Fifteen Years in Cordova: How ExxonMobil Used the Legal System to Avoid Paying Valdez Damges
Author’s Note: A digested version of this investigative piece was published in The Nation in April 2004 and in longer form in E: The Environmental Magazine later that year. I’ve re-published here at the request of scholars, writers, and environmentalists who have had a hard time locating a hard copy. Please note that this is an extended version of my Exxon article.
In a tiny bakery just across the street from the Fisherman’s Memorial in Cordova, Alaska, Brian O’Neill is using a tablecloth — a laminated nautical chart of Prince William Sound — to diagram the worst environmental disaster in North American history.
On March 24th, 1989, Captain Joseph Hazelwood, who had been treated for alcoholism, stepped onto the oil tanker Exxon Valdez having consumed, according to him, three vodkas on the rocks at various waterfront bars in the port city of Valdez. O’Neill, however, filed affidavits from Valdez bartenders claiming the captain drank the equivalent of five doubles, or, in the words of the Court of Appeals, enough to make most people unconscious.
“The highest executives in Exxon Shipping Company knew Hazelwood had an alcohol problem,” O’Neill told the American College of Trial Lawyers in 2002 speech outlining the legal odyssey of the Exxon case. “They knew he had been treated for it, and knew he was drinking again.” After the spill, the Boston Globe found a pretrial deposition from an unrelated harassment suit filed against Exxon some years earlier in which the plaintiff, a second mate, said that Hazelwood’s problem drinking was so well known in the company that there was even a tired joke about it. “It’s Captain Hazelwood and his chief mate, Jack Daniels, that run the ship.”[i]
“His alcoholism was as clearly charted as Bligh Reef,” O’Neill said. “Exxon knew he was drinking again, and somebody should have said stop at this point in time, and nobody did.” The oil spill eventually spread down 1200 miles of coastline, the equivalent of the distance between Minneapolis and New York. The environmental damage was catastrophic. Cleanup crews watched in horror as otters scratched out their own eyes to rid them of oil. U.S. Department of Justice teams recovered the carcasses of more than 36,000 migratory birds and a thousand sea otters, and believe these numbers represent only a fraction of the actual death toll.
It is now fifteen years later in Cordova, Alaska, perhaps the hardest hit of all the fishing villages on the Sound. The chill from the Childs, Sheridan, Miles, and Scott glaciers is felt here, sometimes even during the summer, and the Chugach Mountains cast shadows on Main Street through the early evening and sometimes into the night, when the sun sets late. Cordova, a town of 2600 on the southeastern rim of Prince William Sound, is accessible only by plane or boat, and that’s how folks here like it. During the autumn and winter months, Cordova is a depressed fishing port on Prince William Sound — depressed since the spill — filled with former high-liners mending nets in cannery warehouses and bartenders refilling beer glasses.
O’Neill moves his half-eaten sandwich to the side and points to a light-gray ribbon on the tablecloth, which stretches from the port of Valdez to the Gulf of Alaska — the Sound’s shipping lanes that run from the Alaskan Pipeline’s southern terminus at Valdez to the Pacific Ocean.
“These lanes are a kind of two-lane highway,” O’Neill tells me. “If you’re outgoing, you don’t cross into the incoming lane, and vice-versa. Now, keep in mind that in order to navigate an oil tanker in the Sound, you need a special license. Hazelwood was the only one board with that license.” Just out of the port, the Valdez encountered some growlers — or chunks of ice separated from a glacier — and Hazelwood changed the vessel’s course from 200 degrees to 180 degrees, steering the tanker outside of the shipping lane. It was a significant maneuver, one that would have attracted the attention of the Coast Guard, had the man on watch not left the monitors to grab a cup of coffee at the very moment of Hazelwood’s turn.
I watch O’Neill’s finger cross the gray ribbons and slowly approach a clearly charted reef, clearly charted even on this tablecloth: Bligh Reef. After crossing the shipping lanes, Hazelwood put the tanker on autopilot and increased the tanker’s speed. He instructed an exhausted, unqualified third mate named Gregory Cousins to turn the ship when it came abeam of Busby Island. The turn was two minutes away. Hazelwood did not wait two minutes to supervise the turn. He left the deck and returned to his cabin. Gregory Cousins had never piloted a vessel outside of the shipping lanes, but was a conscientious student. He retired to the map room to chart the turn, which was, now, just a minute away. Cousins stayed in the chart room for ten minutes.
“Now, at this point the lighthouse at Bligh Reef was on the right of vessel. Every captain, every seamen, probably every deckman on an oil tanker knows it should never be on the right side of the tanker.” O’Neill looks up at me. “They were fucked.”
