EXXON HARD AT WORK

"We will make you whole"

by Buck Meloy

The U.S. Supreme heard arguments on February 27, 2008, about Exxon's liability for the disastrous 1989 oil spill in Prince William Sound, Alaska. And you are probably wondering why. "Wasn't that all settled years ago, and everyone paid for their damages?"

(Ed. note: the Supreme Court upheld the decision, but slashed the damages to 10% of the jury's original award. Payments started trickling out after 2010.)

Exxon would like you to believe that. It has spent more on a persistent disinformation campaign than I will spend on everything in my entire life. A mere three years after the spill, I marveled at a glossy, full color copy of "The Remarkable Recovery of Prince William Sound". I was transiting a part of that same Sound at the time, where previously abundant otters, orcas, eagles, and puffins were no longer seen or heard. Not one. Even now, 19 years later, one still finds gooey, sticky, stinking, toxic crude oil only a few inches below the surface of some gravel beaches on the heavily oiled western side of the Sound. I always take a freshly harvested jar of it with me when I attend meetings outside of Alaska at which it might have political value.

Nevertheless, Exxon's lies will eventually become true. Some aging oil will harden to asphalt, as it already has in many exposed areas. Or it will finally sink to depths where it will go mostly unnoticed. Many birds have been returning and many of the mammals are back. Shellfish like mussels and clams rebounded early, though their appealing flesh remains toxic due to repeated exposure to old crude oil seeping out of the gravel and poisoning their meals. Someday they will again be harvestable for subsistence use, but not yet.

Other decimated shellfish, like Prince William Sound's huge and spectacularly tasty spot prawns, have begun to show up in personal use traps, suggesting that the day is not far off when bounty will again make commercial harvest possible. The picture is not so hopeful for our missing herring. The day may never come when there will be enough of them to feed larger predators or support once large commercial and subsistence harvests. Scientific study suggests that oil has damaged their genes, and that they may no longer be fit enough to recover.

Fishermen always live with the uncertainty of unpredictable fish runs and prices that are determined by forces beyond their control. But the uncertainty generated by Exxon spilling 34 million gallons* of Prudhoe Bay crude oil into Prince William Sound was something no one could have prepared for. Now, 19 years later, many of us think that the spill is mostly behind us. Sockeye and pink salmon runs seem to have stabilized, and hatchery and wild chum salmon are doing pretty well. Prices have eased out from under the pall cast over them by fear of oil-tainting, and they have been creeping back up to levels that make our businesses sustainable.

So what's the problem? Exxon plea-bargained, accepting three criminal charges and agreeing to several multi-million dollar settlements with governmental agencies for damage and clean-up obligations. It also spent a lot of money putting on a very expensive show of cleaning up its mess. I was part of that show, and still feel my bile rise when I reflect on the disingenuous actions of Exxon and its hired contractor, VECO.

A jury of our peers spent 83 days listening to the facts of the case, of Exxon's negligence in allowing a relapsed alcoholic to captain a supertanker, of the company's choice to ignore its own safety rules by sending such a fully loaded ship out without at least two qualified, licensed operators aboard, of Exxon's inability to respond to any spill because it had not maintained the equipment necessary to do so.

I am proud of those jurors, whose lives were disrupted for five months as they addressed their responsibility to their peers and to the American judicial system and the rule of law. They took that responsibility seriously, listened carefully, understood the lengthy instructions provided to them by a balanced and thorough Federal judge, and turned in a verdict in favor of the 32,677 plaintiffs in this extraordinary case.

That verdict called for payment of compensatory damages, which everyone recognized were inadequate to repair harm done, but which fell within the limits set by law and precedent. The verdict also called for punitive damages that were intended to punish Exxon and to provide the undercompensated plaintiffs with some relief for losses that had not been recognized in the compensation settlement. The amount was set at $5 billion. Exxon, once widely hailed for declaring that it "would make us whole", now vowed that it would never pay the punitive damages. This promise was made despite what Exxon once told the District Court: that paying even the $5 billion jury verdict “would not have a material impact on the corporation.”

Exxon obtained three hearings with the 9th Circuit Court of Appeals, but failed to get it to overturn the District court decision, though it did eventually succeed in getting the punitive damages halved to $2.5 billion (about three weeks of Exxon's current net profits). When the Appeals Court finally refused to give it an "en banc" hearing, Exxon turned to the U.S. Supreme Court. To the surprise of many, the Court accepted Exxon's petition, but on narrow grounds. Exxon would now have to prove that the outcome of a 194 year old Caribbean piracy case cited in their petition governed this case, or that the Clean Water Act precludes punitive damages, or that maritime law does.

Exxon's written arguments to the Supreme Court must be an embarrassment to the lawyers who had to write them. Respondents' arguments, by contrast, are clear, direct, and to the point. What a court decided in the early 1800s about who was liable for a privateer's criminal behavior has long since been clarified by decisions more relevant to the current case. And it is obvious that the Clean Water Act was never intended to release corporations from liability for their actions, and that maritime law does not preclude punitive measures.

My hope is that the Supreme Court justices accepted this case out of a sense of obligation to those who got them appointed, but that those same jurists are honorable enough to decide the case wholly on its merits.

Sixteen separate amicus (friend of the court) briefs were filed by individuals, Indian tribes, and governmental and private organizations (including the Attorneys General of 34 U.S. states) urging the Supreme Court to reject Exxon's arguments and affirm the punitive damages award against them. These briefs reflect a fundamental consensus across all political, professional, and geographic strata of American society that what Exxon did in leaving a relapsed alcoholic in charge of a supertanker was highly reprehensible, and that this case demonstrates why punitive damages must be available and imposed upon the worst corporate and environmental offenders in the country.

That's the big picture. Here's a smaller, but important, one: Two recent reports to the National Science Foundation provide both qualitative and quantitative empirical evidence that significant levels of spill-related psychological stress, depression, hostility, and loss of trust in the judicial process characterize residents of Cordova seventeen years after the spill.

That probably doesn't much bother the approximately 7,000 plaintiffs who have already died since this litigation began.

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*Sound Truth and Corporate Myth$: The Legacy of the Exxon Valdez Oil Spill, Dr. Riki Ott, Lorenzo Press, 2005

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