- The Washington Times - Tuesday, November 10, 2009


House Democrats claim they can better protect the nation’s chemical facilities from terrorist attacks by allowing government bureaucrats and trial lawyers to have a say not only in what chemicals U.S. companies produce, but how they secure them. The plan would be comical if it weren’t so misguided. Not only would it undermine plant security while potentially causing pharmaceutical and other product shortages, it could cost jobs.

The House approved legislation last week granting the Department of Homeland Security the authority to tell private companies whether the chemicals they store, use or process are safe enough and whether they must be replaced by government-approved alternatives. The measure also would give private persons the right to sue the Department of Homeland Security for perceived security and other regulatory violations by companies.

Instead of simply codifying existing requirements for chemical concerns to develop plans to address security vulnerabilities, the bill gives regulators the power to mandate the use of so-called “inherently safe technologies” (IST) over others. This places the Department of Homeland Security in the discredited business of picking technology rather than mandating safety.

The Environmental Protection Agency’s similar “best available control technology” determinations are widely viewed as a boondoggle. A federal agency will never have the resources or the expertise to effectively determine what is safe and effective in each particular application.

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 ill-defined concept also opens the door to corruption. In the absence of broad government expertise, the chemical companies with the best - and most expensive - lobbyists will have a leg up on their competitors. Government safety determinations create other opportunities for mischief. Often competing products are made with different manufacturing methods, so one competitor can try to have its competitor’s process outlawed as unsafe, crippling its ability to compete or costing the company big bucks in court or to retool.

Language allowing civil lawsuits against chemical companies was removed from the bill, but the measure still allows environmental and trial lawyers to push an anti-industry agenda by suing the Department of Homeland Security. This is the same back door created by the Endangered Species Act. Environmental groups cannot sue private landowners, but they can sue the Fish and Wildlife Service and force the agency to impose restrictions on landowners. The result is that courts without expertise get dragooned into regulating land use.

The good news is that the measure faces an uncertain future in the Senate. Of course, industries dependent on the use of dangerous chemicals should continue to improve their safety and security, but the federal government simply doesn’t have the ability to micromanage such a diverse and economically important sector of the economy.

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