19 ELR 10338 | Environmental Law Reporter | copyright © 1989 | All rights reserved

Is Full Compensation Possible for the Damages Resulting from the Exxon Valdez Oil Spill?

Michele Straube

Editors' Summary: The Exxon Valdez oil spill in Prince William Sound, Alaska, did more than ravage a pristine environment. It also exposed the deficiencies in the jumble of federal and state laws that establish liability for environmental and economic damages caused by oil spills. The author, using the Exxon Valdez spill as a example, analyzes whether full compensation for all parties damaged by tanker oil spills is available under the existing statutory scheme. The Article examines the potential for full compensation at the various stages of response to a tanker oil spill: mandatory relief to force cleanup and restoration, recovery of government response costs, and compensation for natural resource damages and economic loss. The author concludes that the availability of full compensation is unclear. Full compensation is potentially available for response costs, natural resource damages, and economic loss. However, the federal government's ability to force oil companies to conduct a proper cleanup may be limited. Further, the multiple liability provisions may dictate different results under different factual settings. Comprehensive oil spill legislation is needed to eliminate the loopholes and inconsistencies in existing law.

Michele Straube is an attorney and environmental consultant in the Washington, D.C., area. She has practiced environmental law for ten years, most recently as a Senior Attorney with the Environmental Law Institute. The author acknowledges the invaluable assistance provided by Michael G. Mitchell, an attorney with Preston, Thorgrimson, Ellis & Holman in Anchorage, Alaska. The views expressed in this Article are those of the author personally, and do not reflect the positions of past, present, or future clients or employers.

[19 ELR 10338]

Shortly after midnight on March 24, 1989, the tanker Exxon Valdez ran aground in Prince William Sound, Alaska, and began to lose its cargo of oil. Over 11 million gallons (240,000 barrels) of oil were spilled into the Sound over several days. At the time of drafting this Article, cleanup efforts are still underway and the oil continues to spread. Over 30 lawsuits have been filed in federal and state courts for compensation for damages allegedly caused by the spill, and more are anticipated.1 This accident has been described as the worst oil spill in U.S. history. The spill occurred in a remote and pristine area, abundant with wildlife and fisheries, at the beginning of the fish spawning, seal pupping, and bird migration seasons.2 More than 800 dead otters have been found, and thousands of birds have been oiled or killed. At least one summer fishing season has been canceled. The spill has traveled an enormous distance, reaching land in several national and state parks and wildlife refuges.3 The total amount of environmental and economic damage resulting from the spill cannot be calculated yet, but experts forecast that the total damage will easily exceed $ 100 million.4

The Exxon Valdez is owned and operated by Exxon Shipping Company, a subsidiary of Exxon. The tanker was oceanbound after leaving the Valdez oil terminal, the terminus of the Trans-Alaska Pipeline System (TAPS). TAPS is owned by Alyeska Pipeline Company, a consortium of oil producers including Exxon. These are among the entities with potential liability for damages from the Exxon Valdez accident.5

[19 ELR 10339]

Although all facts surrounding the spill are not yet known, and cleanup efforts will continue possibly into next year, the gravity of the spill and its effects provide an excellent context for a review of existing oil spill legislation. This Article explores Exxon's potential liability under federal and state environmental statutes for environmental and economic damages resulting from the Exxon Valdez oil spill. Due to the timing of the Article (early during the spill response) and the practical limitations of the forum, this analysis is not intended to be exhaustive or definitive. Rather, this Article uses the Exxon Valdez spill as an example to analyze the extent to which full compensation for all interests potentially affected by in-transit tanker oil spills may or may not be readily available under the existing statutory regime. The term "compensation" is used broadly to encompass both prospective (mandatory cleanup) and retrospective (recovery actions) relief. Where possible, the Article contrasts the scope of statutory liability imposed under different factual circumstances.6

The Article follows the logical progression of response to a tanker oil spill: mandatory relief to force cleanup and/or restoration, recovery of government and other response costs, and finally, compensation for natural resource damages and economic loss. The Article analyzes Exxon's potential liability at each of these stages to potential plaintiffs.7

Statutes Discussed

Liability related to oil spills generally arises under several overlapping federal and state statutes. The major statutes and their oil spill provisions are briefly introduced in this section. More complete discussions of the remedies potentially available under each statute for the Exxon Valdez accident appear in the remaining sections of this Article.

All analysis of oil spill liability begins with Federal Water Pollution Control Act (FWPCA) § 311.8 Section 311 prohibits the discharge of:

oil or hazardous substances … into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone, or … which may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States … in such quantities as may be harmful …9

In the event of an oil spill, the FWPCA authorizes the President to take action to remove the oil and prevent further releases.10 If oil spills from a "facility,"11 such action can include undertaking cleanup or taking legal action to abate any "imminent and substantial threat to public health or the environment."12 Government response costs are initially drawn from the 311 Fund.13 Section 311 imposes liability on the responsible owner or operator of a vessel or facility, however, to repay the government's response costs, including costs for restoration or replacement of natural resources.14 A statutory liability cap15 applies unless the government proves that the oil spill was caused by "willful negligence or willful misconduct within the privity and knowledge of the owner."16

The location of an oil spill, or the origin of the spilled oil, can bring more specific federal legislation into play.17 In the case of the Exxon Valdez, it is the cargo — oil transported through TAPS — that triggers additional applicable federal legislation. The Trans-Alaska Pipeline Authorization Act (TAPAA) directed the Secretary of the Interior to issue necessary federal permits and rights-of-way (ROWs) for construction of TAPS and bypassed further NEPA review.18 The TAPAA also established rigid standards of liability for damages caused by pollution from activities in the vicinity of the pipeline ROW and from tanker transport of oil loaded at the Valdez terminal.19 In [19 ELR 10340] the case of a tanker spill involving TAPS oil, the TAPAA imposes strict liability for government response costs, natural resource damages, and any economic damages or losses20 on the TAP Liability Fund, the ROW holder whose activities in the vicinity of the pipeline caused the spill,21 and the owner or operator of the tanker. Statutory limitations on liability and exceptions to such limits vary according to the desired recovery and liable party.22 Government entities may undertake cleanup for cases in which the ROW holder does not "adequately control and remove" the spill.23

Two additional federal statutes are relevant in any liability analysis for spills.24 The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) establishes a fund for government response to releases25 of hazardous substances, and imposes strict, joint and several liability for response costs on past and present generators and transporters of such substances, as well as past and present owners and operators of facilities from which such substances are released.26 CERCLA also authorizes the U.S. government to seek administrative or injunctive relief to require these parties to perform the cleanup themselves.27 Similarly, the Resource Conservation and Recovery Act (RCRA) authorizes administrative or injunctive relief to abate any "imminent and substantial endangerment to health or the environment" resulting from the past or present handling, storage, treatment, transportation, or disposal of hazardous or solid wastes.28

In addition to these federal statutes, several provisions of Alaska law authorize injunctive relief, imposition of civil penalties, recovery of response and restoration costs, as well as public and private damages.29

Given the overlay and overlap of federal and state laws applicable to oil spills, potential horizontal (federal-federal or state-state) and vertical (federal-state) preemption issues abound.30 While an extensive examination of preemption issues is beyond the scope of this Article, it is noted that, by legislative mandate and judicial interpretation, the trend appears to be away from vertical (federal-state) preemption. Section 311(o) of the FWPCA specifies that the FWPCA oil pollution provisions are not to be construed as preempting state requirements or liability with respect to discharges of oil.31 Section 204(c)(9) of the TAPAA similarly specifies that it does not preempt the field of strict liability or preclude a state from imposing additional requirements.32 This trend in favor of complementary federal and state oil pollution regulation has also been judicially confirmed.33

This Article next applies these oil spill authorities to the circumstances presented by the Exxon Valdez oil spill in Prince William Sound, Alaska.

Mandatory Private Sector Cleanup

The first response to an oil spill is normally containment and removal of the spilled material. While federal law provides some authority for the United States to seek a mandatory injunction or issue an administrative order requiring cleanup for tanker oil spills, the authority is not found in the traditional oil spill legislation. As a practical matter, the federal government relies on private sector cooperation or uses public funds to accomplish this cleanup objective. These limitations in federal oil spill legislation are highlighted by the facts of the Exxon Valdez spill, where the total response costs may far exceed the public funds available to implement cleanup.34 This may be a practical explanation for the U.S. government's reluctance to take [19 ELR 10341] over cleanup efforts from Exxon in the Exxon Valdez case.35

In direct contrast, the State of Alaska has statutory and common law authority to direct immediate response action, and to obtain mandatory injunctive relief. The full scope of relief available has not been judicially explored, but appears to be very broad. Finally, private citizens' right to force cleanup under federal law is derivative of the federal government's right of action, and suffers from the same limitations.36 Citizens' rights arising under the state common law of public and private nuisance are potentially very broad.

United States

Federal Water Pollution Control Act: Oil spills from a vessel should be contained and removed through implementation of a Spill Containment and Contingency Plan (SPCC plan) required under FWPCA § 311.37 A company's failure to take appropriate measures timely or completely does not, however, give federal or state governments clear authority to enforce compliance with the SPCC plan, whether through judicial injunction or administrative order.

