Friday, March 25, 2011

Journey to the Amazon, A Forest Worth Fighting For

The article below is cross-posted from the new official blog of Amazon Watch, Eye on the Amazon (check it out!).

The post is by AW's Development Associate Jenny O'Connor. By the way, when she's not helping to raise money and build support for our work throughout the Amazon Basin, Jenny is one of the directors of an inspiring grassroots organization with an international reach called Groundwork Opportunities.

This month a group of Amazon Watch supporters embarked on a journey to the heart of the Ecuadorian rainforest. From the contaminated rivers and pits of Chevron-Texaco's former operations to the pristine and breathtaking Napo wildlife lodge in Yasuni National Forest, the trip offered a new perspective on the true human and environmental cost of oil extraction, as well as the beauty that is worth saving.

It was a huge experience for [my son David]. It's so important for young people to meet others who inspire them and I know he really felt that way about [Amazon Watch campaigner] Mitch, Michael Mullady (the documentary photographer) and the people he met in Ecuador such as Pablo and Donald. My mother had a poster in our kitchen for years that said, "Through our great good fortune, in our youth our hearts were touched with fire". It was given to us to learn, at the outset, that life is a profound and passionate thing. Something like that happened for David.
– Julie Zuckman who traveled with her son David, upon returning from the delegation

From 1964 to 1990, Texaco (now Chevron) turned the pristine rainforest of northeastern Ecuador into an energy sacrifice zone. Hundreds of unlined open waste pits filled with crude oil, poisonous drilling muds, industrial solvents, acids, and heavy metals, leaching into the rivers and streams. After two days of visiting pit after pit, we drove along an old dusty road near the oil boom town of Lago Agrio, the smell and taste of oil burning the throat. We were headed to meet with the leaders of the Cofan people and listen to stories of death and destruction in their ancestral territory. In the somber canoe ride back to the car, a fellow traveler whispered, "What would possess men to destroy the earth like this?"

A day later, we found ourselves deep in the Yasuni national forest, slowly edging along a quiet river under the forest's canopy until the river opened up into a magical black water lagoon. We had arrived at the Napo Wildlife Center, and ecotourism lodge operated by the Quichua community. It is 82 square miles (53,500 acres - over 21,400 hectares) of the most pristine Amazon Rain Forest anyone has ever seen, an important UNESCO Biosphere Reserve, and the largest tract of tropical rain forest in Ecuador. Two days here and we all leave knowing that there is beauty on this earth...and it is worth fighting for.

Click here to view the full gallery of beautiful photos from this trip.

Thursday, March 17, 2011

Rigging the System? RT TV's No-Holds-Barred Report on Chevron's Hypocrisy in Ecuador Case [VIDEO]

"Well, we have yet another example of a major corporation -– an oil giant, in fact –– that has shown the world it intends to play by the rules only when it suits them."

That's how gutsy news anchor Kristine Frazao opened international cable news network RT TV's no-holds-barred segment yesterday on Chevron's latest legal tactics to evade accountability for its disaster in Ecuador.

Following a report analyzing the latest twists in the nearly 18-year legal battle, I was interviewed. Watch:

Here is the report at

– Han

Han Shan is the coordinator of Amazon Watch's Clean Up Ecuador Campaign

Tuesday, March 15, 2011

Is Chevron Paying Hush Money to Ecuador 'Dirty Tricks' Guy?

Diego Borja, self-proclaimed 'dirty tricks' operative for Chevron in Ecuador is scheduled to appear in a San Francisco courtroom today to answer questions about his attempts to entrap a judge overseeing the monumental trial against the oil company.

But already, court documents filed in connection with the case seem to confirm what we've been alleging for many months – that Chevron is paying Borja big bucks to keep quiet about his activities aimed at disrupting the trial over Chevron's contamination in Ecuador.

As California legal newspaper the Daily Journal reported:

Since August 2009, Chevron paid Borja each month: a stipend of at least $5,000; more than $1,600 for rent and at least $700 in automobile payments. The company also apparently paid more than $45,000 in taxes for Borja and it has continued to pay the Berkeley law firm Arguedas, Cassman & Headley LLP to defend Borja in proceedings related to the litigation. It is unclear from the documents if Borja also received a monthly stipend of $10,000, which would bring the total to nearly $340,000.

