Questa settimana la corte suprema del Nebraska ha rigettato una presunzione d’incostituzionalità degli espropri per pubblica utilità a favore del gasdotto Keystone, spianando così la strada alla confisca di terreni privati, comprese falde acquifere vulnerabili, e completare l’attraversamento dello stato in direzione del Texas. La lobby finanziata dai Koch ha una presenza pesante nel progetto; tra le altre cose, finanzia messaggi pubblicitari che attaccano i politici contrari al progetto. I gasdotti a lunga distanza, ovviamente, dipendono dai diritti di prelazione dello stato su grosse porzioni di terreni non edificati, hanno trattamenti di favore, e ricorrono all’esproprio quando il privato non vuole vendere. Più in generale, sono proprio le industrie estrattive, come quella del petrolio e del carbone, ad avere più bisogno dell’accesso esclusivo a quelle terre acquisite con diritto di prelazione dallo stato. Sono loro ad avere più bisogno dello stato per evacuare territori ricchi di risorse.

A proposito, il Bollettino della Società Sismologica Americana questa settimana ha pubblicato una ricerca che attribuisce una serie di 77 terremoti in Ohio, tra cui uno abbastanza forte da essere percepito con i sensi, alla fratturazione idraulica. Le scosse sono avvenute lungo una linea di frattura e sono dovute ad uno scivolamento causato dai processi di fratturazione, processo che prevede il pompaggio ad alta pressione nel sottosuolo di enormi quantità di acqua e agenti chimici per spaccare lo shale e liberare il gas. Tanto per dire la mia, non credo che iniettare milioni di litri di questo minestrone chimico in una formazione rocciosa instabile e permeabile faccia un gran bene alle acque di superficie.

Tutto ciò sarebbe impossibile se fosse ancora in vigore la responsabilità civile per atti illeciti prevista in molti statuti dalla common law fino al 1830 circa. Con la tradizionale common law, una persona era responsabile dei danni apportati ai suoi vicini, punto. A partire dai primi dell’ottocento, però, una serie di precedenti modificarono gli standard di responsabilità così da renderli più favorevoli alle aziende: non solo la parte lesa doveva sobbarcarsi pesanti oneri per dimostrare il dolo, ma c’era tutta una serie di “attività economiche e commerciali in regola con le norme” virtualmente esente da responsabilità. Se fossero ancora in vigore le vecchie norme, chi pratica la fratturazione, chi spiana una collina avvelenando le falde acquifere di un’intera comunità, chi con l’inquinamento causa un aumento dei tumori, o semplicemente distrugge l’ecosistema di una valle intera, si vedrebbe imputare la responsabilità dell’atto da un tribunale, e gli abitanti non rimarrebbero con un pugno di mosche. Attività come la fratturazione idraulica, o i gasdotti, con tutti i rischi che comportano per l’aria e l’acqua (a prescindere dal fatto che tali rischi siano previsti o meno in “attività in regola”) probabilmente non sarebbero assicurabili.

Dopo che i tribunali ebbero indebolito le norme della common law, ecco che arriva la Epa (l’agenzia americana per l’ambiente, es) con le sue norme minime in materia di inquinamento dell’aria e dell’acqua, che suonano come un’esenzione dalla responsabilità: l’espressione “nel pieno rispetto delle norme vigenti” è una scappatoia legale che prescinde dal danno vero e proprio causato alle comunità. A coronare il tutto, c’è ogni genere di legislazione che attribuisce responsabilità artificialmente basse in casi come perdite di petrolio in mare, perdite degli oleodotti e incidenti nucleari, legislazioni che rendono queste attività artificialmente remunerative.

Riassumendo, quando Charles Koch dice di essere per “libertà economica”, vuole dire che le industrie che estraggono, raffinano e trasportano i combustibili fossili (sotto la protezione piena dello stato) devono essere libere di rubare, avvelenare e fare altri danni senza pagarne le conseguenze. Proprio quel genere di “libertarismo” di cui non abbiamo bisogno.

Traduzione di Enrico Sanna.

