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EVOS Reopener Clause Status Hearing tomorrow

14 Oct 2015 1:23 PM | Kate McLaughlin (Administrator)

Exxon Valdez Oil Spill court hearing tomorrow (10/15) in Anchorage

Thursday Oct. 15, 2015 - 10:00 AM, Courtroom #4

US District Court, Federal Bldg., 222 West 7th Ave., Anchorage  

 The U.S. District Court will hold a “Status Conference” to receive an update and potential resolution from the parties – State of Alaska, U.S., and ExxonMobil – re: the long-standing government case pursuant to the Reopener for Unknown Injury provision of the 1991 Consent Decree (settlement) for the Exxon Valdez Oil Spill (EVOS). 

Tomorrow's hearing may be the last court hearing on this historic case, as the Statute of Limitations likely expires on the case in June 2016.  Due to the lack of resolution of this Reopener case, the Exxon Valdez case is now the longest-lasting environmental litigation in history. 

 For background on the Reopener case, see: 

 http://www.evostc.state.ak.us/index.cfm?FA=facts.reopener

 http://www.adn.com/article/20130915/decades-after-exxon-valdez-spill-questions-remain-about-legal-battle

 http://www.peer.org/news/news-releases/2014/11/10/exxon-valdez-damages-suit-drags-into-2015-and-perhaps-beyond/ 

A brief recap of where the EVOS Reopener case stands today:

1991 (Oct.) – Consent Decree Reopener provision allows governments to claim additional $100 million from 2002-2006 for environmental damage not known at the time (but provision lacks requirement for judicial review if defendant Exxon refuses to pay);

2002 (Sept. 1) - Reopener claim first becomes available to governments.  Anticipating problems in implementing the provision, Dr. Stiener filed an amicus motion seeking court appointment of a post-decree monitor to oversee implementation of the claim. Court denies motion as parties have placed nothing before it. 

2006 – State and federal government submit Demand for Payment for $92 million to Exxon and Restoration Plan to re-mediate lingering toxic oil in beaches. Exxon refuses to pay, and governments fail to enter the claim in court;

2010 (June 25) - Exxon terminates "tolling agreement" between parties, triggering statute of limitation period of 6 years in the case, ending in June 2016.

2010 (Dec.)  – As none of the parties had acted to resolve the issue, and the statute of limitation clock was then started, Dr. Steiner filed an amicus motion asking court to order Exxon to pay the delinquent government demand + interest, court holds first (and to date only) hearing on the Reopener case March 2011, denies motion saying the Reopener claim is solely up to the government parties to place before the court.

2011 – Exxon files motion asking court to dismiss Reopener case entirely, court denies motion.

2011 to Present - Governments filed biannual updates with the court, stating they remain years behind their restoration schedule.  Exxon continues to refuse to pay, and governments refuse to enter claim in court. [Dr. Steiner filed several other amicus motions, all denied for the same reason - that it is solely up to the governments to enter the claim in court, which (unconscionably) they have not done.

Although Exxon has not paid the 2006 government Reopener demand, the government Trustee Council has funds with which to commence the restoration work it committed to, but remains at least 5 years behind schedule at present, further delaying recovery.  Even though there was no requirement to do such, in 2007, after it became evident that Exxon refused to pay the government Demand, the Palin and G.W. Bush administrations should clearly have entered the claim in court, asking the court to order Exxon to pay.  They didn't, and nor have subsequent state and federal administrations. That is truly unconscionable.

Thousands of gallons of still toxic Exxon Valdez oil remain in beach sediments of Prince William Sound (PWS).  The government's 2006 Reopener restoration plan proposed to bioremediate this lingering oil (with tilling and fertilizer), but they have yet to begin doing so.  The Plan committed that the additional Restoration work would be largely completed by now, yet actual remediation hasn't even begun. 

Regarding the upcoming hearing, the governments wrote the court last spring thatThe Governments will make every effort to agree on and, if possible, initiate a course of action by that date.

Thursday’s hearing has four potential outcomes. Government parties will either:

1. Enter a settlement agreed with Exxon;

2. Enter a disputed claim against Exxon;

3. Announce they will drop any/all further action, ending the case;

4. Take no action at this time, reserve right to file claim before next June (perhaps most likely outcome tomorrow).

The governments (State of Alaska and U.S.) will be filing a "Status Report" likely today, which will almost certainly just continue their excuses as to why they have not moved the case forward. 

If the governments take no action on the claim now, the opportunity to do so will expire next June.  Many feel the only just resolution at this point is for the governments to enter a claim in court for Exxon to pay the full 2006 demand ($92 million) + interest (9 years), for a total of about $142 million, and for the government Trustees to use this money in the highest and best interest of ecological recovery.

The EVOS Trustee Council’s most recent (Nov. 2014) update on resources and services injured by the spill (http://www.evostc.state.ak.us/static/PDFs/2014IRSUpdate.pdf) lists many populations as still not recovered from the 1989 spill, and four as “Not Recovering”: herring, guillemots, marbled murrelets, and the AT1 killer whale pod (now expected to go extinct due to the spill).  The lack of implementation of the legally binding EVOS Reopener provision epitomizes why the public has little trust in industry and government assurances of "responsible" oil development in Alaska. 

The US DOJ apparently learned its lesson in their faulty Exxon Reopener, as its $20 billion BP settlement just announced for the Gulf spill requires up to $700 million to be set aside for unknown future damages, and the defendant (BP) will have no ability to object to this payment.  That was the principal mistake DOJ and the Alaska Dept. of Law made with the Exxon Reopener -- it allowed Exxon to simply not pay the demand.  

The attorneys who negotiated the EVOS Reopener provision in 1991 (State of Alaska, the U.S. DOJ, and Exxon) knew, or should have known, that the provision was faulty, and would allow Exxon to essentially "opt-out."  Thus, they betrayed the public expectation and trust re: this critical provision specifically, and the Exxon Valdez settlement in general.  As such, we feel they should all be sanctioned by their respective Bar Associations.

Regardless, had Exxon chosen to act responsibly, it simply would have paid the government Demand for Payment, and would do so now (plus interest), and be done with this case.  But Exxon is as far from an ethical institution as one can imagine.  

For more than a quarter of a century, Exxon has denied the severity and extent of environmental injuries from the 1989 spill.  Over the same period, Exxon sponsored a deliberate misinformation campaign to fabricate doubt about the science behind the link between carbon emissions and climate change, even though its own internal documents show the company fully understood the relationship (http://graphics.latimes.com/exxon-arctic/).  The campaign was/is much like that waged by the tobacco industry denying the link between smoking and cancer.  Some are now proposing that the Justice Department bring federal racketeering (RICO) charges against Exxon for this calculated and unconscionable betrayal of public interest (http://www.theguardian.com/environment/2006/sep/19/ethicalliving.g2). 

The Alaska Permanent Fund currently holds over $100 million in ExxonMobil stock, one of the Fund's five top stock holdings.  We continue to urge the Fund to divest its holdings in Exxon due to the company’s unethical behavior.


Prince William Soundkeeper, PO Box 1368, Cordova, Alaska, 99574  tel: 907-424-5701 www.pwsoundkeeper.org  a 501c(3) non-profit organization.
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