A Precautionary Tale : Assessing Ecological Damages after the Exxon Valdez Oil Spill

Three years after the Exxon Valdez ran aground Bligh Reef in 1989, the Pacific Herring fishery collapsed and has yet to recover. Scientists are still searching for direct evidence linking the oil spill and the collapse and the fishing industry remains uncompensated for losses associated with the long-term collapse. Drawing on the scientific literature, this article tells the story of the Pacific herring collapse in Prince William Sound. In doing so, this article examines the nature of ecological injuries and the shortcomings of our existing damages paradigm for assessing those unique damages. In particular, this article demonstrates a disconnect between the dynamic, complex, and uncertain nature of ecological injuries on the one hand, and our existing damages paradigm — which requires relatively quick and static opportunities for identification and valuation — on the other hand. To offer a solution, the article explores the origins of the precautionary principle and suggests invoking the burden-shifting attributes of the precautionary principle to transfer the risk of long-term, unknown ecological harm to those who have caused the injury. Through such a risk transfer, true costs of ecological injury would more properly be borne by actors capable of altering their behavior to avoid such injury in the first place. In addition, the article proposes offering defendants two options for incurring damages for ecological injuries — either accepting a multiplier of the compensatory damage award or paying for later-discovered damages on an ongoing basis through a case-specific superfund. These options are aimed at embodying the total cost of ecological injuries. This paper was part of a symposium marking the twentieth anniversary of the Exxon Valdez oil spill