BOX 2-1 Lessons from Exxon Valdez: Science in a Litigious Environment
In addition to being the largest oil spill in U.S. waters, the Exxon Valdez Oil Spill (EVOS) has been a seminal event in the development of U.S. environmental policy. Efforts to ascertain the extent of the injury and the rate of recovery from the spill have been particularly divisive and opposing positions have been hotly debated.
The relevant federal regulation (43 CFR 11.14) provides definitions of both injury and recovery, but does not specify how these are to be objectively measured. Thus, both the responsible party (Exxon) and the resource trustees (EVOS Trustee Council) developed different perspectives on how to define both injury and recovery, these differences reflecting very real differences in each group’s political, social, and financial objectives and responsibilities.
These different perspectives and objectives led to differing technical and scientific approaches or methods for quantifying both the extent of the initial injury and the rate of recovery. These different approaches then led to different results and conflicting, and often incompatible, conclusions from two sets of studies. At the core of many disagreements centering on uncertainty in cause and effect were the questions of burden of proof and the application of the precautionary principle. In general, Exxon demanded a high level of proof to accept an injury, whereas the Trustees used a weight-of-evidence approach that accepted higher levels of uncertainty.
Such situations are not uncommon in the world of science. Science is often divisive. In fact, the scientific method uses trial-and-error hypothesis testing and peer criticism to develop understanding in the form of a consensus opinion. Thus, scientific understanding is often best developed under a dynamic tension between consensus building and division. Litigation, however, offers a drastically different and somewhat incompatible set of rules. The purpose of litigation (from the latin litigāare, to dispute, quarrel, sue) is to resolve differences by determining which party has the stronger of two legal arguments. As in many instances where scientific or technical evidence forms the central tenant of either party’s argument, the dynamic tension between consensus building and division shifts perceptibly and inextricably toward division. Finding common ground in a litigious environment is not a priority, in fact it may even be considered to be antithetic to the purpose of litigation. Thus, while scientific and technical questions that arise within the litigious environment surrounding an event like EVOS may have broad implications for fundamental scientific understanding of the way systems respond to perturbations, the totality of the scientific effort expended during litigation cannot reasonably be expected to lead to a consensus opinion.
This was recognized early on in the post-EVOS world, and a growing desire to inject new approaches or philosophies to facilitate cooperative approaches for developing natural resource damage assessments (NRDAs) began to emerge. Eventually, using authority granted under the Oil Pollution Act of 1990 (commonly referred to as OPA 90), NOAA instituted a new set of NRDA regulations that codified steps to develop cooperative assessment plans involving both the responsible party and the resource trustees. Under these regulations, responsible parties must be given the opportunity to participate in the damage assessment and, when appropriate, jointly conduct a coordinated and open damage assessment. The invitation to participate must be in writing and as early as practical, but no later than the completion of the preliminary assessment phase of the incident. There should be a formal agreement on how the cooperation is to be structured. The process should be open and all results available to the public.
There are many benefits of cooperative assessments: cost savings because only one set of studies is being conducted; less potential for litigation because both sides are working with the same data and are more likely to reach common ground; and restoration can be accomplished more quickly because efforts can be shifted to designing restoration projects rather than preparing for litigation.
Inherent in the cooperative process is trust. Each group has to trust the other to make a good faith effort to make the process succeed. Otherwise, there is the fear that cooperation will be abused: one side uses the knowledge gained in the process to build a better legal defense; studies are intentionally designed to provide data that are too weak for use in litigation; one side only pretends to be working cooperatively, or only agrees to cooperate on data collection and initial analysis, then the case changes to an uncooperative process for final negotiations and litigation, leaving the other side with a weaker case.
Ongoing and future efforts to define the injury and recovery of the ecosystem in and around Prince William Sound due to EVOS will continue to raise important scientific questions and will contribute greatly to scientific understanding of the effect of releases of petroleum at a variety of scales. However, the development of a consensus opinion regarding the answers to these same questions most likely lies outside research efforts currently embroiled in the EVOS litigation.