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Soiled Justice
Chevron polluted the Ecuadorian rainforest, but a lawyer—in his efforts to hold the oil company accountable—also got his hands dirty, a new book says.

Three years ago a court in Ecuador ruled that the oil giant Chevron bore responsibility for four decades of pollution that destroyed the homes and livelihoods of thousands of indigenous farmers. The company was on the hook for $19 billion—the largest court award ever for environmental damages. Unfortunately, the farmers’ struggle for justice didn’t end there. Chevron refuses to pay up, and in his new book Law of the Jungle, best-selling author Paul M. Barrett tells the story of Steven Donziger, the lawyer who pursued the case against the oil company. Donziger’s determination to hold the polluters accountable—by any means necessary—led a U.S. federal judge to conclude last spring that the case was marred by fraud and corruption.

The U.S. ruling doesn’t nullify the findings or fines set by the Ecuador court, but it could help shield Chevron from further legal challenges. I recently spoke to Barrett about what he thinks went wrong in this high-profile case that made both sides look bad—and left Ecuador’s indigenous communities in the muck (again).

Susan Cosier: Who’s responsible for the oily mess in Ecuador?

Paul Barrett: Texaco, operating as a contractor in partnership with the government of Ecuador, worked in that country from the ’60s through the early 1990s. And it operated in a way that I think any clear-thinking person in or outside of the oil industry would describe as irresponsible today. [As the New York Times puts it, the lawsuit claims Texaco “spilled millions of gallons of toxic wastewater into waters of the Ecuadorean Amazon … and left unlined waste pits filled with toxic sludge, ruining the lives and culture of several indigenous groups.”]

The government of Ecuador collected the vast majority of the proceeds from that oil. Then in the early 1990s, Texaco was kicked out of the country when the oil industry was nationalized. Ecuador itself took over those same oil fields and sadly kept operating in very much the same fashion.

Then Donziger and other lawyers descended and said, "Look, we want to hold someone responsible for this. We want the people who live near these oil operations to have their environment cleaned up and to receive medical care. And we want to hold Texaco responsible for its negligent conduct over all these years."

A huge legal fight ensues with Texaco mounting various defenses. Texaco then gets taken over by Chevron. Time passes, and with each passing year the question of who is responsible for the increasingly degraded environment becomes more and more complex.

You write that Donziger went to any means necessary to win his case. Can you point to some of those things?

Donziger bent and ultimately broke the rule of law, the very instrument that he said he was going to use to protect his clients.

He did that by corrupting an expert in the Ecuador court. This expert was supposed to give the court a crucial independent report explaining the scale of the damages. But it turns out he wasn’t completely neutral; he’d been working exclusively with the plaintiff since before the court appointed him. In fact, Donziger had recruited and recommended him to the court. And then the expert’s elaborate report? It was actually ghost written by Donziger’s paid scientific experts. That’s one example.

I can point to other unfortunate tactics employed by Donziger that when viewed through a different prism—that of the American legal system—looked very different than they apparently did to the Ecuadorian courts. One has to acknowledge, however, that those courts ruled in favor of Donziger and said that they weren’t concerned by all these strange irregularities. [Those “unfortunate tactics” allegedly include bribing the deciding judge and paying another expert.]

A documentary film played a big role in how this case unfolded in the courtroom. Can you explain what happened there?

When people fight in court, they can’t raid each other’s offices and filter through their files, but that is exactly what happened in this case. Donziger was able to draw huge amounts of attention to the case as it was going on. The attention helped bring financing to his cause as well as some very valuable media hype. One component of this media furor was the commissioning of a film by one of the best-known documentary makers in the United States, Joe Berlinger.

Chevron got a hold of a couple of different versions of the film. In one, the filmmaker had eliminated a scene showing a guy working with the plaintiffs [Carlos Beristain, a physician and psychologist] who was supposed to be an independent advisor appointed by the court. That raised for Chevron the question of why the scene had been scrapped, and the answer was that Donziger and his colleagues had asked that the scene be taken out.

The more that the U.S. judge learned of this, the more suspicious he got, and the more he thought that Donziger might be manipulating the process in an improper way. Eventually the judge ordered that the entire body of raw film footage, and all of Donziger’s files, be turned over to Chevron. That almost never happens.

Donziger then had to sit for an extensive deposition where he was cross-examined by Chevron’s lawyers. In the course of that, all kinds of evidence of his manipulations and corner-cutting came to light. He was undone by that. He was undone literally by his own hubris in wanting to become the star of the documentary film.

In writing this book did you ever come to understand why the two sides would go to such extremes for this case?”

I think that Donziger justified almost any tactic as what was necessary to win the fight. "They play dirty, so I’ll play dirty." That may work in a rough-and-tumble political environment, but in a legal process—if you get discovered, if you get caught—it undermines your claim that you are using the legal process to accomplish justice.

On the other side, Texaco, in the ’60s, ’70s, and ’80s, did what it could get away with in terms of cutting corners. There’s no serious dispute that Texaco left behind a lot of contamination in what had once been a very pristine environment. The oil industry is never going to be like running a lemonade stand. There are side effects to heavy industrial activity, but those side effects can be lessened and controlled by rigorous regulation and by responsible conduct. Texaco could have lined the waste oil pits that accompanied each drilling platform and far lessened the damage it eventually did. And Texaco did consider lining those pits. But then the company put a price tag on how much it would cost, and said: "Nope, we’re not going to do it. Four million dollars is too much."

Now Texaco’s, and subsequently Chevron’s, position is: "All right, whatever happened back then, we did our part, we left the country, and we reached an agreement with Ecuador that we would clean up one-third of the sites. We cleaned them up, and Ecuador signed off on that cleanup."

