're going to get, are worth whatever--

Mr. Cohen: --I think you are precisely correct.

Unidentified Justice: --are worth whatever impact there is on the industry?

Mr. Cohen: Yes, we believe you are precisely correct in this sense.

We believe that what Congress did was, in effect, do its own "cost-benefit analysis".

Congress made the determination--

Unidentified Justice: Well I know, but the Secretary has too.

You've... I suppose, he sets these levels after having concluded that the impact on the industry isn't so great that he should set a higher standard.

Mr. Cohen: --Well if you... on your terms--

Unidentified Justice: Is that right or not?

Mr. Cohen: --That's what the Secretary has said, that's what we believe satisfies the statute--

Unidentified Justice: Well, then the answer to my question is yes, isn't it?

Mr. Cohen: --Well I have a sense of responsibility.

I don't want to mislead you into thinking the other side agrees that that's a cost-benefit analysis.

We think that is a cost-benefit analysis, in the sense that that's all the Congress was concerned--

Unidentified Justice: At least you think that's all the cost-benefit analysis the statute requires?

Mr. Cohen: --Exactly.

And that is the policy judgment--

Unidentified Justice: And in any event it does not require any quantifying in dollar terms, of the benefits?

Mr. Cohen: --Absolutely.

Unidentified Justice: It may, on the cost side, but not on the benefit side.

Mr. Cohen: Absolutely.

And I want to just carry that point one step forward, Mr. Justice Brennan.

If you... reading the industry position knowing as they come before the Court and tell you, that it doesn't require valuing human life, there's only one way to get away from that proposition and they try to get away with it by saying what the Secretary should be doing in setting a standard for one toxic substance, is to compare what the risk is going to be for other potential hazards, what the technological feasibility will be for all of those other hazards, what the cost of compliance will be for all of those hazards, and in that nice, simple, little package, says the ATMI, we have offered a "feasible solution" to ways this statute should be interpreted.

Now that in our judgment, in effect, would be asking the Secretary of Labor, in the name of doing something, to do everything, he would have to inventory the entire list of every single potential toxic substance.

Unidentified Justice: Mr. Cohen, I take it it's undisputed that Congress, under its Commerce power, could flatly ban child labor?

Supposing Congress passed a statute saying we ban child labor to the extent it is feasible, and delegate to OSHA the promulgation of regulations for banning it.

What do you think OSHA would have to do?

Mr. Cohen: I think... I don't think, I want to emphasize this, I don't think we're anywhere near that in this case.

We have much clearer guidance from Congress than the discussion and rhetoric that's gone back and forth here in Court today, and our brief spells out what that discussion was and what those concerns were.

Now I know we've got a hypothetical, but let me stay with the concerns.

The concern was that small employers particularly, were not devoting the necessary capital investments in order to provide safe and healthy work places.

Congress understood this was a problem.

This is not a problem that's just emerged in the context of the cotton dust case.

And Congress said, we are going to insist on a uniform, nationwide approach; we're going to compel each and every employer to meet these standards because if we don't go that way we're never going to get it, the ultimate protection that this statute is all about.

Congress went further.

They also understood, and there's been discussions here of who would go out of business?

Well we're way removed from that problem in this case.

As a matter of fact, in the Court of Appeals, the Court of Appeals opinion says that the American Textile Manufacturing Industry concedes that at 550 million dollars there's no economic feasibility problem insofar as the entire industry as a whole is concerned.

But getting back to my point, Mr. Justice Rehnquist--

Unidentified Justice: Well I thought it was my question that you were trying to get back to.

Mr. Cohen: --Yes.

I am trying to.

What I guess I'm saying is that I'm not sure that I know what precise tools would be brought to bear to deal with the child labor.

I am saying that the tools are there to deal with it, based on the legislative history of this statute.

And I hadn't finished that precise point.

And it was.

Not only was the judgment uniform, nationwide, small employers, but there is a recognition that this would well or might well have a severe impact on small employers.

That was not something that comes out of the blue; that was a major subject of concern.

Senator Dominick repeated that concern, but what was the solution?

Was it to carve out or exempt the small marginal employer?

No.

Was it to dilute the protection of the statute as to workers in those plants?

No.

What Congress said, in Section 28, will address this in terms of a small business loan proposition.

If an employer who would otherwise be driven out of business needs the economic wherewithal to be able to comply, we will afford that program.

Very similar, incidentally, to the program that this Court addressed--

Unidentified Justice: Mr. Cohen, you keep saying that the problem is and the complaint of Petitioner is that OSHA didn't go through this.

I thought the complaint was OSHA hasn't yet told anybody what they did?

Now isn't that the complaint the Petitioners made, is that you can do anything... that you can find out whether they did right or wrong.

Mr. Cohen: --Mr. Justice Marshall--

Unidentified Justice: Is that their position?

Mr. Cohen: --That's their position.

We and the Solicitor General have each responded to that proposition.

What we have said, basically, is insofar as economic feasibility is concerned, that the aggregate amount of money, the 550 million dollars which the Secretary found wasn't a dream, it was a finding.

Unidentified Justice: How many businesses would be put out of business?

Mr. Cohen: The Secretary--

Unidentified Justice: How many business would be put--

Mr. Cohen: --of Labor found one thing, one precise thing on this point.

He said industry--

Unidentified Justice: --Did they find any figures as to how many would go out of business?

Mr. Cohen: --He said although some marginal employers, although some marginal employers might choose to go out of business rather than comply,... I'm reading to you now from the Federal Register 27378, column 2.

Unidentified Justice: Where does it say how many?

Mr. Cohen: Didn't say how many, didn't say how many.

You should know, you should know, in the record, Mr. Justice Marshall,--

Unidentified Justice: Well you have to put it in there if I should know it.

Mr. Cohen: --I say--

Unidentified Justice: And now, you didn't put that in the record.

Mr. Cohen: --We could only take the Secretary's finding.

I wanted to be true to the finding--

Unidentified Justice: But he did make, he made conclusions of law, he didn't make findings.

Mr. Cohen: --He said some marginal employers, some marginal employers--

Unidentified Justice: Isn't that a conclusion?

Mr. Cohen: --Well, it was based on his analysis of this overall record--

Unidentified Justice: How do we know that?

We take his word.

Mr. Cohen: --He states that, he states that--

Unidentified Justice: Of course, and we take his word and your word.

That's the answer.

Mr. Cohen: --My red light is up.

I would just like to say as I leave the podium, that we have addressed in detail, the comments of Textile Manufacturing Institute as to the respirator, as to their so-called alternative, and we have explained why it does not provide the health protection obligations that should be imposed here.

Thank you.

Chief Justice Burger: Very well.

Thank you, gentlemen.

The case is submitted.