Supreme Court Invalidates Warrantless Entry Under OSHA: Enforcement of Environmental Laws Threatened

In a decision that may have substantial repercussions on the enforcement of environmental protection statutes, the Supreme Court on May 23 declared in Marshall v. Barlow's, Inc.¹ that a provision of the Occupational Safety and Health Act² authorizing warrantless inspections of workplace premises for safety hazards³ violates the Fourth Amendment. The majority opinion, written by Justice White, attempted to limit the Court's holding to the unique facts in the case, but the constitutional logic of the decision seems equally applicable to other statutes that provide for various forms of warrantless inspections to seek out violations. In particular, the constitutionality of enforcement provisions in several environmental statutes may be called into question under Barlow's, with the result being the imposition of a substantial burden upon the enforcement efforts of the Environmental Protection Agency (EPA).

Background

In 1975, an inspector from the Occupational Safety and Health Administration (OSHA) sought to enter, pursuant to the Act, the nonpublic area of a business establishment to conduct an inspection of the work area. Barlow, the owner, refused to allow such entry when the inspector could not produce a search warrant. The Secretary of Labor, acting according to OSHA regulations, then petitioned for and was granted an order by a federal district court compelling Barlow to admit the inspector. Barlow refused to comply with the order and instead brought an action for injunctive relief against the warrantless search. A three-judge district court ruled in Barlow's favor,⁴ holding that the Fourth Amendment prohibited the warrantless inspection contemplated by § 8(a) of the Act. The Secretary then appealed to the United States Supreme Court.

The Decision

In a two-pronged defense of the statute the Secretary argued that (1) the warrantless inspections contemplated by § 8(a) fall within one of the well recognized exceptions to the general rule requiring a search warrant, and (2) such inspections represent a congressional construction of the Fourth Amendment which should not be overturned by the courts.

In rejecting the Secretary's first argument, the court agreed with the Secretary that businesses and industries long subject to close supervision and pervasive regulation have traditionally been unable to assert that their Fourth Amendment rights have been violated by otherwise [8 ELR 10133] invalid searches,⁵ but declined to extend this "pervasive regulation" exception to include businesses in which the entrepreneur has not voluntarily chosen to subject himself to the full panoply of governmental regulation. The "pervasive regulation" exception, the Court held, is reserved for those businesses in which there has been such a long-standing tradition of close governmental supervision (e.g., the sale of liquor or firearms), that there can be no reasonable expectation of privacy on the part of the owner. Businesses subject to OSHA inspections do not fall within this category.

Alternatively, the Secretary argued that the agency's inspection program is supported by a congressional determination of reasonableness that should not be disregarded by the Court. Justice White emphasized, however, that congressional intent notwithstanding, warrantless searches, whether of private homes or commercial premises, have long been considered presumptively unreasonable.⁶ This has historically been the case for investigations of criminal violations as well as for those involving breaches of civil regulatory statutes. The fact that Congress has authorized warrantless inspections in a given case does not relieve the Court of its obligation to weigh such a program against liberties guaranteed by the Fourth Amendment.

In support of the constitutionality of § 8(a), the Secretary took the position that to require a warrant here would impose a substantial administrative strain on the effectiveness of the entire OSHA program by removing the advantage of inspection without notice while, at the same time, providing only incremental protection for the proprietor's privacy. In addition, the privacy guarantees afforded by a warrant would be no greater than those currently provided by § 8(a).

The Court found, however, that when the lack of administrative necessity of conducting warrantless inspection, in light of the slight burden imposed upon OSHA by requiring such warrants, is balanced against the Fourth Amendment protections which a warrant would ensure, the inspection program simply cannot be justified as reasonable. In the first place, the element of surprise, although essential to the discovery of defects or violations which are amenable to speedy alteration or disguise, is not entirely undercut by the Court's holding, because the Secretary retains the option of seeking a warrant in advance of the inspection and presenting it upon the initial appearance at the workplace. In that event, the requirements of the Fourth Amendment would be satisfied, and the owner would presumably have no right to deny immediate entry.

