Firstly, it surprises me that punitive damages still have not been assigned. Chances to bemoan the slow pace of litigation in the United States (and all the problems that accompany it) are many. No doubt, a great deal of whatever settlements are reached will go to the hordes of lawyers, photocopiers, and expert witnesses who worked on the case, rather than to the people who suffered from the spill or to the rebuilding (such as is possible) of the affected ecosystems.
The second thought that comes to mind is along the lines of: “Didn’t Exxon earn record profits this year?” They earned US$10.4 billion (£5.6bn) in the second quarter of 2006. While this is a fairly natural response, it is not necessarily a very legitimate one. The damages being considered are meant to address the conduct of the company in 1989, something that is not obviously related to its present financial circumstances. At the same time, the purpose of punitive damages is to encourage a company to exercise greater caution in the future, when engaging in similar activities. Not having captains that swig vodka before heading to the bridge is a good start. Reading about that, one has feels an emotional inclination to wring them for all they are worth.
To what extent would charging Exxon $5 billion instead of $2.5 billion alter the likelihood of future spills? The purpose of such punishments is not revenge, but the inducement of desirable changes in behaviour. No punishment short of utterly bankrupting the company would actually stop them from shipping oil from Alaska to the contiguous 48 states. That said, a big punishments also catch the attention of other big oil firms who have the ability to take action to make such spills less likely, and less severe if they do take place.
A final issue to consider is that of moral hazard. If the penalty is cut in half, after seventeen years in court, it suggests to companies that they can reduce such costs just by spinning things through the legal system for as long as possible. The whole situation is like a test case from my Law and Economics course at UBC with Robert Gateman. Which outcome secures the best mix of equity and efficiency? Which establishes the best incentives for future behaviour?
Of course, I am not one of the judges in the case. I have not examined the relevant facts and laws and, as such, it is impossible to know whether this reduction is warranted or not. My personal sympathies do not lie with oil companies, but they have the same right to be treated with due process under the law as any other entity within society. Hopefully, regardless of the final amount of the penalty, mechanisms have been put into action that will prevent catastrophes like the Valdez spill in the future.