Supreme Court Dashes Hopes for Justice Against Exxon
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Cordova, Alaska. One year before the Exxon Valdez made her last ill-fated voyage in Prince William Sound, two-year old Makena O'Toole sat bolt upright in bed and declared, "My daddy is a wisherman and I'm gonna' be a wisherman, too!"
In March 1989, Makena's parents put down $30,000, their life-savings, for a $300,000 salmon seine permit -- a limited entry license to fish in Prince William Sound.
Two weeks later on March 24, 1989, the Exxon Valdez grounded on Bligh Reef, spilling somewhere between 11 and 38 million gallons of crude oil into the Sound. And with that, the town's fortunes changed.
Then last month, the U.S. Supreme Court slashed the Ninth Circuit's decision of a $2.5 billion punitive award by nearly 80 percent to $507 million, dashing fishermen's hope for justice in the longest-running litigation over punitive damages in history.
Nearly 23 percent of that sum goes for attorneys' expenses, roughly 30 percent is owned in taxes, and 11 percent goes directly to ExxonMobil to fulfill deals cut with fish processors. That leaves about 35 to 40 percent of the award-about $200 million-for 32,000 individual claims.
Even worse, the Supreme Court ruled that punitive damages should not exceed actual damages. This sets a very scary precedent. It strictly limits corporate liability and removes the ability of Americans to hold corporations accountable to the people and the law.
There are a few other things to consider as well.
We long ago came to realize in Cordova that no amount of money would make us whole. We lost things that didn't count in a court of law because they couldn't be boiled down to dollars -- yet they should count to every American.
The first loss was thousands of damage claims from individuals who were not fishermen, but whose businesses depended on commercial fishing or on the sea.
Imagine if the primary industry in your community was wiped out by the actions of another. If you owned a business that depended on that primary industry, wouldn't you feel entitled to a damage claim as well?
The second loss was long-term harm to the fisheries that started with the 1992 and 1993 pink salmon population collapses in the Sound. The herring population also collapsed in 1993 but unlike salmon, herring failed to recover. It took scientists well over a decade to gather the data that confirmed the collapses were linked to the spill.
Meanwhile, the case for damages was tried in 1994 before there was scientific evidence of long-term harm from oil. So these damages didn't count. Cordova fishermen had hoped that punitive damages would compensate us for true losses -- such as the $60,000 a year in lost earnings from the herring sac roe fishery, or the lost equity on seine permits, which devalued by 95 percent.
Imagine if the equity in your home was wiped out by the actions of another. Wouldn't you feel entitled to damage claims for that loss?
The third loss was justice itself. We have lived to tell that justice delayed is justice denied. There were mortgages due and living expenses to be paid. Countless home and boat foreclosures, divorces, and even suicides might not have happened had damages been resolved within five years of the spill.
Imagine if you were owed substantial damages from another's actions. Would you have signed over your future claims to bankers and loan managers in trade for debt relief as many fishermen were forced to do? If so, then you might understand why we do not consider ourselves made whole by an amount of money that does not even get us back to where we were 20 years ago -- much less where we might have been absent the harm.
The fourth loss was to our quality of life. The court tossed out claims for emotional harm to fishermen's lifestyles and to the Natives' way of life. These claims did not count because, in 1994, the loss could not assigned a dollar value like losses of fish harvests.
But Cordova became a case study for sociologists to measure and count such losses to mental and emotional health. Visiting scientists measured heaping helpings of post-traumatic stress disorder from Exxon's spill that festered and spread like cancer throughout our community, creating other social ills. In future cases, such short- and long-term harms could and should count.
The Supreme Court's decision leaves spill survivors to pick up the pieces. In Cordova, the Supreme Court decision means estates can be closed for those who took their claims to the grave. But it also means a lot of fishermen might lose their boats and permits to foreclosure.
Makena O'Toole is now an adult, and a fisherman. When was seven, the Cordova Times ran a dossier on him. When asked, "What is litigation and how does it happen?" he confidently replied, "Litigation is a boat and it happens when it's built."
In some ways, our legal system is like a boat, originally built by the people, but modified over the centuries through judge-made law to advantage giant corporations. I do not believe that this was the intent of the original boat builders, our Founders, or the subsequent builders who added rights for people left out of the founding charter. Basic rights belong to human persons, not pieces of paper designated as corporate "persons."
Our boat, whether it is our legal system or our government, needs to be held accountable to the people. It needs to reflect the basic values of the people, and it needs to function smoothly and efficiently to restore communities and people's lives after harm caused by another.
Should you find your life and your community in havoc wreaked by a corporation's collateral damage, you will want a better boat than the one the people of Cordova had to sail into the Supreme Court. We could start by asking Congress to overturn the Supreme Court decision. Then let's consider the twenty-eighth amendment to the Constitution of the United States: the separation of corporation and state. The movement has already begun.
Dr. Riki Ott is an internationally known expert on how oil spills affect marine life. A former fisherwoman, she was on-scene in Cordova before, during, and after the Exxon Valdez oil spill. Her forthcoming book, "Not One Drop: Promises, Betrayal, and Courage in the Wake of the Exxon Valdez Oil Spill" (Chelsea Green, 2008), explores social change and reforms from this perspective.