For a few months after the Exxon Valdez leaked eleven million gallons of oil into the once-pristine waters of Prince William Sound, the catastrophe was imprinted on the national consciousness. But, as time passed, it became nothing more than a few stubborn media images: an oiled otter, a tar-covered seagull, men in haz-mat suits wandering the beaches spraying boulders with boiling water. An out-of-work commercial fisherman was never among the emblems.
When Brian O’Neill walks the streets of Cordova, he wears rainbibs, a polar fleece, a fisherman’s rain slicker, and heavy-soled work boots, looking like just another unemployed commercial fisherman. But in Cordova, no one mistakes him for a seiner or a gillnetter; he’s their lawyer. And when he walks down First Avenue, a guy in a truck is apt to slow down and honk. O’Neill will amble up to the driver’s side window, lean in and dispense some legal advice (“Eighteen to twenty-four months for checks, is what I believe” and “Fill out every form you receive, even if you’ve filled out the same form twenty times before.”) O’Neill is a stocky man with tousled blond hair and a round, soft face. He seems, on first meeting, deeply shy; but he has an acute sense — and appreciation for — irony. It’s a tool he uses both in the courtroom and in the barroom. O’Neill receives both accolade and invective from people in Cordova — sometimes both from the same person over the course of a single conversation.
“They are very different and very wonderful,” he says says of his clients, nearly all of them Sound fishers or Alaska native Indians. “They’re good people, people who are comfortable moving off the grid.” But fifteen years off the grid has taken its toll in Cordova.
The Exxon civil case, like the spill itself, is unprecedented. It began in 1990, when hundreds of fishers and natives whose subsistence lifestyle had forever been altered and, in some cases, destroyed by the spill, filed lawsuits against Exxon. That same year, attorneys for Exxon filed motions to dismiss the charges in the five-count criminal indictment resulting from the spill. In technical arguments, the company claimed it could not be held criminally liable for the actions of Joseph Hazelwood, despite the fact that officials had been told previously that Hazelwood was an alcoholic who had a history of shipboard binges. But perhaps the most memorable brief from this first round was the one in which Exxon claimed that crude oil was not a pollutant under the federal Clean Water Act, which it had violated, along with the Refuse Act, the Migratory Bird Treaty Act, the Ports and Waterways Act, and the Dangerous Cargo Act.
“The crude oil on board the Exxon Valdez was not a waste,” Exxon Shipping attorney Edward Bruce said in Anchorage Federal Court. “It was a commodity.”
The next year, discovery in the Valdez case began, and Brian and his firm, Minneapolis-based Faegre & Benson, consolidated the individual lawsuits. The discovery in the case was a massive undertaking; by the time it was over, the case file would contain fourteen million documents, more than a thousand depositions, and 618 separate written opinions from the U.S. District Court and Discovery Master.
On September 16th, 1994, more than five years after the spill, a federal jury in Anchorage awarded in excess of five billion dollars in punitive damages against Exxon to Alaska natives, property owners, and commercial fishers on Prince William Sound. Immediately, Exxon filed more than two dozen post-trial motions. It would be more than a year before these were resolved. In 1995, post trial motion practice began in Anchorage’s federal district court, and in 1996, a final judgment was entered. Exxon appealed. It would be yet another full year before its appellate briefing was completed and brought before the Ninth Circuit Court.
In the meantime, the pollution of a world-class salmon fishery had affected the market, diminishing demand for the Sound’s catch at a crucial time when there was already a glut of pink salmon, and salmon farms in Chile and Norway were taking up a larger share of the market. As O’Neill tells it, “these guys just lost shelf space permanently.” Although pink salmon and herring catches peaked in the two years immediately following the spill, the two fisheries have since collapsed. Commercial fishing markets are fickle, sensitive to natural and manmade events. For example, after the catastrophic 1964 earthquake in Alaska, Japan, Cordova’s largest market, panicked about losing access to Sound fish, and so began overpaying. The seventies and eighties were times of large loans and million dollar boats. Then the so-called Japanese Miracle disappeared, so Sound fish were already losing value. Then, suddenly, there were eleven million gallons of North Slope crude in Prince William Sound. Cordova was once a town of high-liners, a term reserved for the most successful commercial fishers, guys who might have brought in a couple hundred thousand dollars a year, if not more. Today, most fishers in Cordova will tell you there isn’t a single fisher in town who’d be considered a high-liner by pre-spill standards.
One of the grimmest aspects of the spill’s effect on Cordova has been the state of the once highly coveted commercial fishing permits. In Cordova, commercial fishing permits are like homes — it is fisher’s greatest investment, something that stays in the family, an asset that accrues value. In 1988, there were fishers in Cordova whose permits were worth nearly a million dollars. Today, their permits — fishers often call them their “nest eggs” — have depreciated in value by a staggering 90%.
