It is amazing how much ink has been generated by the House Homeland Security Committee’s adoption of a draft chemical security bill. It seems that everyday there is another analysis coming out on a bill that has yet to be formally submitted to Congress for deliberation. The latest article at APP.com discusses the new pre-emption rules.
What is Federal Pre-emption?
Before we talk about the issues involved in this bill, it might be a good idea to examine the legal principal involved. In our country, with its complex mixture of Federal, State and local governments, each level of government makes and enforces its own laws and regulations. This frequently leads to disagreements when different governments make and try to enforce conflicting laws.
To establish some sort of order we have set forth some general rules to sort out the potentially conflicting laws. First and foremost, the Constitution of the United States is the Supreme Law of the Land. No government (Federal, State or local) can make or enforce a law that conflicts with the Constitution. The Supreme Court is the court that has the final say about conflicts between laws and the Constitution.
The Constitution gives the US Congress the power to write laws about things like the common defense and interstate commerce. It also places that power above the right of State and local governments to regulate in those areas. State and local governments can regulate in those areas, but they can not pre-empt, or contradict, Federal Legislation.
State and local governments can and still do write and enforce lawsconcerning matters covered by Federal law. If a defendant in an enforcement action thinks that the State or local government has exceeded the limits of the Federal law, they will sue to stop that enforcement in a Federal Court. If a Federal agency believes that a State or local law or rule violates the Federal law or rule, they will also take that State or local government to Federal Court to stop the enforcement of that law.
Frequently, Federal laws or rules will include language spelling out those areas where State or local governments will be allowed essentially free reign to establish rules or regulations alongside Federal rules. This is done to reduce the number of conflicts that have to be resolved in Federal Courts.
Federal Pre-emption in the CFATS Interim Final Rule
The CFATS Final Interim Rule (6 CFR part 27) included some fairly specific Federal pre-emption language. Section 27.405 says:
“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.”
This is a fairly straightforward statement of principal of Federal Pre-emption. Some of the New Jersey authorities felt that a liberal interpretation of the phrase “hinders, poses an obstacle to or frustrates the purposes of this regulation” would be used by the current administration to stop the enforcement of the NJ chemical security regulations. They knew that the Bush Administration and the chemical industry in general had expressed dissatisfaction with the IST and labor involvement provisions of those regulations.
Pre-emption Changes in 2008 Budget Bill
Section 534 of the Consolidated Budget Act of 2008 (popularly known as the Omnibus Budget Bill) included provisions sought by the State of New Jersey to protect their chemical security rules. Sub-paragraph h of that section states:
“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.”
This does not change the Federal pre-emption of State laws, but does make it clear that states have the right to legislate in this area, an important legal point. The phrase “unless there is an actual conflict between this section and the law of that State” still leaves a lot of room for litigation on both sides of the issue.
Pre-emption in CFATA of 2008
Since the Section 534 rule modifies the Section 550 rules from the previous year’s Homeland Security budget bill, it is expected that those pre-emption rules would expire in October 2009 when the authority for the current CFATS would expire. New Jersey (and states like Massachusetts and California that are considering similar laws) felt that it was important that the pre-emption rules were similarly included in the new authorization for chemical security regulations.
According to the January 23rd version of the Committee Print for CFATA of 2008 (the most current version I have seen to date) the same language found in Section 534 is included in Section 2107 of the new authorizing regulation. There is an additional paragraph included in the pre-emption section:
“Nothing in this title shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce any regulation, requirement, or standard of performance relating to environmental protection, health or safety.”
This is similar to language in the current section 550 authorization in regards to Federal regulations. This is almost certainly being included at the State level to provide for requirements for community communication of hazards due to the storage, use or transportation of hazardous chemicals associated with regulated chemical facilities. Many labor and environmental leaders have felt that the CVI requirements of CFATS will be used by industry to avoid communicating chemical hazards with people living near high-risk chemical facilities.
According to the APP.com article it appears that the chemical industry has stopped fighting the new pre-emption language. The article quotes Scott Jensen, spokesman for the American Chemistry Council, as saying that: “…the industry believes state and local authorities would have little incentive to regulate chemical facilities within their borders because the federal government has filled that security vacuum.” I’m not sure that the authorities in New Jersey, Massachusetts and California would agree, but, none the less, that fight is apparently over.
LATE NOTE: As I started to upload this I was notified that the CFATA has been officially introduced as HR 5577. More on this later.
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