00 SENATE JOINT RESOLUTION NO. 9 01 Urging the Alaska Department of Law and the United States Department of Justice to 02 file a motion in United States District Court to compel the ExxonMobil Corporation to 03 honor the commitment to pay additional damages for the Exxon Valdez oil spill under 04 the "Reopener for Unknown Injury" provision of the 1991 Agreement and Consent 05 Decree and to collect the full demand for payment the state and federal government 06 submitted to the ExxonMobil Corporation on August 31, 2006; and urging the Exxon 07 Valdez Oil Spill Trustee Council immediately to initiate subsurface lingering oil 08 restoration work. 09 BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF ALASKA: 10 WHEREAS the historic legal settlement between Exxon Corporation, the State of 11 Alaska, and the United States of America resolving damage claims related to the 1989 Exxon 12 Valdez oil spill (Agreement and Consent Decree, Civil Actions No. 3:91-0082 and 3:91-0083, 13 United States District Court for the District of Alaska) entered October 9, 1991, began one of 14 the most extensive attempts in history to restore environmental damage from an industrial 01 disaster; and 02 WHEREAS, in addition to the civil recovery of $900,000,000, the criminal restitution 03 of $100,000,000, and a fine of $25,000,000, a clause of the Agreement and Consent Decree, 04 provided for a "Reopener for Unknown Injury" that committed the ExxonMobil Corporation 05 to pay up to an additional $100,000,000, as needed, to restore oil-damaged populations, 06 habitats, or species in the spill zone if the injury "could not reasonably have been known…nor 07 anticipated" at the time of settlement; and 08 WHEREAS, in 2006, the Twenty-Fourth Alaska State Legislature, in HJR 9, 09 Legislative Resolve No. 52, urged "the United States Department of Justice and the Alaska 10 Department of Law to identify all natural resource damages from the Exxon Valdez oil spill 11 that were unanticipated at the time of the settlement, to develop plans to remedy the damages, 12 and to present the ExxonMobil Corporation with a request for the full $100,000,000 available 13 under the reopener clause to enact these plans"; and 14 WHEREAS, in 2006, the Alaska Attorney General found that "after extensive review 15 it is clear that populations and habitat within the oil spill area have suffered substantial and 16 unanticipated injuries that are attributable to the Exxon Valdez oil spill"; and 17 WHEREAS the most recent "Status of Injured Resources and Services" published by 18 the Exxon Valdez Oil Spill Trustee Council in May 2010 states that only 13 of the 32 19 monitored resources and resource services injured by the spill are "recovered" or "very likely 20 recovered," and some, such as Pacific herring, pigeon guillemots, and the AT1 transient orcas, 21 are "not recovering"; and 22 WHEREAS state and federal studies confirm that a substantial amount of Exxon 23 Valdez oil remains on beaches in substrates; that the oil is "nearly as toxic as it was the first 24 few weeks after the spill"; that "the remaining oil will take decades and possibly centuries to 25 disappear entirely"; and that enzyme markers in birds, fish, and mammals in the spill region 26 "indicate a continuing exposure to oil"; and 27 WHEREAS, on June 1, 2006, under the "Reopener for Unknown Injury" provision, 28 the state and United States government jointly presented the ExxonMobil Corporation with a 29 "Comprehensive Plan for Habitat Restoration Projects Pursuant to the Reopener for Unknown 30 Injury" to remediate lingering oil in intertidal sediments along the shoreline of the injured 31 ecosystem, including a specific timeline for remedies the state and federal governments have 01 committed to take as a result of the unanticipated and ongoing injury from the oil spill; and 02 WHEREAS, on August 31, 2006, under the "Reopener for Unknown Injury" 03 provision, the state and the United States government jointly presented ExxonMobil 04 Corporation with a demand for payment of an additional $92,240,982; and 05 WHEREAS, although it had agreed to the "Reopener for Unknown Injury" provision 06 in the 1991 settlement, the ExxonMobil Corporation has refused to pay the government 07 demand, and the state and federal governments have not filed a motion in court seeking to 08 collect payment; and 09 WHEREAS, in the "Comprehensive Plan for Habitat Restoration Projects Pursuant to 10 the Reopener for Unknown Injury" and "Subsurface Lingering Oil Restoration Timeline," the 11 state and federal governments stated that they would complete a "Draft Restoration Plan" and 12 an "Environmental Assessment" in 2008 and begin implementing the full lingering oil 13 remediation program in early 2009; and 14 WHEREAS, in the "Subsurface Lingering Oil Restoration Timeline," the state and 15 federal governments asserted that the full program would be well underway, if not mostly 16 complete, by now; and 