The Secretary's responsive argument was that, aside from questions of surprise, the necessity of appearing before a magistrate in such cases would add a crippling burden to an already overtaxed enforcement program. The Court, however, disagreed with this assessment of the difficulty in obtaining a warrant and the likelihood that this recourse would prove necessary in practice. Rather, the majority suggested, upon the refusal of an owner to submit to a warrantless inspection the Secretary may obtain an ex parte warrant, a requirement to which the criminal justice system has grown accustomed. Further, the Court predicted, the great majority of businessmen can be expected to consent to inspection without a warrant. The administrative strain envisioned by the Secretary will, therefore, not come to pass. In addition, a warrant confers the critical constitutional benefit of advising the owner of the scope and objects of the search as well as providing assurances from a neutral magistrate that the inspection is reasonable, authorized by statute, and conducted pursuant to an administrative plan based upon specific neutral inspection criteria.

Strict Probable Cause Unnecessary

The Court did, however, temper the impact of this holding by declaring that it is not necessary for the Secretary to demonstrate probable cause as traditionally defined in criminal cases in order to obtain a warrant for an OSHA inspection. Where, as here, considerations of health and safety are involved, the Court deemed a showing of reasonable legislative or administrative standards for conducting an inspection of a particular establishment sufficient to protect the employer's Fourth Amendment rights. This lower standard of probable cause for regulatory searches, first suggested by the Court in Camara v. Municipal Court⁷ and See v. City of Seattle⁸ may well result in a less burdensome warrant requirement than originally envisioned by the Secretary. Typical probable cause under this standard may be met simply by showing that a specific business has been chosen for an OSHA search on the basis of a reasonable general administrative plan or that a certain period of time has passed since the last inspection of the particular work site. The Secretary may also rely upon specific evidence of an existing violation for the requisite probable cause, although such evidence is frequently difficult to obtain and is not required.

In response to the Secretary's argument that requiring a search warrant in the instant case would mean that warrantless search provisions in other regulatory statutes are also constitutionally infirm, the Court emphasized that the Barlow's decision turned upon a unique set of facts and law. Though reluctant to speculate openly about the effect of this decision on other such provisions, the Court issued a warning that "the authority to make warrantless searches devolves almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search."⁹

Dissent

In dissent, Justice Stevens, joined by Justices Blackmun and Rehnquist, argued that the ultimate question in Barlow's was the reasonableness of the § 8(a) inspection. That determination has properly been made by Congress, the dissenters asserted, upon a balancing of the public interest in regulation and supervision of safety in the work place against the Fourth Amendment interests of the individual. Section 8(a) represents the considered [8 ELR 10134] judgment of Congress that the ability to conduct warrantless inspections is essential to the effectiveness of the entire inspection program. For the Court to substitute its judgment in place of this congressional determination is, Justice Stevens suggested, improper. Requiring a warrant means, in his view, that in practice OSHA will be forced either to adopt a general practice of obtaining warrants in advance of all inspections or run the risk of sacrificing the element of surprise so crucial to its regulatory inspections.

The dissent also found that the protections afforded by a warrant are no greater than those specifically guaranteed under § 8(a). The inspector is required to present appropriate credentials upon requesting entry to the working area. The inspection must be conducted in accordance with a neutral administrative plan that takes accident experience and the number of employees exposed in particular industries into account and must be limited in scope to the areas in which work is actually performed. It must take place during regular working hours or at other reasonable times and is to be conducted in a reasonable manner.¹⁰ The requirement of a warrant, the dissent concluded, would serve no additional purpose and would only further burden the administrative agency with hollow procedure.

Application to Other Statutes

The decision in Barlow's jeopardizes provisions in several environmental statutes¹¹ permitting expedited, if not fully warrantless, entry for inspection purposes. Though the precise impact of the decision upon these provisions is at this point unsettled, the case raises a number of significant questions concerning their validity which merit close consideration. Most notable is the threshold question of whether Barlow's applies at all in an environmental context. Justice White was careful to warn that the decision was based on facts and law unique to OSHA and that the Court had not considered any "real or imagined effect on other, different administrative schemes." However, it may be difficult for the Court to resist applying the constitutional logic of Barlow's when examining warrantless inspection provisions in other statutes.

