Monday, March 19, 2012

The New Yorker Missed the Real Story on Chevron's Ecuador Disaster

Although a couple of months have passed since The New Yorker article was published on January 9, 2012, it's important to set the record straight about some significant errors and oversights in the story.

In fact, The New Yorker was poorly served by what turned out to be a personality-driven piece rather than a truly factual reporting on Chevron's $18 billion Ecuador environmental disaster in the Amazon rainforest. Patrick Radden Keefe missed the actual story by focusing on the back-and-forth between two of the American attorneys in the case – former Giuliani Administration enforcer turned badgering corporate lawyer Randy Mastro and human rights attorney Steven Donziger. However fascinating the exchanges between the two, they are immaterial to the human tragedy unfolding before the world's eyes.

For a far more comprehensive account of Chevron's environmental crimes and fraudulent cover-up in Ecuador, see this in-depth video.

It is difficult to enumerate all of the deficiencies in Keefe's article, but here are a few to begin:

  • Keefe, who spent less than one day in a polluted area that has decimated indigenous groups and haunted tens of thousands of people for close to 50 years, chose not to include the stories of anybody actually affected – he does not speak Spanish nor any of the native languages of the five indigenous groups – and the article for the most part ignored the devastating human impact of Chevron's pump-and-dump operation.
  • He was flat-out wrong in reporting that Chevron's predecessor company, Texaco (which operated in Ecuador), did not violate any laws in place at the time it operated. See here and here. The Ecuador trial court found that Chevron violated industry standards dating to the 1920s as well as multiple Ecuadorian laws in effect at the time of its operations.
  • The piece failed to report that Mastro and his law firm, Gibson Dunn & Crutcher, have been sanctioned repeatedly by U.S. and Ecuadorian courts for unethical practices and intimidation tactics ("legal thuggery" is how the Montana Supreme Court characterized it when fining the firm $20 million) against communities that assert their legal claims against multinationals. The Ecuador court doubled the damages award against Chevron after its lawyers filed frivolous motions to delay the trial (once filing 18 repetitive motions in a 30-minute period) and threatened the judge with jail time if he didn't rule in the company's favor.
  • Keefe never even investigated the news that Chevron recently floated a $1 billion bribe offer to Ecuador's government to quash the 18-year lawsuit, potentially exposing the company to criminal liability under the Foreign Corrupt Practices Act.
  • He neglected to report that Chevron used a secret lab during the Ecuador trial to hide "dirty" soil samples from the court. Nor did he examine news that Chevron altered a key report to dupe two American professors to submit an opinion in Ecuador defending the company's fraudulent sampling practices. Also absent was news of Chevron's memo to employees to destroy documents relating to oil spills.

And as if that's not enough, here's more:

  • Keefe failed to mention in his piece that Chevron conducted not a single environmental impact assessment – not one – during its 28 years of operations in Ecuador, or that Chevron's internal environmental audits, conducted as the company was winding down its operations in the early 1990s, prove the case against the company.
  • Unaddressed completely in the article is perhaps the biggest fraud Chevron committed in Ecuador: its phony remediation in the mid-1990s. Chevron received a release from government claims for conducting a sham clean-up, but the release did not absolve Chevron of the private claims in the lawsuit. Chevron's verification of its "remediation" also was fraudulent.
  • Keefe ignored independent cancer studies showing that thousands of people have died or are at risk of dying in the coming years unless there is a clean up. He further failed to investigate frightening evidence that lawyers for the plaintiffs have been targeted with death threats and robberies. (Keefe also did not report how Chevron's management lies to shareholders over the risks the company faces in Ecuador.

Chevron has spent hundreds of millions of dollars in legal and crisis PR fees trying to make this case go away, but it won't for one simple reason: What Chevron did in Ecuador was unconscionable. Allowing its contamination to remain to this day and continue sickening people year after year is even worse.

All the money in the world cannot change the facts in this case. They are why, despite using 39 law firms and almost 500 high-priced legal professionals like Mastro to try to defeat the rainforest communities of Ecuador, Chevron lost in U.S. federal court, lost its trial in the Ecuadorian court – the one Chevron fought to have hear the case – and lost its appeal last month in Ecuador's court of appeals. See here.

It's a funny thing about facts. They can be buried under a thin layer of soil, like Chevron's toxic chemicals sit beneath the ancestral lands of the affected communities. But they will never go away. The truth stubbornly bubbles to the surface. Chevron will lose this case because the facts will win it, not for the lawyers, but for the Ecuadorians.

Those interested in some good journalism on the Ecuador case should read a Vanity Fair profile on the lead Ecuadorian lawyer, Pablo Fajardo – a person who Keefe barely mentions in his story. Fajardo is the real driving force behind the landmark legal victory against Chevron in Ecuador. Other good reporting can be found in a 2009 segment from 60 Minutes and a 2011 report from the Australian news show Sunday Night. See here and here. All provide far more complete information on the matter than can be found in The New Yorker.

1 comment:

  1. Amen. The recent New Yorker piece was substandard journalism, and none of the many letters to the editor which pointed this out, including my own, were printed.
    Interestingly the New Yorker wrote an excellent piece on Steve Donziger early in his legal career as a human rights lawyer. One need only search the website of the New Yorker to find it. I wonder if Patrick Radden Keefe managed to read it before comparing Donziger with the likes of corporate defense attorney Mastro. But again, the combat between lawyers is really beside the point of any serious analysis of the disaster in the Ecuadorian Amazon and the ongoing legal battle for remediation and justice. Thanks for clearly enumerating the major shortcomings in the New Yorker piece on the merits of the lawsuit.