17 WHEREAS the state and federal governments are more than six years behind 18 schedule in implementing the "Subsurface Lingering Oil Restoration Timeline" project, citing 19 "unexpected contracting issues" and "short field seasons and difficult working conditions in 20 Alaska" as well as lack of payment of the "Reopener for Unknown Injury" demand presented 21 to the ExxonMobil Corporation in 2006; and 22 WHEREAS former Governor Frank Murkowski, whose administration submitted the 23 demand for payment claim related to the "Reopener for Unknown Injury" to the ExxonMobil 24 Corporation in 2006, expressed frustration at the slow pace of resolving the claim in a 25 February 28, 2011, letter to the United States District Court, stating "it is in the public interest 26 that the governments move from continuing study to resolution as soon as practical. Alaska 27 deserves closure on this issue after 22 years"; and 28 WHEREAS the Untitled States District Court's March 7, 2011, order stated "the court 29 urges the governments and their trustees to proceed with all possible speed to complete 30 studies that are underway and any necessary evaluation which they may require"; and 31 WHEREAS the United States District Court's February 15, 2012, order stated "the 01 court urges the parties to quickly resolve this matter themselves, if they are able to do so"; and 02 WHEREAS the United States District Court's July 1, 2013, order expressed the 03 court's frustration with the slow pace of government progress under the "Reopener for 04 Unknown Injury" restoration plan, stating "the court is dismayed that so few of the projects 05 that the Governments had expected to be completed by now have been completed"; and 06 WHEREAS the governments have demonstrated effective techniques to remediate 07 subsurface oil by injecting nutrients and oxygen compounds into the subsurface; and 08 WHEREAS the ongoing delay in implementing the "Reopener for Unknown Injury" 09 restoration plan continues to damage the Alaska coastal ecosystem; and 10 WHEREAS the unresolved "Reopener for Unknown Injury" claim makes the Exxon 11 Valdez litigation the longest-lasting environmental litigation in history; and 12 WHEREAS the tolling agreement between the governments and the ExxonMobil 13 Corporation was terminated by the ExxonMobil Corporation on June 25, 2010, triggering a 14 period of limitation on collecting the "Reopener for Unknown Injury" claim that the 15 ExxonMobil Corporation may argue expires in six years, potentially terminating the 16 possibility of collecting the claim on June 24, 2016; and 17 WHEREAS the United States District Court has ruled that any "Reopener for 18 Unknown Injury" claim may be brought only by the state and federal governments; until the 19 governments' "Reopener for Unknown Injury" claim is formally placed before the court, the 20 court cannot intervene to resolve the ongoing dispute on the matter between the governments 21 and the ExxonMobil Corporation; 22 BE IT RESOLVED that the Alaska State Legislature expresses its profound 23 disappointment in the continuing refusal of the ExxonMobil Corporation to honor the 24 commitment it made in the 1991 settlement to pay a "Reopener for Unknown Injury" claim 25 made by the governments; and be it 26 FURTHER RESOLVED that the Alaska State Legislature urges the Alaska 27 Department of Law and the United States Department of Justice to immediately file a motion 28 in United States District Court to collect the full amount of the demand for payment of 29 $92,240,982 presented to the ExxonMobil Corporation on August 31, 2006, plus five percent 30 interest--approximately $35,000,000--on the delinquent payment; and be it 31 FURTHER RESOLVED that the Alaska State Legislature urges that, until the full 01 "Reopener for Unknown Injury" demand for payment, plus interest, is collected from the 02 ExxonMobil Corporation and the "Reopener for Unknown Injury" payment is finally made, 03 the Exxon Valdez Oil Spill Trustee Council use existing funds to immediately initiate the 04 subsurface lingering oil restoration work. 05 COPIES of this resolution shall be sent to the Honorable Barack Obama, President of 06 the United States; the Honorable Joseph R. Biden, Jr., Vice-President of the United States and 07 President of the U.S. Senate; the Honorable John Boehner, Speaker of the U.S. House of 08 Representatives; the Honorable Nancy Pelosi, Minority Leader of the U.S. House of 09 Representatives; the Honorable Mitch McConnell, Majority Leader of the U.S. Senate; the 10 Honorable Harry Reid, Minority Leader of the U.S. Senate; the Honorable Eric H. Holder, Jr., 11 Attorney General of the United States; the Honorable Craig W. Richards, Alaska Attorney 12 General; the Exxon Valdez Oil Spill Trustee Council; and the Honorable Lisa Murkowski and 13 the Honorable Dan Sullivan, U.S. Senators, and the Honorable Don Young, U.S. 14 Representative, members of the Alaska delegation in Congress.