Thank Non-Union Construction Companies (and Federal Preemption) for Those Collapsed Cranes in Miami

Among the scariest images of Hurricane Irma were two collapsed cranes at construction sites in Miami. If you’re wondering why Miami doesn’t have stricter laws regulating construction cranes, the answer is that when Miami enacted a law requiring cranes to withstand 140 mile per hour winds, the Associated Builders and Contractors, an association of non-union construction companies sued and stopped the law from going into effect.

Most cranes in the United States are only built to withstand winds of 93 miles per hour. But, in 2008, Miami-Dade County wisely realized that in a hurricane-prone region, it would make sense to impose stricter standards. The County decided that tower cranes should withstand wind loads of 140 miles per hour. Instead of accepting the wind load standard, the Associated Builders and Contractors sued, arguing that the federal Occupational Safety and Health Act preempted the local ordinance. The County argued that even if local workplace health and safety laws are ordinarily preempted, these standards should not be because “failing cranes kill people, workers and non-workers alike.” The County argued that particularly during hurricanes, the new standard was directed at public safety, not occupational safety.

But, the three judge panel on the Eleventh Circuit Court of Appeals rejected the County’s argument. The judges pointed out that construction sites are typically closed to the public, and “the County failed to identify a single incident in which a crane accident injured a member of the general public during a hurricane.” In other words, instead of taking precautionary measures, the County should have waited for someone to die, and then, perhaps the regulation would pass muster. I’d like to think the Eleventh Circuit judges are having second thoughts about that opinion.