The Government failed to hear the people and hold ExxonMobil accountable.
The Exxon Valdez Oil Spill Re-Opener Clause
The longest running environmental litigation in history
The 1991 Exxon Valdez Oil Spill settlement agreement included a provision entitled Re-Opener for Unknown Injury that allowed the state and federal governments to submit a claim for up to $100 million for damages not foreseen at the time of settlement. Prince William Soundkeeper along with other environmental and advocacy organizations worked to prod the government to apply for the provision in 2006. Governor Murkowski's Attorney General found that “After extensive review, it is clear that populations and habitat within the spill area have suffered substantial and unanticipated injuries that are attributable to the Exxon Valdez oil spill,” and the State presented jointly with the US Government to ExxonMobil a demand for payment of $92,240,982. Neither the State nor the Federal Government pursued the fact that for nine years ExxonMobil ignored the request and no payment has been made. Resolutions to the Alaska State Legislature were submitted in 2014 and the spring 2015 sessions urging the State to compel ExxonMobil to pay what they legally owe the State and the Nation by Representatives Gardner and Josephson respectively. The Resolutions were ignored during session.
During the October 15, 2015 Federal District Court Case Status Hearing on the Re-Opener Clause, the State of Alaska and the US Department of Justice stunned Alaska by declining to pursue the $92 million claim made under Governor Murkowski in 2006. http://www.adn.com/article/20151015/exxon-valdez-saga-reaches-anticlimactic-end-federal-court
The Court and the Governments made serious errors in the way that the Reopener Clause, and this decision, was handled. Citizens of the oil spill region have petitioned the State of Alaska and US government to reconsider and vacate their decision to drop any further claim against Exxon pursuant to the Reopener for Unknown Injury provision of the 1991 consent decree, and to file a claim against Exxon. Although the decision was filed with the Court, the governments retained the option of vacating the decision and making a claim until June 2016. Prince William Soundkeeper fully endorsed the request.
The Court erred in not allowing for public comment. The Court violated of its own Court Order of 04-17-15, which had committed to solicit public comment on any disposition of the claim, which it subsequently neglected to do so. None of the government parties solicited comment either. This is a serious violation of the Court Order, as well the public’s trust. The people of the oil spill region - Alaska Natives, fishermen, recreation and tourism industry, municipalities, aquaculture organizations, businesses, and scientists - deserve a say in this historic decision, but have yet to be afforded such.
The Status Report entirely omitted a consideration of the Resource Services that remain injured due to residual oil in intertidal sediments - including Commercial Fishing, Passive Use, Recreation and Tourism, and Subsistence - and additionally, Wilderness resources. None of these have fully recovered, and a primary reason is the presence of lingering oil in the ecosystem. Cost-effective restoration options exist for these injuries and losses, which by definition in the 1991 Consent Decree include replacement of lost or injured resources, and/or acquisition of equivalent resources. There is nothing in the Reopener provision limiting a claim only to Direct Restoration options, but that is how the 2006 filings were narrowly framed.
The 10-14-15 Status Report and decision ignores the broad range of government research that has been conducted since the 2006 filings were made, that prove persistent lack of recovery of many populations and habitats in the region. Significantly, this includes Intertidal Habitat, which the Status Report fails to reference as an injury. Though the government asserts sea otters and Harlequin ducks are listed as recovered, the report neglected to discuss the continuing injury to other resources as listed in the 2014 Update on Injured Resources and Services. These include Intertidal Habitat and Resource Service injuries due to lingering oil in intertidal sediments. As well, these ongoing injuries include four populations listed today as "Not Recovering" -- herring, pigeon guillemot, marbled murrelet, and the AT1 killer whale pod. These were clearly unanticipated in 1991, and there exist cost-effective restoration options for these injuries and losses - the two main requirements to trigger a Reopener claim.
EVOS Trustee Council's 2015 lingering oil update acknowledges oil in the inter-tidal substrates, but maintains that the oil is not leaching into the water, and that " key injured resources are no longer being affected by the lingering oil that remains in the substrate", yet a few paragraphs later they state "... twenty-five years of research on the Exxon Valdez Oil Spill has demonstrated the surprising persistence of the toxic components of Exxon Valdez oil in the environment." A single series of samples done in the summer of 2015 is insufficient evidence to assert that no oil is leaching out of the substrate and becoming bio-available. Winter storms, foraging by clam digging sea otters and humans, boat anchorage, all can disturb the beach boulder armoring and bring oil into the direct environment. And what about those clams, and the rest of the benthic community in those same substrates?
The Government has failed Alaska and its citizens in its closure of this case; and in its refusal to hear public comment and to consult with Native Tribes and to insist that the Sound has recovered. While there may no longer be legal recourse, PWSK will continue outreach and education efforts to inform citizens that they have every reason to not trust the promises of Government and Industry. PWSK will work to insist that the 78 areas containing lingering EVOS oil across Prince William Sound, Kenai and Kodiak, be clearly marked as toxic areas to be avoided, and to advocate for continued restoration and remediation work to be performed.
We urge the public to contact the Governor, the Lt. Governor, and the Attorney General to let them know how you feel about the State dropping the ball so completely on the Exxon Valdez Oil Spill Re-Opener Clause for Unknown and Unanticipated Injury.