Though it started as a bipartisan effort, legislation to reauthorize a Homeland Security Department program to secure the nation's chemical facilities against terrorist attacks appears on the verge of losing Democratic support -- a scenario that has observers worried it could stall in the Senate.
At issue is legislation from the House Energy and Commerce Committee that would reauthorize DHS's Chemical Facilities Anti-Terrorism Standards (CFATS) program as it exists now through 2017.
When it was introduced, the bill (H.R. 908) from Reps. Tim Murphy (R-Pa.) and Gene Green (D-Texas) was touted as a bipartisan alternative to competing GOP legislation in the House Homeland Security Committee (H.R. 901).
Green, however, has repeatedly expressed his displeasure with how the Energy and Commerce Committee's Republicans have gone about writing the legislation (E&E Daily, May 5). And other Democrats have strongly voiced their opposition to the bill.
In an interview with E&E Daily, Green said his mind still is not made up.
"I am going to see how it goes," Green said. "I was hoping to get a better negotiation than we've had."
If Green pulls his support, observers worry the bill will have little chance of being considered by the Democrat-controlled Senate. And with the summer recess not far off, some chemical industry officials worry the effort will stall until next fall, when the CFATS program could again face a yearlong extension through the general appropriations process.
"We want to see legislation passed this year within the next few months," said Bill Allmond of the Society of Chemical Manufacturers and Affiliates (SOCMA). "The industry and any facility that is covered by this regulation remains in uncertainty until Congress extends it beyond this year-after-year appropriation."
The Energy and Commerce Committee was set to mark up the bill last week but had to postpone when the debate on a controversial health care measure ran long (E&E Daily, May 12).
Compounding the issue is a jurisdictional battle over the program. The Homeland Security legislation, introduced by Cybersecurity, Infrastructure Protection and Security Technologies Subcommittee Chairman Dan Lungren (R-Calif.), would strip Energy and Commerce of its primary jurisdiction over CFATS (E&E Daily, March 9).
Republican aides on the Energy and Commerce Committee said they have met at length with Democrats to try to reach agreements where possible. Those negotiations have been more difficult than usual, however, because of the looming possibility the committee could lose jurisdiction.
The House Republican leadership, sources say, is more likely to pick either the Lungren bill or the Energy and Commerce bill instead of trying to combine them.
There are two issues that could make a difference to the Republican leadership, according to several GOP sources: bipartisan support and the length of time the bill would extend the CFATS program. Lungren's bill would extend it through 2018, one more year than the Energy and Commerce bill. There has been talk on the Energy and Commerce Committee, however, of amending the legislation to match Lungren on that front.
A lengthy extension is also one of industry's top priorities.
"We would like first and foremost to see an extension of the program and we'd like to see the longest extension feasible," said Scott Jensen, a spokesman for the American Chemistry Council.
Green, however, opposes the lengthier extension and is planning to offer an amendment that would shorten the reauthorization to five years.
"We need continuity to the program, but I think seven years is too long," Green said. "Typically Congress will do five years [for a reauthorization]."
Lungren's bill has yet to be scheduled for a full Homeland Security Committee markup. But the measure received no Democratic support in his subcommittee (E&E Daily, April 15).
House Homeland Security Chairman Peter King (R-N.Y.) said a full committee markup of Lungren's bill is in the works.
"The security of chemical facilities is a vital issue for the Committee on Homeland Security," King told E&E Daily. "I am planning a full committee markup of Dan Lungren's legislation early next month."
The Energy and Commerce Committee members still believes their bill will earn some Democratic support.
"We expect this legislation to receive bipartisan support in the full committee and on the House floor," said Energy and Commerce spokeswoman Charlotte Baker. "Administration officials, along with industry representatives, have voiced their support for a long-term reauthorization bill. In its current form, H.R. 908 will reauthorize CFATS as long as possible within the perimeters of current sunset restrictions."
Counterpart legislation to extend the CFATS program was introduced in the Senate in March but appears to be making little progress.
That bill (S. 473), sponsored by Senate Homeland Security and Government Affairs ranking member Susan Collins (R-Maine), has bipartisan support but would only extend the program for three years.
Last year, similar legislation never made it to the Senate floor. And so far this year, Collins' committee has yet to take any action on the legislation.
Some groups would welcome the inaction. Notably, chemical watchdogs who say the current CFATS program is insufficient and leaves millions of Americans at risk would consider the failure of these bills a minor victory.
Rick Hind, Greenpeace's legislative director, said resorting to a year-by-year reauthorization would allow Congress more chances to review CFATS and consider a more robust program.
"The only difference in our nation's security between a one year extension and a multi-year extension is that with a one-year extension Congress will have the opportunity to more quickly address disaster prevention and other loopholes in CFATS, such as exemptions for thousands of water treatment plants and hundreds of port facilities," Hind said. "That is exactly why Congress put a sunset provision in CFATS when it was originally enacted in 2006."