Section 311(j) of the FWPCA, and its implementing regulations,38 provide that "onshore facilities" must prepare SPCC plans, and implement them in the event of an oil spill.39 In the case of the Exxon Valdez spill, the applicable SPCC plan was developed by Alyeska Pipeline Company, the owner of the loading facility in Valdez.40 Neither the oil spill41 nor the general enforcement sections42 of the FWPCA provide the federal government with explicit authority to enforce an SPCC plan through administrative order or injunctive relief. An argument can be made that FWPCA §§ 311(e) and 504 implicitly provide authority for a U.S. government judicial action to require implementation of the SPCC plan, but there is no reported case law on point to support it.43

Another alternative to obtain immediate or complete response action at Exxon's expense (without depleting limited government funds) is to issue an administrative order or pursue court-ordered mandatory injunctive relief for cleanup of the spilled material and restoration of lost natural resources. Except for the rarely invoked emergency powers granted to EPA under the FWPCA,44 federal legislation does not clearly provide the U.S. government a formal mechanism to obtain such mandatory relief where the material spilled is crude oil and the oil spill is from a vessel.45

The limitation of FWPCA § 311(e) injunctive relief authority to "facilities" may constrain the federal government's authority to seek mandatory abatement of the Exxon Valdez oil spill through formal administrative or judicial means. As with actions to enforce an SPCC plan, the United States may have to argue that the spill was from Alyeska's onshore facility in Valdez to avail itself of FWPCA § 311(e) relief. Success in this argument would create the added benefit, however, of forcing two financially viable defendants (Exxon and Alyeska) to implement cleanup.

FWPCA § 311(d) does give the federal government summary emergency powers to "coordinate and direct all public and private efforts directed at removal or elimination" of pollution threatened or created by a "marine disaster in or upon the navigable waters of the U.S."46 While [19 ELR 10342] the language clearly authorizes the United States to require private sector cleanup actions, the enforcement mechanism available in a case of private sector recalcitrance appears to be limited to undertaking government-funded cleanup. Thus, if Exxon fails to follow Coast Guard or EPA orders in a timely manner, or if Exxon does not complete a comprehensive cleanup, FWPCA § 311 may provide little authority to order them to do so.

* Trans-Alaska Pipeline Authorization Act: The TAPAA, which was enacted specifically to cover spills such as the Exxon Valdez accident, contains no injunctive relief or administrative order authority. It is possible, however, that the United States could bring action for declaratory relief to impose TAPAA liability on Exxon, and infer therefrom a right to mandatory injunctive relief to collect upon liability for cleanup without using public funds in the first instance.

* Other Federal Statutes: If mandatory injunctive relief cannot be obtained under oil spill-specific legislation, the oil exclusions under most other relevant federal legislation may preclude mandatory relief altogether.47

The federal government can issue orders or obtain judicial relief for cleanup of the Exxon Valdez spill under the imminent and substantial endangerment provisions of RCRA § 7003, if courts accept the argument that crude oil product, once spilled, is a "solid waste."48

Finally, CERCLA is normally not applicable to oil spills.49 This statutory limitation may be overcome on a case-specific basis, however, if facts can be developed to substantiate that the oil spilled from the Exxon Valdez was not "clean," and contained hazardous substance additives.50 Even if the jurisdictional issue could be overcome, however, CERCLA's administrative order and mandatory injunctive relief authorities are available only for releases from "facilities."51 To avail itself of CERCLA authority to force cleanup of the spill in Prince William Sound, the United States would therefore have to make arguments similar to those described under FWPCA § 311(e), potentially holding both Exxon and Alyeska as defendants with responsibility to implement a mandatory cleanup.

State of Alaska

Alaska's Environmental Conservation statutes provide both for emergency executive authority and for injunctive relief on behalf of the state. The Alaska Department of Environmental Conservation (ADEC) is granted emergency powers to direct whatever action it believes necessary to meet the emergency, upon finding that an actual or imminent discharge of oil or a hazardous substance threatens public health, welfare, or the environment.52 This clear and broad authority implicitly establishes ADEC as lead response agency on the state level and allows it to direct an immediate response to problems as they arise. While ADEC has not invoked this authority as of this writing, this authority may yet prove to be useful in dealing with the Exxon Valdez spill.53

The Alaska statutes authorize the courts to enjoin any violation of Alaska's environmental conservation statutes. Since pollution of the waters of the state is a violation of law,54 this injunction authority is potentially very broad. In addition, the standards for obtaining a temporary restraining order or preliminary injunction favor ADEC, since there is no need to demonstrate irreparable harm.55 In addition, the state and any other person whose property is injuriously affected may bring an action to abate a private nuisance.56 Finally, while the question has never arisen in Alaska, the state most likely can maintain an action [19 ELR 10343] under Alaska common law to abate a public nuisance.57

Private Parties

The FWPCA authorizes citizen suits against any person alleged to be in violation of an effluent standard or limitation58 or an administrative order. FWPCA § 505 does not specifically include violations of FWPCA § 311 as a basis for private enforcement actions, thus limiting citizens'59 authority to enforce an SPCC plan or to require Exxon to perform a complete cleanup. Citizens could act as private attorneys general, however, if the federal government issues an administrative order under the FWPCA relating to the Exxon Valdez spill.60

Private citizens61 may request mandatory injunctive relief for complete cleanup under the citizen suit provisions of RCRA, if courts determine that spilled oil is a "solid waste."62 The citizens' cause of action to abate an imminent and substantial endangerment is similar to that of the federal government, and will be subject to the same defenses. Citizens must provide at least 90 days notice of their intention to file suit,63 and are prohibited from pursuing their action if the federal or state governments are "diligently prosecuting" an enforcement action.64

An argument can be made that private citizens' rights to obtain court-ordered cleanup under Alaska law are at least coextensive with those of ADEC. Private injunctive action to enjoin pollution is not specifically precluded.65 A private party can also bring an action under the private nuisance statute to abate such nuisances, and if he suffers injury in a way different from that of the general public or has standing to sue as a representative of the public or a class, can arguably bring an action to abate the nuisance.66

Response Cost Recovery

In response to oil spills that present an imminent and substantial endangerment to public health or the environment, government agencies have the authority to take response actions using government funds, and recover response costs from liable parties at a later date.67 Given the possible limitations on the federal government's authority to order abatement action if Exxon's cleanup efforts are inadequate,68 a government-financed response may be the only remaining viable option in cases where the spiller does not cooperate fully.

Exxon's potential liability for government response costs resulting from the Exxon Valdez accident is great. Exxon's total dollar exposure may be limited, however, due to statutory liability limits and multiple layers of preemption issues.

The federal government's receipt of full compensation for its response costs may depend on the preemptive nature of the TAPAA and FWPCA § 311, and on its ability to demonstrate, in a court of law, that this oil spill resulted from willful negligence or misconduct. The State of Alaska faces similar constraints under federal law, but may be entitled to full recovery of its response costs under state law. Private parties and local governments that incur response costs have limited opportunities for recovery.

United States

* Trans-Alaska Pipeline Authorization Act: TAPAA 204(b) broadly states that if "any area" is polluted by "any activities" by or on behalf of the permit or ROW holder, the control and total removal of the pollutant shall be at the expense of such holder.69 It further provides that upon failure of the holder to adequately control and remove the pollutant, the Department of Interior, in cooperation with state, federal, and local agencies, may clean up the pollutant at the expense of the holder. Upon initial analysis, Exxon should therefore be strictly liable for all government response costs incurred in cleaning up the Exxon Valdez oil spill.

The language of § 204(b) raises the question whether a finding of inadequacy of Exxon's cleanup is required before the federal government can act at Exxon's expense. The TAPAA legislative history suggests not. This provision was added on the House floor by Rep. Dingell, who explained its purpose as removing the limitation on the amount of cost recovery under the FWPCA and providing [19 ELR 10344] for the recovery of the full cost incurred by the federal government in cleaning up the spill.70 Since the FWPCA authorizes immediate federal removal of oil and neither the TAPAA nor its legislative history indicates an intent to preempt such response authority, it is arguable that the government can act immediately under the FWPCA, yet seek reimbursement of removal costs under the TAPAA, without determing that Exxon's cleanup is inadequate.

As a ROW holder, Exxon's (and Alyeska's, if it is determined to be a ROW holder) liability for federal government response costs should be unlimited under § 204(b). It is worth mentioning, however, that if Exxon were only the owner/operator of the vessel involved in the spill, its liability under the TAPAA for response costs would be limited to $ 100 million,71 with liability for any excess over $ 100 million to be imposed under other applicable federal or state law.

* Federal Water Pollution Control Act § 311: Section 311(c)(1) of the FWPCA authorizes the President "to act to remove or arrange for the removal of … oil" in the case of an oil spill, "unless he determines such removal will be done properly by the owner or operator of the vessel … from which the discharge occurs."72 The actual costs incurred by the United States government73 are recoverable from the owner or operator of the vessel,74 or directly from the insurer or guarantor.75 The response costs also constitute a maritime lien on the vessel, recoverable in an action in rem.76

The owner or operator and vessel are strictly liable for response costs, with only four defenses to liability. Liability can be escaped upon proof that an oil spill was caused "solely by (A) an act of God, (B) an act of War, (C) negligence on the part of the United States Government, or (D) an act or omission of a third party without regard to whether any of such act or omission was or was not negligent."77 The third-party defense will probably not be successful for Exxon in this case,78 and would not necessarily insulate Exxon's cash flow from payment of the response costs in the first instance.79 Exxon's public relations statements indicate that it may argue that alleged Coast Guard negligence should limit Exxon's liability, but Exxon's burden of proof will be very high.80

Although reasonableness of the federal government's response costs should not be an issue,81 the FWPCA does potentially limit Exxon's (and the Exxon Valdez's) liability under § 311(f)(1) to $ 250,000 or $ 150/gross ton, whichever is greater.82 The United States can overcome this liability limitation by proving that the "discharge was the result of willful negligence or willful misconduct within the privity and knowledge of the owner."83 Although analysis of this issue for the Exxon Valdez spill is premature and highly fact-dependent,84 there is little case law on the subject under the FWPCA.85 A two-part analysis is required [19 ELR 10345] to establish the requisite willful negligence or misconduct: (1) whether the actions constitute negligence or misconduct within the privity or knowledge of the owner, and (2) if so, whether the negligence or misconduct was willful. The U.S. government's likelihood of success on either element will be highly dependent on the facts as they are revealed through continued investigation.86

