Lawyer representing Ecuadorians against Chevron should be a hero; Instead, he’s under arrest
By Erin Brockovich
Most people have probably heard of Chernobyl, or the BP oil spill. You may also know about my legal battle over contaminated water in California, dramatized in the namesake movie Erin Brockovich. Yet far fewer people have heard about what transpired in the Ecuadorian Amazon – though it’s considered by some activists, journalists, and members of U.S. Congress to be one of the world’s worst environmental disasters.
What if I told you that a multinational oil company allegedly polluted the Amazon for almost three decades? And that the oil company has spent even more years refusing to accept liability? Or that a U.S. attorney who agreed to represent thousands of Ecuadorian villagers in a lawsuit against that oil company has lost his law license, income, spent hundreds of days under house arrest in New York, and in 2021 was sentenced to six months in prison?
From 1964 to 1990, Texaco, which merged with Chevron in 2001, allegedly spilled more than 16 million gallons of crude oil – “80 times more oil than was spilled in BP’s 2010 Deepwater Horizon disaster”, according to Gizmodo – and 18 billion gallons of polluted wastewater in the Amazon rainforest. The pollution allegedly contaminated the ground and waterways with toxic chemicals that the plaintiffs – mostly Indigenous people and poor farmers – say has caused cancer, miscarriages, skin conditions and birth defects. (Chevron has said that Texaco’s operations were “completely in line with the standards of the day” and told the New Yorker, in 2012, that “there is no corroborating evidence” for the health allegations.)
In 1993, Steven Donziger, a recent Harvard law school graduate and human rights attorney, began working on an environmental case on behalf of Ecuadorians allegedly affected by Texaco’s drilling. The case eventually became a 30,000-person class action lawsuit against Texaco in New York federal court.
Texaco/Chevron did not dispute that pollution occurred, and “freely admits that large sludge pits still dot the Amazon”, the New Yorker reported. The company argued that the Ecuadorian government released it from liability after paying for an earlier cleanup, and that Ecuador’s state oil company, Petroecuador, was responsible for the remaining damage. The plaintiffs argued that the earlier cleanup was woefully insufficient; that Texaco, not Petroecuador, directed actual operations in the area; and that Chevron’s earlier agreement with the government of Ecuador did not bar lawsuits by individuals. (The government of Ecuador also disagrees with Chevron’s claims.)
A jury trial in the U.S. might have put Texaco under an embarrassing and costly spotlight, so, perhaps for that reason, the company lobbied to move the legal proceedings back to Ecuador, which has no jury trials and is heavily dependent on the oil industry. Texaco argued that Ecuador had a fair and competent legal system. A U.S. judge agreed to relocate the case on the condition that Texaco accept the verdict of the Ecuadorian system.
Texaco’s maneuver backfired: In 2011, Donziger and the plaintiffs won the case there. An Ecuadorian court ruled that Texaco, which had been bought by Chevron at this point, was “responsible for vast contamination”, according to the New Yorker, and “ordered it to pay $18 billion in damages – the largest judgment ever awarded in an environmental lawsuit”.
Both parties appealed the decision: Chevron said it was “illegitimate and unenforceable” and accused the plaintiffs of having ghostwritten an expert environmental opinion; the plaintiffs denied that the opinion was fraudulent and said that, if anything, the monetary judgment was too low given the scale of pollution.
Chevron’s accusation that the judgment was illegitimate relied heavily on testimony by an Ecuadorian judge, Alberto Guerra, whom Chevron relocated to the U.S. and, as of 2015, paid a $12,000 monthly salary. Guerra testified that the plaintiffs had bribed him to sway the Ecuadorian judgment against Chevron. Guerra later recanted much of his claim – admitting, Vice News reported in 2015, that “there is no evidence to corroborate allegations of a bribe or a ghostwritten judgment, and that large parts of his sworn testimony … were exaggerated and, in other cases, simply not true”.
(Chevron disputes the significance of Guerra’s change in testimony, telling Vice News, in 2015, that trial “transcripts make clear that Chevron proved its case before the international arbitration tribunal”.)
