One might wonder why one of the most clear-cut cases of environmental destruction and criminal corporate acts will be heard in yet another courtroom twenty-three years after the first legal claims were ever made. The only reason is because when corporations like Chevron are committed to throwing billions of dollars at fighting justice instead of accepting responsibility, they often are able to delay (and thus deny) justice in perpetuity. For the sake of justice everywhere, this must end here and now.
This chapter in the ongoing saga of Chevron's toxic contamination in Ecuador highlights one of the most grievous threats to the notion of justice in the face of crimes committed by corporations anywhere in the world.
There's no good reason why anyone should have to be continuing this fight in Toronto, but Amazon Watch is here today because it's "Day One" of a critical enforcement trial in Canada to make Chevron finally pay the US $9.5 billion (now closer to US $11 billion with interest) it owes to clean up the biggest oil-related disaster in history which is still polluting the Ecuadorian Amazon today – close to fifty years since drilling first began. We are here alongside our Ecuadorian allies because Chevron has vowed to "fight until hell freezes over and then fight it out on the ice" rather than do the right thing and clean up its mess – a mess it has confessed to creating deliberately in order to squeeze a little more profit out of its operations in the Amazon.
As everyone should know by now, Texaco (now owned by Chevron) admitted to systematically dumping billions of gallons of toxic oil drilling waters into nearly 1,000 open-air pits in the rainforest. Those pits remain today, despite a 1992 agreement Texaco signed with the government of Ecuador to "clean up its share." Turns out that small portion that Texaco incorrectly claimed was "its share" wasn't actually cleaned up (which has been independently verified by many, including the company's own videos leaked to Amazon Watch by a Chevron whistleblower).
Despite those incontrovertible facts, in recent years Chevron has succeeded (by spending hundreds of millions of its shareholder's money on lawyers and PR firms) in changing the story to one about alleged fraud and malfeasance by what they call "corrupt lawyers" and "unethical environmental groups." There's a perverse logic to this, since when considering that the evidence is so soundly against it in Ecuador, Chevron's management decided it's could only fight on by vilifying its critics in a profoundly bizarre way, claiming it was the "real victim" in the case.
But in Canada that convoluted story becomes a lot more problematic for the oil giant. Here Chevron will attempt to defend itself with the results of its outrageously flawed US SLAPP suit against the massive and damning evidence in the Amazon. They will ask Canada's courts to ignore the company's admission of intentional dumping, the wave of cancers and other health impacts, the indigenous peoples decimated by the contamination, the growing number of environmental and human rights NGOs publicly condemning Chevron for its failure to clean up and transparent tactics to attack its critics, and the reality that three levels of Ecuadorian courts – including its Supreme Court – reviewed the evidence (including Chevron's fraud claims) and unanimously ruled against the company.
Furthermore, Chevron will walk into court today and ask the judge to ignore the laws of his own country and throw out the entire enforcement case based on the findings of a US judge who never went to Ecuador, doesn't understand Spanish, and refused to allow a single piece of evidence in court of the actual contamination in the Amazon. Even according to the appellate decision itself, the US case has no legal relevance in Canada. Regardless, Chevron will demand that the Canadian court accept the word of disgraced former Ecuadorian judge Alberto Guerra, Chevron's star witness, who admitted to lying in his testimony about a bribe to get a bigger payout from Chevron. Guerra received US $2 million to testify and has been unable to offer any hard evidence of his claims of a ghostwritten verdict, but Chevron still expects the Canadian judge to believe he's credible.
The reality of this week's hearing is as simple as the first case brought against Texaco in 1993. In fact, this week's proceedings are a simple debt collection trial. Common in Canadian law is the basic notion that a party can request to enforce a valid foreign judgment and seek assistance in forcing a debtor to pay up. Meanwhile, Chevron is understandably worried and is already seeking to sell billions of dollars of Canadian assets, as we have reported before. Chevron also claims that its Canadian assets – the same ones it reports to its shareholders each year – can't be touched because they're not really theirs, something that we expect to hear more about later in the week.
Fortunately, so far the Canadian courts have shown no signs that they are willing to arrogantly dismiss every Ecuadorian court as corrupt and refuse to review the evidence, unlike US Federal Judge Lewis Kaplan and his superiors on the Second Circuit Court of Appeals. Indeed Canada's Supreme Court has already sided unanimously against Chevron and allowed this trial to move forward. We will be here all week, with support from some of Canada's largest environmental organizations, to observe the hearings and continue to confront Chevron's ongoing lies in its attempt to crush the people brave enough to take on the third largest US corporation.
UPDATE
Chevron's weak argument: Canadian wing is separate from the mothership
When Chevron first stood to defend itself from the Ecuadorians legal action to enforce the $9.5 billion verdict to pay for a clean-up, its opening argument couldn't have been more befitting of the oil giant. This is, after all, the company whose lawyers were blasted in US Federal Court last April for suggesting that "it was Texaco" that was responsible in Ecuador and that Chevron is a different company. True to form, Chevron kicked off its opening argument by claiming that Chevron Canada is not the same as Chevron Corp and therefore can't be held liable for Chevron Corp's debts.
Most of the courtroom yawned through a lengthy presentation of all the ways Chevron Canada is different from Chevron Corp – Chevron's lawyers even went so far as to point out that one has headquarters in Canada and the other in the US. That's really their legal argument?
Here's the rub for Chevron: as the lawyer for the Ecuadorians, Alan Lenczner, explained, the court doesn't even need to rule on the issue of "corporate separateness" to decide whether the Ecuadorians can enforce the judgment in Ontario. They only need show only they have a judgment debt from a foreign court. Which they do, of course.
After hours of Chevron attempts to distance itself from Chevron Canada, Lenczner called Chevron out for its same tired tactics. As he forcefully argued, "this company polluted the area [the Ecuadorian Amazon] and then dragged these people through twenty years of litigation! In first instance they sought to bring their case in the US and Chevron said no. Now they are here. This is a commercial court and it should recognize the debt that is owed."
Lenczner also pulled apart Chevron's transparent attempt to show Chevron Canada isn't directly connected to Chevron Corp because there are six subsidiaries between the two; he explained how every one of those entities is simply an investment company and the funds pass directly from one to the other up to Chevron. "Chevron Canada is one of the cash cows that sends money to its parent. It sends $5 billion a year in dividends," he said.
Further demonstrating the corporate oversight Chevron Corp exercises over its Canadian wing, Lenczner highlighted that fact that, per Chevron's own internal policies, every decision of $25 million or over needs to get direct approval from the Vice Chairman at Chevron Corp.
"They can't even drill a new well without concurrence – complete agreement," Lenczner said. “But I am not even 'allowed' to say this, your Honor." Lenczner referred to the fact that as the trial, began the company redacted the public copy of Lenczner's factum to hide all its policies that would show the level of controls over its subsidiaries. Chevron's lawyers were visibly agitated and squirmy as he continued to say things he was "not allowed to say" and declared that the public has a right to know and his brief must be unredacted. Today, both sides will continue to argue over those redactions, but for those of us with years of experience watching Chevron tactics in the courtroom, it's no surprise they want to keep the truth about their practices hidden from view.
We will see how things unfold today... Stay tuned.