The Most Important Environmental Justice Case You’ve Never Heard Of
First, let’s acknowledge that it is extremely detrimental to the ongoing effort for justice for the people of Ecuador that the press routinely ignores that Chevron admitted to deliberately dumping over 16 billion gallons of toxic oil-waste into the Amazon as a cost-saving measure over the course of decades while operating under its Texaco brand. It never once apologized nor made any meaningful effort to clean up that toxic waste nor assist any of the people it poisoned. Full stop.
Every article about the issue should begin with those undisputed facts.
Amazon Watch (9 March 2021)
Most of our coverage of environmental (in)justice cases over the last four years has focused on the U.S.: Cancer Alley in Louisiana, superfund sites near residential communities in various locations, the risks from industrial hog- and cattle-farming (The Washington Post, in fact, has a lead story on the latter today), and the particulate air pollution suffered by those living near massive warehouse complexes, as for example in California’s Inland Empire (the Guardian had a feature story last month on this).
But the irreparable harm to water, soil, and air caused by polluting industries – especially the extractive industries – is of course not limited to the U.S. Two cases came to our attention in recent days – one in Nova Scotia, the other in Ecuador – which serve to drive home the truism that environmental pollution is overwhelmingly visited upon Black and Indigenous peoples pretty much everywhere we turn.
Today we consider the case in Ecuador, which was subjected to irresponsible and reckless oil prospecting, drilling, and dumping of by-products from drilling between 1967 and 1992 by Texaco, an American oil company now owned by Chevron, whose corporate headquarters are in San Ramon, California and which is active in 180+ countries. In 1964, Texaco entered into a so-called “sweetheart deal” with a pliant Ecuadorian government and began drilling for oil in 1967 in northeast Ecuador, with full-scale production beginning in 1972. Over the next twenty years, the company drilled at hundreds of sites in the Lago Agrio oilfield, and – given there was zero oversight – disposed of the toxic sludge from drilling in around a thousand open-air, unlined pits containing toxic materials (heavy metals and other toxins). In order to keep the pits drained, pipes conducted run-off (toxic) water to streams and rivers used for drinking, bathing, and fishing by peasant farmers and five Indigenous tribes (two of these, the Tetete and the Tagaeri, are now entirely or substantially extinct). In all, it is estimated that the company dumped around 16 billion gallons of toxic waste into these open pits, at a savings of around $3 a barrel, amounting to a $5 billion profit over a 20-year period.
By the early 1990s, the Indigenous peoples and farmers living throughout the 1500-square mile area the drilling encompassed were suffering from heightened cancer rates and other chronic illnesses associated with exposure to toxic materials including the heavy metals barium and cadmium. All this might never have become known had it not been for a chance trip by a young lawyer named Steven Donziger to Ecuador in 1993 with a law school classmate and the latter’s father.
Donziger’s description of what he saw at the Lago Agrio Oil field:
It was like looking at an apocalyptic scene. There was oil on the roads. People were living in abject poverty. They had no shoes. They would get oil on their feet when they walked along the roads. The oil pollution had permeated every aspect of daily life. It was in the food supply. It was in the water supply. It was in the air. The average person there would get exposed multiple times a day to very harmful, cancer-causing toxins, with foreseeable results.
Donziger – inspired by a sense of injustice similar to that we have witnessed in other lawyers who’ve undertaken cases involving environmental injustice such as Jan Schlichtmann (Beatrice Foods/W.R. Grace in Woburn, Massachusetts) and Robert Bilott (DuPont in Parkersburg, West Virginia). Both these cases have been the subject of respected film versions (A Civil Action [1998], Dark Waters [2019]). A full-length documentary covering two years in the case Donziger brought against Chevron, Crude (2009) received positive reviews but unfortunately became the basis for the company’s accusations of fraud including blackmail and bribery of Ecuadorian judges, and devolved into an opportunity for Chevron to persecute Donziger and his colleagues.