Although the Court failed to set forth with specificity the elements of the calculus by which it determined that the OSHA inspection scheme was unreasonable, it appears that the approach it views appropriate is as follows: pursuant to the presumption that a warrant is required in such cases, the Court will hypothetically impose such a requirement on the challenged inspection program and then examine the foreseeable costs and benefits which would result. In determining the costs of imposing the warrant requirement on the agency's enforcement program the Court will consider the need to conduct inspections without the delay and administrative costs of securing warrants. As the administrative need to conduct warrantless inspections increases or as the costs of obtaining a search warrant become greater, the Court will be more likely to find that a given inspection program is reasonable. Against these factors the Court will balance the presumably static benefits provided by a warrant, the ultimate question being whether such safeguards are necessary to satisfy the constitutional benchmark of reasonableness.

While the majority in Barlow's confirmed that some standard of reasonableness will be the ultimate criterion against which warrantless inspection programs are to be measured, its failure to set forth clear utilitarian principles leaves lower courts with the task of applying its amorphous guidelines on a case by case basis, an approach that may call for further Supreme Court action in the event of subsequent inconsistent rulings on the validity of other federal statutes.

This omission is particulary regrettable since such challenges appear likely in the wake of Barlow's. Provisions in the Clean Air Act,¹² the Federal Water Pollution Control Act (FWPCA)¹³ the Federal Mine Safety and Health Act,¹⁴ the Surface Mining Control and Reclamation Act,¹⁵ the Safe Drinking Water Act (SDWA),¹⁶ the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA),¹⁷ and the Toxic Substances Control Act (TSCA)¹⁸ grant inspectors the power to conduct warrantless inspections. In the event that an owner refuses to consent to a warrantless inspection, the statutes provide various alternatives. The Clean Air Act,¹⁹ the FWPCA,²⁰ the Federal Mine Safety and Health Act,²¹ and the Surface Mining Control and Reclamation Act,²² specifically authorize the inspecting officer to seek injunctive relief. TSCA, on the other hand, provides only in general terms that federal district courts have jurisdiction over actions brought to "compel the taking of any action required by or under this chapter."²³ FIFRA requires inspectors upon being denied entry to obtain a search warrant authorizing entry and inspection.²⁴ The only statute which provides no resort whatsoever to federal court enforcement is the SDWA, which authorizes entry and inspection but makes no provision for injunctive relief to enforce those rights.²⁵

[8 ELR 10135]

The probable fate of these statutes can only be assessed by comparing the characteristics of the enforcement programs established thereunder against the balancing analysis inferable from Barlow's. A critical observation is that the OSHA program would seem to satisfy the Court's concept of reasonableness to a greater extent than any of those enumerated above. Whereas that Act applies to all work places within interstate commerce,²⁶ most environmental statutes are focused much more narrowly. Thus, the number of annual inspections required under OSHA is much greater and the burden of obtaining warrants for each search (or for a certain proportion of searches) results in higher administrative costs to the enforcing agency. Furthermore, many of the workplace conditions prohibited under OSHA are uniquely amenable to immediate rectification (e.g., employees' use of respirators), making the availability of unannounced and warrantless entry that much more essential. Assuming that the Fourth Amendment benefits flowing from a warrant or its equivalent remain static, it will be difficult to effectively distinguish other statutory inspection schemes to avoid the result in Barlow's.

