WASHINGTON — The case of the killer whale that dragged a SeaWorld trainer to her death seemed to divide a top appeals court Tuesday.
In a closely watched challenge to federal safety rules, at least one of three appellate judges sounded explicitly sympathetic to Florida-based SeaWorld. The company that also runs marine parks in Texas and California is fighting the rules imposed by the Occupational Safety and Health Administration following the February 2010 death of trainer Dawn Brancheau.
“It does seem the authority being asserted here would give OSHA considerable power to change the sports and entertainment industry,” Judge Brett Kavanaugh said.
To prevail, though, SeaWorld needs at least two members of the three-judge panel from the U.S. Court of Appeals for the District of Columbia Circuit, and the company faced some doubts as well as support Tuesday.
In particular, Chief Judge Merrick Garland pushed back against SeaWorld attorney Eugene Scalia’s likening of the federal safety rules to federal officials ordering changes in inherently dangerous sports like football or ice hockey. Imposing new safety requirements, Garland said, has not changed the fundamental nature of the sports.
“I remember a time when ice hockey goalies didn’t wear marks,” Garland said. “They all wear masks now.”
The third member of the panel hearing the case Tuesday at Georgetown University Law Center was Judge Judith Rogers.
Sometimes called the nation’s second-highest court, the D.C.-based court of appeals is especially influential because it rules on a wide range of federal administrative actions. The eventual SeaWorld ruling, while it might be narrow, also could prove broadly significant for other companies in potentially hazardous industries that challenge safety efforts by federal regulators.
“The judge here,” Scalia told the panel, “inappropriately applied a 100 percent safety test.”
Scalia is the son of Supreme Court Justice Antonin Scalia.
The SeaWorld case involves the “general duty clause” of the Occupational Safety and Health Act, which requires employers to provide “a place of employment which (is) free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Federal officials used this authority to constrain SeaWorld following Brancheau’s death.