In a 500-page ruling on Tuesday, New York District Court Judge Lewis Kaplan sided with oil giant Chevron and its argument that an Ecuadorian court’s ruling that Chevron needed to pay $9.5 billion for polluting the Amazon jungle was based on fraudulent information.
Chevron’s complaint was that Steven Donziger, a New York-based lawyer who has represented Ecuadorian plaintiffs since the 1990s, among others, knowingly interfered with the Ecuadorian court’s decision process by bribing witnesses to speak ill of Chevron and ghost-writing the court’s final judgment against Chevron.
A Harvard Law School alum, Donziger denies any wrongdoing in the Chevron case and points to his flawless record as proof that he has not ever engaged in fraud or committed any other ethical violation since he began practicing law in 1991.
Though Kaplan acknowledged that Chevron “might bear some responsibility” for the pollution in the South American nation, the judge wrote, “Justice is not served by inflicting injustice. The ends do not justify the means.”
The only person who has testified on behalf of Chevron that there was any evidence of “fraud” is former Ecuadorian Judge Alberto Guerra, an admitted con man who lied more than 20 times on the bench. Guerra was paid about $350,000 by Chevron for his testimony.
Paul Paz y Miño of Amazon Watch, a nonprofit group working to protect the Amazon rainforest and to advance the rights of indigenous peoples living in the Amazon Basin, said the group wasn’t surprised by the court’s ruling, since Judge Kaplan encouraged Chevron to file the case in the first place.
Paz y Miño further said it is troubling that Chevron has used this case to fool its shareholders and the mainstream media into believing this ruling exonerates them from any responsibility for the time its sub-company Texaco dumped 18 billion gallons of toxic oil waste into rivers and streams, spilling millions of gallons of crude oil, and abandoning hazardous waste in hundreds of unlined open-air pits littered throughout the Amazon region in 1964.
He said the ruling is the equivalent of a Spanish court ruling that a trial in the U.S. is fraudulent and therefore the U.S. can no longer proceed with justice or rule a certain way, solely because the Spanish court said so.
As Paz y Miño pointed out, this kind of ruling violates principles of international comity, which require courts to respect the decisions made by courts in other countries.
“Today’s verdict is an example of Chevron buying and bullying its way to a verdict with 60 law firms and thousands of legal professionals hell-bent on exhausting the Ecuadorians and their allies,” Amazon Watch said in a statement. “Such a verdict will ultimately prove useless in Chevron’s efforts to evade justice.
“Chevron fought for years to have the case moved from a US court to Ecuador and Judge Kaplan – who first recommended that Chevron file the case – holds no authority over Ecuadorian courts. Nor can he issue a ruling preventing the Ecuadorian plaintiffs from collecting on an enforceable verdict outside of the U.S. Furthermore, Kaplan’s current order is effectively indistinguishable from an injunction issued by Kaplan in the case two years ago, which was struck down on appeal,” the group said.
Lingering concerns
While Amazon Watch says Kaplan’s most recent ruling is more of a PR talking point than anything substantive, Deepak Gupta, the appellate attorney for Donziger, said the decision “should be extremely troubling for anybody who cares about the rule of law.”
“This court has taken the extraordinary and unprecedented step of appointing itself a worldwide fact-finding commission and issuing what is in effect a global anti-collection injunction that would preclude enforcement of a judgment from another country in every jurisdiction,” he said. “The injunction is effectively indistinguishable from an injunction issued by Kaplan in the case two years ago that was struck down on appeal.
“This decision also effectively outlaws core activity protected by the First Amendment such as bringing lawsuits, holding protests, issuing press releases, and engaging public officials. This is particularly appalling given that this case is about holding a corporation accountable for refusing to clean up decades of toxic pollution in the Amazon.»
Gupta is referring to Chevron’s use of a law in its arguments against Donziger and others, which was written to target the Mafia, and is known as the Racketeer Influenced and Corrupt Organizations Act, or RICO. Under this law, Chevron has filed extortion claims against environmental activists, journalists, filmmakers and others who have spoken out against the organization, which resulted in more than 60 individuals being forced to turn over their hard drives, attorney-client privileged information, personal emails and other information to Chevron.
Many watchdog groups, including environmental and social justice organizations, have expressed concern over Chevron’s application of this law, since the company has not been able to prove it has suffered any harm to its reputation or financially from anyone in the case.
Donziger agreed with Gupta that the ruling will be devastating for free speech and public advocacy if Kaplan’s decision is upheld.
“With all due respect to the court, this is an appalling decision resulting from of a deeply flawed proceeding that overturns a unanimous ruling by Ecuador’s Supreme Court. We believe Judge Kaplan is wrong on the law and wrong on the facts and that he repeatedly let his implacable hostility toward me, my Ecuadorian clients, and their country infect his view of the case,” Donziger said.
“This decision is full of vitriol, is based on paid evidence from a corrupt former judge, and ignores the overwhelming evidence that Chevron committed environmental crimes and fraud in Ecuador. … We are confident we will be fully vindicated in the U.S., as we have been in Ecuador.”
In a statement, Han Shan, the U.S. spokesman for the Ecuadorian villagers, said that while the villagers respect the rule of law, they do not accept the court’s decision. They abandoned hope long ago that a U.S. court would “provide them relief from Chevron’s contamination, which has taken their loved ones, poisoned their lands, and imperiled their cultures.”
“Their focus now is on enforcing their judgment in countries where they can receive a fair hearing about Chevron’s pollution of the rainforest and refusal to abide by a legitimate ruling from the courts in Ecuador, where the company demanded the case be heard. It is time for Chevron to end its abusive efforts at evading justice, and restore the indigenous people and villagers who suffer from the company’s terrible legacy,” the spokesman said.
Donziger went on to add that there is nothing in Kaplan’s ruling that will prevent his clients from “pursuing the judgment’s enforcement in other countries. The villagers deserve justice, and I am confident they will get it despite Chevron’s efforts to undermine the rule of law.”
“I will continue my efforts on behalf of my clients consistent with the law. I also will pursue an immediate and expedited appeal so that a panel of impartial judges can review this decision,» he said, referring to the plaintiff’s ongoing litigation against Chevron in Argentina, Brazil and Canada.
“As we have said repeatedly, Judge Kaplan should have dismissed Chevron’s RICO case long ago for lack of jurisdiction,” Donziger said. “Instead, he allowed Chevron to abuse the U.S. civil justice system and waste taxpayer resources in a desperate bid to evade paying a valid judgment in Ecuador.”
Paz y Miño said Kaplan’s current order is effectively indistinguishable from an injunction issued by Kaplan in the case from two years ago, which was struck down on appeal by the Second Circuit Court of Appeals.
He said the group plans to continue standing with the plaintiffs and feels confident that the Second Circuit Court will once again slap down Kaplan’s decision, which will make Chevron look even worse.
Amazon Watch’s primer on the Ecuadorian Chevron oil spill