This week the Nebraska Supreme Court rejected a constitutional challenge to the use of eminent domain for the Keystone pipeline, clearing the way to seize private land (including vulnerable aquifers) to complete the pipeline route across the state on its way to Texas. Koch-funded lobbying organizations are heavily behind the Keystone project (among other things, funding attack ads against politicians who oppose the project). Long-distance pipelines, obviously, depend both on state preemption of large tracts of vacant land and preferential grants of access, and on the use of eminent domain to seize land from private owners who decline to sell. And more generally, extractive industries like oil and coal have had a close dependency on privileged access to land preempted by the state or on the actual clearance of existing populations from resource-rich land.

In related news, the Bulletin of the Seismological Society of America this week published research attributing a series of 77 earthquakes in Ohio — including one strong enough to be felt by humans — to hydraulic fracturing. This follows on research over the past couple of years associating large numbers of earthquakes in Oklahoma and Texas with fracking. The quakes in Ohio all occurred along a faultline due to slippage caused by the fracking process, in which enormous quantities of high-pressure water and chemicals are injected into the ground to fracture shale rock and free up gas for extraction. Just for the record, injecting a million gallons of chemical soup into unstable and permeable rock formations probably isn’t very good for the groundwater, either.

This is the kind of thing that simply could not have been done under the common law of tort liability as it existed in most states until the 1830s or so. Under traditional common law, you were responsible for anything you did to harm your neighbor, period. But from the early 19th century on, state case law heavily modified liability standards to make them more commerce-friendly — not only by requiring plaintiffs to meet new burdens of negligence over and above the bare fact of harm, but by treating a whole array of “standard business or commercial practices” as safe harbors against negligence. If the original standards were still in effect, those responsible for a fracking or mountaintop removal operation that poisoned the groundwater for all the communities sharing an aquifer, or caused a local cancer spike from pollution, or just plain destroyed the ecosystem of an entire valley, would be assessed full damages by a civil jury and likely not be left with a pot to pee in. And activities like fracking or pipelining that carried non-negligible risks of causing such harm to air and water — regardless of whether the risks were entailed in “standard practices” — would likely find themselves uninsurable.

In addition to this weakening of common law standards in the state courts, the minimal regulatory standards drafted by the EPA under clean air and water legislation are treated as safe harbors against liability — “in compliance with all regulatory standards” is a legal defense regardless of any actual harm done to surrounding communities. On top of that, we have all sorts of corporatist legislation imposing artificially low liability caps on things like offshore oil spills, pipeline leaks and nuclear meltdowns that make these activities artificially profitable.

So when Charles Koch says he’s for “economic freedom,” what he means is the freedom of fossil fuel extraction, refining and transport companies — with the full protection of the government — to rob, poison and otherwise injure without consequences. That kind of “libertarianism” we don’t need.

Translations for this article:

• Italian, Con Libertari come i Fratelli Koch, chi Ha Bisogno dello Stato?

This is stupid, first of all, because it’s historically illiterate. Free market libertarianism has its origins in the classical liberalism of two hundred years ago. And historically, much of that movement was quite left-wing. There was a great deal of overlap between the early free market and socialist movements. The English free market thinker Thomas Hodgskin wrote several books arguing, at great length, that land rent, profit and interest were extorted from labor through artificial property rights enforced by the state. Benjamin Tucker, at one time the leading figure in the American individualist anarchist movement, shared Hodgskin’s view of rent and profit, and considered himself a socialist. Dyer Lum, a contributor to Tucker’s Boston anarchist circle and magazine, Liberty, was heavily involved in the radical Chicago labor movement, edited The Alarm with and after Albert Parsons, had ties to future Wobblies and wrote the radical, 1892, pamphlet “Philosophy of Trade Unions” for the American Federation of Labor. Henry George regarded land rent as parasitic and favored taxing the site value of land to prevent landlords from soaking up the entire surplus wealth of society; his followers — like Albert Nock, Ralph Borsodi and Frank Chodorov — have been a significant strand of the libertarian movement ever since.

It’s true that the mainstream of libertarianism fell under right-wing domination in the 20th century, and frequently shilled for big business interests, for more historical reasons than I have space to go into. But the Right and big business apologists have never had uncontested hegemony over the libertarian movement. And there are a growing number of left-wing libertarians in recent years, like those of us at Center for a Stateless Society (the organization which pays me to write this), who use free market conceptual tools to critique corporate power.

