Lawsuits Against DHS a Terrible Strategy for Chemical Plant Safety

The House is expected to debate the chemical facility security bill, H.R.2868, on Thursday. Manufacturers are seriously concerned about an innocuous-sounding but extremely disruptive provision, requiring plants to implement inherently safer technology, or IST.

Forced substitution of one chemical could play out throughout the manufacturing process, raising costs and even eliminating domestic production of useful products for little if even security benefit.
(See this letter in The Hill from the Society of Chemical Manufacturers and Affiliates.)

Another brand-new provision — never considered in previous versions of the bill — is the “citizen lawsuit.” The bill would authorize individuals or groups to sue the Department of Homeland Security in order to force new processes and practices at chemical plants.

In a Washington Times op-ed today, U.S. Reps. Peter King (R-NY) and Rep. Charlie Dent (R-PA) say the expected results would be akin to the legal chaos that comes the Endangered Species Act. From “Litigation as a hazardous substance“:

Such a provision would mark the first time that DHS would be subject to civil suits by uninjured parties. Such a move is unnecessary, risky and, in fact, dangerous.

When it comes to securing chemical facilities from terrorist attack, millions of human lives are at risk. We cannot afford to have DHS – established as a direct result of terrorists murdering nearly 3,000 innocent Americans – struggling in the same flood of litigation as the Fish and Wildlife Service. We certainly cannot afford to have DHS’ work of protecting the American people come to a near halt, as had happened with the wildlife protection.

The National Association of Manufacturers joined numerous other trade associations in October in expressing our opposition to the legislation. The joint letter is here.

(Hat tip: Hugh Hewitt, whose legal work involves fighting the excesses of the Endangered Species Act.)

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