* CERCLA: The United States can look to CERCLA to recover its response costs, if the facts confirm that the oil spilled from the Exxon Valdez contained hazardous substance additives.87 CERCLA provides three defenses to liability, none of which appear to be applicable in the Exxon Valdez case: "the release … of a hazardous substance and the damages resulting therefrom were caused solely by — (1) an act of God; (2) an act of War; (3) an act or omission of a third party other than an employee or agent of the defendant."88 As with FWPCA § 311 and the TAPAA, CERCLA liability is statutorily limited.89 The liability limitation will be disregarded under three circumstances: (1) the spill was the result of willful misconduct or negligence within the privity or knowledge of the liable party; (2) the primary cause of the release was a violation of applicable safety or operating standards; or (3) the liable party failed or refused to provide all reasonable cooperation and assistance in cleanup requested by public officials.90

* Relationship Among Statutes: The legal relationship and priority of use among these cost recovery authorities may be an open question. Because the TAPAA clearly applies to the Exxon Valdez spill, and TAPAA § 204(b) imposes unlimited liability for government response costs, this issue is more likely to arise when the time comes to recover for natural resource damages and economic loss.91

State of Alaska

* Trans-Alaska Pipeline Authorization Act: Recovery of response costs incurred by the State of Alaska in a cooperative cleanup effort may fall within the unlimited strict liability provisions of TAPAA § 204(b), since that section provides for the Department of the Interior's cleanup "in cooperation with other federal, state or local agencies … at the expense of the holder."92 The lack of a formal cooperative agreement between the Secretary of the Interior and the state may be an impediment to state recovery of cleanup costs under § 204(b). The state can nevertheless recover its response costs under the strict liability provisions of § 204(c), subject to the $ 100 million cap on strict liability with respect to all claims made under that subsection.93

* Federal Water Pollution Control Act and Other Federal Statutes: State and local government response costs cannot be recovered under FWPCA § 311.94

State and local government response costs are recoverable under CERCLA, subject to the same limitations discussed above for the federal government.

* State Statutes: Several sections of the Alaska statutes allow the state to recover its response costs from Exxon, without any liability limits. One section imposes strict liability on a person who causes or permits the discharge of oil into state waters for "the full amount of actual damages to the state … including direct and indirect costs associated with the abatement, containment or removal of the pollutant, restoration of the environment to its former state, and all incidental administrative costs."95

The state Superfund, repealed and reenacted since the Exxon Valdez spill with retroactive effect,96 imposes strict, joint and several liability on various entities related to a spill, including the owner and operator of the vessel "that [19 ELR 10346] causes the incurrence of response costs."97 A third-party defense, similar to that provided in CERCLA, is available. To avail itself of the defense, Exxon will have to demonstrate that it discovered the oil spill and "began operations to contain and clean up" within a reasonable period of time after the spill occurred.98

The Alaska statutes also make a person who violates any provision of the state environmental conservation laws liable to the state in a civil action for a sum of up to $ 100,000 for the initial violation, and up to $ 5,000 for each day the violation continues.99 The amount assessed is to reflect compensation for adverse environmental effects, response costs, and economic savings realized by the violator in not complying with the law.100 As a result of the Exxon Valdez spill, both Exxon and Alyeska may have incidentally violated numerous state environmental laws in addition to oil pollution laws, for example solid waste disposal and air pollution control requirements. As written, the statute appears to contemplate that an assessment will be imposed for each violation.101

Private Parties

Private parties who incur cleanup costs may apply to the TAP Liability Fund for recovery, subject to the $ 100 million liability limit. If the total amount of valid claims made to the Fund exceeds $ 100 million, each claimant will be paid pro rata, and can pursue the remainder of his or her claim against Exxon directly under other federal or state law.

There are few other laws under which such recovery is possible.102 Recovery of response costs by private parties under CERCLA is subject to the same limitations as governmental actions, including the requirement that a court determine that the oil contained a listed hazardous substance. In addition, the private party's cleanup costs must be necessary, as well as not inconsistent with the National Contingency Plan.103

Natural Resource Damages Restoration and Recovery

The Exxon Valdez oil spill has caused, and continues to cause, extensive natural resource damage. Multiple fisheries have been destroyed; thousands of wildlife (e.g., migrating birds, otters) have died; hundreds of miles of beaches on federal, state, and municipal land are covered with oil. National and state parks and wildlife refuges have oil on their shores and in their waters.104 The long-term impact on water quality in Prince William Sound and the Gulf of Alaska has not been determined at the time of drafting this Article.

Despite the extensive and expensive natural resource damage resulting from the spill, Exxon's liability for the full dollar amount may not be clear.105 The statutory scheme for natural resource damages liability closely resembles that discussed in the previous section for costs of cleanup. More liability limits apply under federal law, unless statutory exemptions are met. The extent of natural resource damages caused by the Exxon Valdez spill highlights the potential inadequacy of the statutory liability limits, and the heavy burden they place on government attempts to recover from the parties at fault — Exxon and other similarly situated tanker owner/operators. Since this spill involved TAPS oil and overwhelming damage, it is conceivable that full compensation for natural resource damages will not be achieved until governments exhaust all statutory claims seriatim, bearing the burden of proving the right to full recovery at each step.

United States

* Trans-Alaska Pipeline Authorization Act: Under the TAPAA, Exxon is strictly liable for all natural resource damages up to a $ 100 million ceiling, unless it can demonstrate that they were caused by an act of war or government negligence.106 Exxon's public relations posture since the accident suggests that it may raise the government negligence defense in this case; the success of this defense will be highly fact-dependent. In the event full liability is imposed, Exxon's cash expenditures for natural resource and other damages will initially be limited to $ 14 million.107 Since all claims will undoubtedly exceed the $ 100 [19 ELR 10347] million liability limit of the TAP Liability Fund, the unpaid portion of the U.S. natural resource damage claims must be pursued against Exxon under other applicable federal law.

* Federal Water Pollution Control Act: Section 311(f) of the FWPCA imposes liability on Exxon, as the tanker's owner or operator, for federal or state government costs incurred in the restoration or replacement of natural resources damaged or destroyed as the result of an oil spill.108 Either the President or a state representative can file action to recover such costs, and the money recovered must be used to "restore, rehabilitate, or acquire the equivalent of such natural resources."109

It is unclear whether liability for natural resource damages under § 311 exists before the government incurs costs for their replacement,110 although this result would be inconsistent with § 311(f)'s requirement that money recovered for natural resource damages be spent to restore or replace them. The federal government could request declaratory judgment on the issue of liability to avoid this dilemma.111 Assuming liability is clearly established, however, recovery under the FWPCA for both federal and state natural resources is subject to the same liability limits (approximately $ 35 million for the Exxon Valdez) described in the section on response costs.112 Thus, unless the United States successfully proves that this oil spill resulted from willful negligence or misconduct within the privity and knowledge of Exxon, Exxon's total liability (for response costs and natural resource damages) under § 311 will be limited to a small fraction of the total estimated natural resource damages. The addition to these claims of prejudgment interest merely accentuates the liability limit's inadequacy.

* CERCLA: Damages for federal natural resources are also recoverable under CERCLA, if CERCLA is found to apply. As with FWPCA § 311, the CERCLA liability limit applies to the total of response costs and natural resource damages, unless one of the statutory exceptions applies.113

* Relationship Among Statutes: U.S. government recovery of natural resource damages highlights the overlapping and confusing state of federal oil spill law. In order to recover all natural resource damages caused by the Exxon Valdez spill, the federal government may need to use all available authorities. As discussed above, the TAPAA anticipates that any recovery in excess of $ 100 million will rely on other statutes. Case law under the TAPAA, however, indicates that in determining available defenses to liability, the TAPAA has superseded FWPCA § 311.114 The TAPAA legislative history confirms that the higher liability limits of the TAPAA supersede the limits in FWPCA § 311.115 Congress' logic can become circular, however, in the Exxon Valdez case, where even the TAPAA increased liability limits are likely to be insufficient. What federal law, other than FWPCA § 311, is applicable?116 If FWPCA § 311 is applicable, is its lower liability limit additive to the TAPAA limits, or does the FWPCA apply only if the government can prove willful misconduct to impose unlimited liability? If CERCLA is applicable, is its liability limit additive to the TAPAA and FWPCA § 311?117 Or are CERCLA's more liberal exceptions to the liability limitation to be applied to obtain full recovery? The open issues in this case are many, and their resolution may take years of litigation — years during which government funds to restore or replace the damaged resources may not be available.

State of Alaska and Local Governments

* Trans-Alaska Pipeline Authorization Act: Both state and local natural resource damages are recoverable from Exxon and the TAP Liability Fund, subject to the same limitations discussed for the federal government. The greater the number of entities claiming natural resource damage, or the greater the total value of the damages claimed, the sooner the $ 100 million Fund will be exceeded, and recovery pursued under other state and federal laws.

* Federal Water Pollution Control Act and Other Federal Statutes: As discussed above, § 311 of the FWPCA specifically imposes liability for natural resource damages, and designates the President or the authorized representative of any state to be trustee of the natural resources. Case law under the FWPCA does not clarify whether natural resources owned by municipalities or other local governments are included in the liability net. Since local governments are creatures of the state, however, it is arguable that all non-federal natural resources are "state natural resources" for purposes of liability and damages.118 Therefore [19 ELR 10348] if a demonstration is made that the Prince William Sound spill resulted from willful negligence or misconduct within Exxon's privity and knowledge, 100 percent of state and local natural resource damages should be recoverable under FWPCA § 311.

