The Long, Hard Slog
Nearly 20 years after the Exxon Valdez spill, Brian O’Neill is still trying to get the world’s largest company to pay affected Alaskans
A FRAMED 8-by-10-inch color photograph on Brian O’Neill’s bookshelf shows the attorney knee-deep in salmon on an Alaskan fishing skiff. He wears rubber waders and a bright yellow slicker. Disheveled red curls drop over his forehead. His expression is proud, defiant, confident. That was 1989.
O’Neill, a partner at Faegre & Benson, had gone to Alaska to examine the impact of 11 million gallons of oil that the Exxon Valdez tanker had spilled into Prince William Sound. He found polluted waters, a crippled fishing industry, and a demoralized population. The ambitious 41-year-old trial lawyer with a reputation for fighting environmental causes decided to take on the company responsible for the damage.
Since then, O’Neill has lived what seems an entire lifetime. He has divorced, remarried, and raised two children, now 14 and 16. The curls that drape over the collar of his sweater have grayed. Age spots mark his hands. The 60-year-old ambles slowly through Faegre & Benson’s carpeted halls, and the once-cocky attorney bears a weary air: Nineteen years later, he’s still working on the Exxon case.
Over the years, Exxon Mobil has spent almost $2 billion cleaning up the mess and paid approximately $300 million to thousands of commercial fishermen in Alaska as compensation for lost revenue from the 1989 fishing season. But O’Neill, arguing that the problems associated with the spill went far beyond the scope of a single season’s losses, has brought suit on behalf of 2,600 fishermen, native residents, landowners, municipalities, and others affected by the spill. O’Neill has logged 23,000 hours on the case, and he and his colleagues have generated more than 10 million pages of discovery documents. They’ve endured two state trials and one federal trial.
Perhaps not surprisingly, Exxon executives, vowing not to pay a cent more than they have already, have battled O’Neill all the way to the U.S. Supreme Court. In late February, the justices were expected to hear arguments in the case against the company and its shipping subsidiary. The court could uphold the judgment in favor of O’Neill’s plaintiffs—either approving or lowering the $2.5 billion awarded in 2006. Or it could rule in Exxon’s favor and dismiss the suit. Alternatively, it could send the case back to federal court and extend what has already become one of the longest civil cases in history.
O’Neill’s conviction has not wavered in the 19 years since he initiated the case. But time has taken its toll: The suit’s prolonged duration has condemned O’Neill to litigation limbo. The case has taken years away from his life that no amount of money can buy back.
ONE DAY in December, O’Neill paused to reflect on the matter that has dominated the past third of his life. Seated at a round table in his corner office on the 30th floor of the Wells Fargo Center, he tipped back his chair and gazed westward out of downtown Minneapolis as he talked about the case. There were a couple of times when he really thought it had ended—like 1994, when a jury awarded the plaintiffs $5 billion in punitive damages, the largest civil judgment in history. Then came another appeal. (In response to one of the appeals, the Ninth U.S. Circuit Court of Appeals halved the jury’s initial award of $5 billion in damages.) “I used to tell friends that it’ll be over next year,” O’Neill says.
“After 13, 14 years of hearing me say that, they find that a source of amusement.”
O’Neill has retained his sense of humor—he has taped a photo of Napoleon Dynamite on his office door “to relate to the younger attorneys”—but he has lost his sense of the future. After a series of anticipated ends that proved mirages, he cannot imagine tomorrow. “The kind of ordinary things that you look to for joy in life get pushed aside,” he says. “You don’t plan for the future because the case is not over. You don’t know if you’ll have a lot of money or no money.”
If the court rules in his clients’ favor, O’Neill stands to bring Faegre & Benson well over $100 million, but the firm’s largest windfall will come at a price—if it ever comes. Had he not been waiting for the possibility of a big payday and victory for his clients, O’Neill doubts he would have stayed at the same firm for 34 years. He rattles off opportunities that have passed him by: teaching law, working at another firm, writing a book on wildlife law. “There are a lot of career opportunities at 45 or 50 that aren’t there when you’re 61 years old,” he says. “Say what you will about age discrimination, 61-year-old trial lawyers are tired and should be tossed in the rubbish heap.”
So here he is, trapped by golden handcuffs and stuck in the day of unknowing. Although he has taken on other cases over the years, his primary work is confined to the same set of facts in what has been called “the world’s biggest drunk-driving case.” Asked if he feels an affinity for Sisyphus, the mythic figure doomed to spend eternity pushing a boulder up a hill, only to see it roll down again, O’Neill walks over to his desk—littered with papers—and locates a quote from Albert Camus. It’s from an essay about finding joy in the drudgery of work. “The struggle itself toward the heights is enough to fill a man’s heart,” Camus rhapsodizes. “One must imagine Sisyphus happy.”
But Sisyphus only had to roll a rock. O’Neill’s task is far weightier. Roughly one-fifth of his clients have died while awaiting the suit’s resolution—they were fishermen in their forties or fifties at the time of the spill. He has heard his Faegre partners grumble that the firm has wasted time and resources on the prolonged case. “The stress eats at you after a while,” O’Neill says. “Physically and emotionally.”
It’s hard to sustain motivation day after day, year after year. “I know he’s probably frustrated,” says Dave Oesting, an attorney with Davis Wright Tremaine who has teamed with O’Neill on the case since 1992. “The system has failed us for all practical purposes by allowing this case to stretch out as long as it has. I’m frustrated, too.”
The clients feel that frustration probably more than anyone, but O’Neill has tried to remain upbeat with them. “He has lost some of his enthusiasm, of course, but that’s normal,” says Heidi Babic, a client in Cordova, Alaska, whose husband lost most of his fishing income due to the spill. “It goes against human nature to still be exuberant after this long. But Brian has kept his optimism and tried to keep it for us, too.”
O’Neill tries to visit his clients in Oregon, Washington, and Alaska annually. The reminder of how the spill disrupted not only their work but damaged their families and communities rekindles his fire. “Seeing it’s still important to them, that motivates me,” he says.
So does his sense that this case is much bigger than the amount of punitive damages awarded his clients. “This is a symbol of a lot of what’s wrong with America and the world today,” he says. “The fact that Exxon put a guy they knew was an alcoholic in charge of a supertanker, the fact they have been able to stonewall the courts for 19 years, the fact that fishermen can’t go to court to get what’s due them—those are all signs of what’s wrong with America.”
O’Neill hasn’t been bashful about voicing his views, saying Exxon was “too big to give a damn about its people. And it’s too big to give a damn about the public.” That style hasn’t won him friends among Exxon’s counsel, who see him as a high-priced ambulance chaser. “This is a group of plaintiffs’ lawyers whose basic interest is the profit motive,” Patrick Lynch, a Los Angeles lawyer representing Exxon, told the New York Times in 1994. (Lynch did not return calls seeking comment.)
The magnitude of the Exxon case and O’Neill’s outspoken style have made him a high-profile figure, the subject of one book (Cleaning Up, by David Lebedoff) and the focus of a chapter in another (Fighting for Public Justice, by Wesley J. Smith). He will succeed or fail on a grand scale.
So has it been worth it? Yes, O’Neill says without hesitating. “All of those fishermen and natives needed to be represented in a fashion that could withstand the blitzkrieg from Exxon.”
But if he could turn back the clock, O’Neill admits, he might have let someone else fight the fight: “To take on the case knowing it would last 19 years, you’d need to be nuts.”
John Rosengren is a Twin Cities–based freelance writer.