Wednesday, February 10, 2010

More Chevron Smoke & Mirrors in Ecuador's Courts - Will They Backfire?

Facing a judgment in a monumental lawsuit for massive contamination of the Amazon rainforest in Ecuador, Chevron unveiled its latest smoke & mirrors sideshow yesterday. In another desperate attempt to delay and disrupt the judicial process in Ecuador, the oil giant filed a motion in Lago Agrio to strike the "Expert Examination" of the contamination and assessment of Chevron's liability, which was performed by the independent court-appointed Special Master, a geological engineer named Dr. Richard Cabrera. The motion also asks for the Expert Examination to be re-performed, which would extend the trial – now in its 17th year – several more years, at least.

Chevron variously misrepresents, omits, or twists critical facts about Dr. Cabrera, accusing him of concealing a conflict of interest from the court and from Chevron. The company says they have "newly discovered" evidence that Dr. Cabrera owns an oilfield remediation company and claims that he stands to benefit from a ruling against the company.

But Pablo Fajardo, the lead Ecuadorian attorney representing the 30,000 indigenous and campesino plaintiffs suing Chevron, says, "Cabrera disclosed to the court that he owned a clean-up company before his appointment as Special Master. This fact was properly cited by the court as one of the reasons he was qualified to do the damages assessment."

In a rebuke of Chevron's press release from the Amazon Defense Coalition, Fajardo responds with a few additional bullet points:

* Chevron thought so highly of Cabrera’s qualifications that it accepted him as a court-appointed expert in an earlier part of the case and paid his fees as required by court rules.

* The fact Cabrera’s company is qualified to bid on clean-up contracts offered by Ecuador’s state-owned oil company is irrelevant. That company, Petroecuador, is not a party to the case against Chevron and would have no role in any eventual cleanup.

* Cabrera by virtue of his role in the case would be barred from having a role in a future clean-up.

Included in Chevron's press release trumpeting their baseless claims about Cabrera are a number of points that the company has highlighted before. The Amazon Defense Coalition refutes the points one-by-one in a document posted here. I encourage you to read both, and attempt to decide for yourself.

Of course, having visited the region myself, spoken to local people, and having followed the tactics from both sides for years, I know where I come down. As far as I'm concerned, this is just the latest predictable tactic in Chevron's 'kitchen sink' strategy. In fact, yesterday's filing was the 29th official motion to disqualify Dr. Cabrera, each of which have been denied by the court. One has to wonder exactly what is the objective behind the lies and hollow legal motions.

With a growing horde of high-powered public relations firms and DC lobbyists enlisted in the fight to evade responsibility for its toxic legacy in the Amazon, it appears that this latest push has nothing to do with a legal strategy in Ecuadorian courts, and is aimed instead at smearing the Ecuadorian judiciary in the court of public opinion.

But on the same day as Chevron filed its motion in the rainforest oil town of Lago Agrio, the Republic of Ecuador filed a motion in U.S. federal court, seeking to stop Chevron from participating in international arbitration under the U.S.-Ecuador bilateral investment treaty. Chevron is trying to use this latest forum to shift liability for damages from its contamination in the Ecuadorian Amazon to the government of Ecuador.

This motion by lawyers for the government of Ecuador refers to how Chevron (then Texaco) “agreed to satisfy any judgments in plaintiffs’ favor," in Ecuadorian courts, when arguing to move the legal proceedings from U.S. courts, where they were originally filed way back in 1993.

An Amazon Defense Coalition press release about the legal filing quotes the motion:
“The stark reality is the respondents (Chevron and its local subsidiary), having moved the case to Ecuador … are reneging on a key condition of the dismissal – their promise to satisfy any judgment. Not only are they refusing to satisfy a key condition… they are asking an not-yet-constituted arbitral tribunal to prevent the Ecuadorian court from deciding a case which it has been hearing for more than six years, by ordering the Republic to force its court to dismiss the plaintiffs’ claims – all without the participation of the plaintiffs themselves.”
Writing about Chevron's attempt to take this case to arbitration on his International Business Law Advisor blog, attorney Santiago Cueto says that "Chevron’s global quest for a favorable forum is a text book example of abusive litigation."

Steven Donziger, attorney for the plaintiffs suing Chevron for clean-up and compensation says, “We believe all of these Chevron attacks will backfire against the company in a later enforcement action to collect on any judgment,” said Donziger. “Judges are not as na├»ve as Chevron seems to think they are.”

One attorney I spoke to with experience in similar kinds of litigation said that Chevron is trying to build a legal record to try and show that it didn't receive a fair trial in Ecuador, something the company will try to argue when it comes to enforcement of a judgment if they lose.

Another attorney I spoke to who has followed this case for years agreed. But he also thought Donziger's perspective could prove true, and used a similar term as Mr. Cueto, telling me that Chevron is building a "long record of cynical and abusive litigation." He told me that upon reviewing Chevron's "years of legal shenanigans," a judge in an enforcement action could be very cold to any attempts to argue that the company didn't receive due process, demanding the company shut up, clean up, and pay up.

But, as Rainforest Action Network's Brianna Cayo-Cotter concludes powerfully in her blog, it's about more than money:
This is about the children who are getting sick and dying because they are forced to drink poisoned water. This is about justice for the 1,400 people who have died of cancer. And for the families who were unfortunate enough to build their homes on dangerous oil pits that Chevron (then Texco) lied about properly cleaning up. This is about their right to drink clean water. A right that Chevron denies with every lie and legal trick.
We can expect to see more of these lies and legal tricks from Chevron's lawyers in the near future. But the oil giant's legal smoke and mirrors will do nothing to stop us from building an ever more powerful movement to convince the Chevron's leadership that it's time to try a new approach.

With the courage of the rainforest communities of Ecuador who keep fighting for justice, the new energy of Rainforest Action Network's new Change Chevron Campaign, and the powerful support of Avaaz's global network, the chorus demanding Chevron clean up its mess in Ecuador is growing louder by the day, and will soon be deafening.

Join us!

– Han

Born and raised in Baltimore, Han Shan is a human rights and environmental justice campaigner living in New York City. He is an organizer with the Clean Up Ecuador campaign for Amazon Watch.

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