Dead Sea

An unpublished study shows the surprisingly lethal effects of the Cosco Busan oil spill. Why are government scientists helping the ship's owner keep it a secret?

But close watchers of the investigation into the oil spill in the environmental and fishing communities say they wish they'd had a chance to review government researchers' findings for themselves — and not just after the shipping companies' consultants were given the chance to take a first look and privately offer comments.

Stuart Gross, a Burlingame attorney, represents the dozens of commercial herring fishermen suing the ship's owners and operators. Before being contacted by SF Weekly, he was unaware that government scientists had produced a study that strongly links the Cosco Busan oil spill to the death of large numbers of herring hatched in San Francisco Bay. These plaintiffs are part of a larger class-action lawsuit involving hundreds of local commercial and sport fishermen.

Gross said his clients and other members of the public have a right to information gathered by taxpayer-employed researchers. The failure to disclose the report prior to SF Weekly's FOIA request, he said, shows the ship's owners are "trying to negotiate ... essentially a cover-up."

No herring boats can be found on the 
bay this year, after state regulators canceled the fishing season because of a drop in the species’ population.
Peter McCollough
No herring boats can be found on the bay this year, after state regulators canceled the fishing season because of a drop in the species’ population.

Gross has some justification for being put out. Currently in the midst of preparing for a September trial, he has so far been deprived of one of the most persuasive documents advancing his case: a government report illustrating bunker fuel's extreme toxicity to the fish on which his clients depend for their living.

"It's the classic 'Justice delayed is justice denied,'" he said of the government's handling of the damage assessment. "I mean, come on. If they release this data 10 years from now, after no one is paying attention to the Cosco Busan, that serves the purposes these agencies were created for?"

The lawsuit does not specify the amount of money fishermen are seeking, but court filings on potential economic damages to the fishery indicate that tens of millions of dollars could be at stake, particularly if the oil spill is shown to have resulted in a long-term decline in the bay's herring population.

"For the shipping companies to have the inside track while this report is being prepared is not right," said Ernie Koepf, a veteran fisherman involved in the lawsuit. "We need to get to the truth, and have the truth stand on its own without anybody being able to throw rocks at it and think that the books were cooked."

Andrea Treece, a San Francisco–based senior attorney for the Oceans Program of the Center for Biological Diversity, said federal and state agencies' reluctance to share the document with the public other than the Cosco Busan ownership "flies in the face" of President Barack Obama's proclaimed emphasis on the openness of government records, and raises questions about the integrity of the research process.

"When they keep a study like that so close to their chest, and they won't even release it until they're forced to by a FOIA, that just doesn't look good," said Treece, who is herself a former federal employee, having worked at the U.S. Environmental Protection Agency. "It's a scientific document, and it's important to let everyone see it who was affected by the spill and is trying to understand what happened. If what the agency is interested in is putting together a sound restoration plan, then of course you should go out and get public comment from everybody that's interested."

Rainer Hoenicke, an environmental scientist who heads the nonprofit San Francisco Estuary Institute, said he was likewise puzzled at the secrecy surrounding the 2009 toxicity study.

"It's perfectly fair for the defendants to look at the information," he said. "What is strange in this case is that the agency, in this case [the state department of] Fish and Game, wasn't willing to release the report that was finished. I would say that the public has the same right as the defendant to look at the data — and not just the data, but the interpretation and analysis — at the time they came out."

Despite such criticisms, the process used by government officials in the Cosco Busan research is in line with federal law. Answers to the question of how it came to be this way begin with the aftermath of an environmental catastrophe on a far grander scale than the crash of the Cosco Busan.

When the Exxon Valdez oil tanker struck Bligh Reef in 1989, emptying nearly 11 million gallons of crude oil into Prince William Sound, the result was not only an environmental tragedy, but a political uproar. Washington legislators made a show of getting tough on the multinational oil and shipping companies that plied American waters, and in 1990 passed the federal Oil Pollution Act, a landmark regulatory bill.

Among other provisions, the law required shipping companies to draft detailed plans for handling potential oil spills, and established a national trust fund — paid into by these companies — for cleanup costs.

But the bill was not an unalloyed crackdown on the industry. In fact, it established a regulatory system that critics say is extremely friendly to the companies responsible for polluting our oceans — one that has had important consequences in the investigation into the ecological damage caused by the Cosco Busan.

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