Like the town of Cordova, the local Masonic Lodge is a ghost of its former self — its stucco and cement crumbles around the corners, its meager lawn is brown and sparse. Inside, eighteen chairs have been placed in a circle and the upright piano has been pushed against the south wall. Tonight’s meeting is a kind of test-run, the preliminary gathering of fishers and cannery workers a sort of focus group for Brian O’Neill. He returns to the stricken fishing villages on Prince William Sound on a fairly regular basis to update his clients on the progress — or lack of progress — of their case and to answer their questions about possible payout figures. With each year that passes, fewer and fewer Cordova fishers are counting on the Exxon money.
Most of the people in the room tonight remember Don Cornett’s visit to Cordova in the days following the spill as clearly as they remember the birth of their children. Six days after the spill, Cornett, an Exxon spokesman, addressed heartbroken fishers and cannery workers in the town’s high school auditorium.
“You have my word,” Cornett told them then. “I said it, Don Cornett. We will do whatever it takes to keep you whole. We do business straight.”[ii] No one in this room has forgotten that promise and no one has failed to notice that things haven’t exactly worked out that way.
A man walks in late. He pours himself a cup of coffee and stands back near the kitchen, listening to his neighbors talk about how they now consider their wives’ health insurance plans dowries and how the new definition of a high-liner is a fisherman whose wife has a good job. The man keeps his eyes on Brian O’Neill. He listens to as much as he seems able, then turns to O’Neill and says, “Where in the hell is my money? That’s what I want to focus on. If any of us knew we’d be having this meeting fourteen years later, we’d have liquidated and moved out. Maybe we should have.”
The man’s name is Phil Lian, and in 1988, he had a life and a career fishing and selling supplies to Cordova’s fleet. He was a “high-liner”, one of the most successful fishers and businessmen in Cordova. His family took vacations. His kids were going to go to college, then take over the fishing business that had been in the family for 160 years. Lian is a man who was used to making money. His business was growing at 80% a year, and it was grossing two million dollars a year. But then after the spill, with no herring fishery and poor returns and prices on the others, no boats were going out into the Sound. No one needed supplies. Lian might have been able to survive had the herring fishery been closed one year. But it has now been closed for more than ten years, and he’s out of business. Lian is afraid the massive debts he’s accrued are all he’ll be able to leave to his children after he’s gone. Today, his empty fishing supply superstore, across the road from the Cordova Fisherman’s Memorial, is a Dickensian symbol of memory, loss, and matters left unresolved.
“You take fourteen years out of a person’s life,” Lian says. “I mean, our lives are on hold. Most of our assets are worthless. If we are going to have a retirement, it is now going to have to be from that settlement. As fishers, we are independent businessmen. There aren’t retirement programs. No benefits. Fishers have to create their own benefits. You need to bring in enough money to afford life insurance. Your nest egg is — or was — your boat and your permit. Now these things aren’t worth anything.”
“We’re going to get the award,” O’Neill says. “In regards to your anger — “
“I don’t like to call it anger,” Lian says sharply. “I like to call it frustration.”
“Well hell, I’m angry!” O’Neill shouts. “When I started this case, I was a forty-one year old with a wonderful legal career head of me. I’ve been working on this drunk driving case for fourteen years.”
“If I was just an average fisherman, what can I expect to get? They can’t tell me,” Lian says.
“I can,” O’Neill says.
“I’d like to know,” Lian says. “I’d keep it quiet.”
“Could you keep it quiet after three beers?”
Jack Babic is taking Brian O’Neill on a ride around the Sound in the purse seiner he hasn’t used for herring fishing in the ten years the season has been closed. Babic uses his boat now to fish for red salmon; but the salmon prices have plummeted, and so he watches the halibut fishers and their haul jealously.
“We have halibut envy,” Babic says to O’Neill. “Those guys come back with 50,000 pounds in two days, at three dollars a pound.”
“You’re shitting me,” O’Neill says. Jack Babic and his wife, Heidi, are two of O’Neill’s thirty-two thousand clients. Jack made out well after the spill; Exxon hired local fishers to help with the cleanup, and the company paid handsomely. The Babics took the money they made and bought a boat they hoped to pass on to their children. Then the herring seasons were cancelled, and the salmon prices dried up, and suddenly the Babics had no viable fishery and had to start thinking about how to manage their finances until the Exxon payments came through. Those payments always seemed just around the corner, and people planned their lives around them. That money was how their kids were going to get to college; that money was how they were going to retire now that they had no fishing money coming in; that money was going to be used to pay off the debts they’d accrued since the spill. But that was fourteen years ago.
“Fishing used to support this community, and quite nicely, but not anymore,” Jack says. “I was born in this. I never wanted to do anything else. I think of the last fourteen years as lost opportunity. You can’t quantify it in terms of dollars”
O’Neill asks Jack if he’s angry. Jack keeps his eyes on the horizon, one hand draped over the steering wheel, the other holding a cup of coffee.
