Friday, March 30, 2012

The Trial and the Road to Justice

Reposted from Jungle Dispatch

The Lago Agrio courthouse

The courthouse stands four stories high along the main drag of Lago Agrio. Like all other buildings in the town, the weather has gotten the best of it; it is tropically dilapidated. The colors, off-white with yellow trim, are ruined; the cement shows signs of crumbling; and from up close the black mold appears to be winning against all else.

The townspeople refer to the building as "la corte", though in actuality the court itself is only a series of offices on the third floor. The first floor is a credit agency, a copy and print shop, and an appliance store; the second floor is the government tourism office, full of brochures; and the fourth floor is a vacant, dark and unused terraza.

At the courthouse on the third floor, the people move slowly, deliberately. The air conditioning does not work. The air is stale and sticky. Just as any other provincial court, there are the usual characters – the judges, prosecutors, defenders, administrative workers – who shuffle in and out of rooms, swamped with any number of local civil or criminal cases. There are also, of course, the plaintiffs and the defendants, who come and go, huddle with their lawyers, wait, come and go again, always hoping never to return. In general it is an average courthouse scene.

Emergildo Criollo, leader of the Cofan people, is always there though; he never goes; he is always watching and observing. He is one of thousands of indigenous people and campesinos who have been waging a historic lawsuit against American oil giant Chevron for environmental crimes in the Amazon rainforest. For the last two years Emergildo's job has been to monitor the courthouse, and ensure that there are no improper meetings taking place between Chevron lawyers and courthouse staff or judges. Sometimes, to pass the time, he will make jewelry out of forest seeds and purchased beads. At other times he will make phone calls, but he never has enough credit in his phone to talk for too long. He arrives at 8 am just when the court opens; he leaves at 6 pm just when the court closes.

Emergildo Criollo's view of the courthouse

Several weeks ago as we were sitting together in the courthouse he gestured at the unnatural lighting and the strange angles of the building, and told me that when he was a boy this was all forest. "We are sitting where the monkeys used to make their homes" he said.

Outside the courthouse is the bustling life of downtown Lago Agrio. Crowds, bicycles, carts, cars, buses, 18-wheelers. Everything and everyone seems to move in concert. In this photograph, taken yesterday at 6:30 am, court workers load more than 200,000 pages of court filings and evidence from the historic Aguinda v Chevron case into a colorful court-chartered bus – all under the spirited and watchful eye of los afectados por Texaco (the people impacted by Texaco) The entire trial record was transferred yesterday to Ecuador's National Court of Justice in the Andean capital city of Quito. After eight years in the Lago Agrio court Chevron was found guilty in February 2011 for massive environmental crimes in the Amazon and fined upwards of $18 billion. In January of this year an Ecuador appellate court confirmed the $18 billion judgment against Chevron. The plaintiffs are now seeking to enforce the judgment in countries where Chevron has assets, while the high court in Quito will review Chevron's final appeal in this epic legal battle.

Carrying the boxes with case files to the Quito court

There are approximately 30,000 Ecuadorian plaintiffs in the legal battle against Chevron, all still living within Texaco's former oil concession area. Yesterday, community members from four indigenous tribes (the Cofan, Siona, Secoya and Quichua) and dozens of campesinos from rural towns throughout the region rented a bus to accompany and monitor the transfer of the legal case from the court in Lago Agrio to Quito – an important and symbolic moment in the 18 year legal battle against the American oil giant.

On the bus to Quito

Ascending out of the Amazon rainforest into the Andean highlands, we followed the TransEcuadorian pipeline, which Texaco built in the early 70s. History was lost on no one: Forty years after Texaco began producing oil in the Amazon rainforest, more than 200,000 pages of evidence and court filings documenting the massive environmental and human health harm that the company's operations caused were now winding their way besides Texaco's pipeline on the way to the National Court of Justice in Quito.

Here in the highlands, a section of the pipeline is under repair. History has not been forgotten though; a message on the pipeline reads: Chevron-Texaco: Never again!

Chevron-Texaco: Never again!

