Wednesday, May 27, 2015

Chevron's "Amazon Chernobyl" in Ecuador: The Real Irrefutable Truths About the Company's Toxic Dumping and Fraud

Reposted from the Huffington Post

More than 20 years ago, indigenous and farmer communities in Ecuador's Amazon went to court in the United States to seek compensation from Chevron for harm caused by the deliberate dumping of billions of gallons of toxic oil waste on their ancestral lands. I know: I was one of the American lawyers on the original complaint filed in federal court in Manhattan on November 3, 1993.

Since then, the affected communities have not only won their case resoundingly in Chevron's chosen forum of Ecuador – the company agreed to jurisdiction there to avoid a jury trial in the U.S. – but in the process discovered highly disturbing evidence of misconduct by a leading American oil company far worse than anybody could have imagined on that day long ago.

It is this misconduct that Chevron is trying to cover up by launching a demonization and smear campaign against those who held it accountable. Those targeted include myself, the environmental group Amazon Watch, and my longtime Ecuadorian colleague and the lead lawyer on the case, Pablo Fajardo. Among the tools used by Chevron: roughly 2,000 lawyers from at least 60 different law firms and six public relations firms, including the one that carried out the Swift Boat campaign targeting John Kerry in the 2004 Presidential race.

In recent years we have presented persuasive evidence that Chevron filmed its scientists doctoring scientific evidence to defraud Ecuador's courts; had a policy in Ecuador of destroying documents relating to its oil spills; paid an admittedly corrupt witness to lie to a U.S. federal court; executed a sham remediation; and attempted to bribe the Ecuador trial judge to recant his findings against the company. That's in addition to the State Department cables that show Chevron worked with U.S. embassy officials to undermine the lawsuit by offering money to Ecuador's government in exchange for quashing the valid legal claims of the country's citizens.

Part of Chevron's smear campaign against our team is to claim – falsely according to mountains of evidence reviewed by three layers of courts in Ecuador – that the underlying lawsuit is a fraud. That's what Chevron public relations executive Stephen W. Green argued recently in an article posted on The Huffington Post ("Five Irrefutable Truths About the Fraudulent Lawsuit Against Chevron In Ecuador"). We believe that Chevron's allegation in this regard is itself a fraud designed to hide facts in Ecuador proving the company deliberately discharged toxic waste, repeatedly attempted to sabotage the judicial process, and falsified evidence to try to frame those who have played leading roles in what has become a historic battle for justice.

Green claimed that I once said, "If you repeat a lie a thousand times, it becomes the truth." As Green well knows, I made that comment to describe Chevron's litigation strategy – specifically, how the oil company's technicians were misleading courts by lying about the impacts of the contamination. (What I actually said was, "If they [Chevron] repeat a lie a thousand times, it becomes the truth.") The way Green twisted the meaning of this quote into its opposite is a vivid illustration of how the company distorts evidence to attack its adversaries. (For background on Chevron's abuse of the Ecuadorian court process, see this legal brief and this detailed article I recently published on a legal website.)

Chevron has tried for years to use a public relations strategy to demonize its adversaries so it could distract attention from its misconduct. But the underlying facts of Chevron's toxic dumping and the ongoing public health catastrophe created under its watch in Ecuador are the real issues. And most of the related facts are undisputed by Chevron.

Here are the real irrefutable truths about the $9.5 billion legal judgment against Chevron in Ecuador:
  • Ecuador's Supreme Court unanimously affirmed the decision against Chevron based on the company's own scientific evidence. After an eight-year trial that included 105 technical evidentiary reports, Chevron was found guilty in 2011 of dumping billions of gallons of oil waste into the rainforest when it operated in Ecuador from 1964 to 1992. The court decision relied largely on Chevron's own technical reports and environmental audits to meticulously document extensive and even life-threatening levels of oil contamination at hundreds of the company's former well sites and in rivers and streams relied on by local residents for drinking, bathing and fishing. The system worked as planned: former Chevron executive Rodrigo Perez Pallares openly admitted during the trial that the company contaminated surface waters with at least 15 billion gallons of toxic oil sludge. Cancer rates in the area have predictably skyrocketed. (For more detail about the extensive evidence against Chevron, see here.)

