Corporate Welfare Queen Kills 25
Posted by Kevin Carson on Apr 13, 2010 in Commentary • 9 commentsWatching recent news on CEO Don Blankenship of Massey Energy — renowned for falling spectacularly short of industry safety standards which are themselves almost nonexistent, and most lately for hosting the site of the worst mining disaster in decades — I got the feeling I’d heard of this guy before.
Sure enough, several months ago Alternet listed Blankenship and Massey in a rogue’s gallery of corporate malefactors. Massey’s mountaintop removal operation was fined $50 million by West Virginia courts for polluting its neighbors. But hey, if you can afford to spend $3 million replacing an unfriendly justice with your own stooge, running attack ads (he “released sexual deviants”) that would make Lee Atwater or Karl Rove proud, those pesky fines are easy enough to deal with. (Blankenship was spotted in Monte Carlo a few months later partying with yet another buddy on the Supreme Court.) $3 million to buy a Supreme Court justice, to overturn a $50 million fine from a lower court — that’s what I call a pretty good return on your money. It reminds me of all those colorful stories about railroads buying legislators and Congressmen wholesale back in the Gilded Age.
Blankenship also opined, by the way, that it’s perfectly OK for elementary school kids to inhale coal dust from his operations while playing on school grounds. You see, Massey “already pays millions of dollars in taxes each year.” Ever see that episode of The Simpsons where a young Monty Burns ran down workers in the street for the sheer joy of crippling them, and then tossed money out the window?
Blankenship, it seems, is also a major corporate Tea Party sponsor, appearing at last year’s Labor Day Tea Party with the charming duo of Sean Hannity and Ted Nugent.
Blankenship also seems to collect unpaid fines for unsafe working conditions the way some people collect parking tickets in their glove box.
Interestingly, an Alternet commentator on the Tea Party story wrote: “I’m sure those people cheering every insane thing he said at that rally will blame the government for failing to stop him, thus proving once again that it can’t do anything right.”
Well, yeah. The mine safety and anti-pollution regulations, in this case, are a good illustration of why the corporate state replaced traditional tort liability standards under the common law with a regulatory state in the first place.
Mountaintop removal is just what the name implies. It involves clearing areas of thousands of acres, in the process filling nearby valleys and stream beds with debris and destroying entire watersheds. It also involves showering surrounding areas with coal dust from silos — you know, the dust Blankenship’s taxes pay the schoolkids to breathe. And then there’s the multi-billion gallon sludge ponds full of coal mine waste. The dam enclosing one such Massey pond gave way several years ago, with its contents wound up in the Big Sandy River. A number of towns lie in the flood path of other such ponds, should they give way.
Now, you’d think tort liability for the full damages of wholesale devastation of the entire countryside, the poisoned water and coal dust, the deaths from gross negligence, and all the rest of it, would seriously undermine the profitability of mountaintop removal. And you’d be right.
That’s exactly what the regulatory state was created to avoid. Let’s look at a little history. I can’t recommend strongly enough “The Transformation of American Law,” by Morton Horwitz. According to Horwitz, the common law of tort liability was radically altered by state courts in the early to mid-19th century to make it more business-friendly. Under the traditional standard of liability, an actor was responsible for harm that resulted from his actions — period. Negligence was beside the point. Courts added stricter standards of negligence and intent, in order to protect business from costly lawsuits for externalities they might impose on their neighbors. The regulatory state subsequently imposed far weaker standards than the traditional common law; the main practical effect was to preempt what remained of tort liability. A regulatory standard amounts to a license to commit torts below the threshold of that standard, and lawsuits against polluters and other malfeasors can be met with the defense that “we are fully in compliance with regulatory standards.” In some cases, as with food libel laws or product disparagement laws, even voluntarily meeting a more stringent standard may be construed as disparagement of products that merely meet the regulatory standard. For example, Monsanto has had mixed success in some jurisdictions suppressing the commercial free speech of those who advertise their milk as free from rBGH; and conventional beef producers have similarly managed in some cases to prevent competitors from testing for mad cow disease more frequently than the law mandates.
So a class action suit against a coal mining company for the public nuisance created by mountaintop removal could be thwarted by simply demonstrating that the operation met EPA regulatory standards, even if such operations caused serious harm to the property rights and quality of life of the surrounding community.
I think it’s fair to say that Mr. Blankenship is one of the most loathsome pigs ever to contaminate the Earth with his presence. And the dumbed-down regulatory state — by offering wrist-slap fines worth a tiny fraction of the harm caused by his terrorism, as a substitute for free juries of his neighbors nailing his scrote to the wall for his crimes — has played a key role in enabling him.
C4SS (c4ss.org) Research Associate Kevin Carson is a contemporary mutualist author and individualist anarchist whose written work includes Studies in Mutualist Political Economy, Organization Theory: A Libertarian Perspective, and The Homebrew Industrial Revolution: A Low-Overhead Manifesto, all of which are freely available online. Carson has also written for such print publications as The Freeman: Ideas on Liberty and a variety of internet-based journals and blogs, including Just Things, The Art of the Possible, the P2P Foundation and his own Mutualist Blog.