As our caravan reached the busy streets of Quito, we were met by a contingent of supporters from environmental and human rights groups, such as Accion Ecologica, Oil Watch, Pachamama, INREDH and CONAIE, who promised to join in helping monitor the trial process in Quito. Pablo Fajardo, the lead Ecuadorian lawyer in the legal case was leading the way.

Pablo Fajardo leads the caravan

Swarmed by press, the leaders of the lawsuit against Chevron make their way to the steps of the National Court of Justice for a press conference, where they will affirm their resolve to continue fighting for justice. After eight years of monitoring the trial process in Lago Agrio, the communities announced yesterday that they will continue their vigilance of the trial in Quito.

The bus arrives in Quito

Maria Aguinda is a Quichua woman from the town of Rumipamba. She is the lead plaintiff in this lawsuit, Aguinda v Chevron. Her home in Rumipamba stands beside a clogged and contaminated stream from a Texaco oil spill in 1976. Here, 18 years after filing the lawsuit against Texaco, she stands on the steps of the National Court of Justice, and again reminds the world of what the American company did to her rainforest homeland.

Maria Aguinda, lead plaintiff in the lawsuit

More photos of the transfer to Quito, taken by Kevin Koenig:

Wednesday, March 21, 2012

Caveat Emptor: Law Catches Up with Chevron in Brazil

Image from Joe Berlinger's film, Crude

Chevron is still pursuing its desperate fight to stonewall the process of justice in Ecuador, but in Brazil the company has found that escaping a similar pollution scandal is not so easy.

Today, March 21, Brazilian officials are expected to file criminal charges against Chevron, alleging that the company acted irresponsibly before and after the Nov. leak of 3,000 barrels of oil at Chevron’s $3.6 billion Frade field off the coast of Rio de Janeiro.

Fabio Scliar, head of the environment unit of Brazil's federal police department, told Brazilian media this week that the deep water well "could not and should not have been drilled under the conditions presented in the area," adding that an "absurd" amount of pressure was used at the site situated off the coast of Rio de Janeiro state. "All indications are that a desire for profits led (Chevron) to take the prohibitive risk" of drilling at the site, Scliar concluded.

On Friday, a Brazilian judge barred Chevron's Brazil chief, George Buck, and 16 other executives from leaving the country until an investigation of the company's offshore oil spills has been completed.

Chevron's longtime strategy in Ecuador – deny everything, bluster angrily, and counter-attack with hundreds of lawyers – just doesn't work in Brazil.

The government's oil regulatory agency has ordered Chevron to stop drilling any new holes, although it allowed production to continue at existing wells. Federal prosecutors asked a federal court to levy an $11 billion fine on Chevron and to shut down the company's operations altogether.

On Feb. 29, a judge declined to issue a preliminary injunction shutting down the company – a move that no doubt raised Chevron executives' hopes that the company would soon be scot-free.

But lo and behold, on Friday, March 16, government officials announced that they had detected another leak coming from Chevron's wells in Frade. A kilometer-long slick was seen spreading over the ocean surface, and Chevron said frantically that it would try to capture the oil in containment devices.

This time, the Brazilian judiciary seemed to realize that the kid gloves needed to come off. Federal Judge Vlamir Costa Magalhães quickly barred the Chevron executives from leaving the country. "There is no doubt the exit of these people from the country, at this moment, would generate considerable risk to the investigation," he said.

For Chevron, the stakes are high. Brazil's offshore oil reserves are considered one of the world's untapped frontiers for oil development, potentially holding as much as 100 billion barrels of crude. The so-called pre-salt fields lie two miles below the ocean surface and another two to four miles beneath the seabed. Chevron has a 52 percent operating stake in the Frade field and has spent around $2 billion so far on its development. Brazil is seen as a big part of Chevron's announced strategy of raising its global oil output by 20 percent over the next five years.

For Brazil, these geological difficulties mean that oil companies need to show know-how and sensitivity, not a callous, "drill, baby drill" attitude. But in an industry full of bad actors, Chevron has proven itself to be beyond the pale, due its record of environmental negligence and rights violations in Ecuador and around the world.

Brazil is slowly realizing what it signed up for. Caveat emptor.