Finally, state and local natural resource damages may be recoverable from Exxon under CERCLA, subject to liability limitations, if CERCLA is found to apply. The questions raised in the previous section regarding the interplay between the TAPAA, FWPCA § 311, and CERCLA will be revisited in cases brought for recovery of state and local natural resource damages.

* State Statutes: Several sections of the Alaska statutes provide for recovery of natural resource damages. As discussed above, state law provides for unlimited liability for the full amount of actual damages, including direct and indirect costs associated with restoration of the environment to its natural state.119 This is one measure of the damage to the environment.

In addition, another provision120 establishes civil penalties for the discharge of oil. The structure of the statute and its legislative history suggest that this provision may have been designed to provide a measure of damages for resources, the value of which would otherwise be extremely difficult to quantify. The statute provides for assessments, termed "penalties," based on the amount of oil that enters a particular environment. Statutory ceilings are established;121 the total assessments under this section may not exceed $ 100 million. The per gallon assessment applicable to the Exxon Valdez spill can be calculated under ADEC regulations.122 Although Prince William Sound is designated as a sensitive marine environment,123 the toxicity, degradability, and dispersibility factors for Alaska North Slope crude may lower the actual assessment considerably.124 A person liable under this section is not also liable for the per-violation damages for the discharge of oil.125

Recovery of Damages Due to Economic Loss

The final major category of damages resulting from the Exxon Valdez spill is economic losses caused by the spill, apart from response costs and resource damages. Such losses can include lost taxes on the federal, state, and local level; lost income to fishermen, fish processors, and support industries and employees caused by closure of seasons and reduced catches;126 lost income to tourist-related business; and, according to one group of plaintiffs, increased gasoline prices resulting from the spill.127 While the total amount of economic loss cannot be estimated at the time of drafting because the spill's effects continue, class action suits already filed alleged significant economic loss.

By virtue of the TAP Fund's subrogation rights, Exxon is strictly liable under federal law as the owner and operator of the tanker for economic loss incurred by public or private entities or persons, up to the $ 100 million ceiling for all damages. When the ceiling is exceeded, the unpaid portion of claims for economic loss can be pursued under other federal and state laws. Under Alaska law, Exxon is also strictly liable without limitation as the owner or entity having control of the oil. While common law actions128 could also be maintained against Exxon, they appear to be unnecessary, although they may be necessary to recover for economic loss from Alyeska.

The difficulties presented by the TAP Liability Fund approach and liability cap129 are most significant for economic loss claimants. Under a worst case interpretation, for example, fishermen claiming lost profits and impairment of livelihood would first present their full claim to the TAP Liability Fund and receive pro rata payment130 before pursuing compensation for the unpaid portion of the claim under other applicable laws. As a practical matter, a fisherman may be better off pursuing his claim against Exxon directly under state law, while submitting a claim to the TAP Liability Fund as an extra measure of protection.131

Federal Statutes

Several of the statutory schemes previously discussed allow recovery for economic loss. Section 207(c) of the TAPAA establishes strict liability up to $ 100 million for all damages incurred by any person or entity, public or private, and allows recovery from the TAP Liability Fund. The implementing regulations define damages as "any economic [19 ELR 10349] loss," specifically including injury to property, loss of use of property, loss of use of natural resources, and loss of profits or impairment of earning capacity due to injury or destruction of property or resources.132 To the extent the total damages exceed $ 100 million, they may be asserted under any other applicable federal or state law.

Neither FWPCA § 311 nor CERCLA imposes liability on Exxon for damages due to economic loss.

State Statutes

Alaska law imposes strict liability, without limit, on any person owning or having control over a hazardous substance, including crude oil that enters the waters of the state for "the damages to persons or property, public or private, caused by the entry."133 Recoverable damages are defined to include, and not be limited to, injury to or loss of persons or property, loss of income, loss of the means of producing income, and loss of an economic benefit.134 This section specifically does not abridge or alter a right of action or remedy under another statute, in equity, or at common law, although double recovery obviously is prohibited.135

Conclusion

The overlapping jurisdictions between federal (Coast Guard, EPA) and state agencies, and the potentially limited scope of each agency's authority, highlight the need for intergovernmental cooperation to accomplish all responses to the Exxon Valdez spill: prompt and complete cleanup, as well as full recovery for government response costs and natural resource damages. A clear designation of one agency (whether federal or state) with ultimate executive authority, accompanied by cross-delegation of decisionmaking authority, may be the only method currently available to obtain full and timely response action and compensation for all damages. Shortly after the Exxon Valdez accident, Alaska's Governor Steve Cowper made this suggestion to Congress, stating that the Coast Guard be given ultimate decisionmaking authority, with powers that would approach limited martial law.

The answer to the question posed by this Article's title —whether full compensation is possible for the damages resulting from the Exxon Valdez oil spill — is unclear. The potential exists for full compensation for all response costs, natural resource damages and economic loss, but litigation on these issues is likely to continue for years. The exercise undertaken in this article, namely applying existing law to the known facts of the spill, allows us to draw more general conclusions before the courts' decision are rendered. These conclusions emphasize loopholes or inconsistencies in the existing mosaic of oil spill regulation, particularly at the federal level.

Most important from the federal budget perspective are the potential limitations on the U.S. government's ability to force Exxon to conduct a proper cleanup.136 The statute designed to cover spills such as this one in Prince William Sound (TAPAA) contains no direct enforcement authority. The FWPCA's general enforcement authorities appear to exclude oil violations and SPCC plans. The FWPCA's oil spill enforcement authorities include oil spills from vessels, but provide no clear enforcement mechanism for the United States to enforce its cleanup "directions." Finally, other federal environmental statutes contain expansive oil exclusions. While the United States probably can force Exxon to clean up this spill by using innovative legal theories, or due to factual peculiarities of this case, the problem is a more generic one. Without express authority to direct immediate oil spill cleanup at private sector expense, and legal authority to enforce such directives, the federal government's ability to protect the environment fully and preserve the maximum natural resources is directly dependent on the liquid assets available in response funds at the time a spill occurs. In the case of the Exxon Valdez spill, the dollars needed for a first-rate cleanup are great, as is the time that may elapse until they are recovered.

Our analysis also underscores the potential confusion surrounding the extent of liability for oil-spill-related damages and the inequity of multiple liability provisions. First, damages such as those resulting from economic loss or state response costs may be recoverable only for oil spills regulated under special legislation like the TAPAA or the Outer Continental Shelf Lands Act. Section 311 of the FWPCA does not provide for their recovery; thus, fishermen affected by oil spills from a vessel carrying oil produced inland on the continental United States could not recover for lost profits or impairment of livelihood under federal law.

Second, the potential for full recovery for all claimants appears to decrease as the damage caused by an oil spill increases. This absurd result is dictated by statutory liability limits, which apply unless the government proves that spill-specific circumstances warrant their removal. A statutory presumption against full compensation for response costs and natural resource damages appears to exist in those cases where such damages are most extreme.

If we accept the rationality of liability limits, however, the standard for removing the limitation differs among the various statutes. Thus, if the Exxon Valdez had carried a hazardous substance rather than oil, the liability limit could be removed upon finding that Exxon failed to cooperate fully in cleanup efforts, or that the spill resulted from a violation of applicable operation standards. Similarly, if the Exxon Valdez had been carrying oil produced from the Outer Continental Shelf, and the spill resulted from a violation of applicable operation standards, no liability limits would be imposed. Because the Exxon Valdez carried TAPS oil, however, a liability limit for certain damages may be imposed, regardless of proof that Exxon may have [19 ELR 10350] failed to cooperate fully or that the spill resulted from a violation of operation standards.

Third, the complicated claims process specified in the TAPAA, together with cumbersome liability limitation provisions in all statutes, ensure that in cases with significant damage, no claimant will receive full recovery without extensive and time-consuming litigation. The delay inherent in this process negates the fundamental reason for creating a fund and imposing strict liability, namely prompt recovery. In a case like the Exxon Valdez spill, where natural resource damage claims alone are likely to exceed the available fund money, private claimants may not recover for lost profits or impairment of livelihood at the time they most need it —immediately after the spill occurs. In addition, government resources may have to be spent on proving that 100 percent recovery is appropriate under the circumstances, rather than on restoring or replacing the nation's natural resources as quickly as possible.

Congress has considered comprehensive oil spill legislation for several years.137 Such legislation has the potential to close loopholes and correct inconsistencies in current legislation, some of which are highlighted by the Prince William Sound disaster. Comprehensive legislation should ensure that all oil spill claims — including response costs, natural resource damages, and economic loss — will be covered regardless of the source of the oil or the location of the spill. It should simplify the claims process, identify clear rules applicable to all oil spills, and, if liability limits must be specified, place the burden on the spiller to demonstrate why they should be applied in a given case. Finally, such legislation should provide the federal government with clear authority to require full cleanup for all types of oil spills, whether from a vessel or facility, in lieu of draining federal coffers with the need for future cost recovery.

Let us hope that the catastrophe in Prince William Sound and the devastating damage caused when the Exxon Valdez ran aground will have a hidden benefit: statutory changes that fully protect our nation's environmental, economic, and aesthetic resources.

1. One month after the spill, 31 lawsuits and 1300 claims had already been filedagainst Exxon. Exxon Says 31 Lawsuits Filed in Oil Spill, Washington Post, Apr. 26, 1989, at A-12, col. 4. As of April 25, 1989, 26 cases had been filed in federal court in Alaska. The court ordered that these cases and all subsequently filed cases arising from the grounding of the Exxon Valdez be consolidated. In re Exxon Valdez, No. A89-095 Civil (D. Alaska Apr. 25, 1989) (pre-trial order).

2. Prince William Sound supports strong fishing and tourism industries. The economy of some Prince William Sound communities, like Cordova, is based exclusively on fishing.

