MADELEINE BRAND, host:
This is DAY TO DAY. I'm Madeleine Brand.
ALEX CHADWICK, host:
I'm Alex Chadwick. Coming up, one columnist's assessment of Barack Obama's speeches. The verdict: empty rhetoric.
BRAND: First, a lot of rhetoric at the Supreme Court today as lawyers argued over whether Exxon should pay $2.5 billion in punitive damages for the Exxon Valdez oil spill nearly 20 years ago. We're joined by Dahlia Lithwick; she's legal analyst for Slate.com and for us here at DAY TO DAY. And she's fresh from the court to fill us in on the arguments. And Dahlia, first of all, remind us about this. This was 19 years ago. What's been happening since then?
DAHLIA LITHWICK: That's right, Madeleine. This was one of the worst maritime disasters in U.S. history. The Exxon Valdez spilled 11 million gallons of oil off the Alaska coast. There's been a separate criminal trial and a lot of effort to clean up the environmental damage. This was a separate case that arose in 1994 when a group of over 32,000 Alaskans sued Exxon. As consequence, the jury awarded $5 billion in punitive damages.
And a federal court that amount to $2.5 billion. Today Exxon is effectively in the Supreme Court saying, whoa, too much.
BRAND: Too much. And why is Exxon saying too much and that it shouldn't have to pay this?
LITHWICK: Well, representing Exxon today, we had former acting Solicitor General Walter Dellinger and he said Exxon should not face this kind of punitive damages because there's something sort of unique about maritime law, admiralty law, and the Clean Water Act, that preclude this amount of punitive damages.
He said the captain in this case was not an agent of Exxon; in fact, he was expressly violating Exxon's policy that you don't drive the boat while you're drunk. And that as an act of deterrence, which is supposed to be the point of punitive damages, Exxon's already paid more than enough.
BRAND: Because they have already paid out more than $3 billion, right?
LITHWICK: That's correct. And what he said is they've paid and they've paid and they've paid. That's enough to deter anyone from doing anything.
BRAND: And the plaintiff's lawyers, what did they say today?
LITHWICK: Jeffrey Fisher, arguing on behalf of these over 32,000 Alaskans in the class, said of course the captain is an agent of Exxon. He made the decision about when the boat left, he made the decision about how to drive it, that he's at fault, and that Exxon has clearly not been deterred. This $3.4 billion is really kind of a drop in a bucket from where they sit, and that the cases that Dellinger was citing to, particularly the fancifully named case called the Amiable Nancy case, which is 200 years old, that seemed to be controlling the argument today, really had nothing to do with what we were arguing about with respect to Exxon.
BRAND: And from where you sat at the court, how did you read the justices? How did they respond to these arguments?
LITHWICK: It was a little tricky; they seemed to get a bit bogged down in some of this old, old, old admiralty law - sorry, Madeleine. But they seemed to be looking, most of them, for principled basis for limiting the amount of punitive damages, at least in this type of admiralty cases. What the principle is was not at all clear.
BRAND: Well, we talked to you yesterday about Justice Clarence Thomas not asking a single question during oral arguments for more than two years. I assume today was no exception?
LITHWICK: Right. The record continues. He did have a brief chat in private on the bench with Justice Anthony Kennedy, who sits immediately to his left. But he did not, yet again today, did not ask any questions about the Amiable Nancy or anything else to do with Exxon or the oil spill.
BRAND: So the larger argument you say here is not clear, although this case has been going on for quite some time. I mean would it say anything in terms of how much corporations are liable when things go wrong?
LITHWICK: Well, this comes in the context of a general trend in the Supreme Court. They've been looking at a lot of these punitive damages cases over the years, particularly the tobacco cases, and saying, wait, these amounts are just too, too high. The question really will be a very, very narrow question about maritime law, admiralty law, and whether the standards are different when we're talking about an accident that occurred out on the seas.
And I don't think we're gonna see a much broader decision than that. Whatever we hear about from the court with respect to the Exxon case is gonna be really limited to the issue of punitive damages as it applies to maritime law.
BRAND: Dahlia Lithwick, legal analyst at Slate.com and for us here at DAY TO DAY. Thank you once again.
LITHWICK: It's always my pleasure.
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