One feature these cases share in common is their timeline – Donziger spent an entire legal career (1993-2018, when he was disbarred) engaged against Texaco/Chevron; he has been financially destroyed (his bail alone was set at $800,000 in 2019 for a misdemeanor charge, and he’s now been under house arrest for 643 days, which is 443 days more than the sentence for what he’s being tried for). Schlichtmann, who originally owned a boutique personal injury firm and appears to have started out as a yuppie wannabe, became literally obsessed by the Woburn case, litigation over which drove him to bankruptcy, nearly drove him mad, and absorbed a decade of his life before the EPA eventually took it up and forced a proper clean-up of the site. Bilott has spent 20+ years engaged in litigation against DuPont over its use of PFOA and PFOS. Taking up major environmental justice cases is not for the faint of heart – single-mindedness, a crusader spirit, an ability to withstand hostile professional attacks, and an indifference to monetary gain are prerequisites. But the most important characteristic these lawyers possess seems to be an unshakable sense of justice and a belief – at least initially – in the possibility of obtaining it through the legal system.
Neither Schlichtmann nor Bilott has been subjected to what Donziger has. Chevron has spent almost as much time litigating against Donziger as Donziger has litigating against Chevron. The case was originally filed in the federal court of the Southern District of New York (it was filed there because Texaco’s headquarters were in NYC [Texaco was acquired by/merged with Chevron in 2001]), and it was a decade before the case finally returned to Ecuador to be heard there. Chevron believed it would be impossible to litigate there – lack of funds, lack of legal expertise, lack of public awareness all factored in their calculations – but Donziger marshaled the funds, a legal team, and conducted a major public awareness campaign (he was originally a journalist himself and had freelanced in Nicaragua for several North American newspapers; he is fluent in Spanish). The verdict (2011/2013, 18/20 years after Donziger’s initial trip to Ecuador) initially awarded $18 billion in damages to the approximately 30,000 Indigenous tribal members and farmers his action represented; this was reduced to $9.5 billion – an amount which Chevron, with a market valuation of $136 billion (2020; Fortune 500 ranking = 15) has no intention of paying, despite the fact that the original verdict was confirmed by three appellate courts and the Supreme Court of Canada. Since then, it’s been nothing but a morass of litigation against Donziger, back in the Southern District of New York:
A ruling deeming the Ecuadorian verdict as unenforceable was issued by a United States court in 2014 and by an appeals court two years later. In 2018 the Permanent Court of Arbitration in The Hague ruled in favor of Chevron and said the 2013 Ecuador Supreme Court case was obtained “through fraud, bribery and corruption”.
There were plenty of accusations against Donziger and his Ecuadorian colleagues/ the Ecuadorian judicial system: the Permanent Court of Arbitration in The Hague unanimously found in favor of Chevron and Texaco in 2018, stating that the Ecuadorian verdict (in favor of the plaintiffs) was fraudulent and corrupt and should not be recognized (and damages not collected) in any other state (i.e. country). The Court’s findings included the following:
· That the evidence placed before the Court is “the most thorough documentary, video, and testimonial proof of fraud ever put before an arbitral tribunal.”
· That the plaintiffs blackmailed an Ecuadorian judge, triggering him to order the appointment of an “expert” friendly to the plaintiffs.
· That Ecuadorian government prosecutors “actively cooperated” with the plaintiffs.
· That the plaintiffs bribed the “experts” and ghostwrote their report.
· That the plaintiffs paid a retired judge to draft the acting judge’s orders—and that the same judge solicited bribes that Chevron refused to pay, but not so the plaintiffs.
On the other hand, it’s very hard to know how much of the above is actually true and how much is allegedly true. Because:
Most important to always remember is that 17 appellate judges in Ecuador, including its entire Supreme Court and Constitutional Courts, reviewed the facts of the case and validated the $9.5 billion judgment. On top of that, three appellate courts in Canada – including the entire Canadian Supreme Court – validated the judgement for enforcement purposes and implicitly rejected Chevron’s bogus claims of fraud and ghostwriting.