3. Affected areas include Katmai National Park, Kodiak National Wildlife Refuge, and Kenai National Wildlife Refuge.

4. At the time of drafting this Article, Exxon alone had already spent $ 95 million in cleanup costs.

5. There is inadequate factual information available to date to draw firm conclusions about the indentity of all potential defendants and their potential liability. In this Article, the name "Exxon" is a shorthand reference to Exxon and other possible defendants. This Article was drafted a week before the National Transportation Safety Board's inquiry into the cause of the accident, and does not reflect any independent fact finding.

6. As will be discussed in more detail herein, the potential for full compensation might be different if the spill had occurred from a "facility" rather than a tanker; or if the material spilled had not been oil; or if the spill had involved oil not carried through the Trans-Alaska Pipeline.

7. This Article does not discuss potential liability for fines (such as civil or criminal penalties and punitive damages), nor does it address any maritime or admiralty claims that can be raised by government or private plaintiffs to obtain compensation for damages or loss resulting from the Exxon Valdez oil spill. Finally, the Article does not consider international law or U.S. implementation of international accords.

8. FWPCA § 311, 33 U.S.C.A. § 1321, ELR STAT. FWPCA 039. The Act is commonly referred to as the Clean Water Act.

9. FWPCA § 311(b)(3), 33 U.S.C.A. § 1321(b)(3), ELR STAT. FWPCA 039.

10. FWPCA § 311(c) and (d), 33 U.S.C.A. § 1321(c) and (d), ELR STAT. FWPCA 040. The President has delegated various of these authorities to EPA or the Coast Guard. Exec. Order No. 11735, 3 C.F.R. 791 (1971-75), as amended by Exec. Order No. 12418, 3 C.F.R. 187 (1984), May 5, 1983, 48 FR 20891.

11. Facilities may be onshore or offshore. The statutory definition of "offshore facility" specifically excludes "vessels." FWPCA § 311(a)(10) and (11), 33 U.S.C.A. § 1321(a)(10) and (11), ELR STAT. FWPCA 039.

12. FWPCA § 311(e), 33 U.S.C.A. § 1321(e), ELR STAT. FWPCA 041.

13. FWPCA § 311(k), 33 U.S.C.A. § 1321(k), ELR STAT. FWPCA 042. The 311 Fund is statutorily authorized to contain up to $ 35,000,000 to cover oil spill response costs, although the fund balance was approximately $ 6 million at the time of the Exxon Valdez spill. The fund is administered by the Coast Guard.

14. FWPCA § 311(f)(1) and (4), 33 U.S.C.A. § 1321(f)(1) and (4), ELR STAT. FWPCA 041.

15. The liability limit for the Exxon Valdez, if applicable, would be approximately $ 31,650,000, depending on how the gross tonnage of the vessel is calculated. Throughout this Article we use a gross tonnage figure of 211,000. The Coast Guard may have a standard tonnage listing for oil tankers, under which the liability limit for the Exxon Valdez would be $ 15,250,000. Compare this limited liability to the estimated total in excess of $ 100 million for response costs and natural resources damages.

16. FWPCA § 311(f)(1) contains the liability limitations for releases from vessels, 33 U.S.C.A. § 1321(f)(1), ELR STAT. FWPCA 041. The dollar amounts of limits of liability differ for onshore and offshore facilities, although the opportunity to escape the liability limitations for willful misconduct remains. FWPCA § 311(f)(2) and (3), 33 U.S.C.A. § 1321(f)(2) and (3), ELR STAT. FWPCA 041.

17. Specific federal legislation has been passed for oil produced in federal offshore areas (Outer Continental Shelf Lands Act Amendments, 43 U.S.C.A. §§ 1801-1824) or handled at offshore oil ports (Deep-water Port Act, 33 U.S.C.A. §§ 1501-1524). Any spills that affect natural resources of a national marine sanctuary are covered under Title III of the Marine Protection, Research, and Sanctuaries Act of 1972, 16 U.S.C.A. § 1443.

18. TAPAA § 203, 43 U.S.C.A. § 1652.

19. TAPAA § 204, 43 U.S.C.A. § 1653. Representative Kohn Dellenback, who offered liability provisions as floor amendments, commented:

These provisions, which are in the bill before us as section 207, are very tough liability clauses covering both the land and marine legs of the trans-Alaskan route. Their effect will be to impose strict liability, regardless of fault, on pipeline permit holders for damages resulting from activities related to the pipeline itself or to the marine legof the route.

We have received assurances from Alyeska and the other commercial interests involved in the pipeline that they are convinced the trans-Alaska route can be so constructed as to be environmentally safe. The strict liability clauses in section 207 put the burden on them to prove that their assurances are completely valid. With these clauses, enlightened self-interest will make certain they do the best possible job to prevent environmental damage.

20. TAPAA § 204(a)(1), (b), (c)(1), 43 U.S.C.A. § 1653(a)(1), (b), (c)(1). Included are "cleanup costs" and "damages without regard to ownership of any affected lands, structures, fish, wildlife, or biotic or other natural resource relied upon … for subsistence or economic purposes."

21. Exxon is a TAPS ROW holder. In what may be a significant, though inadvertent, oversight, Alyeska Pipeline Service Company, the consortium that built, owns, and operates the pipeline and the Valdez terminal, may escape liability under § 204, if it is determined not to be a TAPS permit or ROW holder.

22. For example, a ROW holder is liable without limitation for the government's response costs, but has limited liability for natural resource damages and economic loss, unless negligence is established. 43 U.S.C.A. § 1653(a)(2), (b). The tanker owner or operator, on the other hand, arguably has limited liability under TAPAA, although full recovery of all damages may be possible under other applicable federal and state law. The Fund can be used to pay claims for any damages up to $ 100 million, but is subrogated to the claimants' cause of action against the ROW holder and owner/operator. TAPAA § 204(c), 43 U.S.C.A. § 1653(c).

23. TAPAA § 204(b), 43 U.S.C.A. § 1653(b).

24. See infra, text accompanying notes 47-51, for discussion of whether crude oil, or the oil spilled from the Exxon Valdez, is covered by RCRA or CERCLA.

25. A CERCLA "release" includes "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment." CERCLA § 101(22), 42 U.S.C.A. § 9601(22), ELR STAT. 44006.

26. CERCLA § 107(a), 42 U.S.C.A. § 9607(a), ELR STAT. 44024. CERCLA, as amended by the Superfund Amendments and Reauthorization Act of 1986, P.L. No. 940499, 100 Stat. 1613 (1986), is commonly known as "Superfund."

27. CERCLA § 106(a), 42 U.S.C.A. § 9606(a), ELR STAT. 44023.

28. RCRA §§ 7002(1)(B), 7003, 42 U.S.C.A. §§ 6972(1)(B), 6973, ELR STAT. RCRA 035. This right of action accrues to all levels of government and private citizens.

29. See ALASKA STAT. §§ 46.03 and 46.08.

30. See W. RODGERS, ENVIRONMENTAL LAW, AIR AND WATER, Vol. 2, § 4.37 (1986) (discussing such preemptive effects of § 311). Horizontal preemption among various overlapping Alaska statutes should not be of major concern, given the legislature's statement that remedies under the environmental conservation statutes and oil pollution control statutes are generally cumulative. See ALASKA STAT. § 46.03.875 (remedies cumulative); cf. § 46.03.758(i) (notwithstanding the cumulative remedies provision, a person liable for civil penalties for the discharge of oil is not also liable for liquidated damages for the discharge under § 46.03.760).

31. 33 U.S.C.A. § 1321(o)(2), ELR STAT. FWPCA 042.

32. 43 U.S.C.A. § 1653(c)(9).

33. In Askew v. American Waterways Operators, the U.S. Supreme Court held that a Florida statute imposing strict liability for any damage incurred by the State or private persons as a result of certain oil spills in state waters was not preempted by the predecessor to FWPCA § 311. 411 U.S. 325, 3 ELR 20362 (1973).

34. The FWPCA's § 311(k) revolving loan fund should contain $ 35 million, but is chronically underfunded. In addition, approximately 50 percent of the fund's expenditures since 1971 has been recovered. CONGRESSIONAL RESEARCH SERVICE, OIL POLLUTION LIABILITY AND COMPENSATION, 88-611 ENR (Sept. 14, 1988). The TAP Liability Fund contains $ 241 million, but is liable for only $ 100 million in any individual spill. In addition, if TAP funds are used to cover government response costs, no funds will remain to pay other claims, such as those for natural resource damages or economic loss. The Alaska Oil and Hazardous Substance Release Response Fund contains approximately $ 1 million.

35. President Bush has been deliberating since the date of the accident over the adequacy of Exxon's response and the need for federal interference. Alaska Governor Cowper has frequently called for a federal takeover of the cleanup, and Vice President Quayle recently declared Exxon's response inadequate after visiting Prince William Sound. As of the date of drafting this Article, the United States had not yet decided to replace Exxon in the cleanup activities.

36. FWPCA § 505, 33 U.S.C.A. § 1365, ELR STAT. FWPCA 059; RCRA § 7002, 42 U.S.C.A. § 6972, ELR STAT. RCRA 034.

37. FWPCA § 311(j)(1) requires the President to develop regulations establishing criteria for development of SPCC plans for vessels and onshore and offshore facilities. 33 U.S.C.A. § 1321(j)(1), ELR STAT. FWPCA 041. The responsibility for developing such regulations for vessels and transportation-related facilities has been delegated to the Department of Transportation. Memorandum of Understanding, EPA-DOT, 36 Fed. Reg. 24000 (Nov. 24, 1971). SPCC requirements for non-transportation-related onshore and offshore facilities are found in 40 C.F.R. § 112.

38. 40 C.F.R. § 112.