At least some of the payments have been facilitated by Jones Day, one of the firms representing Chevron in litigation stemming from the Ecuadorean case. Information about the payments was revealed as the plaintiffs battle against a New York federal judge's order barring them from enforcing the $8.6 billion judgment they won against Chevron last month, which has grown to $9.5 billion to include an award to the plaintiffs' team.

The Daily Journal article continues:

"Generally fact witnesses can only be minimally compensated for their time and reasonable expenses in providing testimony," said Catherine A. Rogers, a professor at The Dickinson School of Law at Pennsylvania State University and an expert in international arbitration and professional ethics. "Rent does not seem to be at all within the boundaries of those parameters."

One of Chevron's attorneys, Robert A. Mittelstaedt, partner-in-charge of Jones Day's San Francisco office, declined to comment. Mittelstaedt has been one of the partners facilitating Chevron's payments to Borja.

Attorneys for the Ecuadorean plaintiffs obtained the information about the payments in response to discovery requests connected with their efforts to depose Borja in San Francisco federal court.

"Chevron and its attorneys apparently have taken Mr. Borja's threats to expose their apparent misdeeds very seriously," wrote New York attorney Julio C. Gomez and New Orleans attorney Carlos A. Zelaya II. "Based upon the documents obtained from Mr. Borja on March 3, Mr. Borja's personal happiness appears to be priority number one for Chevron and its lawyers at Jones Day."

The court documents cited by reporter Rebecca Beyer in her Daily Journal story were apparently briefly available through the court's website, but have now been placed under seal. The protective order in place will also surely cover transcripts of Borja's deposition today.

In September 2010, Judge Chen said that Chevron had "implicated" Borja as a witness to its claims against the courts in Ecuador, and ordered Borja to sit for a deposition by attorneys for the Republic of Ecuador, which is fighting Chevron's attempts to force the country into a binding arbitration. As I write this, I'm frankly unclear about whether that deposition has happened.

But if these official proceedings reveal the dirty tricks that Borja has bragged about in other contexts, the plaintiffs will likely ask Judge Chen to remove the protective order and unseal the documents showing Chevron's payments and other details, making it all publicly available.

And of course, if Borja implicates Chevron executives in his schemes, this deposition could create some very serious legal waves for people like current General Counsel Hewitt Pate and Charles James, who was Chevron's GC at the time Borja was concocting the sting operation, and Chevron's lawyers at Jones Day Tim Cullen and Robert Mittelstaedt, at whose San Francisco offices Borja had a meeting in the midst of his video-taping operation.

Borja was caught on tape talking about his dirty tricks operation –– including tampering with evidence, offering bribes, and attempts at entrapping a judge –– on behalf of his "bosses" at Chevron. A friend-turned-whistleblower named Santiago Escobar made recordings of Borja talking about how the company "cooked evidence" in the trial. In the recordings, Borja is heard explaining that if Chevron didn't take care of him, he would "immediately go to the other side... I have correspondence that talks about things you cannot even imagine, dude... I can't talk about them here, dude, because I'm afraid, but they're things that can make the [plaintiffs] win this just like that."

Escobar turned over the recordings to Ecuador's Prosecutor General's office and testified about Borja's admissions. The Prosecutor General's office is conducting its own investigation.

In the most infamous of Borja's operations to disrupt the trial – secretly videotaping the judge then presiding over the environmental trial – Borja collaborated with an American man named Wayne Hansen. When releasing the videos, Chevron described Hansen as an American businessman interested in securing contracts to remediate the oil contamination in the Ecuadorian Amazon. But an investigation by the plaintiffs revealed that Hansen had no experience in remediation and was in fact a convicted felon and drug trafficker with a long history as a scam artist.

Last month, after more than 17 years of litigation, an Ecuadorian court found Chevron liable for massive oil contamination of Ecuador's northeastern Amazon rainforest. The court ordered the oil giant to pay $9.5 billion for environmental cleanup, and to provide clean water and health care for the communities ravaged by the company's years of misconduct in the region.

– Han

Han Shan is the Coordinator of Amazon Watch's Clean Up Ecuador Campaign

Friday, March 11, 2011

U.S. Court's Extraordinary Moves to Halt Enforcement of Verdict against Chevron in Ecuador: Why?

In early February, a week before a court in Ecuador passed down a historic $9.5 billion judgment against Chevron for massive environmental contamination in the Amazon, lawyers for the oil giant went to the U.S. District Court in New York, seeking an order to stop enforcement of the anticipated verdict.

