Tuesday, October 27, 2009

H.R. 2868: Revision to Citizen Suits

Earlier this month, when the House Energy and Commerce Committee reported favorably H.R. 2868, their amended version of the bill included significant changes to one provision that had drawn significant opposition from the chemical industry: the citizen suits provision found in §2116.

Background on Opposition

Back in June, when H.R. 2868 was introduced, one of the provisions that caused a great deal of discussion within the chemical industry was §2116, titled ‘Citizen Suits’. This was a new provision not found in last year’s H.R. 5577. It would have allowed any person to commence a civil action against anyone “who is alleged to be in violation of any standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this title.” H.R. 2868 §2116(a)(1).

Industry commentors have been unanimous in their concerns about this provision. In addition to being worried about the potential expense of defending against nuisance lawsuits, they have noted their beliefs that security measures could inadvertently be compromised by the discovery process associated with citizen suits.

Citizen Enforcement

When the Energy and Commerce Committee reported favorably H.R. 2868, it changed the name of §2116 to ‘Citizen Enforcement’. It still provides for the initiation of civil suits against any federally-owned facilities or any other government entity that is in “violation of any order that has become effective pursuant to this title.” H.R. 2868 §2116(a)(1). It also provides for civil suits against the Secretary of the Department of Homeland Security (DHS) for “an alleged failure to perform any act or duty under this title that is not discretionary for the Secretary.” H.R. 2868 §2116(a)(2).

These citizen-initiated lawsuits would be brought either in the U.S. District Court of the district in which the alleged violation occurred or in the U.S. District Court for the District of Columbia. When such suits are conducted under §2116(a)(1), the Court may enforce the order in question or “order such governmental entity to take such action as may be necessary, or both.” H.R. 2868 §2116(b)(2). Additionally, the Court may levy civil penalties authorized under §2107 of H.R. 2868. When brought against the DHS Secretary, the Court may require performance of non-discretionary duties.

Sixty-day notice must be give before civil suits may be brought under this section “in such manner as the Secretary shall prescribe by regulation.” H.R. 2868 §2116(d). In suits against other governmental entities or federally-owned facilities, “the Secretary, if not a party, may intervene as a matter of right.” H.R. 2868 §2116(e).

Violations at Non-Federal Facilities

While non-federally-owned facilities are not subject to civil suits under §2116 in the version of H.R. 2868 reported by the Energy and Commerce Committee, the Committee did include new provisions for formal reports about non-performance by private individuals or facilities. These citizen petitions are provided for in new §2117. This section requires the DHS Secretary to develop regulations for the submission, investigation, and replying to such petitions. Additionally, those regulations must provide for the “de novo review of responses to petitions by the Office of the Inspector General for the Department of Homeland Security.” H.R. 2868 §2117(a)(4).

These regulations will provide for any person to report anyone, including government facilities or agencies, “alleged to be in violation of any standard, regulation, condition, requirement, prohibition, plan, or order that has become effective under this title.” H.R. 2868 §2117(b)(1). The petition must include a description of the alleged violation.

Department investigations will be required for all properly presented petitions. The investigation will determine if enforcement activities need to be taken by the Department. The results of all investigations will be reported back to the presenter, keeping within the constraints of the information protection rules set forth under §2110. Any decision not to pursue enforcement action will constitute final agency action under this section.

Not the Final Version

Once again there are significant differences between these provisions in the Energy and Commerce Committee reported version of H.R. 2868 and the Homeland Security Committee reported version. Those differences will have to be reconciled before the bill can come before the full House for a final vote. This certainly means that the provisions of §2116 may yet undergo serious revisions before such a final vote.

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