quarta-feira, 25 de junho de 2008

A Corte suprema americana e o STF no limite do processo de compensação de dano ambiental

No famoso caso Exxon Valdez do vazamento de petróleo na costa do Alasca nos anos 90 do século passado, a Corte Suprema americana por 5 a 3 decidiu a reduzir a compensação a ser paga pela Exxon de 5 bilhões de dolares para 500 milhões de dolares. No Brasil, recentemente, o STF num determinado julgado aboliu o parâmetro mínimo de pagamento de compensação para fundo ambiental. A decisão foi critica no sentido de desaparece uma variável de cálculo deixando processo de compensação bastante discrionário para a autoriada administrativa competente.
Justices Cut Damages Award in Exxon Valdez Spill
WASHINGTON - The Supreme Court on Wednesday reduced what had once been a $5
billion punitive damages award against ExxonMobil to about $500 million. The
ruling essentially concluded a legal saga that started when the Exxon
Valdez, a supertanker, struck a reef and spilled 11 million gallons of crude
oil into the Prince William Sound in Alaska in 1989.
The decision may have broad implications for limits on punitive damages
generally. Punitive damages, which are meant to punish and deter, are
imposed on top of compensatory damages, which aim to make plaintiffs whole.
Justice David H. Souter, writing for the majority in the 5-to-3 decision,
said a ratio between the two sorts of damages of no more than one-to-one was
generally appropriate, at least in maritime cases. Since Exxon has paid
about $507 million to compensate more than 32,000 Native Alaskans,
landowners and commercial fishermen, Justice Souter said, it should have to
pay no more than that amount in punitive damages.
That works out to $15,000 for each plaintiff for compensation and $15,000
more as punitive damages.
Justice John Paul Stevens, in a dissent, said he would have upheld the
original jury award, which the federal appeals court in California had
reduced to $2.5 billion.
"In light of Exxon's decision to permit a lapsed alcoholic to command a
supertanker carrying tens of millions of gallons of crude oil though the
treacherous waters of Prince William Sound, thereby endangering all of the
individuals who depended upon the sound for their livelihoods," Justice
Stevens wrote, "the jury could easily have given expression to its moral
condemnation of Exxon's conduct in the form of this award."
The Exxon Valdez spill was the worst in American history, damaging 1,300
miles of shoreline, disrupting the lives and livelihoods of people in the
region and killing hundreds of thousands of birds and marine animals. It
occurred after the ship's captain, Joseph J. Hazelwood, left the bridge at a
crucial moment. Mr. Hazelwood, an alcoholic, had downed five double vodkas
on the night of the disaster, according to witnesses.
Exxon paid more than $3.4 billion in fines, cleanup expenses and other
costs. The spill still affects Alaska's fisheries today.
The question remaining after Wednesday's decision is whether the one-to-one
ratio will apply outside of maritime cases. In the Exxon case, the court was
acting as a state appellate court typically might, assessing the
reasonableness of the punitive award under the common law rather than asking
whether it violated constitutional due process protections.
It is not clear, then, what effect the decision will have in cases
presenting the constitutional question. In 2003, in State Farm v. Campbell,
the court ruled that a single-digit ratio (that is, no more than 9:1) was
appropriate as a matter of due process in all but the most exceptional
cases. In cases where compensatory damages are substantial, the State Farm
court went on, "a lesser ratio, perhaps only equal to compensatory damages"
might be warranted.
Justice Souter's last footnote in Wednesday's decision, Exxon Shipping v.
Baker, No. 07-219, underscored the suggestion in State Farm that in cases
with substantial compensatory awards "the constitutional outer limit may
well be 1:1."
The Exxon decision may also be influential in cases where state court judges
are making their own common-law assessments of reasonableness. While the
Supreme Court's reasoning in a federal maritime case is not binding on them,
at least some state judges will find it instructive and persuasive.
Justice Samuel A. Alito Jr. owns Exxon stock and did not participate in the
case. As a consequence, the court split 4 to 4 on a separate question in the
case, that of whether Exxon may be held accountable for Mr. Hazelwood's
recklessness. The effect of the even split was to leave intact the ruling of
the lower court, the United States Court of Appeals for the Ninth Circuit,
which said Exxon may be held responsible.
The remaining members of the court were unanimous in rejecting a third
argument from Exxon, that the Clean Water Act's penalties pre-empted the
punitive award.
Three justices issued their own dissents from the majority's ruling reducing
the punitive award.
Justice John Paul Stevens wrote that imposing a broadly applicable rule is a
job for Congress, not the courts. He acknowledged the problem of "large
outlier awards" but said courts can address those case by case.
Justice Ruth Bader Ginsburg, also dissenting, asked a series of pointed
questions. For instance: "What ratio will the court set for defendants who
acted maliciously or in pursuit of financial gain?" And: "On the next
opportunity, will the court rule, definitively, that 1:1 is the ceiling due
process requires in all of the states, and for all federal claims?"
In his dissent, Justice Stephen G. Breyer wrote that Exxon's conduct
warranted "an exception from strict application of the majority's numerical
Jeffrey L. Fisher, a lawyer for the plaintiffs, said there was "a great deal
of sadness" among his clients. "What is painful," Mr. Fisher said, "is that
there seems to have been some disagreement between the dissenters and the
majority on how reprehensible Exxon's conduct was."
In a statement, Rex W. Tillerson, the chairman and chief executive of
ExxonMobil, said "The company cleaned up the spill and voluntarily
compensated more than 11,000 Alaskans and businesses. The clean-up was
declared complete by the State of Alaska and the United States Coast Guard
in 1992."
Business groups welcomed the majority's ruling.
"The decision could have an effect far beyond federal maritime law," Robin
Conrad, executive vice president of the National Chamber Litigation Center,
said in a statement. "Limiting punitive damages to no more than the amount
of a compensatory award will go a long way" toward restraining unpredictable
punitive damages.
Justice Souter was a little self-conscious in presenting a numerical ratio
as a rule of law.
"Some will murmur that this smacks too much of policy and too little of
principle," he wrote. But, he added, "history certainly is no support for
the notion that judges cannot use numbers."

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