The flooding mine tailing ponds reminded me of this particular robber baron:
http://en.wikipedia.org/wiki/Henry_Clay_Frick
His Johnstown flood killed 2,200 persons. Frick’s strike breakers killed at least seven steel workers and inspired an assassination attempt by Alexander Berkman with moral support from Emma Goldman.
It seems clear that regulatory agencies like the FDA, EPA, and OSHA are in the pockets of those industries they pretend to regulate.
This essay does not appear to propose anything useful by way of a stateless society.
I think the comparison with Frick is undoubtedly on target.
Isn't the implicit proposal that state regulation be replaced with traditional common-law strict liability?
"This essay does not appear to propose anything useful by way of a stateless society."
It does explain another reason why States suck and why it'd be wise to abolish it. Planning does no good if people aren't on board with the plan.
Chris, Gary– Jim is a forty year old man child. No amount of reasoning or pointing out the implicit advocacy in a given essay can dissuade him from his ongoing crusade against the Center For A Stateless Society for failing to create a strictly regimented plan on how to achieve a Stateless Society.
That aside, I thought this was a great article. I normally prefer when Kevin writes about idiosyncratic knowledge and horizontal organization, but his exposures of the utter fucking stupidity and malice involved in corporate "regulation" are always pretty informative.
Great article!
This doesn't, however, address the issue of mine safety that directly killed 25 people. Let's assume, for a moment, a stateless society and also assume Mr. Blankenship never attempted any sort of mountaintop clearing that would have gotten him shut down by tort lawsuits. Let's just focus on the safety of the mine itself. How, then, would a stateless society have solved this issue? I've been trying to think it through for some time and can't figure out any sort of solution. Blankenship clearly doesn't care about the welfare of his workers so in the absence of a regulatory state it almost seems like things would have been even worse. He certainly wouldn't have had to grapple with getting around safety standards.
Maybe, in the end, there is nothing that could have been done to prevent this. Clearly, the regulators weren't able to prevent it which calls into question the of the regulatory state itself (if regulation didn't stop it, why would more do any better?). A stateless society wouldn't necessarily eliminate evil men like Blankenship, so maybe this would have been just as likely to happen. You can't stop everything, I suppose.
Any thoughts on this?
Sam, that's an excellent question, and I'd love to hear Kevin's response. Here's my off-the-cuff reaction:
1. Absent some kind of contractual exemption, I'd assume Massey would be liable for the harms caused by the cave-in (plus, on my view, reasonable costs of recovery). That ought to be an incentive for the creation of more safe working conditions. It's possible–I can't tell from this article–that federal regulations would preempt tort lawsuits in cases like this and, if so, the absence of the state would increase the odds of tort law accountability and thus of preventive action.
2. We don't know–well, I don't know–whether the regulations were actually sensible or whether they just provided window-dressing. The regulations are shaped primarily by the regulated–a basic public choice insight–so I doubt they were crafted in ways designed to restrict what mining companies could do very much. But they might have created the illusion of safety on the part of miners and community groups. In their absence, such groups would be more vigilant.
3. Here's the most important thing: in a stateless society, without privileges for big businesses, workers would have more options and greater economic security. If they did choose to work in mines, they'd have more leverage when they negotiated contract terms and would be able to address safety issues in advance more effectively (both by demanding protections known to be safe and perhaps requiring more substantial damages when accidents occurred), which would obviously encourage mining companies to take further safety-oriented steps.
Gary pretty much anticipated my entire answer to Sam: tort liability claims by injured workers and the families of dead workers, and increased bargaining power that comes from the freedom to work elsewhere.
Gary (and Stephan Kinsella and quasibill, if they're reading this) know a lot more about the law than I do, but I'm inclined to believe that, absent some contractual provision by which workers explicitly waive any legal remedy for injury from unsafe working conditions (and if that clause were buried in pages of legal boilerplate it would have the same "meeting of minds" problems as a shrink-wrap or click-wrap EULA), an implied obligation to meet accepted standards of safety would be the default position. And having a waiver of remedy agreement prominently featured in one's employment contract, I think, would tend to have a powerful concentrating effect on the mind, as someone said.
I'm not sure about point 2–as minimalist as the MSHA regulations about things like working fans may be, Blankenship was in serious violation of even those when compliance probably would have been sufficient to prevent the methane buildup and explosion. But then, I suspect that compliance is pretty spotty industry-wide (even if Massey is an outlier in the sheer egregiousness of its violations), and coal mining's still a dangerous line of work in general. I think the risk of being bankrupted by a lawsuit, or the cost of insurance premiums, would provide a much stronger incentive to safety (along with the competitive pressure from workers who can vote with their feet when you're not the only game in town).
My instincts would be yours, Kevin, where negotiation-free contracts and implied obligations to meet accepted standards of safety were concerned. I defer to you on the MSHA regulations, about which I made an a priori judgment here with minimal information.
Gary: All I know about MSHA regulations is what I heard on TV. The overall effectiveness of the regulations may be minimal, as you argue. But I do recall hearing that the mandatory fans were shorted out in defiance of regulations, which strikes me as the moral equivalent of having the fire exits padlocked shut.