Rep. Bennie Thompson (D-MS), chairman of the House Homeland Security Committee, introduced his long-anticipated chemical industry security bill this week, H.R. 2868, the Chemical Facility Anti-Terrorism Act of 2009. On Tuesday the committee held a hearing on the bill, and on Thursday the mark-up is scheduled.
The chemical industry, already disadvantaged in the United States by energy costs and the U.S. regulatory and legal climate, is alarmed by the legislation. We note that the bill's cosponsors include the zealous regulators Reps. Sheila Jackson-Lee of Texas, Ed Markey of Massachusetts and Henry Waxman of California. Reason for alarm, we'd say.
The bill also marks the continued political and legislative advance of the litigation industry with addition of a private right of action contained in Section 2216, "Citizen Suit." In his prepared statement, Chairman Thompson mentioned the new language but did not address what would seem to be a key question, that is: Why?
From Sec. 2116, "Citizen Suits":
`(a) In General- Except as provided in subsection (c), any person may commence a civil action on the person's own behalf--
`(1) against any person (including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this title...
This private right of action language is new to the legislation, added since the predecessor bill, H.R. 5577, was considered by the 110th Congress. We attribute the addition to the growing clout of the environmental and trial lawyer lobbies. (Although...Congressional disclosure forms indicate heavy industry lobbying on chemical security issues, with only Greenpeace and Friends of the Earth weighing in from the activist side.)
Marty Durbin, the head of federal affairs for the American Chemistry Council, made the case against the new "sue-the-industry" language in his prepared testimony Tuesday. (His reference to CFATS is the Department of Homeland Security's Chemical Facility Anti-Terrorism Standards, i.e., the regulatory program put into place in 2007.)
[We] feel the provision that provides for "Private Right of Action" is counterproductive to the ultimate success of CFATS. Unlike environmental statutes, CFATS is not a series of prescriptive statutory measures with which compliance is mandatory, like emission standards or discharge limitations, and therefore it is much more difficult for an outsider - whether it be a citizen or judge - to ascertain if a standard is being met or to decide what needs to be done to address an alleged deficiency.
In its earliest stages, one of the goals of the program is to have more secure sites through a collaborative effort between DHS and the regulated community. Creating a litigious environment will most certainly undermine such an effort. If Congress truly believes that DHS will have a problem with running the program, it should ensure that it has staff and resources to do the job and allow DHS to have a tight grip on compliance.
The Department of Homeland Security also objects to the "citizen suit" language, as detailed in the prepared statement of Philip Reitinger, deputy under secretary:
The Department has significant concerns with the citizen suit provision being contemplated under some legislative proposals.
The Department is concerned about the potential for disclosure of sensitive or classified information in such proceedings. Similarly, the Department urges that it retain discretion in determining the manner and extent to which information about the reasons for placing a facility in a given tier is divulged, as those reasons may involve classified information.
There are probably broader and important arguments to be made about the most effective security and anti-terrorism strategies and whether the courts are the proper place to resolve these critical issues of national safety.
For now, the simpler question: Why is this language in there at all?