39. It is unclear whether the vessels traveling through navigable waters of the United States should be covered by the SPCC plan prepared by the onshore facilities at which they dock.

40. Alyeska's SPCC plan indicates that it is designed to comply with the National Contingency Plan (NCP), Alaska's state requirements (ALASKA STAT. § 46.04.030; ALASKA ADMIN. CODE tit. 18 § 75.305) and stipulations of federal and state ROW agreements. Alyeska Pipeline Service Company, Oil Spill Contingency Plan, Prince William Sound, January 1987. Note that the NCP addresses coordination of government response actions in the event of an oil spill, but does not appear to directly mandate private sector response or contingency planning.

41. FWPCA § 311, 33 U.S.C.A. § 1321, ELR STAT. FWPCA 039.

42. FWPCA § 309, 33 U.S.C.A. § 1319, ELR STAT. FWPCA 035, authorizes civil and criminal penalties, administrative orders and injunctive relief for violations of multiple FWPCA sections related to effluent limitations and water quality standards, but does not incorporate violations of FWPCA § 311 provisions.

43. FWPCA § 311(e) authorizes injunctive relief to abate an imminent and substantial threat to the public health or welfare caused by an actual or threatened discharge of oil from an onshore or offshore facility. Since this section does not explicitly apply to discharges from vessels, the argument must be made that the failure to implement Alyeska's SPCC plan completely constituted a discharge of oil from an onshore facility.

FWPCA § 504 gives the Administrator of EPA emergency powers to seek mandatory injunctive relief "upon receipt of evidence that a pollution source or combination of sources is presenting an imminent and substantial endangerment to the health of persons or to the welfare of persons where such endangerment is to the livelihood of such persons, such as inability to market shellfish." 33 U.S.C.A. § 1364(a), ELR STAT. FWPCA 059. Requested relief could include implementation of the SPCC plan.

44. FWPCA § 505(a), 33 U.S.C.A. § 1364(a), ELR STAT. FWPCA 059. Note that since its enactment, CERCLA is used to interpret or implement the emergency powers granted to EPA under this FWPCA section. See, e.g., CERCLA § 304, 42 U.S.C.A. § 9654, ELR STAT. 44070 (funds transferred from this section to the Superfund), and CERCLA § 106, 42 U.S.C.A. § 9606, ELR STAT. 44023 (guidelines to be developed under CERCLA for using imminent hazard enforcement and emergency response authorities).

45. At least one court has granted equitable relief to prevent future oil spills, based on the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 403, 407, and the federal common law of public nuisance. United States v. Ira S. Bushey & Sons, Inc., 363 F. Supp. 110, 4 ELR 20071 (D. Vt. 1973), aff'd mem., 487 F.2d 1393 (2d Cir. 1973), cert. denied 417 U.S. 976. See also Illinois v. City of Milwaukee, 406 U.S. 91, 2 ELR 20201 (1972) (the FWPCA does not preempt equitable relief under federal common law of nuisance for interstate water pollution); United States v. Outboard Marine, 549 F. Supp. 1036, 13 ELR 20035 (N.D. Ill. 1982) (injunction granted under Refuse Act to remove and treat soil and groundwater).

46. FWPCA § 311(d), 33 U.S.C.A. § 132(d), ELR STAT. FWPCA 040. The term "marine disaster" is undefined. In addition to authority to "coordinate and direct," the United States may "summarily remove, and, if necessary, destroy such vessel." These powers are repeated verbatim in the National Contingency Plan. 40 C.F.R. § 300.22(e).

47. We do not address the Toxic Substances Control Act (TSCA), although its imminent hazard authority is arguably available, if oil is considered an "imminently hazardous chemical substance." TSCA § 7, 15 U.S.C.A. § 2606(a), ELR STAT. TSCA 017. The TSCA imminent hazard authorities are generally used to regulate activities nationwide for such substances, not to prescribe case-specific actions such as cleanup.

48. The term "solid waste" means "any garbage, refuse … and other discarded material." RCRA § 1004, 42 U.S.C.A. § 6903(27), ELR STAT. RCRA 005. EPA has consistently taken the position that product becomes a "waste" when spilled. The success of this interpretation for oil spills may depend on the facts of each case, since oil "recovered" from a spill can sometimes be reused as product.

RCRA exempts "wastes associated with the exploration, development, or production of crude oil" from regulation as a "hazardous waste," until further study is completed. RCRA § 3001(b)(2)(A), 42 U.S.C.A. § 6921(b)(2)(A), ELR STAT. RCRA 010. EPA has completed the study and determined that such wastes will not be regulated as "hazardous." The Exxon Valdez oil may be either a hazardous waste or a solid waste, depending on whether the statutory exemption applies. The distinction is not important here, however, since the imminent and substantial endangerment authorities apply to either type of waste. Note that because the Exxon Valdez cargo was neither a waste nor defined as hazardous when loaded, and because it was not located at a "facility," no contingency planning under RCRA was required.

49. CERCLA's definition of "hazardous substances" specifically excludes "petroleum, including crude oil or any fraction thereof which is not specifically listed or designated as a hazardous substance." 42 U.S.C.A. 9601(14), ELR STAT. 44005.

50. EPA has taken the position that petroleum is not covered by CERCLA unless it contains hazardous "substances not normally found in refined petroleum fractions or present at levels which exceed those normally found in such fractions." Further, EPA takes the position that in cases where the petroleum does contain abnormal quantities of hazardous substances, CERCLA liability applies only to the hazardous substance portion of the spill, not to the oil itself. Memorandum from EPA General Counsel Francis Blake, Scope of the CERCLA Petroleum Exclusion Under Sections 101(14) and 104(a)(2) (July 31, 1987), reprinted in 14 CHEM. WASTE LITIGATION REP. 842 (1987).

51. CERCLA § 106, 42 U.S.C.A. § 9606(a), ELR STAT. 44023. The CERCLA definition of "offshore facility" specifically excludes vessels. CERCLA § 101(17), 42 U.S.C.A. § 9601(17), ELR STAT. 44005.

52. ALASKA STAT. § 46.03.865; see also ALASKA STAT. § 46.03.820 (granting ADEC emergency power to order a person to discontinue, abate, or alleviate a condition or activity presenting imminent danger to public health or welfare or likely to result in irreversible or irreparable damage to natural resources.)

53. For example, ADEC could use this authority to coordinate fishery management decisions in the summer fisheries with state response efforts.

54. ALASKA STAT. § 46.03.710.

55. ALASKA STAT. § 46.03.765 provides that the only relevant elements of proof are imminent threat of continued violation and probable success on the merits. The Alaska legislature did acknowledge, however, that a balancing of equities may affect the timing of compliance, but not the necessity of compliance. Compare Alaska Public Utilities Commission v. Greater Anchorage Area Borough, 534 P.2d 549, 554 (Alaska 1975) (adopting a balancing of the equities approach and requiring that plaintiff be faced with irreparable harm).

56. ALASKA STAT. § 09.45.230.

57. See RESTATEMENT (SECOND) TORTS § 821C(2).

58. For purposes of the citizen suit provisions, the term "effluent standard or limitation" is broadly defined to include most statutory provisions relating to point source discharges of pollutants. FWPCA § 505(f), 33 U.S.C.A. § 1365(f), ELR STAT. FWPCA 059.

59. Note that the State of Alaska, or any local government, is considered a "citizen" for the citizen suit provisions of the FWPCA. FWPCA § 502(5), 33 U.S.C.A. § 1362(5), ELR STAT. FWPCA 059.

60. See infra discussion of limitations on the federal government's authority to issue abatement orders under the FWPCA.

61. Note that the State of Alaska, or any local government, is considered a "citizen" for the citizen suit provisions of RCRA. RCRA § 1004(15), 42 U.S.C.A. § 6903(15), ELR STAT. RCRA 005. In addition to possible choice of forum advantages, a successful "citizen" under RCRA can obtain repayment of attorneys fees and costs. RCRA § 7002(e), 42 U.S.C.A. § 6972(e), ELR STAT. RCRA 034. But see ALASKA RULE OF CIVIL PROCEDURE 82, which dictates a similar result in state court.

62. RCRA § 7002(a)(1)(B), 42 U.S.C.A. § 6972(a)(1)(B), ELR STAT. RCRA 034.

63. RCRA § 7002(b)(2)(A), 42 U.S.C.A. § 6972(b)(2)(A), ELR STAT. RCRA 034. Note that if the violation relates to a discharge of hazardous waste, however, notice of intention to sue can be given immediately before the citizen suit complaint is filed.

A "90-day notice" under RCRA and the FWPCA was filed shortly after the Exxon Valdez spill by several national and state environmental groups, naming multiple public and private entities as potential defendants.

64. RCRA § 7002(b)(2)(B) and (C), 42 U.S.C.A. § 6972(b)(2)(B) and (C), ELR STAT. RCRA 034.

65. ALASKA STAT. § 46.03.765 is silent on the issue of what parties are entitled to equitable relief.

66. RESTATEMENT (SECOND) TORTS § 821C(2).

67. At the time of drafting this Article, President Bush was still evaluating whether the federal government would assert front line control over the cleanup in Prince William Sound, thus taking responsibility away from Exxon. Multiple agencies in state and federal government (e.g., Coast Guard, Alaska Fish & Game, ADEC) have nevertheless been integrally involved in the cleanup efforts to date, and have incurred significant response costs to be reimbursed by Exxon.

68. See supra discussion in section on Mandatory Private Sector Cleanup.

69. TAPAA § 204(b), 43 U.S.C.A. § 1653(b). According to the ROW agreement, each of the seven oil companies or affiliates that are signatories to the agreement owns an undivided interest in the ROW permit. Exxon Pipeline Company owns an undivided interest of 25.52 percent of the ROW permit. Note that Exxon, as owner/operator of the Exxon Valdez, is also liable for response costs under 43 U.S.C.A. § 1653(c)(1), although a $ 100 million liability limit would apply if that section were the sole basis for recovery.