“I just try to make the best of the situation I have,” he finally says. “I’m still angry, but how long can you be angry? Shit happens in your lifetime. We’re fishers; we have to adapt.” Jack seems surprised at the rising tone in his own voice. “What’s the point of running around pissed off all the time? It doesn’t feel goddamn good. I see people in this community living their lives in anger, and I don’t want to live my life that way. I can’t. I just don’t like what I see when these individuals run around with a cloud over their heads for fourteen years. It’s not a guaranteed thing that we’ll be compensated. You just try to pick up the pieces and move on. Isn’t that what we have a responsibility to do?”
“Some people are smarter than others,” O’Neill says. “Eighteen to twenty-four months, and the final and whole settlement will be distributed.” It’s clear Jack doesn’t believe this forecast. Does he believe O’Neill?
“I believe he believes it. I believe that damn company will find a way to put the skids on it. I can’t say I totally believe him.” O’Neill picks flakes of Copper River red salmon off a plate Heidi brought up from galley and watches the otters floating on their backs in the Sound, cracking open razor clams on their bellies. Heidi smiles at O’Neill and says: “But I’m glad you believe it.”
The Ninth Circuit Court of Appeals in San Francisco has been a source of great frustration for Brian O’Neill, who considers it one of the most sluggish federal courts in the country. In 1993, the Valdez parties had appealed to the Ninth to settle the question of whether the case ought to be tried in federal or state court. More than a year passed with no word from the Ninth as to how the parties should proceed. Meanwhile, in Cordova, the herring season was canceled, and thousands of commercial fishers were suddenly facing another summer of devastating losses.
Finally, on May 3, 1994, the parties to the Valdez case decided to start trial in the federal courthouse in Anchorage without the requested Ninth Circuit guidance. The case was conducted in three exhausting phases. Phases one and two dealt with questions of recklessness (a finding of recklessness against Exxon was necessary for O’Neill to have any hope of recovering punitive damages) and actual damages caused by the spill. Phase Three determined if punitive damages would be awarded, and if so, how much.
In closing arguments in Phrase Three of the Exxon trial, O’Neill told the jury the world was watching them very carefully.
“If the headline in the newspapers — and in this case it will be Barron’s or Fortune or Money — is that Exxon Walks Away, Exxon Gets Off, Exxon Goes Scott-Free, what does that say to the rest of the oil industry? What does that say to the big fifteen or sixteen powers of the world? That we can mount a defense in a courtroom that gets us off the hook?”[iii] Exxon’s lawyers pointed to the massive cleanup of Sound beaches, which pumped huge amounts of money into the local economy. Wasn’t the two billion dollars the company spent in cleaning up the spill punishment enough? Did the jury really want to punish corporations that accepted responsibility for its mistakes? Would that not set a dangerous precedent?
“Accept responsibility?” O’Neill asked in his closing arguments. “They didn’t have any choice but to accept responsibility. It’s on a reef, the state authorities are coming out; what are you going to do, paint the smokestack and put Sea River on it? Exxon has no place to hide.”[iv]
Despite losing this case, Exxon would spend the next nine years continuing to mount a defense that would, they hoped, result in the Ninth vacating or overturning the punitive damage award. In 1998, the fully briefed Exxon appeals went to the Ninth. And sat there. And continued to sit there. The next year, 1999, 60 Minutes broadcast a segment on the ten-year anniversary of the Exxon spill; it focused, in part, on the inaction of the Ninth in the Exxon matter. The day after the segment aired, the Ninth scheduled argument. The appeals on the merits of the action were finally argued in May of 1999, five years after the trial — and ten years after the spill.
The briefed and argued Exxon Valdez case then sat in the Court of Appeals through the rest of 1999 and all of 2000. By this time, nearly three thousand of the almost 32,000 claimants in the case had died, and the debt load in Cordova was, according to some people in town, about to exceed the award.
In November of 2002, in what was perhaps the nadir of Brian O’Neill and Cordova’s experience with the Ninth Circuit, the court vacated the punitive damage award of five billion dollars, calling it excessive. It sent the case back to Judge Russel Holland for recalculation. As O’Neill has found out through his battles with Exxon, it is sometimes a challenge to discover — to recover, rather — human morality in the sterile, unforgiving worlds of law and corporate America.
Dr. Steven Picou, a professor of sociology from the University of South Alabama, rivals Brian O’Neill for the title of most popular out-of-towner in Cordova. He has spent the last fourteen years studying the effect the Exxon spill has had on the towns of the Sound. Over the years, his focus has slowly shifted from the effects of the environmental devastation on the fishers to the sociological and psychological damage the unmitigated legal battle has inflicted, in Cordova in particular.
“You have in the Sound small, face-to-face communities where a handshake is worth a lot more than a legal contract,” Picou told me. “You can’t help now but to run into an Exxon conversation, either at the table next to you or down the bar from you.”