As a major cover story in this week's Business Week magazine reports, Judge Lewis Kaplan granted a temporary restraining order immediately.

According to Business Week:

It was highly unusual for a federal judge to block the effect of a foreign court's action before it occurred. (He has since turned his order into a preliminary injunction, which remains in effect.) Kaplan didn't rule on the merits of the environmental claims; in fact, he stressed that he didn't know much about the underlying equities. He didn't sound sympathetic, however: "Among the obvious facts here are that the Ecuadorian plaintiffs are in this for money. They may be in it for other things, but they are in it for money."

This past Monday, Judge Kaplan turned his order into a preliminary injunction, a move that Karen Hinton, U.S.-based spokeswoman for the Ecuadorian communities ravaged by Chevron's contamination lambasted in a statement:

This decision is a slap in the face to the democratic nation of Ecuador and the thousands of Ecuadorian citizens who have courageously fought for 18 years to hold Chevron accountable for committing the world's worst environmental disaster. The trampling of due process in the court's refusal to consider key evidence or hold a hearing to determine the facts is an inappropriate exercise of judicial power that will harm the United States' relationship with Latin America and other parts of the world. It disregards the scholarly and comprehensive 188-page opinion of Ecuadorian Judge Nicolas Zambrano, a well-respected member of Ecuador's judiciary. It also ignores key evidence that Chevron has committed a series of frauds in Ecuador to cover up its unlawful misconduct.

We want to emphasize that after appeals in Ecuador the Ecuadorian plaintiffs retain their full right to lawfully enforce the judgment of their own country's courts in any of the dozens of nations around the world where Chevron has assets. In the meantime, we will appeal the decision on multiple grounds.

But besides being "a slap in the face" of the Ecuadorian victims of Chevron's abuses, the ruling by Judge Kaplan also seems like an extraordinary abuse of power.

First of all, Kaplan ordered the preliminary injunction in connection to a RICO suit that Chevron has brought against the Ecuadorian plaintiffs and their lawyers, including U.S.-based human rights attorney Steven Donziger, accusing them of being part of a grand international conspiracy to extort the company. Chevron brought the case in Kaplan's courtroom after successfully getting Kaplan to order filmmaker Joe Berlinger to turn over all the outtakes from Crude, a documentary about the legal battle against Chevron. And it was Kaplan that ordered Steven Donziger to turn over his entire 17-year case file, including personal diaries, and every email he has sent anyone in connection with the efforts to hold Chevron accountable. Kaplan even ordered Donziger to sit for almost two weeks of depositions with Chevron attorneys, and appointed a Special Master to oversee the depositions who transcripts show to be openly hostile to Donziger.

Having sat through hearings in Judge Kaplan's courtroom on a number of occasions, I've seen the judge's almost visceral distaste for Donziger. In fact, it was Kaplan who invited Chevron to file a RICO suit in the first place!

Here's Judge Kaplan speaking from the bench during a hearing on Chevron's motion to depose Donziger back in September, 2010:

“The object of the whole game, according to Donziger, is to make this so uncomfortable and so unpleasant for Chevron that they’ll write a check and be done with it. . . . So the name of the game is, arguably, to put a lot of pressure on the courts to feed them a record in part false for the purpose of getting a big judgment or threatening a big judgment, which conceivably might be enforceable in the U.S. or in Britain or some other such place, in order to persuade Chevron to come up with some money. Now, do the phrases Hobbs Act, extortion, RICO, have any bearing here?”

Of course, Chevron took the big fat hint and filed its unbelievable RICO suit, and that led to Kaplan's order this week that includes this significant passage:

Absent a preliminary injunction, Chevron would be forced to defend itself and litigate the enforceability of the Ecuadorian judgment in multiple proceedings. There is a significiant risk that assets would be seized or attached, thus disrupting Chevron’s supply chain, causing it to miss critical deliveries to business partners, damaging “Chevron’s business reputation as a reliable supplier and harm the valuable customer goodwill Chevron has developed over the past 130 years,” and causing injury to Chevron’s “business reputation and business relationships.”

And while I don't have the transcript in front of me, I also recall Judge Kaplan making similar remarks during the hearing at which he ruled immediately from the bench granting a temporary restraining order. There, he said, Chevron faced imminent and irreparable harm, which would also harm the public interest, as the company is important to delivering commodities so important to the smooth functioning of our economy.


