This was a vote on an amendment offered by Rep. Barton(R-TX) to H.R. 2868, the Homeland Security Act of 2002. H.R. 2868 was intended to enhance the protections against terrorist attacks of U.S. chemical facilities. The amendment would have allowed the new federal chemical facility regulations in the bill to supersede any stricter state and local regulations.
Barton noted that, typically, the federal government would prevent states “from doing things differently than the federal standard.” He then referenced the fact that H.R. 2868 includes language that . . . “gives states the right, if they want to do things that are more strict . . . to do that . . . this bill sets a floor but does not set a ceiling on what the states can do.” Barton said the purpose of his amendment was to establish “the traditional federal preemption in these areas.
He called it “troubling” and “problematic” not to have “certainty associated with the federal standard” in these areas. He noted that the language in H.R. 2868 that permitted stricter state regulations comes from “environmental law, the Clean Air Act, the Solid Waste Disposal Act and the Superfund law . . . (However), this so-called new stringency standard appears only once in the Homeland Security Act of 2002 (to which H.R. 2868 relates).” Barton went on to say “Unlike local pollution problems, security at chemical and water facilities does require national coordination. The principle is simple: National problems should have national solutions. This is why Federal preemption has always been the norm in aviation security, nuclear security, hazardous materials transportation security, and port security.”
Rep. Pascrell (D-NJ), a member of the House Homeland Security Committee, opposed the amendment. He suggested that it was “bizarre” that Rep. Barton, who “most of the time is . . . fighting (because) we ignore states' rights . . . would now want to infringe on the right of the states to take extra steps.” Pascrell said that, in his state of New Jersey, “(W)e have (more) stringent rules. No part of the chemical industry has opposed those rules . . . What right does the federal government have to come in and say that (we) should lower (our) standards . . . ?”
Rep. Markey (D-Mass) also opposed the amendment. He argued that it was the right of the highest public safety official in the states “to determine how much protection they give to their citizens.” Markey claimed this was the reason the National Governors Association opposed the amendment.
Barton responded by claiming that opponents of his amendment “are trying to have it both ways. You want a federal bill that does lots of things . . . but then you want to let the states that want to go beyond the federal bill (do so) . . . if you're going to have a federal system for security, it should be a federal system.”
The amendment was defeated by a vote of 165-262. One hundred and forty-seven Republicans and eighteen Democrats voted “aye”. Two hundred and forty Democrats, including a majority of the most progressive House Members, and twenty-two Republicans voted “nay”. As a result, the House rejected the effort to allow new federal chemical facility regulations to supersede stricter state and local laws and rules.