Hoping to pave the way for a series of legislative responses to the oil spill in the Gulf, Democrats on the Hill have begun incorporating the Exxon Valdez crisis into their official talking points.
A leadership aide sent to the Huffington Post some Democratic talking points that emphasize that the response to the 1989 spill -- which was until now the largest environmental crisis in U.S. history -- is a template that Congress must seek to avoid.
• And as we've learned from past experiences like the Exxon Valdez spill, some corporations would often rather pay legal fees to fight payment for damages than help the victims.
• Exxon Valdez was found responsible for $3.8 billion in economic damages and clean-up costs - and the Gulf Coast oil spill is feared to be at least 6 times worse in volume.
The first point is the more crucial of the two. For the past few weeks, senators have been making a strong push to increase BP's liability in the wake of the current spill. Three unanimous consent measures to accomplish that, however, have all been blocked by Republicans. Invoking the legacy of Exxon Valdez -- in which the oil company was able to drag out paying a portion of damages through extensive litigation -- is an effort to cast the debate in more dire terms.
By Monday morning, the bullet points were being put to frequent and full use. In a conference call centered on making the liability of BP and other companies involved in spills unlimited, Sens. Bob Menendez (D-N.J.) and Patty Murray (D-Wash.) referenced the Exxon Valdez spill more than half a dozen times. The reference became so ubiquitous that at one point Menendez caught himself confusing Exxon and BP.
"Exxon said all the right things in the immediate aftermath but dragged the process to court," the senator said to start the conference call.
"Any corporation including Exxon will seek to litigate," he offered at another point.
"Those of us from the Pacific Northwest myself included, remember this very clearly 20 years ago when this happened," said Murray. "There was a long and arduous battle over cleanup... and Exxon had tremendous reserves to pay for lawyers... and you know who won. So this is an issue of fairness and we need to make sure that we don't allow BP, whose words seem to be good now... to fight this in the courts and those who lose are the small businesses and families."
"Coming from the Exxon Valdez experience here, any loophole that is created today will be plowed through by these companies," Murray added.
"We can't forget, and we have not forgotten here, with Exxon Valdez, that there are decades [of fighting] to come."
The use of Exxon Valdez as a talking point makes smart political sense -- to the extent that memories of that crisis haven't faded. There are some remarkable similarities between the two instances, down to how each White House approached them.
The question, however, may not end up being whether Democrats can create the type of political momentum to raise BP's liability cap. Even House Minority Leader John Boehner (R-Ohio) has suggested he supports that effort. It's whether the legal wiggle rooms exist to do something like this retroactively. Brian O'Neill, an attorney with the firm Faegre & Benson who worked on the Exxon Valdez case, has suggested that applying a change in liability ex post facto would be unconstitutional. Others in the legal world have raised doubts as well, which is partially why Sen. Byron Dorgan (and now the Obama White House) have urged the oil company to sign a legally binding commitment to pay damages or set up a fund for their payment going forward.
Menendez, for what it's worth, said he's confident that Congress will operate under the letter of the law in making BP's liability cap retroactively unlimited.
"At the end of the day, there is no question what we are doing here... will be upheld," he said.