What Will The Department Of Government Efficiency Do With MSHA?
By Brian Hendrix
A few months ago, I said I would explain what the Supreme Court’s decision this year in SEC v. Jarkesy may mean for certain types of cases under the Federal Mine Safety and Health Act. Much has changed since then, so I’m going to cover Jarkesy in a future column.
If you have a pulse and were exposed, even briefly, to a television, a radio or the internet, you know we had an election. Isolated, recently contacted Indigenous peoples of the Amazon may be the only ones who missed it. Maybe.
It was a change election, President Trump has a mandate and he promises to use it to make significant changes. Of particular interest (or concern) to MSHA is President Trump’s pledge to “dismantle government bureaucracy, slash excess regulations, cut wasteful expenditures and restructure federal agencies.”
Just days after the election, he announced that Vivek Ramaswamy and Elon Musk will lead the “Department of Government Efficiency” or “DOGE,” challenging them to find $2 trillion to cut from our $6.5-$6.7 trillion federal budget. DOGE is already on the clock. President Trump expects it to complete the project by July 4, 2026, the 250th anniversary of the Declaration of Independence.
If DOGE delivers, it would be, as President Trump likes to say, “HUGE.” It would also be a first. President Trump isn’t the first to promise to reduce the size, complexity and cost of government.
President Reagan pushed for deregulation, tax and budget cuts. With his “Reinventing Government” initiative, President Clinton advocated for a more efficient government, reductions in the federal workforce and a balanced budget. In 1994, the GOP ran on its Contract with America, a plan to limit government size, reduce costs and increase accountability. And, in his first term, President Trump promised to “drain the swamp.”
Most of those efforts weren’t very (or at all) successful or lasting. Our federal government is now larger, more complex and more expensive than ever. The swamp hasn’t been dewatered. Washington, D.C., is fully and completely awash. Swimming even.
Concern
I doubt that MSHA’s career leadership is very concerned. Administrations, Democrat and Republican, come and go, but MSHA remains. If the past is prologue, in a Republican administration, MSHA’s rulemaking work will be limited, and it’s budget won’t grow or grow much. A new Assistant Secretary may play with the organization chart, move people around a bit and announce a new “initiative” or two, but I doubt the career folks expect much more than that.
Is that a reasonable expectation? The Washington answer to that question would be: “Sure.” The Federal Mine Safety and Health Act is the law, and it would take an act of Congress to truly reform MSHA. In 1995 and again in 1996, Rep. Cass Ballenger really tried, introducing legislation to completely rework MSHA and OSHA. The opposition was fierce. I don’t think either bill even made it out of committee.
The point here is that it will be very difficult to change or reform MSHA. Labor will oppose any changes to the agency, tooth and nail. The corporate media will cast even the most modest of reforms in the worst possible light. The cost of reform, from a political standpoint, could be significant.
Cost-Benefit Analysis
Would those costs be outweighed by the benefits? MSHA looms large in the world of mining. Strict liability, its inspection mandate and its broad enforcement authority enables it to punch well above its weight. Its budget is one of many items on the bill we pay for MSHA. There are all sorts of ways to calculate the benefits of real reform, but DOGE has been tasked with finding $2 trillion in budget cuts.
MSHA’s budget is the equivalent of couch change for Uncle Sam. In FY 2024, MSHA’s budget was ~$438 million, an increase of about $50 million over 2023. The federal budget is somewhere between $6.5 and $6.7 trillion. MSHA’s share of the total is roughly 0.0065%. That is 65 thousandths of one percent.
Congress budgets additional funds for MSHA’s legal counsel in the Solicitor’s Office and for the adjudicatory functions of the Federal Mine Safety and Health Review Commission, but adding those funds to MSHA’s total wouldn’t move the needle enough to notice. In federal budgetary terms, we’re still talking rounding error. Tiny.
President Trump expects Ramaswamy and Musk to find ways to cut the federal budget by 30% or by $2 trillion. Zeroing out MSHA’s budget would take them to 29.9781%. In the context of the federal budget, MSHA just isn’t a big ticket item. Neither is OSHA.
OSHA’s budget is roughly $630 million. Zeroing OSHA’s and MSHA’s budget out would cut just north of a billion dollars from the budget. A billion here a billion there, and soon we’re talking real money, right?
In any other context, “yes” is the obvious answer to that question. In this context, DOGE would still need to find an additional 29.916% in cuts. Thus, from a budgetary standpoint, the benefit of reforming MSHA would be tiny (particularly given that MSHA’s and OSHA’s budgets won’t be entirely eliminated).
With all of that, there’s still a chance that President Trump and DOGE will succeed and actually reform MSHA and a host of other agencies. Past performance is no guarantee of future results, particularly when we have a new cast of characters working to produce those results.
President Trump is flush with political capital, and he seems willing to spend it on major reforms. Ramaswamy and Musk are driven and smart. They have very thick skin, communicate well with and directly to the American people and will make the case for what they want to do loudly and clearly.
Neither are work-brittle. They have recruited and assembled very talented teams and driven them to succeed. I’m sure they will assemble a team that actually knows how to successfully navigate the maze of laws, rules, regulations, etc. that exist to frustrate real reform in D.C. I’m also confident that they will find creative, unorthodox ways to approach the task before them.
Change
Moreover, the law has changed. The legal and political environment today is not what it was four or eight years ago. The Supreme Court overturned Chevron, and courts are no longer obligated to defer to an agency’s interpretation of the law.
As Ramaswamy recently put it, the Supreme Court has now recognized that “the very agencies entrusted with supposedly enforcing the law are actually behaving with utter, blatant disregard for the law itself.” That’s a bit of an overstatement, but the broader point holds.
The bottom line is that they have a chance. It’s slight, a non-zero chance, but it’s a chance.
Brian Hendrix is a partner at Husch Blackwell LLP. As a member of the Energy & Natural Resources group, he advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling. He can be reached at
[email protected].