Sanne Knudsen, A Precautionary Tale: Assessing Ecological Damages After the Exxon Valdez Oil Spill, 7 U. St. Thomas L.J. 95 (2009), https://digitalcommons.law.uw.edu/faculty-articles/17
University of St. Thomas Law Journal
environmental disasters, Exxon Valdez, oil spills, Pacific herring
To address the shortcomings of our existing damages paradigm--exemplified by the response to the Exxon Valdez oil spill in Prince William Sound--this article suggests that we invoke 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, this article posits that 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, this article suggests 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.
Section I of this article describes how the uncertainty and complexity underlying the Pacific herring fishery collapse is characteristic of the unique nature of ecological injuries. Section II examines why our existing damage assessment mechanisms--compensatory damages, punitive damages, and natural resource damages--are insufficient for capturing the extent and duration of ecological harms. Section III examines the history of the precautionary principle, considers the application of that principle in the European Union and U.S. environmental law, and argues that we should invoke the precautionary principle to create a new framework for assessing damages for ecological harms.