Part of the Ecuadorian judgment against Chevron was a fine for not apologizing for the pollution; in 2013, Ecuador’s national court of justice determined that “there had been no legal basis to sanction Chevron for not apologizing,” according to Reuters, and reduced the judgment to $9.5 billion, but otherwise affirmed the original decision.
Instead of accepting the legal outcome and the responsibilities that come when you acquire a company (see Dupont-now-Chemours or Monsanto-now-Bayer), Chevron “made clear that it would not be paying the judgment”, according to the Intercept, and “moved its assets out of the country”. The company went from claiming Ecuador’s legal system was fair to claiming it was too corrupt to trust.
“We’re going to fight this until hell freezes over, and then we’ll fight it on the ice,” a Chevron attorney vowed – “a remark that became a watchword at the company”, according to the Wall Street Journal. Chevron has more than made good on that promise. It has pursued a years-long campaign against the plaintiffs, their lawyers, and even the entire country of Ecuador.
Chevron’s legal strategy is masterminded by Gibson Dunn, a notoriously aggressive corporate law firm that the Montana supreme court rebuked in 2007, in a different case, for “legal thuggery” and “actual malice”. Randy Mastro, a former federal prosecutor and aide to New York mayor Rudy Giuliani, leads the firm’s Chevron file. A “merciless litigator”, according to the New Yorker, Mastro was once described as “the only person in the Giuliani administration who made the mayor seem like a nice guy”.
Here’s the thing: a massive multinational corporation such as Chevron can afford to pay millions of dollars in legal fees, indefinitely – and doing so will almost always be cheaper than paying a fine or settling. Chevron “insists that delay is not its object”, Vanity Fair reported in 2007, but the plaintiffs and their attorneys “are persuaded that it is.”
“Take $6 billion as a figure,” Donziger explained to Vanity Fair’s William Langewiesche. “Simply by sticking the money into a savings account Chevron could make $300 million for every year it doesn’t pay. That sum multiplied by the four years of the trial so far would amount to $1.2 billion, which is far more than, say, $50 million spent on legal fees, even if Chevron now loses the case. And what if Chevron wins – what would the calculation be then?”
Corporations can also sue plaintiffs back – crushing any opposition under, to use Chevron’s words, “an avalanche of paper”. This is part of a disturbing legal playbook sometimes known as Slapp – strategic lawsuit against public participation. Massive corporations can fund endless litigation against activists or critics. They don’t even need to win in court, because they can intimidate or bankrupt their opponents in legal fees. (Chevron disputes that it engages in Slapp tactics, though an anti-Slapp organization twice named Chevron “corporate bully of the year” and in 2021 bestowed a “lifetime achievement award” on the company.)
After Chevron “successfully defeated a lawsuit seeking to hold it responsible for the shooting deaths of protesters on an offshore oil platform in Nigeria”, it even tried, unsuccessfully, “to compel the impoverished Nigerian plaintiffs, some of whom were widows or children, to reimburse its attorneys’ fees”, the New Yorker reported in 2012.
“That’s how they litigate,” Bert Voorhees, an attorney who represented the Nigerian plaintiffs, told the New Yorker’s Patrick Radden Keefe. “The point is to scare off the next community that might try to assert its human rights.”
In 2018, an international tribunal ruled that Chevron had been previously released from liability for pollution in the Amazon and ordered Ecuador not to enforce the $9.5 billion judgment. Ecuador continues to maintain that the judgment is legitimate.
In retaliation, “the giant U.S. oil company objected last June when Washington proposed allowing duty-free rose imports from the world’s poorest countries, including Ecuador”, the Wall Street Journal reported in 2021. “Letting Ecuador save money on flowers after blatant ‘acts of defiance’ would tell the world the US rewards bad behavior, the oil company said.”
Chevron has also asked the international tribunal to order that “nearly $800 million of Chevron’s legal costs [be] paid by Ecuador, a country whose gross domestic product is about half of Chevron’s stock-market value”.
Then there’s Donziger. PR advisers for Chevron promised to “demonize” Donziger in the public eye. The oil company “hired private investigators to track Donziger, created a publication” which smeared him, and “put together a legal team of hundreds of lawyers from 60 firms, who have successfully pursued an extraordinary campaign against him”, the Intercept reported in 2020.
