With Libertarians Like the Koch Brothers, Who Needs the State?

What do you call someone who wants to steal your land and subject you to earthquakes? David Koch, who favors these things, calls himself a libertarian. In an interview with Barbara Walters last month on ABC’s “This Week,” he described himself as “basically a libertarian.” That label, as Koch sees it, means “a conservative on economic matters, and … a social liberal.” But what he calls economic conservatism is pretty unlibertarian, if your idea of economic freedom means anything other than big business getting whatever it wants regardless of who it steps on in the process.

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.

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