Those fourteen years have convinced Picou that litigation as a means of resolving environmental disasters gives the parties responsible — i.e. an ExxonMobil or an Amoco, in the case of the Cadiz disaster — legitimate opportunities to escape their liability and responsibility for the damage they caused.
“I think the vast majority of people in Cordova believed the reps from Exxon,” Picou said. “And probably those reps thought they were acting in an honest and forthright manner. But once the issue transformed from how-to-get-out-of-the-media-limelight to how-to-get-in-a-position-to-protect-our-profit-margin-and-stock-value, then it changed overnight. They zipped up their purse strings, got out of town, and said: you’ll find us in the courtroom.”
In a keynote address presented at the Earth Charter Summit in 2002, Picou outlined what he considered Exxon’s legal strategy for avoiding payment of the punitive damage decision.
“Hire the best attorneys money can buy, and aggressively attack plaintiffs in every manner possible, while also delaying court proceedings by any legal means necessary for as long as possible, no matter how frivolous the challenge. Hire your own scientists to evaluate ecological damages and pervert the process of science by hiding behind any degree of uncertainty that may and will always characterize independent scientific damage assessments.” In other words, Picou believes that litigation in the cases of big business versus communities devastated by “collateral damage” provide those corporations a kind of insurance policy against future disasters, a policy underwritten by the U.S. court system.
It wasn’t long before Dr. Picou was drawn into the litigation himself. In 1992, he received an eight page civil subpoena from Exxon attorneys, demanding that he turn over much of his research documents — including interviews conducted with Cordovans, documents that contained their names and addresses. While Picou was willing to share much of his research with Exxon, he refused to turn over confidential material that revealed the personal details of his interview subjects. The University of South Alabama filed a protective order on his behalf. A month later, Exxon deposed him, and all of the Picou project financial records, files, and other materials had to be turned over to the company’s lawyers. Because of the protective order, Picou did not have to turn over any personal data. Over the next four months, Exxon tried to obtain Picou’s data by filing motion after motion and affidavit after affidavit in court. News of Picou’s legal problems with Exxon reached Cordova, and respondents to his surveys became fearful. In the spring of 1993, a worried Cordovan who’d participated in Picou’s research and who had called him with his concerns, committed suicide. This is when Picou says protecting his subjects’ confidentiality became his obsession.
The data Exxon was so eager to subpoena from Dr. Picou included damning statistics from Cordova: a third of fishers were clinically depressed; approximately 37% exhibited symptoms of Post Traumatic Stress Disorder; twenty per cent had clinically significant symptoms of anxiety. The mayor of Cordova had committed suicide (his ashes were scattered over Bligh Reef.) Sixty per cent of Cordova commercial fishers have had to take second jobs to make ends meet. Toxins, Picou was finding, had contaminated more than just the water; they had contaminated the town of Cordova.
Down the road from Copper River Seafoods cannery, Brian O’Neill pulls up to a barn-like warehouse. Upstairs, guys are mending nets, including two redheaded brothers: Robbie and Mike Maxwell. Robbie is boyish and trim. His first year out of high school, he made $75,000 fishing — in 1977. His older brother, Mike, also did well for himself; as local kids, fishing was the only thing they’d ever wanted to do. Nowadays they still fish, but don’t make enough to make a living of it, so they repair fishing nets during the off-season. They greet O’Neill warmly, but keep their eyes on their hands as they mend a giant green net for a hatchery. The Maxwell brothers remember one of the most familiar images of their childhoods: the sight giant oil tankers coming into the Sound from the Gulf of Alaska.
“We didn’t want it,” Mike says to O’Neill. “We knew what would happen. They promised us safeguards, and never delivered. It’s been fourteen years since we had this spill we knew was going to happen. It’s a total failure. Most people think Prince William Sound is cleaned up. You can go dig up oil now!” O’Neill approaches Mike and watches him mend the net. The mender’s movements are mechanical, tugging and weaving and pulling the twine towards his body in repeated violent jerks.
“If a company is big enough and rich enough,” O’Neill says as he watches Mike’s hands, “They can have enough lawyers that they can bring the legal system to a standstill.”
“But let me ask you a question,” Mike asks his lawyer. “’Punitive’ means to punish, right?”
“So how does five billion hurt Exxon?”
“Five billion is more punitive than nothing,” O’Neill says.
Punitive damages, in legal terms, is the penalty necessary to express society’s disapproval of conduct that that society condemns. Three questions must then be settled: what is the degree of the reprehensibility of the conduct; what is the magnitude of the likely and actual damage caused; and what is the financial condition of the defendant. As Brian O’Neill likes to say: “What is punishment for a poor man can be nothing for a rich man.”