Donziger has spent years of his life fighting seemingly endless litigation. In 2011, Chevron sued Donziger and members of the lawsuit in a U.S. court for $60 million in damages, accusing them of extortion and invoking a sweeping and controversial statute originally created to fight the Mafia. Chevron’s case rested in large part on Guerra’s since-recanted corruption claims; Donziger and his codefendants denied the charges.
“The approach of accusing victims’ attorneys of being fraudsters has been honed with particular energy by [the] law firm Gibson Dunn,” Bloomberg noted in 2014. Shortly before the suit went to trial, Chevron dropped the demand for monetary damages, thus denying Donziger the right to a jury trial.
During the suit, which Chevron won, the company demanded that Donziger turn over his phone and computer to their legal team. After Donziger refused, arguing that doing so would violate attorney-client privilege, the judge in the case charged him with criminal contempt of court.
The U.S. attorney’s office declined to prosecute Donziger for contempt, so the judge in the case made the extraordinary move of appointing a private law firm to represent the government in prosecuting Donziger – a development that two U.S. senators have called “highly unusual” and “concerning”. The senators also noted that the firm appointed to prosecute Donziger previously represented Chevron.
Because he was deemed a “flight risk”, Donziger spent more than 800 days under house detention, with an electronic ankle bracelet, while awaiting the outcome of the trial. In 2020, according to the Intercept’s Sharon Lerner, Donziger’s “bank accounts have been frozen. He now has a lien on his apartment, faces exorbitant fines, and has been prohibited from earning money. As of August , a court has seized his passport and put him on house arrest. Chevron, which has a market capitalization of $228 billion, has the funds to continue targeting Donziger for as long as it chooses.”
Donziger eventually lost the contempt case, which he called a “charade”. As a consequence of the charges against him, he also lost his law license – against the recommendation of the judicial officer who refereed the professional conduct hearing. The officer, a former federal prosecutor, described Donziger as a stubborn gadfly who is “often his own worst enemy” but called the move to disbar him unjustified, and decried the “extent of his pursuit by Chevron” as “extravagant, unnecessary and punitive.”
In October, Donziger reported to a federal prison to begin a six-month contempt sentence. (In December he was returned to home detention as part of a Covid-related early-release program.) He still cannot make a living as a lawyer, cannot collect any legal fees from the Ecuador judgment, and had to wear an electronic ankle bracelet until last weekend.
In November, nine members of U.S. Congress signed a letter calling Donziger’s treatment “unprecedented and unjust imprisonment”. International judicial monitors, lawyers’ associations, members of European parliament, and Amnesty International have also criticized the charges against Donziger as excessive and punitive, and 29 Nobel laureates from around the world signed an open letter arguing that Donziger is a victim of “judicial harassment”.
I’ve dealt with similar cases myself, with different companies. In 1993, I was part of a team that filed a class-action lawsuit on behalf of 650 plaintiffs against PG&E, alleging that the California utility company knew that harmful chemicals, particularly hexavalent chromium, were seeping into groundwater in Hinkley, California, and contaminating the town’s water supply. That case ultimately resulted in the largest medical settlement lawsuit in history at that time and changed my life.
After Hinkley, we discovered other towns nearby in California where hexavalent chromium was causing health problems and wreaking havoc on lives. In 2006, PG&E agreed to pay another $295 million to settle a series of lawsuits over contaminated water affecting another 1,100 people.
Imagine if instead of a movie telling my story, I’d gone to jail. That’s essentially what has happened to Steve Donziger. And, since this litigation started in 1993, Chevron has not paid a cent or performed any cleanup. So far the only people who have paid for Chevron’s alleged behavior are Donziger and those affected by the contamination – the poor and indigenous Ecuadorians who continue to live every day with the pollution’s effects.
Erin Brockovich is an environmental advocate and author of the book Superman’s Not Coming: Our National Water Crisis and What We the People Can Do About It. She is a Guardian U.S. columnist.
Credit: The Guardian