Anchorage Daily News

The citizens' councils for Prince William Sound and Cook Inlet have filed a friend-of-the-court brief with the U.S. Supreme Court in the $2.5 billion punitive damages case arising from Alaska's most famous environmental disaster, the 1989 Exxon Valdez oil spill.

This is an unusual step for us. We stay out of court as much as possible.

But the reason we filed in this case is simple: Exxon is arguing that giant corporations that have giant oil spills like the Exxon Valdez should be immune from punitive damage claims.

We believe punitive damages must be retained as a deterrent to the kind of irresponsible corporate behavior that made the spill possible.

Exxon's argument turns on the case of the Amiable Nancy, dating from 1814. The Nancy was plundered by an American vessel called the Scourge. The privately owned Scourge, operating on behalf of the U.S. government during the War of 1812, was supposed to attack British ships. The Amiable Nancy was Haitian and Haiti was neutral in the war. The Nancy's crew and owners sued and won a punitive damage award against the Scourge's owners for the unauthorized attack.

The Supreme Court overturned it, reasoning that the captain and crew of the Scourge had so far exceeded their authority that the owners weren't liable. Exxon now argues that this logic shields it from liability for its spill in Alaska.

The Amiable Nancy argument is our only issue in this case. We don't address the size of the award, nor will our organization get any money if the plaintiffs win.

The first problem with Exxon's argument is that today's ships and operations bear little resemblance to those of two centuries ago.

Ships are bigger now. They carry more cargo. The cargo is more dangerous.

The 986-foot Exxon Valdez carried 53 million gallons of toxic North Slope crude; an estimated 11 million gallons escaped into Prince William Sound, fouling waters and shorelines as far away as Kodiak and the Alaska Peninsula.

The vital statistics of the Scourge have not survived, but it seems a safe bet its length was well under 986 feet and its cargo capacity well under 53 million gallons of booty.

Ships today are also under much closer control by their owners. A ship like the Scourge might be out of touch for months as it traveled the seas at the speed of sail. Now, crews and owners are in continuous contact thanks to radio and satellite communication.

So it's a stretch for Exxon to claim the crew of the Exxon Valdez was beyond its control when the tanker pulled away from the Alyeska terminal and drove onto Bligh Reef.

Exxon knew about the captain's drinking problem, though it's never been clear how big a role that played in the grounding.

Exxon knew about, and bears sole responsibility for, manning practices that left the crew overworked and exhausted from the labor of docking the ship, loading it, getting it under way again and steering it through the confined waters of Port Valdez and the northern part of Prince William Sound. Crew fatigue was among the causes of the accident cited by the National Transportation Safety Board.

If there's any doubt of Exxon's responsibility for the grounding itself, there surely can be none about its responsibility for what followed.

Alyeska Pipeline, tasked with initial cleanup efforts after a spill, was utterly unprepared for what it faced on March 24, 1989. Exxon was (and is) one of the owners of Alyeska. It helped determine Alyeska's budget, how much equipment Alyeska had on hand, and how Alyeska's people were trained to clean up oil. Alyeska's unpreparedness and the inadequate response that resulted were due in large measure to deliberate actions by Exxon itself.

If the risk of punitive damages is removed from the decision-making process in the executive suites of Exxon and corporations like it, they will have one less reason to behave responsibly. The Supreme Court must not let that happen.

John Devens is executive director of the Prince William Sound Regional Citizens' Advisory Council, which joined with the Cook Inlet Regional Citizens' Advisory Council in the friend-of-the-court brief. Devens was mayor of Valdez at the time of the Exxon Valdez spill.

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