Why Regulations Are a Joke

This is sort of a companion piece to my teabagger post–more specifically, an expansion on my suggestion that maybe regulations themselves are part of the problem when dealing with corporate crimes.  I’ll let Kevin Carson explain (emphasis added):

Interestingly, an Alternet commentator on the Tea Party story wrote:  “I’m sure those people cheering every insane thing he [CEO Don Blankenship of Massey Energy] 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.

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.

This is why I have to laugh whenever I hear some politician–or, worse yet, some d0-gooder “progressive”–braying about the need for more stringent regulations of this or that industry.  I mean, shit.  Who do you think is going to be in the room, campaign donation check in hand, when these things get written?

Back to Carson:

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.

Whole article here.

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