Monday, January 24, 2011

"Overwhelming and unassailable" evidence of Chevron's crimes in Ecuador laid out in plaintiffs' final arguments

Today represents another milestone in the monumental legal case to hold oil giant Chevron (formerly Texaco) accountable for its devastation in Ecuador's Amazon rainforest. After more than 17 years of litigation, lawyers representing tens of thousands of Ecuadorians living amidst Chevron's widespread oil contamination have filed the first part of their final arguments in the case.

Recently submitted to the judge presiding over the trial in the Amazonian town of Lago Agrio, the final written argument – called an "alegato" in Ecuador - outlines in detail the case against Chevron, which lawyer for the plaintiffs Pablo Fajardo calls "overwhelming and unassailable" in the introduction to the 116-page document.

From 1964-1990, Texaco was the sole operator of the oil fields in Ecuador's Amazon. The environmental lawsuit was originally filed against Texaco in 1993, a year after the company left Ecuador. The company abandoned hundreds of toxic waste pits and widespread pollution through the Amazon rainforest region in the country's northeast, turning its operations over to Ecuador's state-owned oil company Petroecuador. In 2001, Chevron absorbed Texaco – taking on liability for the company's misconduct in the Amazon – and the case was re-filed in Ecuador in 2003 after Chevron succeeded in transferring the case out of U.S. courts. Finally, in December 2010, the judge closed the evidentiary phase of the trial, paving the way for the submission of the final arguments.

The plaintiffs' lead lawyer in Ecuador Pablo Fajardo, named a CNN Hero and awarded the Goldman Environmental Prize for his advocacy on behalf of the indigenous and campesino communities taking on Chevron, writes in an opening letter to the judge:

This is a simple case supported by scientific evidence. It is essentially based on thousands of sampling results taken at hundreds of former Texaco drilling sites that unequivocally reveal the presence of dangerous toxins in the soil and in the water. It is also about Texaco’s adoption of woefully substandard processes leading to the deliberate release of those toxins into the environment, where they remain today – practices designed to maximize profit at the expense of the environment and the public health in Ecuador. Chevron has tried to twist this case, diverting the attention of the public and of this Court towards anything and everything other than these core issues, resulting in a record exceeding 180,000 pages largely comprised of nothing more than “noise” intended to distract you, Sr. Presidente, from what really matters. Throughout the present legal report, we will cut through the noise, and focus on those issues that lie at the very heart of this case: Texaco’s deliberate misconduct, the environmental contamination resulting from that misconduct, and the legal basis for Chevron’s liability for the damages.

In a press release from the Amazon Defense Coalition, Karen Hinton, spokesperson for the plaintiffs, says:

"The voluminous scientific evidence in the case is summarized clearly in this historic document. This evidence proves overwhelmingly that Chevron is responsible for what is widely regarded as the world's worst oil-related disaster. We encourage all interested persons to read the alegato and judge for themselves whether Chevron is telling the truth about its deliberate misconduct in Ecuador."

This filing is the first of a three part submission of final arguments. As the press release explains, "the second and third parts - which deal with damages and issues relating to due process -- will be released in the coming days."

Hinton calls the document "historic" and it is indeed. When the indigenous communities and poor farmers living amidst the Chevron's toxic legacy first organized to file suit against then-Texaco in New York federal court (Texaco was based in White Plains, NY), many people said that they would never be able to hold the company accountable. When Texaco managed to get the suit removed from U.S. courts under forum non conveniens, Texaco's lawyers and many allies of the Ecuadorians thought it was over. When Chevron absorbed Texaco, the Amazonian communities had a mammoth new adversary that countless people said couldn't be brought to justice. And since Chevron brought on Gibson Dunn and kicked off its no-holds-barred, scorched earth legal and PR strategy, many more have jumped on the pessimists' bandwagon.

But here we are with the final arguments, and the judge deliberating on a decision that is widely expected to be delivered this year. The plaintiffs have brought on DC mega law firm Patton Boggs and high-profile lawyer James Tyrrell, who vows that the plaintiffs will be able to enforce a judgment against Chevron and win major damages to be put to environmental cleanup and healthcare in their communities.

Now, because of the critical, historic nature of these legal filings, I will quote the narrative introduction at length (though I encourage you to click through to the actual final argument filing if you want to see the case laid out in irrefutable, exacting detail)

Lawyer Pablo Fajardo continues in an introduction to the evidence:

The evidence against Chevron is overwhelming and unassailable. Any visitor to the region can see the evidence in striking terms: old Texaco barrels mired in hundreds of giant, unlined, open-air pits of oily sludge that leach their contents via overflow pipes built by the oil company into nearby streams and rivers. Evidence demonstrates that the company never conducted a single environmental impact study or health evaluation in the decades it operated in the Amazon, even though thousands of people lived in and around its oil production facilities and relied on rivers and streams that the company used to discharge toxic waste. Hundreds of waste pits left by Texpet [blog editor: Texpet is Texas Petroleum Company, the name under which Texaco, Inc. operated in Ecuador] have been tested extensively by experts hired by Chevron and the plaintiffs, and by various third party scientists, revealing levels of total petroleum hydrocarbons and heavy metals hundreds and sometimes thousands of times higher than allowable norms in Ecuador and the U.S. Chevron’s own documents prove that, as the Amazon communities have long alleged, Texaco never re-injected or safely disposed of “produced water,” and instead dumped it into surrounding streams and rivers which local residents still use for drinking, cooking, and bathing. The company also engaged in outright fraud: a 1972 memo from Texaco’s head of Latin American production issued a blunt directive to the company’s acting manager in Ecuador to destroy previous reports of oil spills and to forego documenting future spills in writing unless they were already known to the press or regulatory authorities, and, incredibly, not to produce any new reports that met these criteria.
Fajardo continues:
When it became clear that the evidence against Chevron was building, a Chevron spokesman announced to the Wall Street Journal: “We’re not paying and we’re going to fight this for years if not decades into the future.” The company put out a press release promising the plaintiffs a “lifetime of litigation” if they persisted. Chevron’s General Counsel said he expected to lose the case, but vowed that Chevron would “fight until hell freezes over and then fight it out on the ice.” These statements clearly contradicted Chevron’s earlier promises to abide by a judgment in Ecuador’s courts – promises it made to the American courts in order to secure a forum non conveniens (lack of jurisdiction) dismissal of a previously filed class action there. Throughout the course of the trial, it became clear that Chevron intended to play by a new set of rules. Chevron seeks not only to quash this case, but also to destroy very idea that indigenous communities can empower themselves to vindicate their legal rights. In a startling moment of candor, a Chevron lobbyist interviewed about the lawsuit admitted to Newsweek magazine: “We can’t let little countries screw around with big companies like this – companies that have made big investments around the world.”

Concluding the introduction before enumerating the evidence, he finally writes:

In the ultimate insult to indigenous peoples, Chevron has even gone so far as to suggest to courts in the United States and even to this Court that the Plaintiffs are not real – the mere figment of unscrupulous lawyers’ collective imaginations. But despite Chevron’s efforts to wish them away – the plaintiffs are real. They are as real as Chevron’s decimation of the rainforest on which these people rely for every facet of their existence – from their drinking water to their very culture and way of life. They are as real as the specter of disease that looms over the affected communities every day, while a litany of illnesses in their majority unknown to this region – continue to proliferate through the population at an alarming rate. The Plaintiffs are indeed very real, and much to Chevron’s chagrin, intimidation has not made them disappear. Chevron miscalculated – the company’s belief that it could simply outlast the indigenous people of the Oriente and drain them of their will to persevere has failed.

Incredibly, Chevron claims that it is being denied due process in this case, while it is the affected communities who have been forced to wait seventeen years for justice, thanks to the dangerous combination that is Chevron’s limitless appetite for litigation and its utter disregard for candor and for the rule of law. Indeed, in the face of Chevron’s relentless efforts to assure that this day never came, it is nothing short of a miracle that the case now stands on the precipice of judgment. The time for Chevron’s excuses, its finger-pointing, its international side-shows, and its extra-judicial mischief is over – this case will now be judged on the merits, as it should be. And as will be made plain herein, there is a very good reason Chevron has moved heaven and earth to avoid a decision on the merits, even at the expense of the company’s international reputation. When we strip away the artifice and focus instead on what matters – what exactly is in the ground and water and who put it there – Chevron simply cannot prevail.

What follows after the narrative introduction is a detailed outline numbering more than a hundred pages that provides all of the evidence proving the disastrous impacts of what Chevron/Texaco did in Ecuador, the rigorous testing showing how the company's activities poisoned the environment, and subsequently, local residents.

The alegato cites two painstaking internal audits commissioned by Texaco as it was preparing to depart Ecuador, explaining exactly how these studies prove the plaintiffs' case on their own. But to add to the mountain of evidence, the document lays out how Chevron's own testing results of contaminated oil well sites, abandoned waste pits, and surrounding water and soil prove the plaintiffs case for them.

It goes on to outline Chevron's legal culpability, and deconstruct all of the various defenses that the oil giant asserts, which run from legally ridiculous to morally reprehensible.

But enough of my thoughts. Whether concerned about human rights or the rainforest or the environment in general, I know many people have followed this case partly for its historic potential to set a powerful precedent to hold corporations accountable for their crimes against some of the most vulnerable people and sensitive ecosystems on our planet. If you are one of those people, if you care about this case, about justice, about the future of the planet, read this historic document. The case against Chevron. The case for justice in Ecuador. The case for a future in which another such tragedy is unthinkable.

Visit to view the historic filing, see the press release, and more.

– Han

Han Shan is the Coordinator of the Clean Up Ecuador Campaign

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