Commentary: It's Time To Put The Valdez Behind Us

It has been 10 years since the Exxon Valdez ran aground in the icy blue waters of Alaska's Prince William Sound on Mar. 24, 1989, spilling 11 million gallons of oil along hundreds of miles of coastline. In the aftermath of the spill, Exxon Corp. spent $2.2 billion on cleanup and $1.3 billion in civil and criminal penalties and settlements. But in the years since then, Exxon and its critics have squared off again. And long after the dispute disappeared from the headlines, disagreements continue to rage over how damaging the spill was and what Exxon should be required to do about it.

Exxon was assessed $5 billion in punitive damages in 1994, but it continues to appeal the decision in court, arguing that the penalty is "unjust and excessive." Exxon has not yet paid any of it. Joseph Hazelwood, the former Exxon employee who was the captain of the Valdez, fought a decision requiring him to pay Alaska $50,000 and perform 1,000 hours of community service. So far, he has yet to do either, and his attorneys say Hazelwood is considering an appeal to the Alaska Supreme Court.

The ultimate decisions in these cases could turn in part on scientific questions concerning how damaging the spill was to wildlife, residents, and local businesses. But any consensus seems unlikely. After years of study, many of the key questions are still unresolved. And to say that passions continue to run high "would be an understatement," says Stanley Senner, scientific coordinator for the Exxon Valdez Oil Spill Trustee Council (the council was created by Alaska and the federal government to restore Prince William Sound, using $900 million Exxon was assessed in civil court cases).

CONTINUING DAMAGE? Many environmentalists argue that Prince William Sound is still suffering major damage from the spill. The Alaska Wilderness League says populations of harbor seals, harlequin ducks, Pacific herring, common loons, and other species are still below their pre-spill levels or continuing to decline. Frank Sprow, Exxon's vice-president for environment and safety and its spokesman on the Exxon Valdez spill, says all species have "made strong progress or have recovered."

Senner and the Trustee Council are taking a middle position. "The overall ecosystem is well on the way to recovery, but we don't think it's there yet," Senner says. "Some of the very key species, like the Pacific herring, which is important for ecological and commercial reasons," have not returned "in anywhere near the kinds of numbers that were present" before the spill, he says.

As with most scientific questions, however, the issues concerning the herring are complicated. The oil didn't kill the fish directly, Senner says. Instead, evidence suggests it weakened their immune systems, making them vulnerable to disease. It's circumstantial evidence, he says, but it's "pretty strong circumstantial evidence. And the herring have not come back."

USEFUL CONTROVERSY. Exxon has hired its own scientists to challenge such findings. "There have historically been crashes in the herring population," says Sprow. And as for the recent drop in population, "there is no reason to believe it was caused by the spill." In the absence of an independent investigation or review of the science, it is impossible to sort out these conflicting conclusions. And the continuing controversy ultimately benefits Exxon. "As long as you can create the perception that things are still controversial, you can use that as justification to preclude action," says Jeffrey W. Short, a research chemist with the National Marine Fisheries Service in Juneau.

While Exxon pursues its research and its rights in court, it is also taking aggressive steps outside the courtroom. Last year, the company filed Freedom of Information Act requests seeking virtually every piece of paper connected with two studies funded by the Trustee Council. One request related to a fisheries service study that found the spill led to a marked increase in deaths among pink salmon. Exxon requested all logs, documents, "draft or final spreadsheets," lab notebooks, and instrument-calibration records. It also sought documents related to "chain of custody of samples," along with documents "sufficient to identify each person who participated in the analyses," and training records of each of them.

Sprow defended the requests, saying, "if you're going to dig to resolve differences, sometimes you have to dig real deep." But the requests go far beyond the usual practice in scientific disputes. Ordinarily, researchers debate data presented at professional meetings or in scientific journals. More extensive document requests are rare, and they usually occur only when there is a suspicion of serious error or fraud. "It was harassment," says Short, one of the authors of the salmon study. "They could have called me up and asked me for any details that were relevant, and I would have given it to them. I had no prior calls or letters to get the information in a more polite manner."

OUT-OF-COURT DEAL. Sprow said Exxon had to file the formal requests because the Trustee Council scientists would not share their data. "That is flat wrong," says Short. "Our data have been publicly available at every level since the settlement."

In another move outside the courtroom, Exxon arranged a deal with seven Seattle-based fish processors that had sued the company for $745 million in damages. In 1991, Exxon announced it would pay the processors $70 million in compensatory damages. What it did not say, according to the judge in the case, is that the fish processors secretly agreed to return as much as $730 million of the $745 million in compensation they were seeking.

U.S. District Judge H. Russel Holland of Anchorage found out about the agreements five years later. He sharply criticized Exxon, saying the company's decision to keep the agreements secret might violate professional rules of conduct requiring candor. "We think the actions we took with the seafood processors were reasonable and proper," Sprow says. "We were shocked at Judge Holland's shock."

In one final move that has triggered protests in Alaska, Exxon has sued the federal government for the right to take the Exxon Valdez--now called the Sea- River Mediterranean--back to Alaska.

Many Alaskans see that as a slap in the face. Exxon is within its rights to seek to return the ship to Alaskan waters and to pursue all other aspects of the Exxon Valdez case as aggressively as possible. But its tough tactics have infuriated many in Alaska, for whom the spill remains a highly emotional issue.

Exxon could have emerged from the case with a far better image if it had taken a more conciliatory approach. The dispute might well be resolved by now. Settlement of the legal issues would have created a climate in which scientific questions could be explored more easily, without Exxon feeling that it had to defend itself at every turn. Instead, Exxon took a tough stand. And 10 years later, the furious debates, and the bitterness, continue. Exxon should have settled--ending all that long ago.

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