The job of determining whether a particular sector of the economy or individual industry demands extraordinary legal protection belongs to Congress, not the courts. This is de facto policy-making on behalf of one specific corporation from the bench, and should be shocking to anyone who cares about the basic checks and balances in our political system. Besides, the idea that Chevron faces "irreparable harm" is ludicrous. We're talking about one of the largest companies on the planet, which had $17 billion in cash or cash equivalents on hand according to last quarter's financial statement.

And yesterday, Ecuador's Ambassador to the United States Luis Gallegos weighed in too, expressing "consternation that a U.S. court has elected to pass judgment on Ecuador's courts - especially since it was the courts of the United States that chose to have this litigation resolved in Ecuador."

As reported by The New York Times:

In his statement, Gallegos pointed out that the case was heard in Ecuador only because Texaco had requested it be moved there from the Southern District of New York.

Kaplan's lengthy opinion "does not accurately reflect upon or credit the independence of the Ecuadorian judiciary," Gallegos said.

The statement, which stressed that the Ecuadorean government was not commenting on the merits of the Lago Agrio case, included examples of what the embassy called the judiciary's "history of independent judgments."

Several of the cases mentioned featured Chevron or Texaco as a party.

One was a win for Texaco in 2000 in an income tax case. Another was a 2002 case in which Chevron won motions to dismiss against the Ecuadorean government in what the statement described as three "civil cases." Chevron also won $1.5 million in a case against the government, the statement said.

The Times story notes that Judge Kaplan's preliminary injunction order makes "numerous references" to a report on Ecuador's judiciary commissioned by Chevron and submitted to the court by the oil company. What the Times story doesn't say is that it appears that the report –– by lawyer, politician, and newspaper columnist Vladimiro Alvarez Grau –– is the only thing Judge Kaplan relies on for his analysis of Ecuador's judiciary. Alvarez, it turns out, is an outspoken critic and fierce political opponent of Ecuadorian President Rafael Correa. I'm sure Alvarez is "impressively credentialed," as Kaplan notes in his ruling, but it's disturbing that a U.S. judge would rely solely upon a single, one-sided, self-serving report submitted by Chevron for his analysis of Ecuador's entire judicial system.

But here I am again, a few hundred words into an article about this issue without more than a glance toward the plight of the communities throughout Chevron/Texaco's former drilling fields.

Cofan indigenous leader Emergildo Criollo smells for petroleum contaminants in a stream near his home in Ecuador's Amazon rainforest. Photo by Caroline Bennett

After nearly 17 years of litigation, they finally prevail in their legal battle, only to have a U.S. judge – from the same courts from which Chevron successfully fought to get the case moved to Ecuador, mind you – telling them that they can't enforce the judgment.

Law Professor Arthur Miller is given the proverbial last word in the lengthy Businesses Week article I mentioned above. He is considered perhaps the nation’s foremost expert on Civil Procedure – the rules of the litigation game. He is known for opening his classes on the subject at NYU and Harvard Law with the dramatic statement that given a choice in court between having the facts on his side or mastery of procedure, he’d take procedure and beat you every time.

And yet, it is Miller who laments at the end of the piece, that the "merits are getting lost" in this epic legal battle over who will ultimately pay to clean up the ongoing environmental and public health catastrophe gripping the oil-ravaged Ecuadorian Amazon. And by "merits," he means the facts.

In its legal war of attrition to evade accountability, it seems that Chevron has mastered the "procedure" in the courts, making this case about everything besides the "merits," the facts, the indisputable mountains of evidence that buttress the 188-page verdict delivered by the courts in Ecuador on February 14th.

The Ecuadorian judge, Nicolas Zambrano, based his decision on voluminous technical data submitted by both sides, concluding, quite simply, that during its years of operations, Texaco had the means to employ safer methods of oil exploration, but chose to cut costs to increase its profit margin, and in doing so, imperiled lives.

And now, thousands of men, women, and children continue to suffer cancers and other oil-related illnesses. Their water is poisoned. And the pollution remains all around them.

How long will courts in the U.S. allow "procedure" to trump the "merits" of the communities need for a cleanup, and Chevron's responsibility for providing it? How long until justice prevails?

– Han

Han Shan is coordinator of Amazon Watch's Clean Up Ecuador Campaign