Wednesday, July 13, 2011

Polluter Party! Corporate Criminals Close Rank Around Chevron

Quick quiz: what do mega-corporations Shell Oil, Dow Chemical, and Dole Food have in common?

A. They are all Fortune 500 companies.
B. They have each been the target of legal action for serious environmental and/or human rights abuses.
C. They are all supporting Chevron's efforts to evade liability for widespread oil contamination in Ecuador.
D. All of the above.

Okay, that was probably too obvious, but yes, the answer is, D. All of the above.

Well, it's a veritable polluter party with some of the most notorious corporate criminals lining up to support Chevron in its efforts to evade accountability for the company's horrific oil disaster in the Amazon rainforest of northern Ecuador. Along with the Chamber of Commerce and the Corporate Roundtable, two industry groups whose noble aim is strengthening the Corporate Oligarchy, Dow, Dole, and Shell have filed a legal brief supporting Chevron in legal proceedings in U.S. courts.

The amicus ('friend-of-the-court') briefs by the polluters and their supporters ask a federal appeals court to uphold an injunction issued by a U.S. district court judge that purports to block enforcement of the historic verdict against Chevron delivered by an Ecuadorian court that found the company liable for massive oil contamination in Ecuador's northern Amazon rainforest.

In 2010, after 17 years of litigation and the failure of Chevron's relentless attempts to derail the judicial process in Ecuador, the oil giant launched a truly scorched earth legal, political, and PR campaign in a last-ditch effort to evade accountability. Chevron started by going after the filmmaker who made the recently-released documentary Crude, about the company's toxic legacy in Ecuador, and found U.S. District Court Judge Lewis Kaplan extraordinarily sympathetic to the oil giant's every claim.

As the court in Ecuador looked poised to return a judgment, Chevron took a hint from Judge Kaplan and filed an outlandish lawsuit accusing the plaintiffs and their lawyers and consultants of concocting their claims in a vast conspiracy to extort a payment from the company.

Before the court in Ecuador had even issued its verdict, Judge Kaplan issued an injunction against enforcement of any judgment from the court (Chevron removed its assets from Ecuador so the plaintiffs will have to take their judgment against Chevron to a court in a place the company still operates and have it enforced). The $9 billion dollar judgment delivered on February 14th by the Ecuadorian court is still under appeal in Ecuador, and the plaintiffs have asked the Second Circuit Court of Appeals in New York to reverse Judge Kaplan's injunction, which brings us back to the amicus briefs filed by Chevron's polluter pals.

Why would they line up in support of a company found guilty of poisoning indigenous people and devastating the Amazon? A press release today from the Amazon Defense Coalition explains:

"Chevron, Dow, Shell, and Dole each have consistently relied on a business model which artificially inflates their profits by dumping pollutants into the environment and then doing whatever is necessary to avoid having to pay for a clean-up," said Karen Hinton, the American spokesperson for the 30,000 Ecuadorians who sued Chevron for the environmental contamination of their ancestral lands.

The press release continues:

Hinton pointed out that Dow operated the Rocky Flats nuclear weapons facility in Colorado that is now considered one of the most polluted Superfund sites in the United States. For years Dow has tried to offload clean-up costs, estimated to run into the tens of billions of dollars, to taxpayers.

Dow also manufactures DBCP, a toxic soil fumigant that sterilized numerous Dow workers. Although the use of DBCP is banned in the U.S., Dow still ships the chemical overseas.

Dow also manufactured Agent Orange, a cancer-causing defoliant used in Vietnam that now costs taxpayers billions of dollars annually in disability payments to veterans who were exposed to the toxin during the war.

Dole used the DBCP chemical manufactured by Dow as a fumigant on its banana plantations in Central America, resulting in widespread sterility for thousands of workers, according to various lawsuits filed against the company.

And just two years ago, Shell was about to stand trial in the same U.S. federal court where Judge Kaplan presides. Shell stood accused of colluding with the Nigerian military to kill author and activist Ken Saro-Wiwa and a number of other community leaders who opposed the company's horrific human rights and environmental abuses in the Niger Delta. When, just days before the trial was set to begin, Shell finally offered a settlement to avoid the glare of the awaiting media spotlight during a trial, the exhausted families accepted it. They could move on from their long nightmare and invest the money in programs to help their communities recover from decades of abuse by Shell. It should be noted that Shell remains on trial in the Netherlands over oil spills in Nigeria, and the company continues to pollute with apparent impunity.

In contrast to the legal briefs supporting Chevron from professional polluters and corporate titans, a number of law professors, legal experts, and human rights lawyers have filed their own amicus briefs, criticizing Judge Kaplan's ruling and asking the appeals court to reverse the injunction against enforcement of the judgment from Ecuador.

Burt Neuborne, Legal Director of the Brennan Center for Justice at NYU Law School, writes in an amicus brief filed with the Second Circuit Court of Appeals that Judge Kaplan's ruling "sends an unmistakable message of American judicial arrogance to the rest of the world that can only result in increased levels of reciprocal judicial suspicion and hostility, with negative consequences for the transnational rule of law.”

Neuborne, an eminent human rights and civil liberties attorney, goes on to outline exactly why Judge Kaplan's over-reach in this instance is so dangerous. In his amicus brief [download as PDF], he writes that Kaplan's ruling:

(1) heaps scorn on the Ecuadorian judiciary on the basis of an unfairly truncated record and in the absence of a representative of the Republic of Ecuador; (2) proceeds in the absence of a representative of the indigenous peoples of Ecuador who have suffered the alleged underlying environmental injury and who will be the beneficiaries of any Ecuadorian judgment; and (3) seeks to pre-empt the ability of judges everywhere else in the world to decide for themselves whether to respect and enforce the final judgment, if any, of the Ecuadorian courts.

In support of the Ecuadorian plaintiffs motion before the appeals court, amicus briefs were also filed by a group of 16 international law professors and scholars from Australia, Finland, Italy, South Africa, Spain, and the United States. Two prominent environmental law groups, EarthRights International and the Environmental Defender Law Center, also filed briefs in support of the plaintiffs demanding justice from Chevron.

The New York appeals court has scheduled arguments over the plaintiffs appeal for the week of September 12th. Late last week, the appeals court also consolidated the appeal of the injunction with a motion from the plaintiffs seeking U.S. District Court Judge Lewis Kaplan's recusal from the case. In previous filings, the plaintiffs have detailed Judge Kaplan's numerous comments from the bench and recitations of Chevron's one-sided narrative to highlight the judge's obvious "deep-seated animosity" towards their legal efforts. The unusual move of consolidating the recusal motion with the underlying appeal suggests that the appeals court is at least taking the plaintiffs' allegations of bias against the lower court judge quite seriously.

– Han

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