New DHS Regulations Won't Automatically Trump State Laws

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The Department of Homeland Security released its long-awaited chemical-plant security regulations this afternoon, offering some clarity about what will happen when state security laws and federal ones conflict, an issue that had many states worried, reports associate editor Angie C. Marek.

The regulations, which many states--especially New Jersey--feared would completely preempt tougher state laws, reserve the right for the department only to exercise "conflict preemption," the right to preempt state laws in direct conflict with the federal regulations. The department doesn't give itself "field preemption," a much broader authority.

At a press conference at DHS this afternoon, Secretary Michael Chertoff emphasized the department has "no reason to conclude" its new regulations will in any way undermine chemical-plant security regulations already in place on the state and local levels.

He also clarified the matter in a letter to Sen. Susan M. Collins and Rep. Peter King, two Republicans on the respective Homeland Security committees, a copy of which was obtained by News Desk.

Still, Congress and New Jerseyans are skeptical. A staffer in Congress who helped put language in the emergency supplemental spending bill that would deny DHS preemption laws expressed initial frustration with the DHS proposal. Staffers say the legislation may not conflict with state laws already in place but some still-in-the-works proposals put out in New Jersey will likely lead to a court challenge.

"We're still reading through this," says the staffer of the more than 200 pages of regulations, "but it's still to the best of our knowledge, preemption by another name." He adds that New Jersey's chemical security laws, the toughest in the country, will "not be grandfathered in" by the new rules. "Basically, states with tougher laws are still getting screwed," he added.