Oil over again. From the Exxon Valdez to BP and Beyond

• Author: Oliver Houck
• Position: Professor of Law at Tulane University in New Orleans, Louisiana
• Pages: 6-7

Page 6 ❧ THE ENVIRONMENTAL FORUM Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, July/August 2010

I

am writing this review in New Or-

leans with a bitter smell in the air.

ey are burning of‌f phenols and

dispersants from the Deepwater

Horizon blowout, f‌ifty miles to

the south, which local public health

of‌f‌icials assure us, without knowing

exactly what is being incinerated, is

no problem. But if our eyes begin to

burn, they advise that we stay indoors.

British Petroleum’s CEO has just

opined safely from London that the

spill is “tiny” given the size of the Gulf

of Mexico.

Which brings to mind that last great

spill in North America, the one that

brought a sea change in the law but very

little change in the high risk

practice of of‌fshore deepwell

drilling. e literature on the

British Petroleum disaster is

of course yet to be written,

but the story of the Exxon

Valdez is suddenly pertinent

and has been told in several

ways. e most gripping of

all is David Lebedof‌f”s 1997

book Cleaning Up: e Story

Behind the Biggest Legal Bo-

nanza of Our Time, a court-

room thriller on the Exxon

Valdez civil damages trial, a f‌ive-year

marathon pitting some 14,000 f‌ishers

against the most powerful corpora-

tion on earth. Once again timely, this

is a book worth taking of‌f the shelf. It

portrays what Louisianans will now

be facing, probably for years. Which

bodes to test the limits of post-Valdez

legislation, damages, and concepts

dear to the f‌ield of admiralty law.

e book begins with a conun-

drum. Captain Hazelwood of the Va l-

dez was one of the best seamen in Exx-

on’s or anyone else’s f‌leet. He had wide

experience and had pulled his ships

out of dangerous spots. e problem

was he drank, often, and a stint in re-

habilitation would not break the habit.

In the hours before his fatal voyage out

of Valdez he had downed numerous

beers and at least f‌ive double vodkas, a

load that would fell most mortals.

Which became Exxon’s problem. It

knew about Hazelwood’s drinking and

yet set him out with a full cargo into

a very dangerous strait. Shortly after

leaving port Hazelwood turned over

the wheelroom to a less-experienced

seaman, who soon started vectoring

the vessel toward the rocks. e breach

was monstrous, and in a blink 11 mil-

lion gallons of heavy crude were pour-

ing into the sea.

With haunting echoes forward

to British Petroleum’s blowout in

the Gulf, the government, too, had

been asleep at the switch. e Coast

Guard was charged with tracking ships

through the strait on radar, but who-

ever was watching the scope that day

had gone of‌f for a cup of cof‌fee. When

Coast Guard personnel f‌inally reached

the stranded vessel they had no blood

alcohol testing equipment for Hazel-

wood (Valdez personnel did not both-

er to tell them that they had a kit on

board), so the captain, whose breath

reeked of alcohol, was not tested for

another 11 hours, coming in still 50

percent over the permitted cap. No-

body was looking very good.

Into this mess came a team of law-

yers from Faegre and Benson, a cor-

porate defense f‌irm in Minneapolis

whose bread and butter was getting

such clients out of trouble. One of its

best young litigators, however, Brian

O’Neill, had an independent streak,

somehow tolerated by the f‌irm, which

led him to successfully defend seem-

ingly odd causes such as Minnesota’s

resident wolf pack and the Boundary

Waters Canoe Area. A West Point grad-

uate with a homespun sense of humor

and a ready tongue, O’Neill was itch-

ing to get into this case as a plaintif‌f. It

was bigger than anything he had ever

done. It was going to be bigger than

anything anyone had done, and the

spill made him mad.

Exxon, for its part, hired what it

considered to be the best attorneys

money could buy, which included ex-

Watergate prosecutor James Neal, who

would also defend Ford Mo-

tor Company’s crash-and-

burn Pinto and Louisiana’s

redoubtable Governor Ed-

win Edwards (“the only way I

can lose this election is if they

catch me with a dead girl or

a live boy”). It also included

Los Angeles’s O’Melveny and

Myers, which had some 500

lawyers on tap at the time.

Exxon also had a corporate

defendant’s greatest asset,

the resources to f‌ile unlim-

ited motions and extend proceedings

until plaintif‌fs gave up, accepted small

settlements, or died. Some of all three

happened.

All of which is prologue to one of

the longest, most complicated, and ab-

solutely hair-raising lawsuits ever seen.

By coincidence, the warmups began

with a pending oil spill case in Alaska

against BP. en came the main event,

whose twists and turns were the stuf‌f of

melodrama. At other times its tedium

resembled a stint in prison. e case’s

organization and presentation required

brilliant invention and the use of in-

court technology that set a new stan-

in T h e li T e r a T u r e

Cleaning Up: The Story Behind

the Biggest Legal Bonanza of Our

Time, by David Lebed off, Simon

and Schuster, 1997.

OIL OVER AGAIN

From the Exxon Valdez to BP and Beyond

By Oliver Houck