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Chemical facility security not aided by 'citizen suits'

Twenty-seven* trade associations today sent a letter to Chairman Henry Waxman (D-CA) and Ranking Member Joe Barton (R-TX) expressing opposition to H.R. 2868, the Chemical Facility Anti-Terrorism Act of 2009. Waxman is a sponsor. Key excerpt for Point of Law purposes:

[We] also have strong concerns about the bill's "citizen suit" provision (Section 2116), which would allow any person - even those who have not suffered any harm - to bring suit against regulated facilities or the DHS to enforce compliance with the act. Although such private rights of action are common in environmental statutes, the performance-oriented requirements of the CFATS are not well suited to enforcement by citizen suits. This is so because CFATS's performance-based standards provide facilities the flexibility to decide which security measures or technologies to adopt. Allowing layperson litigants rather than DHS security specialists to challenge a facility's selection of security measures will not enhance security in any meaningful way.

Furthermore, we share the DHS's concerns that broad discovery rights in federal lawsuits could lead to public disclosure of classified or highly sensitive information that could assist terrorists.

As we noted in an earlier post, this private cause of action was not in previous years' versions of the bill. This year, the House Committee on Homeland Security has already reported out the bill with the citizen suit provision intact, despite much protest. Today's letter comes in anticipation of a hearing Thursday by a subcommittee of the House Energy and Commerce Committee.

The U.S. Chamber has a news release. The National Association of Manufacturers, which employs me, is one of the 27* groups signing the letter.

*Miscounted the first time. It's 27, not 26.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.