Update: As suspected, today federal prosecutors filed criminal charges against 17 Chevron and Transocean company executives for an oil leak in the Atlantic.

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.

Monday, March 12, 2012

Protecting the Ecuadorean Amazon

Reposted from ELAW Advocate

When a court in Ecuador ordered Chevron in February 2011 to pay $18 billion to compensate Ecuadorians for damage to their communities, ecosystems, and health, Chevron executives responded by vowing to never pay a dime. Chevron filed a suit in New York against the Ecuadorian plaintiffs and their lawyers and began pursuing people and organizations that had helped with the case in Ecuador.

In May, Chevron's lawyers trained their sights on ELAW. ELAW partner Pablo Fajardo is the lead lawyer in the case against Chevron in Ecuador, and ELAW partners from around the world filed a "friend of the court" brief in the court in Ecuador. ELAW also hosted Pablo for an ELAW Fellowship in 2009, which enabled him to study English at the University of Oregon's American English Institute.

Chevron started by demanding documents from ELAW. Chevron's New York lawyers sent ELAW a 24- page subpoena demanding a wide range of documents going back more than eight years. ELAW worked with Eugene attorney Charlie Tebbutt to respond to Chevron's demands. ELAW staff spent many hours searching for documents that might respond to Chevron's demands. ELAW sought to comply with the legal obligation to produce documents, while protecting confidential information.

Chevron's lawyers then demanded to depose ELAW Executive Director Bern Johnson. In September, two Chevron lawyers from New York traveled to Eugene and questioned Bern under oath, for a full day.

Chevron attorneys then demanded still more documents from ELAW and another deposition. ELAW appealed to the federal court in Eugene, and Judge Thomas Coffin ruled that Chevron was making "unduly burdensome" demands for information from ELAW.

Bern said: "ELAW works to protect communities and ecosystems from environmental abuses. That work can make powerful corporations mad, and sometimes they try to silence you. Many of ELAW's partners have faced this kind of harassment, and worse. Fortunately, in this case the legal system worked to protect ELAW from harassment."

Thursday, March 8, 2012

The Facts Are The Facts

Reposted from The Chevron Pit

As hard as Chevron tries, it can't escape the undisputed facts that clearly show the company guilty of environmental crimes that resulted in the destruction of once pristine land and water in the Ecuador rainforest and direct harm to the health of the area's 30,000 residents.

Chevron wants to make the Ecuador contamination lawsuit about anything other than these pesty facts:

  • Chevron intentionally dumped 18 billion gallons of hazardous water into the rainforest.
  • Chevron built over 900 unlined pits to permanently store pure crude and production water – a toxic brew that continues to leech into the soil and water today.
  • Chevron oversaw a fraudulent remediation in 1995 that encouraged residents to build homes on top of and near oil pits they thought had been cleaned by the company.
  • Chevron's own tests taken during the trial found that soil and water samples from the so-called “remediated” pits were just as toxic as samples from pits that had not been cleaned.
  • Chevron knowingly put these people in greater danger to their health and lives by not confessing the company had simply thrown dirt over the pits instead of cleaning them properly, as required by the agreement.
  • Chevron has lost the case.

The Ecuadorians have won and have a legitimate judgment they are preparing to enforce.

And those are the facts.

Friday, March 2, 2012

Dignity Incarnate

Inside Journey, Ecuador’s Cofán Still Standing Strong Against Chevron

Reposted from Jungle Dispatch

Emergildo Criollo traveling to Quito

This morning I accompanied Emergildo Criollo, leader of the Cofán people, from his home in the dusty outskirts of Lago Agrio (the oil camp turned boom town that Texaco founded) to a press conference in Quito regarding a ruling issued late yesterday afternoon by the Appellate court in Sucumbios rejecting Chevron's latest attempts to block enforcement of the $18 billion judgment against Chevron for massive environmental crimes in the Ecuadorian rainforest.

