The Washington Times today editorially examines House passage of H.R. 2868, the Chemical Facility Anti-Terrorism Act, a seriously flawed piece of legislation that will raise costs for manufacturers and discourage creation of private-sector jobs.

The editorial, “Chemical insecurity,” argues that having the government, in this case the Department of Homeland Security, impose the substitution of chemicals under the theory of “inherently safer technologies” actually works against safety.

The forced switching of chemicals could result in companies having to replace products they have long used without incident with new chemicals and processes. There is wide agreement among corporate safety executives and outside experts that inexperience is one of the major causes of accidents.

Ill-considered mandates could slow the manufacture of products used throughout the economy, from fertilizer to pharmaceuticals, potentially creating shortages of some goods and even lost jobs when some products cannot be produced because key ingredients are outlawed.

The Times also notes the inclusion of provisions allowing private lawsuits against the Department of Homeland Security over its regulation of chemical manufacturing facilities, noting the similarities to the Endangered Species Act, in which lawsuits can stop projects and turn the federal government into a land-use planning agency. We ask: Jobs?

We wrote about the third-party lawsuit provisions at Point of Law, noting the defeat of an amendment by Rep. Michael McCaul (R-TX) to remove the language. McCaul said:

Allowing any third party–anybody– to sue the Secretary is both reckless and unnecessary. This provision would be a boon to trial lawyers and to environmentalists at the expense of the Department of Homeland Security and national security interests. Citizen suits have no place in a national security context, and this would be the very first time that Congress would be authorizing such suits in the homeland security arena.

Good online column from Hugh Hewitt, who sees the unintended but still damaging consequences of the Consumer Product Safety Improvement Act, the Endangered Species Act and the Clean Water Act as persuasive grounds to fear expanded federal government control of health care. From “The CPSIA, The ESA, The CWA and Obamacare“:

What the CPSIA, the ESA and CWA all have in common is that the disastrous economic costs they are operating to exact from the private sector were not intended by the men and women who drafted them and were not foreseen by those who legislators who voted for them. Client after client arrives in our offices in various states of disbelief that Congress could have possibly intended the federal laws to operate in such destructive fashion.

The answer is always the same: Congress did not so intend, but activists, enthusiasts within bureaucracies, and the federal courts have all combined to take seemingly sensible efforts at apparently practical, small-step legislation and turn them all into regulatory behemoths with vast power to cripple or completely destroy private enterprise.

The Wall Street Journal also reached for historical comparisons — if a little further back in history — in its tough editorial today, “The Worst Bill Ever“:

Critics will say we are exaggerating, but we believe it is no stretch to say that Mrs. Pelosi’s handiwork ranks with the Smoot-Hawley tariff and FDR’s National Industrial Recovery Act as among the worst bills Congress has ever seriously contemplated.

That’s not bombast. The Journal cites specific economic catastrophes inherent in the bill, including the European levels of high taxation.

Rep. John Shadegg (R-AZ) has raised an important point about any legislation to open up new areas of the Outer Continental Shelf for oil and natural gas development: Enact a law and you still face scores of environmental groups eager to block exploration and development through legal action.

In an op-ed in today’s Wall Street Journal, Shadegg notes that that Earthjustice, a green lobby group that employs more than 150 people, has filed hundreds of lawsuis. Earthjustice boasts: “Because lawsuits can be so effective, we have a team of policy experts in Washington, D.C. that work hand-in-hand with our attorneys to stop legislative backlash . . .”

Shadegg’s office has compiled a summary of the anti-energy lawsuits, and he comments further in today’s op-ed.

In February 2008, the administration issued 487 leases in Alaska’s Chukchi Sea, which holds an estimated 15 billion barrels of oil and 76 trillion cubic feet of natural gas. The Sierra Club, the Center for Biological Diversity, and other groups used the National Environmental Policy Act and the Endangered Species Act to challenge and delay progress on all 487 leases. In a separate lawsuit, they challenged the entire national outer continental shelf (OCS) leasing program, seeking to block all future leases.

Even if a lease makes it through these challenges, it isn’t clear sailing. Right now, there are 748 leases in the Chukchi and Beaufort Seas. Exploration activities in every single one were challenged in May of this year by EarthJustice in conjunction with others.

The Alaskan OCS contains 26 billion barrels of oil and 132 trillion cubic feet of natural gas. Not one offshore lease has escaped litigation.