It can even be reward. The Alaska Daily News reported that while the five billion dollar award sits in coffers, awaiting a final judicial decision, Exxon is earning, in interest, $90,000 an hour — or nearly $800 million a year. Exxon has earned enough interest on the delays to pay the five billion award.[v]
“Who’s being punished here?” Mike Maxwell asks O’Neill as he finishes up the hatchery’s net. “We are. Looking into the future, is my son going into fishing? Absolutely not. Exxon can do this to us, and they’re not even being hurt. Then the Ninth says the punitive damages is too much? What’s too much is that there is still oil out there. We are still being damaged. That’s what’s too much.”
“The best I can do,” O’Neill says to Mike Maxwell before he leaves, “is to get the five billion. I can’t put the Sound back together.”
Mike looks up from his mending. “I would just love to collect the Exxon oil that is on our beaches, and dump those gallons of oil on the front yard of its corporate headquarters. It’s been in my front yard for fourteen years.”
After fifteen years of bad press, it’s not surprising that Exxon’s chief spokesman, Tom Cirigliano, doesn’t want to talk about Cordova anymore. Since 1989, Exxon has spent a total of $2.1 billion on attempts to clean up the Sound. It has paid out about one billion dollars settling state and federal claims (most of the government’s settlement money was used to buy land in the Sound and on the Kenai peninsula from Native corporations — which infused the economies of local Native economies that had been in trouble). The company also paid about $300 million to the 32,000 plus fishers in the Sound towns for losses suffered in 1989 when the entire fishing season had to be canceled[vi]. Divided equally (and the payments were not equal), that is roughly $9,500 a person. Fishers in Cordova could usually bring home $100,000 a season.
“I don’t want to waste any more time talking about it with you,” Cirigliano said when I called him at his Houston office. “When they say we’re dragging our feet, they’ve appealed a number of issues with regard to this and dragged their feet when it was to their advantage considerably. And as far as Brian O’Neill, we don’t want to give an opinion on him. He’s talking out of both sides of his mouth.” Cirigliano then directed me to a website ExxonMobil maintains, which is dedicated to its P.R. efforts regarding the spill. “That’s Mobil without the e,” he said dryly.
The collection of press releases and opinions found on Exxon’s website run the gamut from its statement on the condition of Prince William Sound (“The environment in Prince William Sound is healthy, robust, and thriving.), to changes the company has made to prevent another Valdez (“Restricted safety-sensitive positions to employees with no history of substance abuse.”), to its opinion on the ongoing litigation involving commercial fishers (“ExxonMobil is exercising a fundamental right to appeal these damages.”)
Much of Exxon’s PR energies are directed towards refuting claims made by government scientists like Jeff Short. Short, a federal chemist from Auke Bay Labs in Juneau, designed and supervised the same study Richard and William worked on for a summer, digging pits in various Sound beaches and often finding Exxon oil there. Short is a slight man, with thinning brown hair, glasses, and an anxious, timid demeanor. He has been studying the environmental effects of the spill for years, and in January of 2002, Short reported that there was still Exxon oil — lots of it — in Prince William Sound. The summer before, he’d led a research team that dug nearly nine thousand pits on various island and mainland beaches, using a sampling technique that Short had had reviewed by national experts in order to avoid unintended bias.
“Much more oil was found than anticipated,” Short wrote in an editorial in the Anchorage Daily News. In fact, Short’s research found more than 200 times more oil than Exxon had claimed; on the beaches hardest hit by the spill in 1989, Short reported that the chances of finding oil on those same beaches twelve years later was better than 1 in 3.
“Much of what little we know about how oil actually affects ecosystems stems from research on the Exxon Valdez,” Short wrote in concluding his 2002 editorial, “And it is now clear that long-term persistence and toxicity of the spilled oil is substantially greater than previously recognized.” In fact, The National Marine Fisheries Service Lab in Juneau found that weathered oil was affecting young salmon and herring; among the results of one investigation was eggs that died before hatching, grossly deformed spines and jaws in those that managed to hatch and a considerable decrease in returns of salmon from the sea[vii]. However, Short was careful to be fair. He has, all along, maintained that Exxon’s claims that natural variability is the reason for the fluctuating salmon and herring catch levels, could turn out to be true.
But Exxon struck back with Professor David Page. A professor of chemistry and biochemistry at Bowdoin College in Maine, Page disparaged Short’s study, calling it bad science. Although Tom Cirigliano encouraged me to contact David Page regarding the state of the Sound, Page did not respond to requests for an interview.
“Prince William Sound today is as healthy as it would have been if the spill hadn’t happened,” Page wrote in the Alaska Daily News, in response to Short’s editorial. “There is no credible scientific evidence of ongoing injury to the Prince William Sound ecosystem from the 1989 Valdez spill.” If this claim sounds unusual, it helps to know that Page is on ExxonMobil’s payroll.
