A Year of Bizarre Judicial Precedent

2006 was a year in which California judges made some pretty bizarre decisions. I'm not sure how common it is, if these decisions are the beginning of a trend, or if they are just plain wacky. But I know they don't sound quite right to me.

First, we have a woman that reversed the opinion of her son in a strange jurisprudence family feud. He had ruled that wind farms that are killing wildlife (wildlife are protected under the public trust doctrine) owners should do things to minimize the losses, and that individuals have the right to sue to make this happen--since of course, we all have a common interest in protecting wildlife.

That judge's mom slapped him down in a decision that reversed that ruling. You'd think they could work out their differences at home instead of in the courtroom.

She ruled, in part, that individuals can't sue to enforce the public trust doctrine in cases of wildlife protection--only the state can do that. Now, it is a pretty big step to take away this right from the public. You'd think she'd support her son's ruling. You'd think she'd recognize the benefit of individuals suing to enforce this doctrine over the years (Mono Lake, as one example) and rule that the public benefits of this outweigh the disadvantages of letting the public sue. And you'd think that in the spirit of mitigating the impacts of the wind farm under CEQA, she could rule that the wind farm owners have to go fix the problem. But no, none of that happened. She gave her progeny a smackdown and said sorry to public interest groups suing to enforce the public trust. Not really much of a "public" trust anymore, is it?

Then, we have a ruling in which Federal Judges in California overturned an Alaska Jury's $4.5 billion punitive damages for the Exxon Valdez Oil Spill as being excessive.

Excessive? One of the wealthiest corporations on the planet, making tens of billion dollars a year and record profits, having to pay a penalty for massive environmental destruction--that is excessive? Poor little ExxonMobil, we are so worried about you that we want to cut your penalty in half. Why isn't $2 or $3 billion excessive? How do you draw the line?

How do they come up with this stuff? And how do these judges know it is excessive, sitting in San Francisco? An Alaska jury has the appropriate local knowledge and outrage to give the corporate criminal what he deserves. Judge James R. Browning dissented, saying Exxon’s conduct was “extremely reprehensible,” “malicious” and “placed at massive risk and, ultimately, seriously injured the property and livelihood of tens of thousands of Alaskans.” (source)

In the nuclear power industry, liability is the biggest risk of doing business. And it should be. If a company has a nuclear accident, people have a right to sue the company for not having been careful enough with deadly substances. With oil spills, the responsibility and risk are the same--it is a deadly substance that harms the environment and people, and corporations need to be taught to be careful--with heavy fines if necessary. All the government subsidies the oil industry gets should make that pill a little easier to swallow.

With the also heavily subsidized nuclear industry, liability is considered so great that no company will build a nuclear plant without the government limiting their liability. This technology is so dangerous that without government support, it would never be cost-effective.. it would enter the dustbin of history where it belongs. The free market does not want it.

And now two Judges in San Francisco have limited the liability of an oil company too--but oil is so lucrative, it doesn't share the same high costs deterring private nuclear investment. A $5 billion fine doesn't even seem to me to be too high for Exxon when the spill occurred, when Exxon only made $5 billion per year (and spent $3 billion on the cleanup). Why is it so bad if a major mistake like that spill costs a company two years of revenue, or even puts them into bankruptcy? It would teach them and other companies how important it is to be more careful, and how important investing in technologies such as double-hulled oil tankers is. But no, the government steps in once again to save a gigantic corporation from the free market--throwing externalities everywhere and lessening incentives to prevent another spill.