Shadegg’s solution? Citing political and legal precedent — construction of the Trans-Alaska pipeline, for one — he argues for legislative provisions that would limit abusive lawsuits through waivers of environmental laws. On the House floor yesterday, he said, “We can allow lawsuits. But they don’t have to be dilatory. They don’t have to be such that no oil will ever be produced.” (Floor statement here.)

Puzzled by the sudden prominence of such a significant point, we asked the NAM’s energy policy expert about the litigation issue. Why now? Well, it’s because all these Outer Continental Shelf areas had been locked up legislatively, so the environmenal litigators didn’t have to sue. But if development is actually possible, bring out the briefs!

Earlier this month, Shadegg introduced H.R. 6887, to authorize the President or a designee of the President to waive any legal requirement under any provision of Federal law otherwise applicable to a covered energy project as the President or such designee determines necessary to ensure expeditious conduct of such project. (Statement here.) Any realistic, substantive, actually energy-focused “energy bill” will need language of this sort.

Happened to stop by the 2008 news release page for the Center for Biological Diversity, one of the big-money environmental groups. We knew the environmentalists devote tremendous resources to fighting their cause in the courts, but, after looking at the list of releases, well, we’d say, “Holy Moley” except we’d probably be sued for threatening the Holy Black-Fringed Mole.

It almost makes you want to ask what’s the point of legislating if everything goes to the courts, but that’s what these groups want — to force advocates of multiple use and reasonable resource development to abandon their arguments and venues.

Anyway, just a sample of the news releases chronciling court action taken by the Center and its cohorts among the environmentalists. It’s enough to make you spitting earthworm mad.

• September 5, 2008 – Conservationists’ Lawsuit Gains Critical Habitat for Atlantic Salmon
• August 19, 2008 – Alpine ‘Boulder Bunny’ Imperiled by Global Warming: State and Federal Lawsuits Filed to Protect American Pika
• August 14, 2008 – Southern California National Forests in Peril; Lawsuit Seeks Protections for Wildlife and Roadless Areas
• August 13, 2008 – Court Ruling Threatens Protections for 58 Million Acres of Pristine Forest
• August 12, 2008 – Judge Dismisses Inyo County Lawsuit to Open Roads in Remote Death Valley Wilderness: County Waited Too Long to Press Its Claims
• August 11, 2008 – New Threats to the Spotted Owl Prompt Lawsuit on the Elliott State Forest
• August 5, 2008 – Statement of the Center for Biological Diversity, Greenpeace, and Natural Resources Defense Council on the State of Alaska’s Lawsuit to Overturn Endangered Species Act Protection for the Polar Bear
• July 30, 2008 – Conservation Coalition and States Will Sue EPA to Reduce Global Warming Pollution From Ships and Planes: Concerted Effort Launched to Force EPA’s Hand in Regulating Major Pollution Sources
• July 30, 2008 – Lawsuit Aims to Force Wal-Mart to Reduce Greenhouse Gas Emissions
• July 8, 2008 – Lawsuit Filed to Protect Polar Bears and Pacific Walrus From Oil Drilling in Chukchi Sea: Rule Exempting Oil Industry Activities From Marine Mammal Protection Act Challenged
• July 2, 2008 – Lawsuit Filed to Stop Disastrous Army Relocation Project From Killing More Desert Tortoises
• June 30, 2008 – Conservation Groups Plan Legal Action to Prevent the Extinction of the Cape Sable Seaside Sparrow
• June 30, 2008 – Lawsuit Filed to Protect Endangered Whales: Alaska’s Cook Inlet Beluga Whale Protections Illegally Delayed
• June 18, 2008 – Conservationists File Suit to Protect Whales From Ship Strikes off the California Coast; Coast Guard Must Do More to Protect Endangered Whales (continue reading…)

Given the confusion prompted by the varied suits against the Department of Interior regarding its efforts to protect the polar bear — is that vague enough? — allow us to link to our legal department’s description of the litigation from the business associations, including the NAM: American Petroleum Institute v. Kempthorne

American Petroleum Institute v. Kempthorne
(U.S. District Court for the District of Columbia) — Environmental
Whether polar bear regulation should deny Alaskan industry greenhouse gas emissions exemption that applies to other states.

