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Exxon Valdez – The Final Showdown?

~An Exxon Valdez oil-filled footprint on a beach in Prince William Sound, known as “The Death Marsh” and “Diesel Beach.” Taken July 4, 2010 – twenty-one years after the spill. (photo by Jeanne Devon)

By Prof.  Rick Steiner

In what could be the final court showdown regarding environmental damage from the 1989 Exxon Valdez Oil Spill, tomorrow (1:30 PM, Tuesday Nov. 15, 2011) the U.S. District Court in Anchorage will hear oral arguments regarding the final payment from Exxon for long-term environmental injuries from the spill.

The present Court proceedings were triggered initially by my 12/7/10 amicus motion, then the Court hearing 3/4/11, at which the Court ordered the parties – Exxon, the State of Alaska, and the U.S. government – to seek to settle the Reopener for Unknown Injury claim pursuant to the 1991 Consent Decree (the historic $1 billion settlement), and to report back to the Court by 9/15/11 on progress in reaching settlement.

The governments (state and federal) submitted in May 2006 a restoration plan to conduct more beach cleanup of residual oil with reopener monies, followed by an August 31, 2006 “demand for payment” to Exxon for $92 million.  Since then – over 5 years ago – Exxon has not paid, and the governments have not pursued collection.  All the while, the ecosystem injured by the 1989 Exxon Valdez spill remains far from fully recovered.  Government research shows that there exist many ecological injuries that were not anticipated at the time of the 1991 settlement, and there are reasonable, cost-effective restoration options to address these unanticipated injuries.  This was to be the sole trigger for the $100 million Reopener payment, but the parties have not finalized the payment and taken no additional restorative action.  Thus, I filed my amicus motion last December, triggering this final round of judicial review.

In response to the Court order that the parties seek to settle the claim and report back to the Court by 9/15/11,  Exxon filed an 8/9/11 motion asking the Court to dismiss the government claim, asserting that the Reopener provision was meant for additional “restoration,” not more cleanup as the government proposed.  The government objected on 9/9/11, and asked for more time “to study” the issue.  In response, I filed another amicus on 9/19/11 asking the Court for three remedies:

1.     Order Exxon to immediately pay the government demand ($92 million) + interest (about $25 million now) = total $117 million

2.     Grant the governments discretion regarding how best to use these monies in the best interest of full ecological recovery, and order government parties to expedite actions to do such; and

3.     Issue guidance to other Courts regarding the construction of future Reopener for Unknown Injury provisions in environmental consent decrees (e.g. BP Deepwater Horizon) seeking to avoid the problems that have plagued the Exxon Valdez Reopener provision.

The Court denied my 9/19/11 amicus, but it can still order the requested relief.  Or, the Court could agree with Exxon and dismiss the government claim altogether, or it could agree with the governments and allow them more time to study the issues.

Importantly, in my September amicus, I asked that Exxon make clear if it intends to invoke the 6-year statute of limitation regarding contract claims, which some legal scholars say would extinguish the government claim this coming August (2012).   Exxon’s opposition to my motion was silent on that request, leaving to a presumption that indeed Exxon intends to invoke this argument.   Thus, the clock is ticking on this claim.

“The failure of the parties in this historic Exxon Valdez case to make good on their agreement 20 years ago seriously undermines the credibility of promises by the oil industry and government today regarding their commitment to responsible development of the Arctic OCS.”


[Editor’s addition] This is a video I took on July 4, 2010. It was 21 years after the Exxon Valdez ran aground on Bligh Reef.  I went looking for remnants of oil that still remained. They were easy to find.  -Jeanne Devon



7 Responses to “Exxon Valdez – The Final Showdown?”
  1. mike from iowa says:

    For remedy #2,is it possible that the government of the state of Alaska can decide to give its share of monies back to Exxon and claim that is the best use in the best interest of full ecological recovery? Parnell has pretty well staffed gov’t agencies with rubber stamps if I remember correctly.

  2. Annie Pavlovna says:

    It’s very obvious that it was destroyed, I’ll also spread this thing to others.

  3. Zyxomma says:

    Seeing this — even from the comfort and safety of my Mac, here in NYC — makes me queasy. What’s the matter, Exxon, saving the money for a rainy day? Clean up your mess (which, if I understand Greg Palast correctly, is BP’s mess, too) and pay up. Now. Without further delay.

    • Krubozumo Nyankoye says:

      Zyxomma – NYC, pity the plutocrats are in charge there at the moment, I hope things will improve. I spent 4 years in the city getting my initial college education. 68 to 72 to be precise. I haven’t lived there since but it was a wonderful place to live. I enjoyed it thoroughly and I was not by any means rich. I have dated myself have I not? Yes I am a DFH, dyed in the wool.

  4. Krubozumo Nyankoye says:

    It makes you wonder how some people can live with themselves. While it is true that there is a legal tradition of defending the indefensible, there are many issues raised by extending that to entities that are not in any sense responsible other than for some money.

    The fact is apparently that money does not need much in the way of defense. It can get along quite well just on obfuscation and delay. In such a clear cut case as this, the long and obviously advantageous delay in final resolution to the party ultimately responsible, is a signal event. It signals that crimes of a magnitude far beyond the reach of any individual’s capacity to do harm, will largely go not only unpunished, but without even modest chastisement.

    This old claim is dwarfed by the fraud and wanton infliction of financial destruction on millions of people that we have seen the past four years. But this of course does not even begin to suggest the injury that is being done in the name of profit. A score of coal miner’s lives have become a cold case, no one in particular is responsible. A few thousand people a year succumb to decades of exposure to airborne methyl-mercury, yet no one is responsible. The global climate is being pushed in a certain direction as the direct result of the cumulative effect of exhuming fossil carbon on a gigantic scale, but no one is responsible for preventing any collective coordinated action to mitigate and understand the consequences. The very people who might offer some foresight that is reliable are pilloried as being self-serving.

    The reality is we live in a world that is not just amazing in its complexity, but daunting. Yet so far we have as a species been able to make some progress. Oddly, some of us are not just unable to grasp this complexity and its challenge, but unwilling to admit of its existence. Instead everything is explained by a simplistic fantasy.

    I do not say these things to deflect concern or to belittle the issues that are of less than global nature, but to point out that what we have been doing up to now, has not worked. The problems we face have grown far larger, far more complex and far more difficult to solve. Or even ameliorate.
    Denying that they exist will not provide any relief at all from their consequences as they play out.

    As the prescient Pogo cartoon from the 1960s pointed out – “we have met the enemy and they are us.”

  5. Mo says:

    Rick, we all owe you on this one. Thank you. What can we do to help you?