Chevron – Chevron’s kill shot against Attorney Steven Donziger
In our era, there is no bigger global villain than fossil fuel companies. In pursuit of private profit, they poison delicate ecosystems and supercharge climate change. They have done more than any other entity to ruin the planet. Our dependence on fossil fuel is the ultimate Faustian bargain.
For whatever reason though, and it is easy to speculate why, our mass media has turned away from looking at the destruction fossil fuel companies have wrought. One under-reported example is Chevron Corporation’s massive pollution of the Ecuadoran rain forest.
The oil company, previously Texaco, dumped at least 16 billion gallons of toxic waste in an area inhabited by indigenous people and rural farmers. Between 1972 and 1992, Texaco left almost a thousand pits of toxic oil waste all over the rain forest in what had previously been a pristine environment.
The oil contamination polluted the soil and poisoned the water. Indigenous people have faced and continue to face an epidemic of cancer, birth defects, miscarriages and other oil-related illnesses. The pump-and-dump operations polluted 1,700 square miles of land. It began in the 1960s when Texaco began drilling there. Chevron bought Texaco in 2000.
The company chose to dispose of its waste by dumping a combination of drilling mud, “formation water” and actual crude oil into unlined pits. This was a method Texas had outlawed as far back as 1969. They also released billions of gallons of oil-laced “produced” waters straight into streams and lakes. This method was contrary to standard American procedures which requires potentially toxic compounds to be re-injected deep underground.
Texaco agreed to remediate at least part of the pollution, but Ecuadorans were outraged by what they saw as a sellout by their own government.
In 1993, environmental lawyers filed suit in New York on behalf of 30,000 indigenous people in Ecuador. The oil company challenged jurisdiction for years and in 2003 proceedings got moved back to Ecuador. Then the oil company challenged jurisdiction there. They favored no place for jurisdiction. They hired hundreds of lawyers to fight the litigation, filing endless motions to delay and defeat the case.
In 2011, the environmental lawyers won the case in Ecuador and Chevron was originally ordered to pay $19 billion in damages. The decision has been affirmed by multiple appellate courts in Ecuador and Canada, including the Ecuador Supreme Court, Ecuador Constitutional Court and Canada’s Supreme Court. An appellate court in Ecuador did reduce the verdict to $9.5 billion in damages. However, rather than pay the judgment, Chevron responded by suing the lawyers who had pursued the case.
One particular target of Chevron was Steven Donziger, a human rights lawyer from New York. Chevron sued Donziger for $60 billion, the largest potential personal liability in American history. Donziger was part of the team of lawyers, including Ecuadoran lawyers, who won the judgment against Chevron.
Because of Donziger’s effectiveness, Chevron decided to make Donziger’s life a living hell. They pursued a strategy of demonizing Donziger to avoid their liability. Chevron filed a series of post-judgment motions to try to hold Donziger in civil contempt based on the theory that he was not allowed to raise third-party litigation financing on behalf of his Ecuadoran clients so they could enforce their judgment outside the United States.
Since 2011, Chevron also indulged in a series of hyper-aggressive, retaliatory SLAPP suits against Donziger. SLAPP stands for strategic lawsuit against public participation. Such lawsuits are designed to intimidate and silence critics by burdening them with extraordinary costs.
Among the lawsuits, Chevron sued Donziger under a civil provision of the Racketeering Influenced and Corrupt Organization (RICO) Act. Federal Court Judge Lewis A. Kaplan, a pro-corporate jurist, who refused to look at the scientific evidence in the original case, ruled the initial verdict was the result of fraud, a holding contrary to three appellate courts. He ordered Donziger to pay millions in attorney fees to Chevron and ordered him to turn over decades of client communications.
It should be noted that Chevron’s star witness was a disgraced former Ecuadoran judge who lost his position because of corruption. Chevron spent $2 million on moving him and his family to the United States. Chevron’s lawyers rehearsed his testimony 53 times. Subsequently, the witness has admitted to lying about his interactions with Donziger.
Chevron went totally over the top when it demanded unfettered access to Donziger’s computers, cell phones and reams of privileged and confidential information. No ethical lawyer would ever comply with something like that and Donziger did not. As a result though, Judge Kaplan charged Donziger with criminal contempt of court for disputing a discovery order.
Judge Kaplan asked the U.S. Attorney for the Southern District of New York to prosecute the criminal contempt. That office declined. Judge Kaplan then took the highly unusual step of appointing a team of attorneys from Seward and Kissel, a private firm that had an ongoing attorney-client relationship with Chevron, to prosecute the criminal contempt in the name of the government.
As if this was not bad enough, things spiraled downward. Kaplan bypassed the usual random-case assignment procedure of the federal judiciary and handpicked a judge to hear the contempt case. The judge, a member of the Federalist Society, a powerful far right legal organization, refused Donziger’s request to have his trial heard by a jury of his peers.
Donziger’s contempt charge is a misdemeanor, a petty charge with a maximum sentence of six months in prison. His trial is slated to begin on May 10. Under the contempt, he has now been held under house arrest for over 600 days, while being forced to wear an ankle bracelet. The judge has deemed Donziger a flight risk.
Under the terms of his sentence, Donziger can only leave his home for specific reasons like legal meetings, medical appointments or school events for his son. He must get 48 hours advance permission from a pretrial services officer for such events and he must go to a specific address and return back by a specific time.
No lawyer convicted of contempt in New York has ever been held for more than 90 days in home confinement. Yet on March 29, the Second Circuit Court of Appeals rejected Donziger’s motion to be released on bail while awaiting trial for contempt. They did, however, throw out Judge Kaplan’s main contempt finding.
Donziger also faces being disbarred. His law license was suspended in 2018 without a hearing based on Kaplan’s findings in the contempt case. He is now fighting to get his law license reinstated. In February, a referee for the New York Bar Association, John Horan, ruled in Donziger’s favor, recommending that his law license be restored. That decision must now be reviewed by a New York state court. Horan said,
“The extent of (Donziger’s) pursuit by Chevron is so extravagant, and at this point so unnecessary and punitive, (that) while not a factor in my recommendation (it) is nonetheless background to it.”
Chevron’s strategy against Donziger has been called the kill shot. The case has not received attention. However, 55 Nobel Prize laureates recently announced their demand for freedom for Donziger as well as demanding that Chevron face justice for its Amazon pollution.
What we have here is an out-of-control corporation using its vast resources to persecute a human rights lawyer. The corporate message is both clear and chilling: cross us and you will pay, hugely.
Two retired federal judges, Nancy Gertner and Mark Bennett, took the step of publishing a critique of the still-pending criminal case against Donziger. They have called it “excessive” and “deeply troubling.” Human rights and environmental justice organizations, including Amazon Watch and Amnesty International, have written the new Attorney General Merrick Garland and have asked him to review and investigate Chevron’s misuse of the legal system.
This story is the ultimate in vindictiveness. Chevron was whipped by human rights lawyers and they have counterattacked to avoid paying the judgment they lost. They want to destroy the idea that indigenous people can hold an oil company accountable. When a corporation is as wealthy as Chevron, the question remains: can there ever be any corporate accountability? That question remains unanswered.
(Jonathan P. Baird lives in Wilmot and blogs at jonathanpbaird.com.)