Litigation as a hazardous substance

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By Rep. Peter King and Rep. Charlie Dent

When the environmental activist lawyers at Greenpeace or similar environmental groups dislike a decision made by wildlife biologists at the U.S. Fish and Wildlife Service regarding an imperiled species, they do what lawyers do best - they file a lawsuit against the agency. The Endangered Species Act contains a provision explicitly permitting these lawsuits.

As a result, biologists then divert their attention away from protecting species to responding to the lawsuit and reacting to any judicial decisions. In 2002, this brought the Fish and Wildlife Service to a standstill.

Referencing the "large amount of litigation" faced by the agency, officials stated: "Complying with these orders and settlement agreements will consume nearly all or all of our listing budget for [fiscal] 2002."

Despite the well-reported and troubling results these lawsuits have caused at the agency, the environmental lobby and House Democratic leaders actually want to authorize similar lawsuits against the Department of Homeland Security (DHS) - the agency charged with the essential task of ensuring the security of our citizens against terrorist attacks.

This past summer, the House Committee on Homeland Security considered the Chemical Facility Antiterrorism Act of 2009, in which the Democratic majority included a provision to permit anyperson or group - even one who has not been harmed in any way - to sue an owner of a chemical plant or the Department of Homeland Security if he or she believes that the facility may not be in full compliance with chemical plant security regulations.

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.

For years, we have heard complaints that DHS has not done enough to secure chemical facilities, and now, when the department is in the process of enforcing the most stringent security requirements ever placed on thousands of these facilities - House Democratic leaders threaten to bring that progress to a standstill.

Just as they do at the wildlife agency, civil lawsuits would necessitate DHS diverting its limited resources from its core mission - protecting American lives from terrorists.

Instead of visiting chemical facilities to ensure that we're protected from terrorists, DHS security inspectors/employees would spend their workdays being deposed by lawyers, amassing documents for discovery and testifying in court. This would be a dangerous misuse of our limited homeland security resources.

DHS officials share our concern. Deputy Undersecretary Philip Reitinger has warned that "it is true that any civil suit provision at least raises the specter of some diversion of resources."

Additionally, civil lawsuits, and the discovery process involved, could very well lead to the public disclosure of sensitive - even classified - security information about U.S. chemical facilities and DHS' assessments of those facilities. Mr. Reitinger, a former litigator, testified that "inevitably there is some risk of disclosure of information.And this information is very sensitive."

To allow civil lawsuits against DHS in this area has the real potential to make the American people lesssafe. DHS itself has warned Congress of the potential consequences. The House Democratic leadership should stop listening to Greenpeace and start listening to those whose job it is to protect the nation.

The House Democratic leadership should remove this misguided provision from the pending chemical plant security legislation and let the Department of Homeland Security perform its vital mission - without burdensome litigation blocking its way.

Rep. Peter King is a New York Republican and Rep. Charlie Dent is a Pennsylvania Republican. Both serve on the House Committee on Homeland Security.