Supreme Court Dashes Hopes for Justice Against Exxon

By Riki Ott, AlterNet. Posted July 8, 2008.

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.

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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.

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