6:15am: Torrential rain in Lago Agrio. Dim grey sky. We are standing outside the Lago Agrio airport, only 1/2 mile from the well site Lago Agrio 1 where Texaco first struck oil in 1967, setting in motion decades of industrial scale oil operations that would lead to one of the largest environmental disasters on the planet. Emergildo is silent. The airport has yet to open. Suddenly, as if a memory appeared to him in the distance, he begins to recount:

"Sometimes I don't recognize my own territory, Mitch." We are looking out at the pavement of the parking lot. "I remember I was six years old, and we had seen the helicopters in the sky (we thought they were metal birds), and then we went to where they landed. We heard awful noises there. And there were white people with big machines that we had never seen before. They were doing all sorts of strange things there…strange things…cutting down the forest, setting trees on fire, making explosions; and there were smells that we didn't recognize. Bad smells. And we didn't know why they were destroying the forest. What were they looking for?"

7am: We are worried about the weather conditions. It is still raining outside. We are inside the airport now drinking Nescafe with sugar. I ask Emergildo about the first time he drank coffee:

"We never knew that coffee existed. We drank Yuku which is better than coffee. It is much stronger. And it has a better taste. It is a vine that we know in the forest. You scratch it and put it in water. Not hot water. Cold water. We used to drink it at 4am in the morning before the light. We would all go to the river together, always together, 10-15 people, and we would drink Yuku and gather strength for the hunt."

7:45am: The rain is relentless. The legal team in Quito tells us that if our plane doesn't depart by 9am we will miss the press conference. I look at Emergildo in the bewildering unnatural light of the airport, the way his blue tunic hangs over dress pants and dress shoes; how he is adorned in plastic beads and rainforest seeds; how he tells me that "the journalists like to see me dressed up traditionally"; how when we arrive in Quito he will have to sift through the complicated (and totally alien) legal matters upon which a part of the destiny of his people depends. And I am struck with a kind of nausea at the astonishing cruelty of history. And a question: Can there be justice amongst human beings on this planet?

9am: The rain relented. I am reviewing legal documents on the plane. We are lost in the grey darkness of the sky, climbing out of the forest into the Andes.

I am thinking about the notion of legal justice. I want to briefly and simply summarize what is happening in the 19th year of this environmental litigation, which pits Emergildo (and 30,000 other indigenous people and poor homesteading colonists) against one of the largest multinational corporations on the planet. I have 15 minutes before the plane lands.

Chevron lost the trial in Ecuador. In February of 2011 a court in Lago Agrio found the company guilty of massive environmental crimes and issued an $18 billion fine against the company. Chevron decried the judgment a product of fraud, maligned the entire Ecuadorian judicial system, filed a RICO action against the affected communities and their lawyers, leveraged sympathy from a pro-corporate imperialist judge in New York to block the plaintiff's ability to enforce the judgment in jurisdictions around the world; ramped up their scorched earth public relations strategy seeking to dry the plaintiffs lawyers of resources; and continued to seek pitiful refuge in a an obscure private arbitration panel (consisting of three lawyers who stand to gain millions from trying the case), and requested that this panel render the entire 18 year litigation process (and the hopes of Emergildo) null and void, and that the Ecuadorian Government pay Chevron's $18 billion in damages. Or to put it more succinctly, Chevron has attempted to use its money, power and influence to crush the very communities that their predecessor company Texaco poisoned over the course of more than two decades of operations in the remote Amazon rainforest.

Chevron's strategy, though impressive in its breadth and cunning, has not reaped the results it was hoping for. The company was laughed out of court in May by the second circuit court of appeals for their attempt to block the plaintiffs ability to enforce the Ecuadorian judgment around the world. The original ruling in Ecuador, as I mentioned, was ratified by a higher court in Ecuador. And the plaintiffs continue to build their strategy to enforce the $18 billion judgment against Chevron in countries around the world where the company has assets.

Emergildo Criollo speaking at the press conference
9:45am: The press conference begins at 10am. We are in taxi near Plaza de los Torros. Emergildo is nervous that we are going to be late. I tell him that they won't start the press conference without him. He asks me why "three people in the United States" (i.e. the private arbitration panel acting under the mantle of the US-Ecuador Bilateral Investment Treaty ) would "ever think they have the right to end our legal case against Chevron?" He then tells me, "I'm glad that our court in Ecuador is strong and won't let that panel hurt our chances."

