[lbo-talk] Exxon Valdez lessons for BP claimants

Michael Pollak mpollak at panix.com
Wed Jun 9 03:57:24 PDT 2010


[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

Article printed from www.CommonDreams.org



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