Seventeen prominent environmental and human groups have gone to the U.S. Supreme Court to criticize Chevron and its legal team for fabricating evidence in the historic Ecuador pollution case and for violating the Free Speech rights of the company's critics.
The filing of the latest "friend of the court" briefs (see here and here) from the civil society groups is profoundly important. It is another example of how Chevron continues to lose support in the Ecuador case after being hit with a historic $9.5 billion environmental judgment in 2013 for dumping billions of gallons of toxic waste into the Amazon rainforest, decimating indigenous groups and causing an outbreak of cancer. That judgment was affirmed unanimously by Ecuador's Supreme Court in the forum where Chevron had accepted jurisdiction.
The amicus briefs before the U.S. Supreme Court underscore why Chevron officials and company lawyers might be subject to sanctions, or even criminal prosecution, for intentionally presenting fraudulent evidence and for illegally paying for favorable witness testimony.
The latest briefs urge the justices to reverse a decision from a retaliatory "racketeering" (or RICO) case filed by Chevron in New York before Judge Lewis A. Kaplan targeting the villagers and their lawyers. Chevron tried to use its false evidence in that case to undermine the Ecuador judgment and to silence the company's growing chorus of critics, including some of its own shareholders who have challenged company management over its mishandling of the case.
Called a mockery of justice by the villagers, the Chevron "racketeering" case had no real legal basis and was unprecedented in the 241-year history of the United States, according to another amicus brief submitted by 19 law scholars and this appeal by New York human rights attorney Steven Donziger.
Those briefs demonstrate that prior to Chevron's case before Kaplan, a U.S. court had never before permitted a party that had lost a judgment in a foreign court where it had accepted jurisdiction to come home to collaterally attack that judgment -- a recipe for judicial chaos and unending forum shopping as litigations jump across countries and continents with no final resolution, as the law scholars emphasized.
The law scholars told the justices that Kaplan's decision not only violates international law, but puts the entire U.S. government in violation of international law by letting a solitary America trial judge try to dictate to all foreign judges from all countries how they should rule on a case. Kaplan tried just that by purporting to block the villagers from collecting on their judgment anywhere in the world.
The Ecuador judgment was affirmed in 2013 after three layers of courts in Ecuador found that Chevron had dumped billions of gallons of toxic oil waste into the rainforest, decimating indigenous groups and poisoning natural water sources relied on by tens of thousands of people. (For a summary of the overwhelming evidence against Chevron, see here.) After betraying its promise to pay any adverse judgment in Ecuador, Chevron filed the "racketeering" case and saw Kaplan make what can only be described as a bizarre ruling from his Manhattan courtroom.
Kaplan ruled that as a general matter Ecuador's entire judiciary was "illegal" and therefore incapable of producing valid court judgments. He did this after refusing to consider any of the voluminous scientific evidence that was relied on by Ecuador's courts to find Chevron liable. The weakness of the decision is that it is utterly unenforceable in other countries. More to the point, it is a shocking example of American judicial imperialism.
Kaplan's decision predictably has been rejected in Canada, where courts have given the villagers the green light to try to seize Chevron's assets with the unanimous backing of the country's Supreme Court. Courts in Brazil are also allowing an enforcement action against Chevron's assets in that country to proceed. It is only a matter of time before Chevron is forced to pay up in full given that it has an estimated $15 billion of assets in Canada and another $3 billion in Brazil.
One of the new amicus briefs, filed by Amazon Watch and Rainforest Action Network, attacked Chevron for illegally paying an admittedly corrupt witness $2 million in cash and benefits to claim that the Ecuador judgment was "ghostwritten" by the plaintiffs. That witness, the former Ecuadorian judge Alberto Guerra, offered no corroborating evidence for his claim and later admitted under oath that he lied about key parts of the story in Kaplan's court.
The U.S. federal appellate court that oversees Kaplan, in reflexively affirming his ruling, ignored the undisputed evidence that Guerra lied and that his ghostwriting story has been completely debunked by new scientific evidence that became available after the end of the RICO trial.
Paul Paz y Mino, Associate Director of Amazon Watch, offered this powerful comment in a press release about the need for the Supreme Court to review the flawed U.S. court decisions:
It is imperative that the Supreme Court take action to stop what might be one of the most disturbing abuses of our civil justice system in history. To avoid compensating its victims in Ecuador, Chevron bribed a witness, fabricated evidence, and committed crimes and fraud before a U.S. court.Erich Pica, from the U.S. environmental group Friends of the Earth, also criticized Chevron for using the RICO case as a pretext to intimidate company critics by issuing them subpoenas seeking privileged documents. Chevron served the subpoenas on dozens of environmental groups, bloggers, journalists, consultants and lawyers. All the recipients had tried to the help the Ecuadorian villagers or expose some aspect of Chevron's wrongdoing in Ecuador.
Corporate accountability advocates must not be at risk from legal action by U.S. corporations simply for expressing their First Amendment rights to free speech. As it stands, this [RICO] decision endangers the very foundation of human rights and environmental advocacy. That is why Friends of the Earth has filed this brief along with others in the environmental and human rights community.Chevron suffered another blow when the 19 law scholars also filed an amicus brief in support of the Ecuadorian communities. Another prominent environmental group, Earth Rights International, published a riveting account of how Chevron tried to sabotage the Ecuador trial via corruption and improper pressure. Kaplan ignored evidence of Chevron's corruption in the Ecuador trial as well.
The Ecuador pollution matter clearly has become groundbreaking litigation in the global corporate accountability movement. It threatens the business model of the entire fossil fuel industry which relies to a shocking degree on externalizing its pollution costs to keep profits flowing at artificially high levels. As Chevron's profits gush, cancer rates in Ecuador's Amazon soar.
The Ecuador pollution case is also a major test for the U.S. judiciary. That judiciary thus far deserves an abject failing grade for lending its stamp of approval to Chevron's corruption and Kaplan's abuse of judicial power.
Compared to Ecuador's judiciary, which had the institutional fortitude to resist Chevron's attempts to corrupt the proceedings, U.S. courts thus far have bent over backwards to bless Chevron's bribery of a witness and other outrageous misconduct. It's a sad pass to say the least.
The Ecuador pollution litigation now presents a major test for the integrity of the U.S. Supreme Court. The justices can choose either to step up and defend the rule of law, or allow the egregious injustice committed in the RICO matter to continue to stain our nation and its court system.