In 2011, Chevron filed a case against Donziger under RICO (=Racketeer Influenced and Corrupt Organizations Act, 1970, primarily used in prosecuting mobsters), accusing him of “bribing an Ecuadorean judge, ghost-writing the damages judgment against it and ‘fixing’ scientific studies.” The ruling against Donziger was issued by Judge Lewis A. Kaplan in 2014, where he found that Donziger had committed “offenses against legal ethics, including racketeering, extortion, wire fraud, money laundering, obstruction of justice, judicial bribery, coercion, witness tampering, and arranging for expert’s reports to be ghostwritten.” In 2018, the Second Circuit Court of Appeals unanimously upheld Judge Kaplan’s ruling.
Donziger has been under house arrest since summer 2019, to which he was sentenced by Judge Loretta Preska (a stand-in selected by Judge Kaplan and not randomly assigned as is normal in such cases) while awaiting trial on contempt of court charges for failing to turn over his computer, cell phone, other devices and passwords to the Court in 2018. Here, Donziger was acting to protect attorney-work product and attorney-client communications, both of which are normally protected by U.S. Courts as privileged.
Donziger’s contempt-of-court trial began (after numerous Covid-19-related postponements dating back to last year) yesterday; Judge Preska is not permitting it to be Zoomed or televised, and court space is very limited. Since the public prosecutor declined to take it up, a private law firm (Seward & Kissel) was appointed by the court to undertake Donziger’s prosecution in the role of “Special Prosecutor.” Finally, it’s a bench trial rather than a jury trial – another request by Donziger Preska denied.
Recent developments in this tortured (in every respect), labyrinthine case include a letter signed by nearly 300 students from 52 law schools across the U.S. declaring a boycott against Seward & Kissel recruitment from among their ranks; the “prosecutor,” Rita M. Glavin, is a partner there (link is to the NYT announcement of her wedding to Matthew Amatruda in 2004, because for some reason, her page isn’t available on the Seward & Kissel site).
Also, on 16 February, “Amnesty International USA, Amazon Watch and 11 other human rights and environmental watchdog organizations stepped forward, issuing a letter to Merrick Garland, […] U.S. attorney general. The letter requested that Garland … conduct ‘a top-to-bottom review of the ongoing and extraordinarily disturbing legal attacks that Chevron Corporation and its counsel has inflicted and orchestrated against renowned human rights lawyer Steven Donziger’”.
Most recently (28 April), these groups were joined by six members of Congress, who also wrote a letter to AG Garland requesting that the DOJ investigate the treatment Donziger has received at the hands of federal judges and the U.S. justice system. The letter notes:
We have deep concerns that the unprecedented nature of Mr. Donziger’s pending legal case is tied to his previous work against Chevron. It is vital that attorneys working on behalf of victims of human rights violations and negative environmental impacts of corporations not become criminalized for their work. If these restrictions are permitted, advocates across this country will feel as though tactics of intimidation can succeed in stifling robust representation. The results of this case will have a lasting impact in the legal practice, suggesting that representation and advocacy can then impede one’s ability to exercise fundamental protections.
Overall: a long, complex, over-litigated and under-publicized case in which as of now the plaintiffs’ original case, which concerned undisputed and massive environmental and cultural destruction to a part of the Amazon Basin – damage so extensive that what happened is referred to by human rights activists and environmentalists as the “Amazon Chernobyl” – has been relegated to the background of Chevron’s decades-long efforts to silence Steven Donziger, destroying him both professionally and financially, so that he may serve as a lesson (“pour encourager les autres”) to other similarly-inspired environmental justice lawyers not to bring cases against America’s largest and most powerful corporations, and most certainly not to bring such a case against Chevron on its home turf – say, against its operations in St. Amant or St. Francisville in Louisiana, or in Pasadena, California.
Lest we forget who Donziger was fighting for – and who he was fighting against – we conclude with an interview of Donziger by Chris Lynn Hedges from last summer with an accompanying essay, also by Hedges, and finally, a link to the 2009 documentary Crude.
Let the images – the evidence of what Texaco and Chevron wrought in this corner of the Amazon – speak for themselves.