We are silent for a couple minutes. He then says, with a renewed sense of calm, "Did you know that the first time I came to Quito was 1973? I was invited by the Summer Institute of Linguistics to help translate the bible into." I think to myself, there should be some sort of American expression: First your soul, then your oil.

10:05am: All of the major Ecuadorian media outlets are present. This is going to be a highly legal affair. Discussions about jurisdiction; international law, global enforcement actions. It is Emergildo's turn now to speak. I am wedged up in the front, tangled in the tripod legs of several video cameras, hoping to get a good still of Emergildo.

And his voice trembles for a second, and then he says with strength: "I am Emergildo Criollo of the Cofán people, and I am proud to be here today."

And I think, Yes, nothing more needs to be said. And I take a still photograph of dignity incarnate and set my camera down.


– Mitchell Anderson

Guilty, Again and Again

Ecuadorian Appeals Court Ratifies Chevron Ruling

Reposted from Eye on the Amazon

Plaintiffs' chief attorney, Pablo Fajardo

The Chevron case marked an important turning point yesterday when an Ecuadorian appeals court issued its final ruling, ratifying its historic $18 billion judgment against the oil company.

The ruling was the latest in a recent whirlwind of international legal news in the case, which is becoming a major test case to determine the boundaries between corporate investor rights, human rights and national sovereignty.

In a press conference Friday in Quito, indigenous leaders and plaintiffs' chief attorney Pablo Fajardo said that their legal team would soon initiate legal actions in several countries to attempt to seize Chevron's assets to pay the judgment.

"This is the moment to start acting to enforce the judgment against the company," said Luis Yanza, coordinator of the Assembly of People Affected by Chevron-Texaco. "It's time to do justice and it's time for the thousands of affected people to see it. It's time to attend to our most urgent needs, such as clean water and clean air."

Chevron has appealed the ruling to the country's National Court of Justice, but the company refused to post the multi-billion-dollar bond, as required by law, so the appeals court's ruling is fully enforceable while the appeal proceeds.

Despite its complete failure in Ecuadorian courts, Chevron keeps doubling down on its last hope: an arbitration tribunal convened under the U.S.-Ecuador Bilateral Investment Treaty.

On February 16th and 27th, the tribunal issued rapid-fire rulings making an astonishing grab for quasi-judicial power. The first of the two rulings ordered the Ecuadorian government – and all of its branches, including the judiciary – to prevent enforcement and recognition of the $18.2 billion judgment, both within and outside Ecuador. The second ruling laid out for the first time the full legal argument by which the tribunal was claiming authority to essentially veto the Ecuadorian ruling, and embark on a multi-year process of re-trying the entire case.

The Ecuadorian appeals court promptly swatted away the arbitration rulings. "A simple arbitral award...cannot force judges to infringe on the human rights of our citizens," said the court, adding that obeying the panel's order would violate the nation's Constitution as well as international human rights conventions.

International legal experts also expressed outrage at the arbitration panel's pretentions of turning itself into a sort of uber-world court with supreme global powers. Some of the statements by legal experts:

Much is unclear about how the case will unfold, as Chevron throws its armies of attorneys around the world in desperate attempts to block justice. In the meantime, however, several things are undeniable:

  • Never before has an arbitration panel been used in such an aggressive, expansive manner, with the clear intention of denying due process, denying legal redress and vetoing a judgment with profound implications for human rights and environmental protection. To call the arbitration tribunal a "corporate star chamber" is simple fact, not hyperbole.
  • The case involves inherent conflicts of interest because each of the three tribunal members is likely to earn millions of dollars in fees by forcing this case to a full retrial and by blocking the Ecuadorian plaintiffs' rights of redress.
  • The Ecuadorian rainforest communities are continuing their long fight for justice, with ever-more legal wind behind their backs. They are unified and optimistic, yet completely aware of the likelihood that Chevron's intransigent chief executives will keep fighting until the very end, no matter how much it eventually costs the company and its shareholders.

– Paul Paz y Miño