The “Koch shills” talking point is also stupid from the standpoint of what the Koch brothers actually promote. What the Kochs and their pet think tanks call “free markets” and “free enterprise,” by and large, is just a smokescreen for their particular economic interests. And they use the state just as obsessively to promote those interests as any other corporate capitalist.

For example, a recent report released by the International Forum on Globalization shows that the Koch brothers are heavily invested in the Alberta tar sands, and stand to make up to $100 billion in profits if the KeystoneXL pipeline is completed (“Koch brothers could make $100 billion out of KeystoneXL pipeline,” Undernews, Oct. 25). The Koch brothers and the think tanks they fund all constitute one big Amen corner in favor of this project.

Is the Keystone project anything a principled libertarian could possibly condone? Let’s see …  The construction of that pipeline has entailed the use of eminent domain to condemn land from Alberta to Texas — much of it in violation of treaties with Indian nations. Demonstrators have fought pitched battles with cops and hired company thugs to prevent construction of the pipeline across stolen land in Oklahoma and Texas. In Canada, members of the Mi’kmaq nation were clubbed and gassed by RCMP cops in full militarized riot gear, trying to stop the evil pipeline company from building on land stolen from the First Nations. You know — just like in “Billy Jack.”

Fracking in Alberta also depends on the use of the state’s minimalist, least-common-denominator regulatory standards, drafted in collusion with polluting industry, to preempt traditional common law standards of liability and protect oil companies from legal action by the surrounding communities whose groundwater and air they’ve poisoned.

Anyone who advocates such things is no libertarian. The Koch brothers are not libertarians.

Let’s get something straight: The “pot-smoking Republican” kind of libertarian isn’t a libertarian at all. He’s just a Republican. And frankly, I suspect he really doesn’t even like pot that much.

See, Republicans don’t really believe in free markets or economic freedom. They represent one wing of the economic ruling class, and actively seek to promote its interests through the state — just like the Democrats. The Democrats represent the “Yankee” wing of the economic ruling class, in Carl Oglesby’s framework — finance capital and large, capital-intensive, globally-oriented industry. The Republicans represent the “Cowboy” wing — medium-sized, labor-intensive, domestically-oriented industry, extractive industries and “provincial notables” like Sun Belt real estate speculators.

And although Cowboys like the Kochs cloak their statist rent-seeking in “free market” rhetoric, they are the enemies of free markets and of anyone who sincerely believes in them.

Update Note:

This article  denies that the Kochs are major players in Alberta tar sands extraction and claims they stand to lose money if the project opens their U.S. oil interests to competition.

Whether or not that is so, it does not alter the facts that the Kochs support the Keystone project, or that the project is feasible only with massive land theft via eminent domain and regulatory preemption of common law liability for polluters. Whether or not the Kochs tip their hat to condemning eminent domain in principle, the fact remains that a project like Keystone is as closely tied to the state and its land thefts as were, say, the land grant railroads. So the Kochs’ defense is a bit like Lincoln’s Jesuit who, accused of killing ten men and a dog, triumphantly produced the dog in court.

Suggestions that alleging Koch financial interests in the project entail making it “all about the Kochs,” or that opposition to the project comes only from “liberals,” are strawman attacks. There are plenty of principled REASONS for free market advocates to oppose a corporatist project like Keystone without “liberals” ever coming into the picture.

Between these two classes a struggle must go on until the workers of the world organize as a class, take possession of the means of production, abolish the wage system, and live in harmony with the Earth. -Industrial Workers of the World

On Tuesday Dec. 11, Governor Rick Snyder of Michigan officially signed into law the bills that will turn Michigan into the twenty-fourth “Right to Work” state in the U.S. Yes, Michigan, home of the Flint Sit-Down Strike and the United Auto Workers, is now a worker’s paradise like Georgia, Mississippi, Alabama and a host of (mostly southern) states! Until recently, Snyder denied that he would push for the passage of this law. But, as the Lansing State Journal reported, “Snyder signed the two historic bills just after 5 p.m. Tuesday, a few hours after the state House approved the controversial legislation that makes it illegal to require public and private workers to pay union dues or join a union as a condition of employment.” So why did Governor Snyder decide to support legislation that he previously wrote off as “divisive?” Why would he do this in a state that still has relatively high union membership (about 17%) compared to other states? Theories abound, of course. However, it seems likely that the passage of the legislation, which occurred during a lame duck session, was in retaliation for labor’s attempt to make collective bargaining a constitutional right in Michigan, via a referendum called “Proposal 2” (The referendum was defeated in the November 2012 election). Snyder himself stated, “I don’t believe we would’ve been standing here in this time frame if it wasn’t for Proposal 2 moving ahead.”