70. 119 CONG. REC. 27717 (daily ed. Aug. 2, 1973).

71. As a practical matter, Exxon must pay the first $ 14 million in claims, while the TAP Liability Fund covers the remaining $ 86 million and can pursue recovery against Exxon by subrogation. See 43 U.S.C.A. § 1653(c). The TAP Liability Fund was established by TAPAA § 204(c). Any person or entity, public or private, can recover for all damages, including cleanup costs, resulting from the discharge of Alaska North Slope crude from a tanker. The Fund was funded by a $ 0.05 per barrel levy on oil transported through the pipeline until it reached $ 100 million. It has never had to pay a claim and currently has assets over $ 240 million.

72. FWPCA § 311(c)(1), 33 U.S.C.A. § 1321(c)(1), ELR STAT. FWPCA 040. The President is authorized to act "whenever any oil … is discharged, or there is a substantial threat of such discharge, into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone, … or which may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States …." The Exxon Valdez released its cargo of oil into Prince William Sound. From there, the oil has been found on adjoining shorelines and in waters within the contiguous zone as far away as 300 miles from Bligh Reef, the site where the tanker ran aground.

73. Actual response costs can include salary, direct expenses, costs incurred for restoration and replacement of natural resources, and prejudgment interest. FWPCA § 311(f)(1), (f)(4), 33 U.S.C.A. § 1321(f)(1), (f)(4), ELR STAT. FWPCA 041. See, e.g., United States v. Hollywood Marine, Inc., 519 F. Supp. 688, 11 ELR 21001 (S.D. Tex. 1981), rev'd on other grounds, 625 F.2d 524 (5th Cir. 1980); United States v. Malitovsky Cooperage Co., 472 F. Supp. 454 (W.D. Pa. 1979) (interest awarded at court's discretion, based on prevailing rate of interest). Natural resource damages are discussed in greater detail in the next section.

74. In the case of the Exxon Valdez, Exxon Shipping Co. is both the owner and operator of the vessel. There is case law to suggest that piercing the corporate veil is appropriate to hold all entities profiting from a vessel's operations accountable in the case of a spill. United States v. Ira S. Bushey & Sons, Inc., 363 F. Supp. at 110, 4 ELR at 20071.

75. FWPCA § 311(p)(3), 33 U.S.C.A. 1321(p)(3), ELR STAT. FWPCA 042.

76. FWPCA § 311(f)(1), 33 U.S.C.A. § 1321(f)(1), ELR STAT. FWPCA 041. The owner or operator of the vessel are jointly and severally liable with the vessel for the government's response costs. United States v. Hollywood Marine, Inc., 519 F. Supp. at 688, 11 ELR at 21001. The Exxon Valdez has been partially repaired, and is awaiting Coast Guard approval to sail to port for full repairs. Its full value should not be diminished.

77. FWPCA § 311(f)(1), 33 U.S.C.A. § 1321(f)(1), ELR STAT. FWPCA 041.

78. See W. RODGERS, supra note 30, at § 4.35; United States v. Le Beouf Brothers Towing Co., 621 F.2d 787 (5th Cir. 1980), reh'g denied 629 F.2d 1350, cert. denied 452 U.S. 906 (1981) (strict liability despite crew error); Burgess v. M/V Tamano, 564 F.2d 964 (1st Cir. 1977), cert. denied 435 U.S. 941 (1978) (strict liability despite pilot's actions to guide tanker onto submerged ledge). See also Note, Strict Liability for Cleanup Costs under Section 311 of the Clean Water Act: Cleaning Up Respondeat Superior and Negligence, 10 COLUM. J. ENVTL. L. 149 (1985).

79. FWPCA § 311(g) provides that an owner claiming the third-party defense must nevertheless pay the federal government for its response costs and seek subrogation from the allegedly responsible third party. 33 U.S.C.A. § 1321(g), ELR STAT. FWPCA 041.

80. See, e.g., Gaspar v. United States, 460 F. Supp. 656 (D. Mass. 1978) (no owner/operator liability for response costs under § 311 in case where Coast Guard anchored drifting and unmanned barge in navigation channel).

81. See, e.g., Burgess v. M/V Tamano, 564 F.2d at 964; United States v. Beatty, Inc., 401 F. Supp. 1040, 6 ELR 20119 (W.D. Ky. 1975) (statute authorizes recovery of "actual expenses").

82. FWPCA § 311(f)(1), 33 U.S.C.A. § 1321(f)(1), ELR STAT. FWPCA 041. For the Exxon Valdez, liability may be limited to $ 31,650,000, if we use 211,000 deadweight tons as the relevant weight.

83. FWPCA § 311(f)(1), 33 U.S.C.A. § 1321(f)(1), ELR STAT. FWPCA 041. A court will determine whether facts in a particular case constitute willful misconduct in light of all the evidence. See Steuart Transportation Co. v. Allied Towing Corp., 596 F.2d 609, 9 ELR 20237 (4th Cir. 1979).

84. At the time of drafting this Article, both cleanup and factual investigations are ongoing. New factual information is uncovered daily, and Exxon's public relations posture on the facts surrounding the spill and its cause is also changing frequently.

85. Similar language appears in the Outer Continental Shelf Lands Act (42 U.S.C.A. § 1814(b)) and CERCLA (§ 107(c)(2), 42 U.S.C.A. § 9607(c)(2), ELR STAT. 44025), but there are no reported cases interpreting either provision. Note, however, that there is a presumption of negligence when vessels, such as the Exxon Valdez, run into a fixed object, such as a submerged reef. See, e.g., U.S. v. T/B Arcadian, 714 F.2d 470 (5th Cir. 1983).

86. The case law in this area, developed primarily under non-environmental liability statutes, is contradictory and fact-specific. See, e.g., Steuart Transportation Co., 596 F.2d at 609, 9 ELR at 20237 (willful negligence refers to reckless disregard for probable consequences of voluntary act or omission; 100 percent cost recovery not allowed under the FWPCA for an isolated negligent act); Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151 (2d Cir. 1978), cert. denied 440 U.S. 959 (owner's negligence determined on basis of customary industry practice or violation of statutory duty; failure to appoint competent master and crew was willful negligence; decided under 1851 Limitation of [Vessel] Liability Act, 46 U.S.C.A. § 183 et seq.); In re State of Louisiana, Department of Highways, 455 F. Supp. 272 (E.D. La. 1978) (negligent or navigational error on part of crew was not willful negligence within privity or knowledge of owner; decided under 1851 Limitation of [Vessel] Liability Act, 46 U.S.C.A. § 183 et seq.).

87. See supra text accompanying notes 47-51. CERCLA § 107(a), 42 U.S.C.A. § 9607(a), ELR STAT. 44024. Note also that Exxon may be creating future CERCLA liability if its proposals to waive environmental requirements for disposal of oil spill sludges and wastewater are accepted, and an argument is successfully made that any future releases of hazardous substances from disposal of the oil spill wastes are not protected by the oil exemption of CERCLA.

88. CERCLA § 107(b), 42 U.S.C.A. § 9607(b), ELR STAT. 44024. Based on Exxon's public relations statements following the spill, it is conceivable it may claim the third-party defense for alleged Coast Guard acts or omissions. The CERCLA third-party defense incorporates a comparative negligence test, however, which may nevertheless support substantial Exxon liability as the facts of the case develop. CERCLA § 107(b)(3)(a) and (b), 42 U.S.C.A. § 9607(b)(3)(a) and (b), ELR STAT. 44024.

89. The CERCLA liability limitation is double that of FWPCA § 311, or approximately $ 63,300,000 (based on 211,000 tons gross weight). In the case of the Exxon Valdez, we do not need to determine which of the CERCLA fixed dollar liability limits provided for vessels is pertinent, since the calculation based on total weight exceeds both. Vessels that carry hazardous substances as cargo or residue have a minimum $ 5,000,000 liability limitation, whereas all other vessels have a minimum $ 500,000 liability limitation. CERCLA § 107(c)(1)(A) and (B), 42 U.S.C.A. § 9607(c)(1)(A) and (B), ELR STAT. 44024.

90. CERCLA § 107(a)(2), 42 U.S.C.A. § 9607(c)(2), ELR STAT. 44025.

91. See infra sections on natural resource damages and economic loss. The issue will arise for response costs if Exxon files for bankruptcy, or in other cases where the vessel owner/operator is not financially viable.

92. 43 U.S.C.A. § 1653(b).

93. 43 U.S.C.A. § 1653(c).

94. Askew v. American Waterways Operators, 411 U.S. 325, 3 ELR 20362 (1973); In re Steuart Transportation Co., 435 F. Supp. 798, 7 ELR 20658 (E.D. Va. 1977), aff'd sub. nom. Steuart Transportation Co. v. Allied Towing Co., 596 F.2d 609, 9 ELR 20237 (4th Cir. 1979).

95. ALASKA STAT. § 46.03.760(e). This section is applicable for pollution resulting from any violation of law or regulation, as well as for oil spills generally. ALASKA STAT. § 46.08.070(a). If the facts developed confirm that both Exxon and Alyeska violated Alaska laws or regulations, for example by causing pollution or failing to implement the SPCC plan properly, both may be liable for the state's response costs.

96. ALASKA STAT. § 46.03.822, ch. 39 SLA 1989. the reenacted statute clarifies liable parties, scope of liability, defenses available, and creates a right of contribution between liable parties. The state Superfund is now similar to CERCLA, with the major exception that oil is specifically included as a "hazardous substance" under the Alaska statute. ALASKA STAT. § 46.03.826(4).

