Kevin Carson has some disturbing news and analysis

From Corporate Welfare Queen Kills 25

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.