Perhaps in recognition of the rather obvious difficulties in applying its decision in Barlow's in future litigation, the Court rejected the Secretary's argument that requiring a warrant for OSHA inspections will mean that all similar provisions are unconstitutional. "Some statutes," the Court added, "already envision resort to federal court enforcement when entry is refused, employing specific language in some cases and general language in others."²⁷ The Court's purpose in making this assertion and the importance due its lengthy and detailed listing of the statutes²⁸ which might be affected by the result are not clear. Some observers read between the lines a sanguine message that these statutes will be held constitutional on the rationale that where a statute has directed the agency to seek an injunction whenever the owner has not consented to entry, the statute has interposed the functional equivalent of a warrant between the government and the public and has thereby met the requirements of the Fourth Amendment. If this is the result obtained by EPA when defending the statutes under its jurisdiction, it will be a Pyrrhic victory, however, for it would amount to a superficial stamp of constitutionality joined with a reading of such laws specifically to require resort to judicial process prior to every unconsented entry. No other result seems consistent with the apparently unqualified mandate of Barlow's that all unconsented searches be accompanied by Fourth Amendment protections available only through the supervision of a magistrate. Industry would be on notice, perhaps for the first time, that unless an EPA enforcement agent arrives with warrant in hand, he may be legally turned away.

An additional degree of complexity arises in the case of several statutes²⁹ which also provide substantial civil or criminal penalties for denial of entry to enforcement agents. Though the statutes require that an injunctive order be obtained in lieu of making immediate arrests or forcible entry, the prospect of a fine of up to $25,000 is equally effective in overcoming the resistance of owners. In earlier cases the Supreme Court has struck down regulatory statutes coupling right of entry powers with sanctions for denial of entry to inspectors,³⁰ viewing the threat of such liability as an invalid burden on the full and free exercise of the constitutional right to demand a warrant prior to inspections under those schemes. This reasoning seems equally applicable to the federal environmental statutes. If so, it follows that Barlow's requires that such penalties, to the extent that they apply to violations of right of warrantless entry provisions, be held unconstitutional.

Administrative Impact

To ease the administrative strain which would clearly result were Barlow's read to require the government to show documented evidence of probable violations before obtaining search warrants, the Court announced, citing two prior decisions³¹ for support, that henceforth the term "probable cause" as found in the Fourth Amendment shall, in the civil regulatory context, be read to require the government to show only that the warrant sought will assist in an inspection conducted pursuant to an enforcement program governed by reasonable legislative or administrative standards. Although criticized by the dissenters as a backhanded means of finding such searches reasonable and therefore permissible under the Fourth Amendment, the result seems likely to succeed in mitigating the impact of the decision to some extent. A more essential determinant of the decision's effect, however, will be the reaction precipitated within the industrial community. The majority opinion expresses little concern for the probability of widespread demands for warrants, because such a pattern had not been shown by the Secretary to exist in the past. This prediction was qualified in a footnote³² by an admission that in fact there was no way of assessing whether such a pattern might develop. Some industry sentiment has already surfaced for demanding warrants across the board.³³ If such sentiment ripens into a widespread practice, the burden on environmental enforcement programs may be severe.

Conclusion

In Marshall v. Barlow's, Inc., the Court declined to announce as a rule of law that unconsented regulatory inspections must be approved in advance by a judge, subject [8 ELR 10136] to an exception that in the future a given inspection program might so clearly rely on warrantless entry that it would be found reasonable under the Fourth Amendment.Instead, the Court set up an intricate balancing equation which was not satisfied by the OSHA inspection program at bar, and hence is unlikely to be satisfied by any other inspection scheme currently on the books. The practical effect of the two approaches is indistinguishable.

Barlow's is an important statement of the Fourth Amendment's application to noncriminal searches and seizures which will in all probability have a profound impact on the Environmental Protection Agency's efforts to enforce many of the statutes which it administers. These statutes ambiguously refer to "rights of entry" for enforcement officers while implying that judicial decrees are necessary to overcome lack of consent by those to be inspected. Challenges to these right of entry provisions are likely, and Barlow's does not support speculation that these cases will be resolved favorably to EPA. The only foreseeable alternative scenario is that the agency may adopt a policy of not asserting such rights, in order to avoid adverse decisions as to their validity. Obviously the latter course offers little consolidation to the agency.

Strangely, the opinion may in a small way have added a new weapon to the federal enforcement arsenal, by reducing the required showing of probable cause to obtain regulatory search warrants. Ex parte warrants for such inspections may now be available in advance with a lesser showing than that require prior to Barlow's. Agencies may now be guaranteed immediate, surprise entry where a suspected violator is likely to be hostile. While the long-term implications of Barlow's are as yet unclear, the net effect promises to be a hindrance to enforcement of the nation's environmental laws.