Can you break this case down into winners and losers?

The losers are the members of the indigenous tribes who have lived for eons in the lowland rainforest regions east of the Andes. They were poor when all of this started, and they’re poor today. But today they also have waste oil pits and contaminated fields. And the streams and rivers from where they historically drew their water are polluted.

One could say that Ecuador has profited, at least from an economic standpoint. Texaco was the pioneer for Ecuador’s oil industry, which today comprises half the nation’s economy. The oil industry allowed Ecuador to move from being a real backwater, one of the poorest in Latin America, to a much less poor country.

A lot of U.S. lawyers, particularly the defense lawyers for the oil companies, are big winners. They’ve been litigating this case for 20 years. By my very rough calculations, it’s possible that as much as a billion dollars may have been spent on legal fees, just on the oil companies’ side. Imagine if just the last few years’ worth of those legal fees had been spent on Ecuador’s cleanup or building some medical clinics there. That money could have done a lot of good in the world. So it’s a pretty sad story. There’s not a whole lot to celebrate.

What does this story tell us about international environmental disasters and how to address them?

It reinforces that corporations ought to do the right thing in the first place, for both moral and business reasons. If Texaco had taken really modest steps, it could have almost completely insulated itself from any questions of legal liability.

For the host countries in these types of situations—whether it’s Ecuador, Venezuela, Nigeria, or Malaysia—this is a very, very important story. The people who run these countries are responsible, too, for what happens. They run the government, the government sets the rules, and the governments can ultimately hold outside industrial actors to those rules if they choose to do so.

For environmentalists and activists, I think the lesson is relatively straightforward: filing a lawsuit is not necessarily the solution to a problem as complex as this. A court case may have the feeling of accomplishing righteousness, but it doesn’t necessarily accomplish that in the end. Being a lawyer is not the same as running around in the forest like Robin Hood shooting arrows at the Sheriff of Nottingham. There are very specific rules, and you’ve got to follow those rules.

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image of Susan Cosier
Susan Cosier is OnEarth's Midwest correspondent. She previously worked at Audubon magazine, and has written for a number of science and environmental publications. She's a graduate of New York University's science journalism program. MORE STORIES ➔
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It's a tremendous shame that NRDC has been fooled by Barrett into promoting his book. This is not an independent researched book explaining the Chevron in Ecuador case, it's a pro-Chevron one-sided dump of their legal filings written to give the impression that Barrett actually researched the case. It shamelessly masquerades as “impartial” but the facts do not bear that out. Peter Maass, author of Crude World: The Violent Twilight of Oil in his review of Barrett's book in Outside Magazine wrote, "There are two side to the story of the biggest environmental lawsuit ever, but a new book tells only one of them." Barrett, did not interview the Ecuadorian legal team, did not read the trial record in Ecuador and spent only a few days there. Many of us who have supported the communities for decades are shocked at the lack of real reporting here. He made it appear as if he interviewed Donziger, even tho he only took from Chevron's legal filings in their bogus RICO action. There is no fraud by Donziger nor the Ecuadorians. The only "evidence" of any ghost written judgment was the testimony of a corrupt ex-judge who was paid hundreds of thousands of dollars to testify. Chevron either bought off or pressured witnesses, fabricated evidence and spent hundreds of millions all to avoid paying to clean up. Barrett ignores all of these issues in his book. Leaving such facts out is either grossly incompetent or deliberately misleading. The Sierra Club, Amnesty International, Greenpeace and over 40 other human rights and environmental NGOs have condemned Chevron for its dirty underhanded legal thuggery in this case and for violating the First Amendment. Why is that not a part of Barrett's "story"? Barrett avoids the truly scandalous and criminal examples of Chevron's tactics to hide contamination during the Ecuador trial, like swapping toxic soil samples with clean ones, and avoiding sampling at depths at which Chevron knew contamination existed, at locations Chevron knew were still contaminated, and were downgradient from known contamination. You'd think that a book purportedly covering the largest environmental litigation in history would merit a real review of the evidence, much of which was provided by even the skewed soil and water samples taken by the company. Three layers of Ecuadorian courts – eight appellate judges – reviewed and upheld the $9 billion verdict, and threw out Chevron's claims of fraud. But for Barrett, apparently U.S. courts are the only legitimate court system in the world. Barrett lets Judge Kaplan off the hook for his colonial overreach in judging a country's legal system that he knows nothing about. Kaplan can't read the native language, nor did he read the trial record. Worst of all, Barrett is promoting his book under the false headline that the case against Chevron in Ecuador “failed”. This is patently false as enforcement actions are underway in Canada, Argentina and Brazil (which Barrett knows). Barrett unwillingness to correct this misinformation time and again is perhaps the most obvious indication of where he stands on the “truth”. Here is an excellent point-by-point critique of this book by the Ecuadorian legal team: http://chevrontoxico.com/assets/docs/2014-barrett-critique.pdf Barrett’s book is so bad that he and his publisher are liable to be sued for defamation: http://chevrontoxico.com/assets/docs/2014-09-09-letter-to-barret.pdf A decent and fair look at the case appeared in Rolling Stone (which also refers to Barrett’s book as pro-Chevron): http://www.rollingstone.com/politics/news/sludge-match-chevron-legal-battle-ecuador-steven-donziger-20140828 The documents refuting Chevron’s bogus RICO claims, likely to prevail with the federal appeals Court are here: http://stevendonziger.com/wp-content/uploads/2014/07/2014-07-02-Donziger-brief.pdf http://stevendonziger.com/wp-content/uploads/2014/07/2014-07-01-Ecuadorians-brief.pdf