According to documents released today by Public Employees for Environmental Responsibility, the U.S. Justice Department and State of Alaska say they are still waiting for long overdue scientific studies before collecting a final $92 million claim to implement the recovery plan for unanticipated harm to fish, wildlife and habitat.
Cleaning up the Exxon Valdez disaster took four summers and cost approximately $2 billion, according to the Exxon Valdez Oil Spill Trustee Council. In 1991, Exxon reached a civil settlement with the U.S. government and the state of Alaska in which it agreed to pay $900 million in payments, a $25 million criminal fine and $100 million in restitution.
The plea agreement also contained a “reopener” window, during which governments could claim up to $100 million in additional payments from Exxon to restore resources that suffered a substantial loss or decline as a result of the oil spill and which were not foreseen at the time of the initial settlement.
In 1996, the federal government and the state of Alaska notified Exxon that, pursuant to the reopener, additional restoration would be necessary to address long-term environmental damages and clean up lingering oil, at an estimated cost of $92 million.
Fast-forward seven years, and ExxonMobil, the most profitable publicly traded company in the world, has yet to pay up — in fact, they’ve been fighting the claims all along. Last year, Exxon failed to persuade a federal judge to bar the U.S. and Alaskan governments from pursuing further damage claims related to the 1989 spill. In his order, U.S. District Judge H. Russell Holland wrote, “Exxon presently suffers no particular harm. Its business is not in any fashion disrupted or impeded because of the uncertainty of a claim by the governments.”
According to PEER documents, “the U.S. Justice Department and Alaska cited ‘unforeseen contracting issues,’ delays in ‘sample analysis’ and stalled peer reviews as reasons why they have not begun implementing its ‘multi-phase restoration project’ outlined back in 2006.”
As Ivy Fredrickson of the Ocean Conservancy explains, a major difficulty in requiring Exxon to pay for the ongoing damage to the affected ecosystem is that the government has struggled to meet the conditions of the reopener. The Exxon Valdez reopener stated that in order for a claim to be valid, “injury to the affected population, habitat, or species could not reasonably have been known nor could it reasonably have been anticipated by any Trustee from any information in the possession of or reasonably available to any Trustee on the Effective Date.”
Therefore, “by rejecting anything that could have reasonably been anticipated, the clause denies a reopener claim for anything but an injury that was unprecedented or wholly new to science … The result of the Exxon Valdez reopener is that Trustees were left with no recourse for injuries from the spill that became evident after settlement.”
Ultimately, no one really knows what the long-term impacts of large-scale oil spills will be. Following the Exxon Valdez oil spill, for instance, the region’s productive herring fishery suddenly collapsed four years after the spill occurred, and it has yet to recover.
In addition, oil has lingered in the ecosystem far longer than many predicted. A 2001 National Oceanic and Atmospheric Administration study surveyed 96 sites along 8,000 miles of coastline and found that “a total area of approximately 20 acres of shoreline in Prince William Sound is still contaminated with oil. Oil was found at 58 percent of the 91 sites assessed and is estimated to have the linear equivalent of 5.8 km of contaminated shoreline.”
In 2010, the journal Nature explained that some researchers initially calculated that Exxon Valdez‘s oil would dissipate within years or even months or that it would quickly degrade or be washed away by high-pressure hoses. However, due to the natural geology of the environment, pockets of oil have remained, buried half a meter below the surface of some beaches.
Critics of the delay say the ongoing struggle to hold Exxon accountable for unanticipated environmental damages in Alaska offers clear lessons to be learned regarding the continuing process of determining BP’s long-term liability for the Deepwater Horizon catastrophe, a spill that was 20 times larger than Exxon Valdez.