    Chevron's position since the end of the Ecuador trial has further deteriorated. The scientific evidence against the company has been confirmed by multiple independent third party studies, including one by the U.S.-based Louis Berger Group prepared for a parallel arbitration proceeding between Ecuador's government and the Chevron. Much of the scientific evidence has been attested to under oathand summarized powerfully in this power point presentation by Douglas Beltman, a prominent scientist for the affected communities who dropped out of the case after Chevron targeted him with a vicious retaliation campaign that almost led to personal bankruptcy.
  • Given the overwhelming evidence against it, Chevron tried repeatedly to corrupt and sabotage Ecuador's courts: InternalChevron whistleblower videos recently disclosed by Vice News and Amazon Watch show the oil major's technicians finding massive amounts of soil contamination at well sites that the company had previously confirmed as "remediated" to Ecuador's government. The secret videos also show that Chevron engaged in pre-inspections of well sites to construct a ruse to hide its contamination from the court during the later official judicial inspections. Recently, Chevron's claim that the judgment was written by lawyers for the plaintiffs unraveled when a forensic analysis of the trial judge's computers showed he wrote the judgment painstakingly over a period of four months, saving it almost 500 times prior to its issue. During the Ecuador trial, Chevron's legal team threatened the judge with jail time if he did not rule in the company's favor. Company lawyers inundated the court with frivolous and duplicative motions – one time filing 39 in less than an hour – to paralyze the proceedings. A Chevron operative in Ecuador, Diego Borja, boasted on tape that he switched out dirty soil samples for clean ones before presenting them to the court. Chevron also tried to use Borja to entrap the trial judge in a fake bribery scandal. (For background on some of Chevron's attempts to corrupt Ecuador's courts, see this sworn affidavit from Ecuadorian lawyer Juan Pablo Saenz.)
  • Chevron has tried to harass and intimidate those who stand with the Ecuadorian communities in their struggle for justice: Chevron recently tried to cyberbully a respected legal reporter who disclosed forensic evidence suggesting the company's star witness had lied in U.S court in the company's retaliatory "racketeering" case. As part of its attack campaign, Chevron General Counsel R. Hewitt Pate has sued or threatened to sue the lawyers for the affected communities, their financial supporters and even environmental groups that support them. As reported in The Atlantic, Chevron was even caught trying to enlist an American reporter, Mary Cudahee, to engage in corporate espionage against our team in exchange for $20,000. One California court ordered Chevron to pay a fine to Cristobal Bonifaz, a human rights lawyer who formerly represented the Ecuadorian communities, after the company's harassing lawsuit against him – led by outside counsel Scott Edelman – was found to have violated the First Amendment.
  • Chevron's jurisdictional shell game makes a mockery of the rule of law: Chevron is playing a jurisdictional shell game to block resolution of the case. It works like this: first, Chevron successfully moved the case out of U.S. federal court to Ecuador. Once the evidence mounted against it in Ecuador, Chevron sold off its assets there. It then came back to the same U.S. court where it had blocked the original case to seek an injunction blocking the villagers from enforcing their judgment in this country. Blocked from collecting their judgment in either Ecuador or the U.S., the villagers then filed suit in Canada to seize Chevron's assets. Chevron then claimed that its assets in Canada should be off limits because they are owned by a wholly-owned subsidiary called Chevron Canada rather than by Chevron. Since Chevron operates outside the U.S. only through its wholly owned subsidiaries, under the company's legal theory the indigenous communities will never collect the first dollar of their judgment anywhere in the world.
  • A U.S. judge's decision in favor of Chevron is the product of a one-sided proceeding and will command little respect worldwide: A U.S. federal judge (Lewis A. Kaplan) who repeatedly disparaged my clients from the bench found in a non-jury civil trial that I "laundered" money by sending wires from my law firm account to Ecuador to pay for case expenses. He claims I engaged in "extortion" on the theory that there were no damages in Ecuador, when in fact those damages have been confirmed by Ecuador's Supreme Court based on assessments by technical experts. Judge Kaplan also claimed I bribed a judge whom I had never seen, met, or talked to. As the venerable trial lawyer John Keker said when he represented me, Judge Kaplan allowed the proceeding to "degenerate into a Dickensian farce" to favor Chevron. As my appellate brief and sworn testimony make clear, I categorically reject all of Judge Kaplan's findings.
In a decision we still find hard to believe, Judge Kaplan excluded all of the extensive scientific evidence relied on by Ecuador's courts to find Chevron liable. It turned out that he also held undisclosed investments in Chevron during the trial. If Chevron had actual confidence in the validity of its "fraud" evidence, it would not have dropped a $60 billion money damages claim on the eve of trial to avoid a jury of impartial fact finders. (For more background on what we believe were Judge Kaplan's inappropriate comments, see this background document and this legal petition that sought his removal from the case.)

We also believe Chevron was involved in the presentation of false evidence. While in Ecuador, Chevron lawyer Andres Rivero and investigator Yohi Ackerman paid thousands of dollars in cash out of a suitcase to a former Ecuadorian judge, Alberto Guerra. Guerra later testified falsely that our local legal team wrote the trial court judgment and then gave it to the judge on a flash drive just before it was issued. We know this is false because after Guerra signed a witness contract with Chevron to pay him $2 million in cash and benefits – a contract that included the immigration of Guerra and several family members to the U.S. – his story unraveled. As mentioned, a forensic report from 2014 proved that the judgment was written progressively over a period of several months by the judge himself – and saved hundreds of times during the relevant time period.

As Chevron continues to try to defend the indefensible, support for the affected communities grows stronger. In this country, more than 40 civil society groups – including the Sierra Club, Earth Rights, and Amnesty International – have criticized Chevron for its abusive litigation tactics. Numerous international law scholars from nine countries filed a legal brief in support of the communities. Leading law firms in Canada, Brazil, and the U.S. continue to represent those affected despite Chevron's threats. And in Latin America, diplomatic initiatives from multi-lateral organizations such as CELAC (Community of Latin American and Caribbean States) are demanding Chevron pay what it owes to the people of Ecuador or face further business obstacles in the region. Chevron CEO John Watson also faces intensifying shareholder dissent over the company's failure to comply with the court orders in Ecuador.

Chevron has been clear about its strategy of designed delay. Its former General Counsel, Charles James, said openly the company would fight the indigenous communities "until hell freezes over, and then fight it out on the ice." In 2009, an internal email from Chevron public relations executive Chris Gidez made it clear that the company's "L-T" strategy was to "demonize Donziger" rather than litigate the case on the merits. The goal is no less than blanket impunity for human rights violations.

Chevron's conduct in Ecuador has been inexcusable for decades. The company should abide by the rule of law and pay for the damage it caused. It should stop trying to attack adversary counsel to distract attention from its own liability. And the company's shareholders – who often celebrate Chevron's profits while turning a blind eye to is perfidy – should stand with the affected villagers and their advocates and demand accountability from company management.

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