Benzene

The following case, known as the Benzene Case, is interesting for a number of reasons.  As you read it, pay attention to the way in which the different justices think about risk and safety and how risks should be regulated. How do they address the issues of identification, assessment, characterization? How do they view the issue of scientific proof and uncertainty?   We will also be discussing the case in terms of statutory interpretation and regulatory functioning. 

Note the number of opinions that were filed in this case.  The plurality – in an opinion by Justice Stevens – found that OSHA’s attempt to issue a regulation at the “1 ppm” level was inconsistent with the statutory language.  Concurring opinions were filed by Chief Justice Burger and Justice Powell (concurring in part), and by Justice  Rehnquist (who did not join in the plurality opinion).  A lengthy dissent, written by Justice Marshall in which Justices Brennan, White and Blackmun joined, disagreed with the plurality on almost every point.  All of the justices had very different ideas about the level of risk that justified OSHA regulation, and about the way in which OSHA should approach the problem of translating uncertain scientific data into regulatory requirements.  Note how some of these differences echo the differences between the majority and the dissent in the Lochner case.  Despite these apparent disagreements among the justices, OSHA took the plurality’s language on risk and proof to heart, and later regulations all attempted to conform to this opinion.