Corporate Welfare Queen Kills 25

Watching 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.