“Right to work” Propaganda and the influence of oligarchs

As in Wisconsin, the assault on collective bargaining was supported by Americans For Prosperity, which has received substantial support from the infamous Koch Brothers. Michigander Dick Devos, son of Amway founder Richard Devos, has also reportedly been a major player. With the support of oligarchs and front groups, Michigan Republicans devised a delightfully Orwellian campaign to hamper unions while empowering employers…and Republicans. The phrases “Right to Work” and “Freedom to Work” are themselves completely disingenuous. Obviously one is not entitled to a job in a “Right to Work” state, so what is the truth behind the PR spin? Writing for Truthout in 2011, economist Dean Baker explained the distortions behind “Right to Work” sloganeering:

“Right to work” is a great name from the standpoint of proponents, just like the term “death tax” is effective for opponents of the estate tax, but it has nothing to do with the issue at hand. It is widely believed that in the absence of right-to-work laws workers can be forced to join a union. This is not true. Workers at any workplace always have the option as to whether or not to join a union.

Right-to-work laws prohibit contracts that require that all the workers who benefit from union representation to pay for union representation. In states without right-to-work laws, unions often sign contracts that require that all the workers in a bargaining unit pay a representation fee to the union that represents the bargaining unit.

The logic is straightforward. When a union is recognized as representing a bargaining unit, it legally must represent every worker in that unit, whether or not a worker opts to join the union (emphasis mine).

Summing up, Baker explains:

Right-to-work laws prohibit workers from being required to pay for this union representation. What right-to-work laws actually guarantee is the ability for a worker to benefit from union representation without having to pay for union representation.

This from the party of personal responsibility! But conservatives and the right-wing liberals that call themselves “libertarians” (Well, in the United States anyway) would, no doubt, object that even paying a fee for this representation is inherently coercive. Why shouldn’t we all just be “free agents” and deal with our employers on an individual basis? In their world—which bears little resemblance to the world of any non-salaried employee – a person earning minimum wage has equal bargaining power with Walmart, McDonald’s or any other multinational. But bleeding-heart billionaire worker advocates and their “free market” enablers never stop to consider the coercive nature of wage work itself. And they certainly don’t want to discuss what is likely to happen if an individual wage worker decides to approach their employers and demand change. In the real world, uppity “free agents” are disciplined, marginalized as “disgruntled employees” or terminated. Thus, this selective trepidation about the “coercion” of unions is nothing more than projecting on the part of those who favor coercion, as long as it is being carried out by the employer.

There’s Something Happening Here…

So “Right to Work” has nothing to do with empowering workers. Indeed, a 2011 study by the Economic Policy Institute [PDF] found that workers in “right to work” states earn about $1,500 a year less than workers in other states. There is also no evidence that these laws attract employers to states. Instead, “Right to Work” has everything to do with weakening unions where they still exist, which clearly benefits employers and Republicans. And make no mistake about it, the right-wing attack on unions has been quite successful. According to the Bureau of Labor Statistics, 11.8% of wage earners belonged to a union in 2011. But back In 1983, 20.1% of workers were union members.

The effort to undermine unions is only one part of the neoliberal crusade to keep the working class on a short leash while pampering employers and the wealthy. Austerity measures are another tactic. In the United States, the right-wing is taking the gloves off and attempting to hack away at measures that have provided some relief to workers and the poor throughout the last sixty years. Republicans are not primarily interested in saving money, as their “Fiscal Cliff” rhetoric would suggest. They only wish to attack “entitlements,” not other expensive projects like policing the world and waging the drug war. Indeed, look for the police state and the national security apparatus to expand even more as the welfare state contracts. Perhaps we will find that the American Right still has a soft spot for Pinochet’s Chile if we do not resist.

