Slick Characters

Jesse Walker from the April 1998 issue

(Page 2 of 2)

The prosecution argued that the captain was not solely at fault--that Hazelwood had a history of alcoholism and that the company should have kept closer tabs on him. But Exxon simply seems to have erred on the side of employee privacy. Many of the people who thought the company did wrong in failing to watch the captain's off-duty drinking would throw a fit if their employers were to keep track of how many beers they downed after hours. Besides, had Exxon done so, one could easily imagine Hazelwood hitting it with a different lawsuit, this one for discrimination. Alcoholism, after all, is a federally protected disability. What legal double binds we weave....

If the common law approach to environmental protection failed, it did so with the punitive damages--not necessarily with the decision to award them at all (on this, clearly, reasonable people can differ) but with their outrageous size. But I'm not willing to write off the jury, which comes off as thoughtful and responsible. Consider its approach to the compensatory damages. The plaintiffs asked for $572 million; Exxon declared that $100 million was a more appropriate figure. An array of well-paid experts testified for both sides, contradicting one another with abandon. So the jurors spent a month carefully considering each piece of evidence, divvying data by geography and by species of fish. They did their own calculations, referring to the experts' testimony when it was useful but refusing to be simply wowed by the aura of expertise. In the end, they produced about as fair a figure as anyone could have computed.

"It may be argued," Lebedoff writes, "that no jury should be asked to decide such technical economic questions, that some other method of dispute resolution should be employed for such abstruse aspects of a case. It is far more difficult to assert that any other method would have done a better job than what was accomplished by those resolute jurors."

He's right. One can disagree with some of the jury's decisions, but one cannot find fault with the jury, or the jury system, itself. If it did a less impressive job computing the punitive award, that can only be because retribution is so much fuzzier than restitution. The first is based on empirical data, the other on an abstract, almost artistic sense of justice. In the jury room, two argued against imposing a punitive award at all. Others proposed figures ranging from $861 million to $13 billion. Two jurors said the penalty should be $3.52 billion, because that was Exxon's net profit the year of the spill. Five billion, Lebedoff writes, was "a compromise figure, with people moving up and down in search of a consensus." It was also about the average size of the company's annual net profit.

A pretty hazy process, yes. But this problem will afflict anyone instructed to compute punitive damages, juror or not. The problem lies in the system's haste to impose punitive awards, not with who it selects to impose them.

Certainly, the methods of the jury--if not always its particular decisions--seem more sensible than the actions of federal and state regulators. While Exxon was fighting the fishermen in civil court, the government charged the company with killing migratory birds without a permit--in essence, hunting without a license. Nothing in the civil trial was as absurd as recasting an oil company as an errant bird hunter. Exxon ended up settling for $1.03 billion. The figure included a $900 million "trust fund" for "restoration," on top of the billions Exxon had already spent trying to clean up its mess.

The key word there is trying. To the extent that the sound has recovered, it has done so almost entirely through natural processes; the human cleanup has been a money pit and little else. The cash has kept a lot of bureaucrats employed, but I suspect it would have done more good in the company's coffers, improving service for Exxon's customers.

Cleaning Up is, for the most part, even-handed and well-written. A lawyer himself, Lebedoff understands the issues at stake and explains them clearly. He relates important details the casual newspaper reader may have missed--for example, the fact that the plaintiffs' law firm, Faegre & Benson, is the kind of establishment operation that usually represents companies like Exxon, not their opponents. He paints colorful pictures of the lead players in the drama: Brian O'Neill, counsel for the plaintiffs; Joe Hazelwood, the most infamous drunken sailor in recent history; and jurors, attorneys, and Exxon executives.

He also includes some amusing side stories, such as the tale of the New York judge who hyperbolically described the Valdez spill as "a man-made destruction that has not been equaled, probably, since Hiroshima." Or the struggle within Faegre & Benson that followed the jury's decision, with every employee jostling for a share of the award. (How exactly did an ecological disaster in Alaska become a Minneapolis lawyer's opportunity to build his dream house?)

There are, of course, problems with the book as well. Lebedoff ignores Exxon's settlement with the government, even though it must have influenced the company's approach to the civil trial. For that matter, he spends too little time describing what went on within the defense camps --not just Exxon's, but that of Hazelwood, who retained his own counsel and was named as a separate defendant. Above all, the publisher could have made things a lot easier on readers by including an index.

But these are relatively small quibbles. The greatest faults in Cleaning Up belong not to the author, but to the government, the legal profession, and Exxon. And, perhaps, to the media, so caught up in treating "environmentalism" as a morality play that it misses half the story. You can't accuse Lebedoff of that.

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