Exxon maintains that the federal government rejected the company’s 1989 proposal that all the scientists — both governmental and those paid by Exxon — share their data. Because of the numerous civil and criminal suits pending, the government’s legal counsel felt this would make things messy. However, the suits in question were settled in 1991, and the government data (though not Exxon’s) entered public domain. When Short wrote to David Page and another Exxon scientist, Jerry Neff, in 1993, for data supporting presentations they’d made at an Exxon-sponsored symposium in Atlanta, both refused to divulge it, “citing,” Short told me, “client prerogatives.”
Yet Exxon’s stated policy regarding this type of data-sharing couldn’t be more explicit: “ExxonMobil continues to believe that the public interest would be better served by sharing data from scientific studies, and we will continue to advocate this policy as we have in the past.”[viii]
On January 8, 2002, ExxonMobil filed a Freedom of Information Act request for all of Jeff Short’s study records. The company has publicly complained that it has been forced to file the FOIAs because many of the government agencies performing research on the Sound won’t release their data without them.
“Exxon’s claim that they must resort to FOIAs to get information from Auke Bay is specious,” Short told me. “An easy way to get this info is to just give us a phone call and ask us to send it. But Exxon has never done this. They’ve gone directly to a very broad scale FOIA instead. So the reason they’re ‘forced’ to do this is simply because they didn’t bother to ask us for it informally beforehand.”
However, before David Page reviewed all of Short’s research, he published the editorial in the Anchorage Daily News, calling Short’s scientific methods into question. As a result, the sponsor of Short’s research, the Exxon Valdez Oil Spill Trustee Council, commissioned a scientific review of Short’s methods by a National Marine Fisheries Service panel that was independent of Auke Bay Labs. The review called Short’s study “rigorous, well-designed and executed.” In fact, the review found that if there was any bias in Short’s sampling, it was that he left out sites that were more likely to show oil. That is, Short’s estimate of the amount of oil remaining in the Sound was likely conservative.
The water in Northwest Bay off Eleanor Island is dark and cool, and the beach is rocky. A floatplane from Cordova has a smooth salt-water landing strip to the beach, with stony, pine-covered cliffs rising up on either side. About a hundred yards from the salt water of the bay, a clear, cold freshwater stream trickles down the beach and into the inlet. This relatively small nick in the geology of the islands of Prince William Sound is hard to find, and a random stopping point for Jeff Short. He’s spent so much time in the Sound since 1989 — the layout of the Sound seems imprinted on his brain, a map of scattered islands and bays — and is so confident about the fact that Exxon oil still exists in the Sound that he can land on any of the tiny islands in the Sound and feel he has a good chance of digging up some North Slope crude with a simple garden spade. On the beach, he walks towards the water with the garden spade in his hand. He squats down and turns over a few barnacle-covered rocks. Once he reaches the pebbly sand, he plunges the spade in and removes a spadeful of sand. He removes one more shovelful, and black, viscous oil slowly begins to fill the new pit. Short, unsurprised but not complacent, shakes his head.
“It’s really an insidious poison. The fact that we can find this much oil fourteen years later — and oil in this toxic condition — means the oil did a lot more damage than we think.”
In fact, Science journal published a study in late December 2003 that found residual oil harmed pink salmon eggs for at least four years following the spill, that significant amounts of crude remains on the sea bed, where it poisons mussels and clams — and by extension the animals that feed on these creatures, like otters and ducks. And, like Short, the study’s researchers easily found pockets of oil on the beaches.[ix]
The last visit Brian O’Neill makes before the meeting at the Masonic Lodge is to Virgil Carroll. Like his visit to Mike Maxwell, seeing Carroll requires O’Neill to climb up the stairs of a warehouse where the ex-fisherman is mending nets he doesn’t believe he’ll ever use again.
“Our records show that a thousand claimants that we know of have died while this has been going on,” O’Neill says to Carroll. “Three to four thousand that we guess have died.”
“Three of ’em in my family,” Carroll says. “My father-in-law, my brother Roger, and my other brother.” In port towns where commercial fishing is the base of the local economy, fishing is like a small business venture. A guy starts with a permit and a boat, and it’s an enormous investment. Like most of the commercial fishers in Cordova who bought their permits before the spill, Carroll spent hundreds of thousands of dollars on his permit. Now he’ll be lucky if he gets sixty thousand for it. His sons — he has three — grew up fishing with their father, and were fishers themselves before the spill. Now the youngest has put his boat up for sale and has moved to Anchorage, while the oldest, “never anything but a fisherman”, went back to school to become a teacher in Valdez, so he can fish during the summer and be able to buy groceries.
“Do you think there will be a fishery left for them to fish,” O’Neill asks.
“No. As a hobby, maybe. No young guy can buy something like a permit and a boat like that and go fishing.”
“What if you get money from the settlement?”