1. 46 U.S.L.W. 4483, 8 ELR 20434 (May 23, 1978).

2. 29 U.S.C. § 651 et seq.

3. 29 U.S.C. § 657(a) (1970) provides that:

In order to carry out the purposes of this chapter, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized —

(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and

(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent, or employee.

4. Barlow's, Inc. v. Marshall, 424 F. Supp. 437 (D. Idaho 1976) (3-judge court).

5. United States v. Biswell, 406 U.S. 311, 316 (1972); Colonnade Catering Corp. v. United States, 397 U.S. 72, 74, 77 (1970).

6. See Camara v. Municipal Court, 387 U.S. 523 (1967); See v. City of Seattle, 387 U.S. 541 (1967).

7. 387 U.S. 523 (1967).

8. 387 U.S. 541 (1967).

9. 46 U.S.L.W. at 4487, 8 ELR at 20438 (1978).

10. 29 U.S.C. § 657(a)(2).

11. Similar right of entry provisions appear in the Clean Air Act, 42 U.S.C. § 7414. ELR STAT. & REG. 42223; the Federal Water Pollution Control Act, 33 U.S.C. § 1318, ELR STAT. & REG. 42130; the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1267, ELR STAT. & REG. 42419; the Federal Mine Safety and Health Act, 30 U.S.C. § 813; the Safe Drinking Water Act, 42 U.S.C. § 300j-4(b)(1), ELR STAT. & REG. 41138; the Toxic Substances Control Act, 15 U.S.C. § 2610, ELR STAT. & REG. 41345; and the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136g, ELR STAT. & REG. 41310.

12. 42 U.S.C. § 7414, ELR STAT. & REG. 42223.

13. 33 U.S.C. § 1318, ELR STAT. & REG. 42130.

14. 30 U.S.C. § 813.

15. 30 U.S.C. § 1267, ELR STAT. & REG. 42419.

16. 42 U.S.C. § 300j-4(b)(1), ELR STAT. & REG. 41138.

17. 7 U.S.C. § 136g, ELR STAT. & REG. 41310.

18. 15 U.S.C. § 2610, ELR STAT. & REG. 41345.

19. 42 U.S.C. § 7413(b), ELR STAT. & REG. 42221.

20. 33 U.S.C. § 1319(b), ELR STAT. & REG. 42131.

21. 30 U.S.C. § 818.

22. 30 U.S.C. § 1271(c), ELR STAT. & REG. 42422.

23. 15 U.S.C. § 2616(a)(1)(C), ELR STAT. & REG. 41347.

24. 7 U.S.C. § 136g(b), ELR STAT. & REG. 41310.

25. 42 U.S.C. § 300j-7, ELR STAT. & REG. 41139.

26. Brennan v. Occupational Safety and Health Review Comm'n, 492 F.2d 1027 (D.C. Cir. 1974).

27. 46 U.S.L.W. at 4487, 8 ELR at 20437.

28. Barlow's, supra, 46 U.S.L.W. at 4487, n.18, 19, 8 ELR at 20437-20438, n. 18, 19.

29. Clean Air Act, 42 U.S.C. § 7413(c), ELR STAT. & REG. 42221; Federal Water Pollution Control Act, 33 U.S.C. §§ 1319(c), (d), ELR STAT. & REG. 42131; Surface Mining Control and Reclamation Act, 30 U.S.C. § 1268, ELR STAT. & REG. 42420; Toxic Substances Control Act, 15 U.S.C. § 2615, ELR STAT. & REG. 41346; Federal Mine Safety and Health Act, 30 U.S.C. § 819.

30. See cases cited at n.6, supra.

31. Supra n.6.

32. Barlow's, supra, at 4485, 20436 n.11.

33. Shortly after the Barlow's decision, a spokesman for the American Conservative Union indicated that all businessmen would be encouraged to refuse to consent to any warrantless inspection. See 2 BNA CHEM. REG. REP. 320 (1978); N.Y. Times, June 4, 1978, at 53.