[The interesting thing about this parallel is that of course most of us would normally never have thought about the victims of the Exxon Valdez. The court system is kind of a legitimation miracle that way: it makes every victim of an important corporate crime isolated and forgotten, which is part of why the crimes themselves vanish from the memory as if they'd been fixed.]
http://www.commondreams.org/headline/2010/06/08-7
Tuesday, June 8, 2010
Huffington Post
Exxon Valdez Lawyer: Louisianans, 'To Use A Legal Term,' Are 'Just
Fucked'
by Sam Stein
Long after oil stops spilling from the Gulf and the ecological
catastrophe caused by the spill begins to be cleaned up, the process of
determining the extent to which BP owes the afflicted will be litigated
in the courts.
And while the
case against the oil company seems fairly clear-cut (BP admits, after
all, to being responsible for the worst environmental disaster in U.S.
history), a lawyer with perhaps the most relevant experience on the
matter at hand is painting a depressing picture about the litigation
ahead.
"[I]f you were affected in Louisiana," said Brian O'Neill, an attorney
with the firm Faegre & Benson, "to use a legal term, you are just
fucked."
More than any attorney in the country, O'Neill personally understands
the implications of that imprecise legal term. For more than two
decades, he represented fishermen in civil cases related to the now
second-most-damaging spill in U.S. history: the Exxon Valdez spill in
1989. And from it, he learned valuable lessons about how to sue an oil
giant for the damages it has caused -- above all, to push for the best
and plan for the worst.
"In Valdez we had 32,000 legitimate claims -- that was a lot," he said
in an interview with the Huffington Post. "I think there will be more
claims in this one."
"These big oil companies, they have a different view of time and
politics than we do," he added. "The fact that BP hard-asses it a
little bit for 5 to 10 to 15 years, despite all the bad publicity there
may be between segments of society and BP as a result [of this spill].
Exxon sure weathered it really well. The market went up the next day
for Exxon stock [after the settlement]. They just thrived despite
treating an entire state poorly. And there is a lesson there for BP,
and that is: it really doesn't matter whether you treat these people
nicely or not. The only difference is if you extract oil. It sounds
cynical but it might be true."
The similarities between the two crises are telling in many ways. When
Exxon's ship hit Prince William Sound's Bligh Reef -- in the process,
releasing an estimated minimum of 10.8 million gallons of oil into the
water -- the company pledged (like BP has done now) that they would
cover the entire cost of the cleanup and all legitimate claims of
damages. Two decades of litigation and appeals resulted in punitive
damages being reduced from $5 billion to $500 million.
The irony, as O'Neill tells it, is that the law Congress passed in the
wake of that spill -- the Oil Pollution Act of 1990 -- may end up
hindering the type of relief that Gulf residents can expect currently.
Under that legislation, a $75 million cap was placed on economic
damages that an oil company can pay as a penalty for a spill (this
isn't true, O'Neill notes, in states that have passed their own
liability caps -- of which Louisiana isn't one). Congress is currently
trying to lift that cap. But there are constitutional questions about
whether it can do so retroactively [1] to cover BP.
"Constitutionally, I don't know whether you can do that. I don't know
whether it is ex post facto," O'Neill said. "It will likely be
challenged. I would, if I was representing BP."
There are other problems that the Exxon Valdez vet recognized when
discussing the forthcoming courtroom battles for BP. There are
questions, for starters, as to who actually can sue the oil company
under the Oil Pollution Act law and whether, in fact, those 11 workers
killed on the rig will have their settlements capped by the Death On
the High Seas Act. Mainly, however, O'Neill is concerned over the
pervasive influence that the oil industry has on all sector of
governance -- which he predicts will weigh heavily on the legal
process.
"This is more important than banks," he said. "This is oil. And at some
point in time, the administration and the states will resolve all their
dealings and it will leave fisherman and the tourist industry to
resolve their differences in the courts. It could be another 20 years
till then because BP [is] going to defend this like Exxon did."
© 2010 Huffington Post
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