“Young guys can start fishing. For me, I could help my boys; but it won’t bring the fish back. After the herring stopped, I lost over half of my livelihood. Now I’m getting a quarter of what I used to make. There’s no way to bring that up without prices increasing and having the herring back.” Even the canneries in town, struggling like the fishers with low prices for salmon (even though catches have been up) and no herring, have had to squeeze the men and women coming in with their catches, hoping for a decent payout.
“We have to go in there on our knees,” Carroll tells O’Neill. “And we can’t get up.”
Just before the final meeting at the Masonic Lodge, O’Neill walks the docks of Cordova’s old harbor, looking at the boats belonging to the people he’d just visited: the Babics’ boat is there, as is Virgil Carroll’s, with a new for sale sign on it.
“In early 1989, I was a white guy lawyer in Minneapolis, representing one corporation against another,” O’Neill says. “The past fourteen years have given me a chance to help the people of Cordova to make the best out of a terrible, terrible situation. It’s important. We’re joint venturers — emotionally and professionally. Because I’ve fished with them, I’ve run dogs with them, I’ve been on crew shares with them.”
Like Dr. Picou, O’Neill believes the legal issues of the Exxon case are inextricable from the social misery in Cordova and other communities on the Sound. He focuses on the symbolic value of a payout rather than the money itself, because he knows that despite the fact that this award is largest punitive damage award in history, it may not be enough to help everyone out of the hole. The federal government will take 38% of the award as taxes (nearly $2 billion) and 22% will go to O’Neill and his team.
“To see the system work would be very important to this community,” O’Neill says. “To see this very powerful company not be able to get out of it…it would just be a euphoric feeling to see justice.” At the Cordova Masonic Lodge for the last time this trip, Brian O’Neill paces back and forth, his hands in his pockets, his head down, as fishers and Native Alaskans file in and take seats. Jack and Heidi Babic take seats against one wall. Mike Maxwell sits down a few chairs away. Phil Lian walks in, on time.
“I think we’re down to the last eighteen to twenty-four months,” O’Neill says. It’s obvious no one in the lodge believes him. “Look, we’ve picked a fight with the biggest dog in the yard,” O’Neill says. “I think it’s a crime — an embarrassment — that it’s taken this long.”
An old man sits up and says: “Could we make noise so the people down south know we haven’t been paid? Boycott Exxon’s gas stations? What I don’t understand is why they don’t care about us as much as we care about them. What can we do?”
Mike Maxwell leans forward to look at the man.
“I think making noise helps,” he says. “It irritates me to no end that Exxon has been able to sweep this under the rug and convince the rest of the world that this is over.”
Exxon never came to O’Neill’s team with a settlement offer, despite settling with the Seattle Seven, a group of canneries that had threatened to sue the company for lost revenue (the settlement included a secret provision that the canneries would pay back to Exxon any punitive damages they might later claim from the damages O’Neill was seeking). But that’s okay with O’Neill.
“If I was to come to you guys with $550 million,” O’Neill says at the meeting, “you’d say — “
“Bullshit,” someone offers.
“Is that a legal phrase?”
“It’s legal enough for here.”
In 1994, it would have been impossible for O’Neill to argue that Exxon oil would remain on Sound beaches fourteen years after the spill. That was speculative, and the compensatory award for actual damages covered only that: actual damages. But what happens in a situation in which a fishery is closed for ten years, for example? When salmon prices plunged due, according to O’Neill, to the spill? When some fishers have not set a net to the water since March 23, 1989?
“What happened up here was just wrong,” O’Neill says to me before he heads to Cordova’s tiny airport. “They’re all complicit in it. Running your car, heating your home is the cost of oil. And the cost of oil is the cost of what happened to these people. Most Americans have a very short memory, especially when it comes to things that are unpleasant. There’s a whole generation of people who didn’t know this happened, and there’s another that has just forgotten.”
Some people, fair-minded pragmatists, perhaps, might say by filing motion after motion and drawing this legal battle out interminably, Exxon is simply using their right to take full advantage of the legal system. This is an argument, in fact, that Exxon uses to justify the delays, and it’s a convincing one.
“They do have the right to take hundreds of millions of dollars and grind these people into the ground,” O’Neill says. “But that doesn’t mean it’s morally right. They are arrogant beyond belief. The only guiding light Exxon has is profit. It is a dangerous institution in the modern world. We’ve learned in the last few years that these companies are laws unto themselves.”
Ashley Shelby is a former environmental journalist and the author of South Pole Station: A Novel and Red River Rising: The Anatomy of a Flood and the Survival of an American City
[i] Cleaning Up by David Lebedoff,/Court transcripts
[ii] Alaska Daily News, 3/30/89, David Postman
[iii] Cleaning Up, 271/court transcripts
[iv] Cleaning Up, David Lebedoff, p. 274/court transcripts
[v] Anchorage Daily News, 8/4/98
[vi] Anchorage Daily News, 5/13/1999
All other quotes from interviews with individuals appearing in article.
[ix] Science magazine, December 19, 2003