The Limits of Bourgeois Democracy and Big Unions

All of this is not to suggest that I am overly enthusiastic about trade unions or the welfare state. I believe that the welfare state should be defended, but not glorified. As Howard Zinn observed, “All of this—the eight-hour day, a fairly decent wage, and vacations with pay—did not come about through the natural workings of the market, or through the kindness of government. It came about through the direct action of workers themselves in their labor struggles or through the response of state and national governments to the threat of labor militancy.” When workers win concessions from capital and the state, they should be allowed to claim these victories. But these should be viewed as minor victories, because, as we have seen, states and employers will take away the gains of the working class as they see fit. This is the reality of bourgeois democracy: The state does as it wishes, the oligarchs get what they want and the rest of us are told to vote and go shopping.

But traditional trade unions are also hierarchical – dare I say bourgeois–organizations. Sure you can vote for union leaders, but are elected union leaders in large, centralized unions any more responsive to their membership than elected political representatives? A more radical alternative would be the industrial and solidarity unionism proposed by the Industrial Workers of the World (IWW), which emphasizes organizing “all workers producing the same goods or providing the same services into one union, rather than dividing workers by skill or trade, so we can pool our strength to win our demands together.” The IWW’s preference for direct action (rather than legislative action) and its desire to replace wage slavery with worker management also points to a radical, left-libertarian alternative to the social democratic methods favored by progressives.

Ultimately, workers should keep in mind the sentiments of Max Stirner: “The labourers have the most enormous power in their hands, and, if they once become thoroughly conscious of it and used it, nothing could withstand them; they would only have to stop labour, regard the product of labour as theirs, and enjoy it. This is the sense of the labour disturbances which show themselves here and there.” If workers embraced such notions, true libertarian change could happen in the workplace and in communities.

Shortly thereafter, some clown from the Heritage Foundation repeated almost identical talking points on the Chris Matthews show. Unions would have to start competing for workers by offering them a better deal.

Those who make these arguments are either extremely stupid or just flat-out liars. Unions CAN’T compete for workers by offering them a better deal under the terms of a “right to work” law. One of the central provisions of these laws is that a union local has to provide the exact same collective bargaining services to everyone in the bargaining unit, regardless of whether or not they pay union dues. Any contract negotiated by a union applies to every worker in the bargaining unit.

So with a “right to work” law in place, the quality of services the union provides has absolutely nothing to do with attracting members. No matter what fancy new services the union comes up with, all they amount to is adding new dishes to a free all-you-can-eat buffet for scabs.

Under the terms of a “right to work” law, the union is forced to represent everyone in the workplace as their collective bargaining agent. Everyone in the workplace is entitled to the wages and benefits negotiated by the union, and to avail themselves of the grievance procedure negotiated by the union. They just don’t have to pay for it.

As a matter of fact, under the terms of union contracts negotiated in most Detroit auto factories without “right to work,” workers were not compelled to join the union or pay union dues. The terms of the union shop contract required only that they pay a lower monthly sum covering the actual costs of union representation in collective bargaining and grievances.

Bear in mind that the authority of a union shop clause derives not from the government, but from the terms of a contract negotiated between the employer and the bargaining agent. A “right to work” law actually prohibits employers from negotiating a contract with the union that includes that kind of clause.

While we’re at it, let’s take a look at all these assorted Koch-funded interests who are so beside themselves over the poor worker being bullied into joining the union as a condition of employment. Can anyone think of one other case –anything at all — where any of these people ever objected in principle to employers requiring workers to do anything as a condition of employment? How about I go away for a few minutes and give you time to think about it?

OK, I’m back. I hear crickets chirping. Really, nothing? Apparently the Koch Brothers and the think tanks they bankroll don’t support laws forbidding employers to monitor their workers’ smoking and drinking habits. They’re not pushing a law prohibiting employers from monitoring workers’ political affiliations or their activities on social media. They’re not lobbying for laws to protect workers from being required to pee in a cup as a condition of employment. Their blanket response, in all these cases, is “Freedom of Contract is Sacred! If they don’t like it, they can go work somewhere else!” The one and only workers’ right they care about enough to violate the sacred Freedom of Contract is the right not to join a union.

You’d almost think there was a hidden agenda here.