97. ALASKA STAT. § 46.03.822(a)(2).

98. ALASKA STAT. § 46.03.822(b)(2).

99. Where provisions relating to hazardous waste or radiation are violated, the penalty ceiling is increased to $ 10,000 per day the violation continues. In setting the penalty amount, the court can consider the need for an enhanced civil penalty to deter future non-compliance. ALASKA STAT. § 46.03.760(f). It is unlikely tht Alaska will consider the Exxon Valdez oil to be a hazardous waste, since the RCRA exemption for oil production wastes is incorporated by reference. ALASKA STAT. § 46.03.299(a). Alaska nevertheless retains the right to adopt a different interpretation of the exemption than EPA, or to eliminate the exemption altogether, and find that the oil spilled is hazardous. ALASKA STAT. § 46.03.299(b). In addition to the RCRA tests for "hazardous waste," Alaska law has added the characteristics of toxicity, persistence, and carcinogenicity. ALASKA STAT. § 46.03.299(a).

100. ALASKA STAT. § 46.03.760(a).

101. Double recovery by the state should not be an issue, since the assessment incorporates "damages." See ALASKA STAT. § 46.03.760(a)(3) and .760(f)(3) (the economic savings realized by the violator in violating a requirement is a factor); ALASKA STAT. § 46.03.760(f)(4) (the need for an enhanced penalty to deter future noncompliance is a factor where the violation relates to hazardous waste or radiation).

102. Common law claims, such as quantum meruit, may exist, but are not discussed here.

103. CERCLA § 107(a)(4)(B), 42 U.S.C.A. § 9607(a)(4)(B), ELR STAT. 44024. The National Contingency Plan guides federal responses to oil and hazardous substance releases. 40 C.F.R. § 300.

104. In a Washington Post article of June 26, 1989, conservation workers had counted carcasses of 25,700 migratory birds, 800 sea otters, 84 bald eagles, and 20 harbor seals. Plan to Assess Oil Damage Criticized, Washington Post, June 26, 1989, at A-5, col. 1.

105. This Article does not discuss natural resource damage valuation issues. It should be noted that the Department of Interior issued regulations under CERCLA for preparing natural resource damage assessments. 40 C.F.R. § 11. Legal challenges to the Interior regulations are pending; they may result in revised regulations. See, e.g., National Wildlife Federation v. United States Department of the Interior, Nos. 87-1266, -1265 (D.C. Cir.); National Wildlife Federationv. United States Department of the Interior, Nos. 86-1575, -1529. There is a question whether the federal government or the state must follow these regulations in assessing natural resource damages in Prince William Sound, despite their acknowledged inadequacy.

106. 43 U.S.C.A. § 1653(c)(2).

107. The legislative history reflects that $ 14 million represents the extent of insurance coverage for oil tankers at the time the TAPAA was enacted. CONF. REP. NO. 93-924, reprinted in 1973 U.S. CODE CONG. & ADMIN. NEWS 2530. If Alyeska is determined to be a ROW holder, it will also have liability for natural resource damages. Alyeska's total liability will be limited to $ 50 million, unless the United States demonstrates that Alyeska was negligent, and that the natural resource damages were caused by such negligence. 43 U.S.C.A. § 1653(a)(2). Since Exxon is both the owner/operator of the tanker and a ROW holder, there is a question whether the liability limits for each category are additive.

109. FWPCA § 311(f)(5), 33 U.S.C.A. § 1321(f)(5), ELR STAT. FWPCA 041.

110. Compare FWPCA § 311(f)(4), 33 U.S.C.A. § 1321(f)(4) with FWPCA § 311(f)(5), 33 U.S.C.A. § 1321(f)(5), ELR STAT. FWPCA 041.

111. Such action would be analogous to the declaratory relief statutorily authorized under CERCLA. CERCLA § 113(g)(2), 42 U.S.C.A. § 9613(g)(2), ELR STAT. 44042.

112. FWPCA § 311(f)(1) and (4), 33 U.S.C.A. §§ 1321(f)(1) and (4), ELR STAT. FWPCA 041.

113. See supra text accompanying notes 87-90.

114. Alyeska Pipeline Services Co. v. United States, 649 F.2d 831, 227 Ct. Cl. 297 (1981), cert. denied 454 U.S. 964.

115. 119 CONG. REC. 27717 (daily ed. Aug. 2, 1973).

116. There is a split in the circuits whether § 311 provides the federal government's exclusive remedy to recover oil spill cleanup costs. The Ninth Circuit, which covers Alaska, has held that in certain circumstances the United States is not precluded from pursuing other consistent remedies. United States v. City of Redwood City, 640 F.2d 963 (9th Cir. 1981) (U.S. tort claims against third parties); cited in United States v. Dae Rim Fishery Co., 794 F.2d 1392, n.1, 16 ELR 20793 n.1 (9th Cir. 1976). Contra United States v. M/V Big Sam, 681 F.2d 432, 12 ELR 20994 (5th Cir. 1982), reh'g denied 693 F.2d 451 (5th Cir. 1982), cert. denied 462 U.S. 1132; In re Oswego Barge Corp., 664 F.2d 327, 12 ELR 20019 (2d Cir. 1981), reh'g denied 673 F.2d 47 (2d Cir. 1982); Steuart Transportation Co. v. Allied Towing Corp., 596 F.2d 609, 9 ELR 20237 (4th Cir. 1979).

117. See CERCLA § 304(c), 42 U.S.C.A. § 9654(c), ELR STAT. 44070, which states that the provisions of CERCLA supersede any conflicting provisions of the FWPCA § 311.

118. See, e.g., Mayor of Boontown v. Drew Chemical Corp., 621 F. Supp. 663, 16 ELR 20328 (D.N.J. 1985) (municipality is authorized representative of state to recover response costs and natural resource damages under CERCLA); City of New York v. Exxon, 633 F. Supp. 609, 16 ELR 20850 (S.D.N.Y. 1986) (municipality is authorized representative of state to recover natural resource damages under CERCLA). See also Maraziti, Local Governments' Opportunities to Recover for Mutual Resource Damages, 17 ELR 10036 (Feb. 1987).

119. ALASKA STAT. §§ 46.03.760(c), 46.03.822.

120. ALASKA STAT. § 46.03.758.

121. The statutory ceilings include $ 10 per gallon, for oil that enters an andromonous strain or other freshwater environment with significant aquatic resources; $ 2.50 per gallon for oil that enters an estuary, intertidal, or confined saltwater environment; and $ 1.00 per gallon that enters other environments without significant environmental resources.

122. The ADEC is directed to promulgate regulations setting the amounts of the assessments, subject to the statutory ceilings, that reflect the toxicity, degradability, and dispersal characteristics of the oil and the sensitivity and productivity of the receiving environment. ALASKA STAT. § 46.03.758(d).

123. The base assessment on this basis alone would be $ 2.00 per gallon.

124. The actual assessment for the Exxon Valdez spill may be approximately 58 percent of the base assessment for Prince William Sound. See W.J. GRAHAM, OIL SPILL LIABILITY AND COMPENSATION: A REVIEW AND EVALUATION OF ALASKA'S CIVIL PENALTY SCHEME, prepared for Oil Spill Damage Assessment Study, Institute for Marine Studies, U. Washington, Seattle, Washington (Jan. 1989). Note, however, that a multiplier of five can be applied where the discharge is caused by the gross negligence or intentional act of the discharger, or when the court finds that the discharger did not take reasonable containment and cleanup measures. ALASKA STAT. § 46.03.758(b)(2).

125. ALASKA STAT. § 46.03.760(a).

126. As of this writing, one major fishery, thespring Prince William Sound herring fishery, and several smaller fisheries have been closed by the Alaska Department of Fish and Game due to the Exxon Valdez spill. The total impact on the summer salmon fisheries is still unknown.

127. A class-action suit reportedly has been filed in California alleging that the spill caused the price of gasoline to jump in California.

128. For example, negligence actions.

129. See supra text accompanying notes 114-117.

130. Where natural resource damage, lost tax revenue, and private economic loss claims far exceed the $ 100 million TAP Fund liability cap, as they are likely to in this case, each fisherman's pro rata share may be very small.

131. It is possible that even under this scenario, a court may not be able to determine the amount due the fisherman under state law until the TAP Liability Fund claim allocation process has been completed and his pro rata share calculated.

132. 53 Fed. Reg. 3396 (Feb. 5, 1988) (to be codified at 43 C.F.R. § 29.1(e)). The preamble to the final rule indicates that it is intended that lost tax revenues are also included as damages. 53 Fed. Reg. at 3395-96.

133. ALASKA STAT. § 46.03.822. The person is relieved from strict liability if he can prove that the entry occurred solely as a result of war, an intentional or negligent act of a third party, negligence on the part of the United States or the state, or an act of God. Id. This section was recently repealed and reenacted, and now further limits the third-party defense.

134. ALASKA STAT. § 46.03.824.

135. ALASKA STAT. § 46.03.828.

136. The State of Alaska has broad authority to pursue a complete cleanup, if it chooses to exercise it. See supra text accompanying notes 52-57.

137. Several bills are currently pending before the U.S. House of Representatives and Senate. See, e.g., H.R. 1465, introduced by Rep. Jones (D-N.C.), 135 CONG. REC. H708 (daily ed. Mar. 16, 1989) and S. 686, introduced by Sen. Mitchell (D-Me.), 135 CONG. REC. 53239, 53241 (daily ed. Apr. 4, 1989). See the Dialogue in this issue of ELR by Rep. Jones discussing efforts to pass oil spill legislation. Jones, Oil Spill Compensation and Liability Legislation: When Good Things Don't Happen to Good Bills, 19 ELR 10333 (Aug. 1989).

19 ELR 10338 | Environmental Law Reporter | copyright © 1989 | All rights reserved