What Progressives Should Say About the Ohio Train Disaster

The Chronic Failure of Regulatory Bodies to Punish or Reprimand Corporate Criminality

By

David Gottfried

  

On February 3, 2023, a Norfolk Southern train, containing highly deleterious toxins,  derailed in East Palestine Ohio. Up to 50 train cars were explosively ejected from the tracks, and plumes of poisons engulfed the environs, including highly carcinogenic benzene and vinyl chloride, which may mar the populace with grievous injuries that may last for years.   Some people will tell you that vinyl chloride will sting and  burn and produce nausea, suggesting that its harms are short-lived and trivial.   They won’t bother to note that Vinyl chloride is notorious for inducing the development of a rare cancer sometimes referred to as angiosarcoma.

There’s More:   On February 17, the New York Times reported that Norfolk Southern has, in recent years, enjoyed record profits, has resisted demands that it spend more money on safety devices and has presided over a steady increase in accidents.

Unfortunately, big business is given carte blanche to contaminate our environment, and our bodies, with a cornucopia of compounds and cancers in the name of capitalistic expediency.   Just as William James said that America worships at “the altar of the bitch goddess success,” American government has long subscribed to the principle that the amplification of corporate profits is a holy obligation that government, the servant of big business, must bow down to.

Of course, many Americans suffer the delusion that government has shackled and hobbled business with a vast regulatory apparatus which zealously guards the American people from toxins and that these environmental regulations bequeath economic torpor and corporate poverty.  Yeah, right – and the Dow Jones which stood in the 6000’s in the beginning of 2009 is now sitting pretty at close to 34,000.           .  

In fact, as John Kenneth Galbraith said in “The Affluent Society” (1957), regulatory agencies are colonized by the very companies they are supposed to regulate. 

Scrutinize any aspect of our vast regulatory apparatus and you will find that regulatory agencies, more often than not, believe that their most important clients are the businesses they are supposed to regulate.  The citizens they are supposed to protect are an afterthought to be addressed with photo opportunities in which cabinet secretaries will meet with  relatives of the victims of accidents and affect love and emotion and cry on cue.  I think Kamala Harris, who as California attorney General was a real rottweiler in prosecuting low level drug offenses, will be really swell at appearing sympathetic when she goes to crying-fest photo opportunities to show that she feels our pain.   

But enough abstractions.   Let me give you  concrete examples which  prove that big business is allowed to degrade your health, that wall street titans are allowed to rob your retirement savings  and that regulatory agencies have all the spunk of spayed kittens:

1)  Why do you think Americans patients, who suffer from kidney failure and must undergo dialysis to rid their blood of urea and other wastes, are more likely to die than Western European dialysis patients ?   It’s because Western European states impose more exacting sterilization requirements, to prevent patient A’s infection from being transmitted to patient B, than America.

2)   Did you ever hear of the Medtronics case.    Most people are only cognizant of Supreme Court decisions pertaining to abortion and sexuality.  However, since the reign of Ronald Reagan, the Supreme Court has been whittling away at the well-being of workers in a vast catalogue of cases. 

In the Medtronics case, the Supreme Court vacated a Judgment for Plaintiff for injuries sustained when his doctor used certain medical devices to treat him.   The Court ruled that since the FDA had approved the medical device, a state court judgment, in favor of Plaintiff, had to be vacated pursuant to the supremacy clause of the constitution which holds that Federal Law always trumps State Law.  

In case that’s not clear, I’ll say it again:  The constitution says that Federal Law is boss.   Therefore, the FDA’s finding that a medical device was A Okay is the law of the land and a State Court’s judgment, holding that a medical device was unsafe,  was struck down per the Medtronics doctrine.

