Anchorage Daily News

WASHINGTON -- Nearly two decades after an Exxon oil tanker hit a reef in Prince William Sound and spilled 11 million gallons of crude oil, Alaska is still not fully healed from the catastrophe, the state's attorney general wrote in a brief filed Tuesday with the U.S. Supreme Court.

"Exxon's reckless conduct was all the worse because it was fully aware of the risks involved in transporting highly toxic oil across environmentally and economically fragile water, and was recklessly indifferent in the manner in which it attempted to contain the spill," wrote Attorney General Talis Colberg.

The state filed its friend-of-the-court brief on behalf of more than 30,000 people who have claims against Exxon Mobil for the damage caused by the 1989 oil spill.

The Supreme Court will hear the final arguments next month, as Exxon tries to have the justices throw out a lower court decision that would force the company to pay $2.5 billion in punitive damages.

DRAWN OUT COURT CASE

Exxon has been appealing the award since 1994, when a jury returned a $5 billion punitive damages award. In 2006, the 9th U.S. Circuit Court of Appeals cut the award to $2.5 billion. Exxon appealed to the Supreme Court, which said it would examine some of the fundamental legal issues in the case.

The state has asked to participate in oral arguments in front of the Supreme Court, Gov. Sarah Palin said Tuesday.

"We're hoping for those 10 minutes, 19 years later," Palin said. "It's dragged on so long, it's very significant that Alaskans' voices, past and present, be heard on this, and we certainly hope we'll have 10 minutes."

In the state's brief, Colberg argues that Exxon is wrong when it says it has already been punished by state and federal authorities.

The state brought civil and criminal actions against Exxon for harming the environment and to recover the cost of cleanup and restoration, but Alaska "did not intend for the settlements of these actions to occupy the field of punishment and deterrence," the attorney general wrote. That was left to the thousands of private plaintiffs who "occupy the best position, and have the strongest incentive, to bring lawsuits respecting such harm," lawyers for the plaintiffs wrote in their own brief.

Exxon spokesman Tony Cudmore disputed the attorney general's arguments.

"Alaska settled all of its claims, including a claim for punitive damages on behalf of its citizens, in 1991 and gave Exxon a full, final and complete release," Cudmore said. "This settlement, along with clean-up costs, claims payments and a substantial fine, which total more than $3.5 billion, are enough to punish Exxon and deter similar accidents. Further punishment and deterrence is unnecessary and therefore excessive."

EXXON'S ARGUMENT

Exxon plans to argue that under maritime law dating to 1818 ship owners shouldn't be punished for the actions of their agents at sea. The company also intends to argue that the punishment and deterrence for maritime discharges are already covered in federal law, including the Clean Water Act.

The court agreed to hear Exxon's appeal in three areas:

• Whether the company can be punished under maritime law for the actions of its captain.

• Whether it can be punished in the courts when it has already been held responsible under the Clean Water Act.

• Whether the verdict's size is allowable under maritime law.

Exxon is backed by business groups that fear that the court will uphold one of the largest punitive damage awards ever against a U.S. corporation. Both the Chamber of Commerce and the American Petroleum Institute have written friend-of-the-court briefs.

In recent days, though, a number of people and organizations have stepped forward in support of the fishermen, Natives and others who've filed claims against Exxon. They include environmentalists, maritime law experts, the Alaska congressional delegation and Legislature, four former governors and other coastal states.

The briefs help amplify certain parts of the law and bolster the claims of the plaintiffs who first sued Exxon in 1989, said David Oesting, their lead lawyer.

"They should be responsible for it," Oesting said of Exxon. "After all, how in the hell can we possibly countenance a corporation knowingly putting an unfit person in charge of an ultra-hazardous activity, which, if it goes awry, by reason of that person's unfitness, causes catastrophic damage to other people and the environment? We let them take a walk? It makes no sense."

Find Erika Bolstad online at adn.com/contact/ebolstad or call her in Washington, D.C., at 1-202-383-6104.

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