This was a minor headline in the New York Times last Friday. According to the brief article, almost a month after President Bush signed H.R.2764, the Consolidated Appropriations Act, 2008; Senator Frank R. Lautenberg declared victory over DHS in protecting the citizens of New Jersey against terrorist attacks against chemical plants. More appropriately he declared victory against federal pre-emption of state laws.
Senator Lautenberg and others in New Jersey are very proud of their state’s efforts to regulate chemical plants, especially in respect to their actions to protect the state’s citizens against attack on those plants by terrorists. When the draft CFATS regulations came out two years ago they were concerned that the primacy of federal law over state law would allow DHS to negate portions of their efforts.
The portion of the CFATS regulation that they objected to is Section 27.405, “Review and preemption of State laws and regulations.” The wording of the section is a fairly typical statement of the relationship between Federal and State laws as set forth in many Supreme Court decision over the last 200+ years. The actual pre-emption wording is found in subsection (a);
“As per current law, no law, regulation, or administrative action of a State or political subdivision thereof, or any decision or order rendered by a court under state law, shall have any effect if such law, regulation, or decision conflicts with, hinders, poses an obstacle to or frustrates the purposes of this regulation or of any approval, disapproval or order issued there under.”
The part that caused the politicians in New Jersey the most problems was where it says: “hinders, poses an obstacle to or frustrates the purposes of this regulation”. They felt that this would give the Secretary of DHS too much leeway to void sections of their regulations that the chemical companies did not like. In particular they thought that it would be used to attack New Jersey’s insistence on ‘inherently safer technology’ and replacing hazardous chemicals where possible with ones that were less hazardous.
Because of the efforts of Senator Lautenberg, and others, language was added to section 534 of the Consolidated Appropriations Act, 2008 that prohibited DHS from pre-empting state and local laws “unless there is an actual conflict between this section and the law of that State”. This language preserves the supremacy of the Federal Law while trying to limit the Secretary’s discretion in enforcing that supremacy.
In the short term this was a tempest in a very small teapot. Secretary Chertoff has said on a number of occasions that he does not see anything in the current New Jersey regulations, or any other current state regulations, that would cause him to exert his pre-emption authority. In fact, the only line that he has drawn in the sand is that any state or local law that requires disclosure of CVI information to the public would be considered to be null and void. Section 534 would do nothing to avoid that conflict because it would constitute an “actual conflict” that even Section 534 prohibits.
Of course, in just a little more than a year from now there will almost certainly be a new Secretary of DHS. How the new administration and its Secretary plans on dealing with chemical facility security remains to be seen. One thing that is clear to any student of the last fifty years of American political history, if a new Secretary wants to pre-empt a state law dealing with National Security or Homeland Security, that Secretary will be over ridden only after a long, tedious series of court battles; court battles that are very likely to be won by the Federal Government in the end.
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