January 12, 2016
The Erika case regarding the 1999 oil disaster in Brittany started today in France and promises to provide a lot of insight not only into French and EU law, but also into the modern IL views on the environment and the oil industry. Here is a preview, along with the Le Monde description of the day.
This case brings up obvious parallels with the Exxon Valdez disaster of 1989 and the subsequent litigation. On a personal level, having recently living in Alaska, parts of Alaska are still recovering from the spill and a lot of oil was “left” as clean-up efforts began to cause more damage and interference than good. Going to the Prince William Sound area and seeing the wildlife is a life-altering experience and there are many good people on all sides, from fishers to oil workers to environmental activists and tourists. But it is still horrific to imagine the losses and many think it will never get back to how it used to be.
Of course there was also Exxon’s settlement with the State of Alaska, which remains controversial. And in places like the Alaska Sea Life Center (funded largely by the Valdez payout), one gets an almost impressionistic view of the tension between the interests of Exxon and others as the exhibit does discuss the spill, but only in a mostly tangential way, before going on to more pictures of cute sea otters. But people in Alaska remember the disaster vividly, and the Pratt Museum in Homer has a particularly moving and disturbing exhibit, complete with contemporaneous news and radio-wave coverage.
Alaska is such an incredible place, and we have to be careful as such places are fewer and fewer every day. When I read of the “préjudice écologique” being argued in France, while I cannot understand the depths the feeling of harm are for those attached to the region and the sea — one can hardly think of a stronger connection than the fisherman to the sea– even a glimpse of it in Alaska shows there is a lot more than just economic damage or even “just” limited losses of animal and human life in these disasters. The identity of many places rests with the sea, and disasters like these alter that identity forever.
On the private litigation side, the 9th Circuit, in Baker v. Exxon Mobile Corp., recently reduced the damages in private litigation (mostly by seafood processors but also tour groups, etc.) surrounding the spill, relying primarily on Cooper Indus. v. Leatherman Tool, 121 S.Ct. 1683 (2001), but remanding for the D. Court to put in $2.5 billion of damages. This raises a whole host of issues about the role of punitive damages — great fodder for law and economics debates on who should bear the cost of such an accident.
Of course oil and energy are important and there is a balance somewhere, but one should remember the costs as well – not only in terms of major disasters but also everyday costs that are by and large absorbed by the public (and Alaska is a good canary in the coal mine for rising temperatures, with melting glaciers, dwindling animal populations, etc.) and especially by those who live off the see, as acknowledged at least somewhat in Baken v. Exxon. Should the public absorb that cost? How much of it, and at what price?
I am curious to see the defense strategy for allocation of blame in the Erika trial and if the parties go after each other. Maybe that is France’s hope and concern at the same time. There are plenty of potentially responsible parties, from Total to the boat owner to the captain (who is apparently not at the trial) and crew to the rescue/recovery crews.
Some of the initial arguments by Total, that there is an abuse of law and essentially an attempt to get legislation from the bench, smell of classic US-arguments against “judicial activism”, which, borrowed from the US, is increasingly (and in my view unfortunately), being argued around the world. I wonder if there was a big outcry against “judicial activism” when the 9th Circuit proclaimed its own determination of damages in Baker v. Exxon (of course that was in the private context, but still…).
This trial, though in a domestic jurisdiction, also brings up a great swell of international issues — international parties, the international oil industry, domestic companies within that system, etc. It is really at the often blurry divide between international and domestic law, especially if (as I suspect) in civil law France they will look around to see what people/scholars/etc. think, including IL/environmental scholars. This should be interesting for anyone even remotely interested in environmental law, no matter the outcome.