On May 15, the Department of the Interior issued an Interim Final Special Rule designating the polar bear as threatened under the Endangered Species Act, based on its determination that global climate change, resulting from increased concentrations of greenhouse gases in the atmosphere, threatens to injure the bears’ habitat by reducing polar ice. As part of this rule, the Department provided an exemption for greenhouse gas emissions, since they are part of a worldwide phenomenon than cannot be traced to particular activities in particular locations affecting the bears.

This exemption applies to greenhouse gas emissions in all states except Alaska. On August 27, the NAM joined with the American Petroleum Institute, the U.S. Chamber of Commerce, the National Mining Association and the American Iron and Steel Institute in filing a complaint challenging the Department’s omission of Alaska from the exemption. Manufacturing and other business operations in Alaska that may produce greenhouse gases should not be treated differently than those of companies in the other 49 states. This “Alaska Gap” exposes Alaskan operations to increased permitting burdens and/or the risk of enforcement by government authorities and citizen suits.

Our lawsuit challenges the Alaska Gap as arbitrary and capricious, since the best scientific data in the rulemaking record do not demonstrate enough of a connection between specific actions resulting in emissions and an effect on the polar bear.

The NAM supports the exemption for all states from permitting for greenhouse gas emissions that might affect polar bear habitat, not just every one but Alaska. The NAM is not challenging the decision to designate the polar bear as a threatened species.

Related Documents:
NAM complaint (8/27/2008)

API’s news release is here.

Jonathan Adler, a Case Western Reserve law professor, comments at the Volokh Conspiracy, noting first that the suit challenges the differential treatment of the states. Adler: “Not having read the briefs (yet), this seems to me like a more fruitful avenue of attack than a frontal challenge to the listing itself. Overturning a listing decision is quite difficult, and I don’t expect any of the lawsuits to be successful on that front.”

 P.S. The Alaska Gap? Do they sell mukluks?

A correction in The Washington Post:

Correction to This Article
An Aug. 31 A-section article incorrectly said that the American Petroleum Institute and four other business groups seek to challenge the listing of the polar bear as a threatened species. The groups are trying to enjoin the federal government from implementing a rule they call the “Alaska Gap,” which subjects projects in Alaska to extra scrutiny. The federal government issued the rule in May in conjunction with the announcement of the polar bear’s protected status.

Yes, just because Alaska sues and several trade associations sue, doesn’t mean we’re suing together.

The suit in which the NAM is participating is available here: American Petroleum Institute v. Kempthorne. API issued a news release, stating it sued “because it believes the U.S. Interior Department’s determination that the Endangered Species Act is ‘not the right tool to set U.S. climate policy’ makes sense, and that the interim final rule issued by the Department needs to be expanded to include Alaska as the Act is implemented. API member companies are not challenging the listing of the polar bear as a threatened species.”

Seems pretty clear.

P.S. The Post’s online style is admirable: It put the correction right at the top of the original article.

From the AP, “Industry groups file lawsuit over polar bear rule“:

WASHINGTON (AP) — Five industry groups have sued the Interior Department over a rule to protect the polar bear that they say unfairly singles out business operations in Alaska for their contribution to global warming.

Groups representing the oil and gas, mining, and manufacturing industries asked a federal judge Wednesday to ensure that laws designed to protect the bear, which was recently designated a threatened species, are not used to block projects that release heat-trapping gases in the state.

The American Petroleum Institute was joined by the U.S. Chamber of Commerce, the National Mining Association, the National Association of Manufacturers and the American Iron and Steel Institute in the lawsuit, which explicitly challenges three words — except in Alaska — that appear in a 62-page rule issued in May.

A copy of the suit, American Petroleum Institute v. Kempthorne, is available here.

API’s statement is here, and it’s a very useful pre-corrective:

The oil and natural gas industry is committed to the conservation of the polar bear and other marine mammals. Companies active in Arctic region energy exploration implement polar bear mitigation and avoidance programs, and they provide funding and logistical support for important polar bear studies carried out in the United States and in Canada. API filed a lawsuit in the U.S. District Court for the District of Columbia yesterday because it believes the U.S. Interior Department’s determination that the Endangered Species Act is “not the right tool to set U.S. climate policy‟ makes sense, and that the interim final rule issued by the Department needs to be expanded to include Alaska as the Act is implemented. API member companies are not challenging the listing of the polar bear as a threatened species.