Victory Far From Certain on Chemical Plant Risks

*[Updated below]

I was baffled by yesterday’s Bergen Record story that reported that NJ Senator Frank Lautenberg and activists had declared victory on chemical plant safety legislation:

“New Jersey activists and officials declared victory Thursday in a fight to prevent the federal government from superseding state rules on chemical plant security.

The new law does allow Homeland Security to override state rules if there’s “an actual conflict” with federal measures. (See: “Chemical plant measure hailed as victory”
http://www.northjersey.com/page.php?qstr=eXJpcnk3ZjczN2Y3dnFlZUVFeXkzJmZnYmVsN2Y3dnFlZUVFeXk3MjM4NjE5JnlyaXJ5N2Y3MTdmN3ZxZWVFRXl5Mg

Now wait a minute – how could a law that expressly provides for federal pre-emption possibly be described as a victory?

So, I did some digging and here’s what I found:

Keep in mind that we are talking about chemical plants that could kill over 100,000 people.

First, for the legal eagles out there, here is the actual text of the law, from Lautenberg’s Office – basically, the language leaves the door open to industry legal challenges of State laws and allows latitude in how the Bush administration interprets the law.

There are several other flat out prohibitions in the bill, but preemption is not expressly prohibited, thereby leaving ambiguity and wiggle room:

SEC. 534. Section 550 of the Department of Homeland Security Appropriations Act, 2007. (6 U.S.C. 12110) is amended by adding at the end the following:

“(h) This section shall not preclude or deny any right of any State or political subdivision thereof to adopt or enforce any regulation, requirement, or standard of performance with respect to chemical facility security that is more stringent than a regulation, requirement, or standard of performance issued under this section, or otherwise impair any right or jurisdiction of any State with respect to chemical facilities within that State, unless there is an actual conflict between this section and the law of that State.” (emphasis supplied)

Second, because it may have been mistakenly reported that this language was opposed by the chemical industry, here is the chemical industry’s testimony. Note that the adopted language is completely consistent with the chemical industry’s position in support of “conflict preemption“:

“The discussion draft does contain a number of provisions that would be improvements over [existing laws]. Most important, it would confirm that the federal program would preempt state programs where the latter “conflicted with the purposes of this title” (p. 31). Such ‘conflict preemption’ is very important to facilities, and yet gives state and local government broad leeway to craft non-conflicting programs.”

See: “Chemical Security: The Implementation of the Chemical Facility Anti-Terrorism Standards and the Road Ahead.”
December 12 hearing transcript: http://homeland.house.gov/hearings/index.asp?ID=108

Last, it is widely agreed that the Bush Administration and so called Republican “conservatives” in Washington have shown contempt for State laws that conflict with their pro-business and anti-regulatory agendas.

Bush repeatedly has wielded executive power to impose this agenda to over-ride laws enacted by Congress, to skirt decisions of the Courts, and to ignore public opinion. Thus far, Democrats in Congress have been unable to stand up to and reverse the Bush agenda.

So it doesn’t take a lot of imagination to see how Bush would impose the chemical industry’s agenda.

Just last week, in perhaps the most egregious example, Bush killed a California clean air law – joined by 16 other states – designed to slash auto emissions. Shockingly, Bush administration officials defended the “California car” decision because it would conflict with a uniform national approach and conflict with new energy legislation signed by Bush that sets new national auto mileage standards. (see LA Times: “EPA chief is said to have ignored staff”
.http://www.latimes.com/news/local/la-me-epa21dec21,0,2062514.story?coll=la-home-center

Given this history, who could be surprised by or trust the Bush Administration?

One would have thought that the pre-emption issue would have been dealt with clearly, with an absolute prohibition on federal pre-emption of State laws.

Unfortunately, it appears that exactly the opposite has occurred.

Now that’s some victory.

(Note: for further reading, please refer to the December 12 House Committee hearing transcript linked above, and the testimony of Gerald Setley, vice president of the International Chemical Workers Council and the NJDEP:

1. “By law, those DHS [chemical safety] regulations expire in October 2009, and Congress is laying the groundwork for legislation next year to make the plant security rule permanent. Currently, DHS cannot mandate IST. Gerald Setley, vice president of the International Chemical Workers Council, called the existing chemical security program “woefully inadequate” and said major changes should include an IST requirement and explicit language allowing states to craft antiterrorism programs that go beyond the federal standards.

“House Examines Chemical Plant Security – Industry wants Congress to give DHS regulations a chance”
http://pubs.acs.org/cen/news/85/i51/8551notw3.html

For DEP’s admission of program weaknesses, note DEP’s own testimony:

2. “I must emphasize that the inherently safer technology requirement under the [NJDEP] Standards represents a practicability test; it is not mandatory that a covered facility implement IST, only that they evaluate..….But these measures alone are merely a starting point. Our knowledge of both the threat and the appropriate response is evolving daily. As we implement the “Best Practices” and work with facilities on site-by-site review of security vulnerabilities, we also have begun a public process to review what additional regulatory measures may be appropriate to harden potential targets, to reduce risk to surrounding communities, and to involve workers and communities in the process. ”
http://homeland.house.gov/hearings/index.asp?ID=108

3. For a critical assessment of NJ’s chemical safety program, see:

Chemical plant safety decisions privatized in NJ
http://blog.nj.com/njv_bill_wolfe/2007/12/chemical_plant_safety_decision.html

*[Update – based on comments and reflection, I failed to make a basic distinction and provide context at the outset of this post. In terms of why I was baffled by claims of “victory”, there are 2 distinct issues: 1) pre-emption and 2) the overall NJ and national chemical plant safety program.

With respect to the issue of pre-emption, I do not agree that the language adopted represents a victory. It may be the best pre-emptio language they could get (there are 3 different pre-emption legal frameworks and challenges that could be brought, and the “actual conflict” basis is the least threatening to NJ’s program), but that does not make it a victory.

Congress could have expressly prohibited pre-emption by DHS rules. Most other federal environmental laws do not even consider pre-emption of state laws, and instead explicitly allow state laws to be more stringent; mandate that state laws meet federal minimum standards; and allow for delegation of federal law to states. Courts consider state law pre-emption issues on a case-by-case basis, under US federal constitutional law (e.g. Supremacy clause and inter-state commerce clause challenges).

States do not need Congressional permission to regulate chemical plants because States have police power under State Constitutions which is recognized by the US constitution. SO this whole pre-emption issue is a chemical industry threat and was avoidable. It diverts attention from larger safety/risk issues.

Given all the flaws in the national and NJ chemical plant safety programs, to declare victory amounts to a Bush “Mission Accomplished” on the aircraft carrier flight deck with respect to Iraq war victory.