The Court’s decision was completely wrong because it ignores how drugs and devices are reviewed and, more often than not, approved by the FDA and other agencies.   A corporation, which seeks the approval of a drug or device, marches into the FDA’s offices with a bevy of ball-busting lawyers and “expert witnesses,” paid by the corporation, to say that the drug is the best thing since sliced bread.  The FDA scientists are  overwhelmed by the glib, aggressive corporate advocates.   Sometimes, the FDA scientists, envious of the bigger salaries their peers in corporate America get, may approve the application of a drug or device so they can jump ship and work for the filthy rich corporation.

C) Why do you think so many people are dead from Opioid overdoses?  In part it’s because the Sachler family, which owns oxycontin, paid doctors to submit “expert reports” which falsely said that oxycontin was less addictive than other opioids.

D)  This problem is just as bad in blue state as in red states.   For example, have you ever taken a look at the New York City Building Code.  I had to deal with that rabid animal when I was in litigation against some landlords.   

The building code has some really fine language designed to protect people from toxins, injuries, etc.   However, much of it is ambiguous.  The ambiguity is often resolved in favor of the polluting corporate ogre.  Why?

It’s because the preamble to the New York City building Code says that commerce and industry are very critical, cannot be enfeebled with health and safety regulations, that NYC law is desirous of only providing minimal safety measures and that all ambiguities, in the building code, must be resolved in favor of the allegedly polluting party.

E) Enforcement actions, by regulatory authorities, have been declining.  For example, the journal “Science” reported, in its July 2, 2019 issue, that EPA enforcement actions, under Trump, nosedived, https://www.science.org/content/article/exclusive-fda-enforcement-actions-plummet-under-trump

Incidentally, Trump is scheduled to travel to East Palestine Ohio to make hay out of the train calamity.   Most reporters probably won’t note that boys like Trump are a big part of the problem.

F)  If a regulatory agency fails to bring an enforcement action to chastise a polluter or a party who willfully spits on regulations to curb train derailments, what can we do ?   Can we bring suit to make the regulatory agency do its job ??? 

Of course not. The black-robed guardians of Corporate Greed, otherwise known as the United States Supreme Court, have told us that regulatory agencies have broad discretion in doing their jobs.  So, if they want to prosecute a polluter, they can do so.  If however that polluter gave their nephew a job, they can tell the cancer patient to screw himself.  Don’t believe me ?   Read Heckler v. Chaney, 470 U.S. 821 (1985), a supreme court case authored by William Rehnquist, made Chief Justice of the Court in 1986 by Ronald Reagan.

Also scan the American landscape and ask yourself if things really are as hunky dory as Jimmy Fallon and other twitty celebrities pretend:

A)  Why is colon cancer increasing among young adults

B)  Why is autism increasing.  And please don’t give me nonsense explanations to the effect that thirty years ago people did not send very disturbed children for a medical and psychiatric checkup.  Autistic kids are often disastrously dysfunctional and will not even talk.   Believe me, 30 years ago, in the overwhelming majority of cases, when a 7 year old did not talk, he would see a doctor.

C) Why is brain cancer becoming more prevalent

D) Why is testicular cancer increasing

E)  Why is bed-wetting going up

F)  Why did the SEC do nothing about Bernie Madoff when it received highly credible complaints that he was on a stealing spree

G)  Why did the SEC crawl under the covers, and do nothing, when speculators bought credit default swaps, betting that sub prime mortgages would fail, while the confederates of those speculators hiked the penalty charges on homeowners to increase their risk of default.   In a nutshell:  Why was the SEC out to lunch while the great recession of 2008 and 2009 was being engineered in the boardroom of Goldman Sachs and its sister parasites.   

H)  Why do Senators and Congressman permit agribusiness to flood livestock with antibiotics (increasing the development of resistant strains of bacteria --- e.g. the great majority of staph infections, in hospitals, are completely resistant to penicillin and its derivatives including oxacillin, methicillin, ampicillin and amoxicillin ) -- and secrete poisonous chemicals into their products ?

I)  Why do United States Senators have stock portfolios which rise in value with the same regularity that the sun rises in the East. 

It’s because the Congress of the United States is an assemblage of whores.