U.S. Chevron Ruling: One-Sided Justice for Ecuadorians

It was unsettling, to say the least, to be called an "extortionist," "liar" and "criminal," during seven weeks of litigation in a U.S. federal courtroom, where Chevron dominated a show trial against some of the poorest and most disenfranchised people in the world, indigenous tribes in Ecuador.

Now comes a 500-page legal manifesto by U.S. Judge Lewis Kaplan who also called the Ecuadorians and their supporters "extortionists," "liars" and "criminals" -- essentially repeating in his ruling every -- and I mean every -- utterance from the Chevron legal team, composed of enough lawyers, legal assistants and private spies to fill Noah's Ark. (2,000 lawyers and legal assistants and 150 investigators)

Judge Kaplan may even hold me in contempt of court for writing this post. His ruling that the Ecuadorians and their attorneys cannot "undertake any acts to monetize" the enforcement of a $9.5 billion judgment against Chevron for massive contamination was not clearly defined.

Does he mean that Ecuadorian advocates cannot, in collaboration with the lawyers, do or say anything that would help the Ecuadorians and their lawyers obtain an award?

Am I "monetizing" when I write that Judge Kaplan offered one-sided justice in his refusal to allow into evidence testimony about the contamination so I could defend my reputation and others against charges of "extorting Chevron" and "lying in press releases?"

Are U.S. environmental groups "monetizing" if they conduct protests about Chevron's refusal to pay the Ecuador judgment and its fabrication of evidence in the Ecuador trial.

In his ruling, Judge Kaplan commands the Ecuadorians and their U.S. lawyer Steven Donziger to place into a "constructive trust for the benefit of Chevron" all money awarded from the judgment's enforcement in the courts of other countries, where Chevron has assets. (Chevron has few Ecuadorian assets, so the Ecuadorians have filed enforcement lawsuits in Argentina, Brazil and Canada to seize its assets there.)

How would that work exactly?

Let's say a Canadian judge decides he has a good mind of his own, ignores Judge Kaplan's ruling and awards the Ecuadorians a damage award from Chevron's Canadian assets. According to Judge Kaplan, the Ecuadorians and Donziger would have to hand over that money to Chevron.

This sounds an awful lot like the same legal argument that the 2nd Circuit reversed when Judge Kaplan tried two years ago to block enforcement of the Ecuador judgment, as opposed to its collection. It's possible the 2nd Circuit will reverse the judge again, seeing his ruling for what it is: another way for him to pose as an all-knowing international enforcer of laws.

It also sounds like what Chevron and Judge Kaplan really wanted is to punish Donziger, who has worked on the case for 20 years and been a thorn in Chevron's side the entire time. They can't stop the Ecuadorians from "monetizing" the judgment, and they know it, even though they argue they can. If Canadian courts decide the Ecuadorians deserve the damage award, they will get it.

Whether the 2nd Circuit allows Chevron to stomp on Donziger's First Amendment rights with no credible evidence that ties him directly to the alleged fraud remains to be seen. His lawyers have a boatload of other arguments for the 2nd Circuit about jurisdiction, remedy, redress and misuse of the RICO statute. And, I could go on and on about other weaknesses of Chevron's case and Judge Kaplan's legal logic. But, I won't.

Separate and apart from all of the mind-numbing legal arguments and case law, the Ecuadorians are getting supremely screwed again by delaying justice.

Just like the indigenous tribes in this country, non-native governments and corporations have ruined their cultures and livelihoods and profited from their resources for decades. Until the election of President Rafael Correa, the Republic of Ecuador had little to say or do about the social and economic plight of its indigenous peoples. Even so, President Correa has allowed -- and continues to allow -- other oil companies to further exploit the damaged rainforest.

And, the people who live there have little to show for it except dead relatives and friends. Yes, I am a bleeding-heart liberal. Perhaps I am naïve. Perhaps I am gullible. But I am not an extortionist, a liar and a criminal.

I've seen the evidence of the contamination left by Texaco (Chevron bought Texaco in 2001) in what once was a pristine rainforest. I've talked to the people who lost family members during the time when Texaco admittedly dumped 16 billion gallons of toxic water into the rainforest's streams and built hundreds of unlined pits to store pure crude and toxic materials that leeched into the soil and underground water supply.

I have seen the well sites where Texaco, according to Chevron, "cleaned" the area of contamination. It's still there, just covered with cheap dirt. Texaco intentionally built and operated a system to maximize profits by minimizing costs, and that resulted in horrifying destruction of the environment and people's health.

My guess is that deep down Chevron's lawyers and executives know that what Texaco did was not only illegal but also immoral and a sin against humanity. But, Chevron executives bought Texaco with all of its profits and all of its warts. (Our lawsuit is not the only one Chevron is defending as a result of Texaco's substandard drilling practices.)

Chevron's General Counsel Hewitt Pate said in a call with reporters that the 20-year-old lawsuit could possibly come to an end, if Ecuador's government officials would engage in serious discussions with the company, I assume, about a remediation plan.

For the sake of the people of the rainforest, I hope this will happen.

I could care less if the lawyers from either side get paid. They can fight about legal fees until the end of time. (Judge Kaplan has ordered the Ecuadorians and their lawyers to pay Chevron's legal fees.)

What all of us should care about is whether the people damaged by Texaco's deliberate environmental crimes can somehow obtain some justice regardless of whether you think Texaco is guilty (I do) or whether you think the Ecuadorians committed fraud. (I don't.)

Recently a Chevron natural gas well exploded in Pennsylvania, resulting in the death of a young man with a pregnant wife. A fire raged for days, exposing surrounding neighborhoods to the toxic smoke. Chevron's idea of an apology was to pass out certificates for free pizza and soda to local residents.

If Pate is serious, he should find a credible person willing to negotiate on his company's behalf with the environmentalists, indigenous leaders and government officials in Ecuador.

If his offer is a lot more serious than pie and pop (and his previous offers in the Ecuador case), maybe everyone will conclude that courtrooms are the last place the Ecuadorians, and Chevron for that matter, should be looking for justice and a way out of this mess.


Disclosure: I work pro-bono for a group of indigenous Ecuadorians and their U.S. legal adviser, Steven Donziger, to help hold Chevron accountable for one of the world's largest environmental disasters in the Amazon rainforest. From May 2008 to March 2013, I was paid by Donziger to represent the Ecuadorians as their U.S. media spokesperson.