Amid falling citywide rates of covid-19 infection, many New Yorkers are beginning to emerge from months of lockdown. That’s not the case for human rights attorney Steven Donziger, who has barely left his two-bedroom Upper West Side apartment for the past twelve months.
“My liberty is deprived,” he said on Zoom from his kitchen. “They’re trying to crush me so I’ll give up.”
The attorney, now in his mid-50s with a head of thick, graying hair, stood bent over his counter, looking directly into his webcam through thick-framed glasses. But though his expression was weary, he made it clear he was not out of energy.
Donziger’s work used to take him to all corners of the world, including to the depths of Ecuadorian Amazon. Nearly twenty years ago, he sued a multinational oil giant on behalf of thousands of the rainforest’s residents. The ensuing legal saga landed him in home detention on August 6, 2019.
The story exemplifies what the lawyer calls the “corporate capture” of the U.S. legal system, and for the climate movement today, its implications are terrifying.
In the 1970s, the multinational energy company Texaco set up oil fields in northeast Ecuador. The operations spilled more than 16 million gallons of crude oil, 80 times more oil than was spilled in BP’s 2010 Deepwater Horizon disaster. The company also dumped billions of gallons of toxic waste into hundreds of unlined waste pits in the lush rainforest using disposal processes which had long been outlawed in Texas. Luis Yanza, an Ecuadorian Indigenous environmental activist and president of the Amazon Defence Coalition, first moved to the affected area as a teenager.
“From when I first arrived there in 1977, I saw the oil pooling”¦ and there was the smell of fuel,” he said speaking through a translator. “We would get fungus on our skin, on our hands, on our faces, and it would change the colour of the skin, we would get white spots… When we were in school when we were kids, we would laugh about the discoloration. But it was a consequence of contamination.”
Indeed, the pollution, which leached into the soil and water local communities relied on to drink and bathe, has been linked to not only dermatitis, but also increased rates of cancer and birth defects.
In 1992, Texaco’s contract ran out and the company exited the region, leaving a legacy so toxic that it’s been called “Amazon’s Chernobyl.” Texaco said it remediated its damages, but the majority of the wells it claims to have cleaned were still full of toxic pollutants.
“There continued to be cases of cancer, infection problems and various things. Wildlife died off. And the crops in that area were not the same,” farmer Hugo Camacho, who has lived in the contaminated area since 1980, said through a translator on a WhatsApp call from his home in the Amazon.
The following year, 30,000 Indigenous people and peasant farmers, including Camacho and his wife, decided to take action. Aided by community organiser Yanza, the group decided to take the company to court and called on attorneys, including Donziger, to help them.
“I was, frankly, shocked at what I saw”¦ in terms of the degree of pollution, the open dumping of toxic waste,” Donziger said of his first trip to the region, known as Lago Agrio. “It was designed to pollute, designed to keep costs as low as possible and inflate profits as high as possible at the expense of the people who lived in the region.“
Donziger became the lead attorney on the Ecuadorians’ 1993 lawsuit against Texaco ” and later against Chevron, which bought Texaco in 2001. Chevron’s legal representatives promised the Ecuadorian plaintiffs a “lifetime of litigation” if they continued to pursue their case, but they didn’t back down.
“It was a dream”¦ an important achievement after two decades of struggle,” said Yanza. “It was a special day.”
That amount was later reduced to $US9.5 ($13) billion, but it was still the largest human rights and environmental court judgement in history. But the lawyers’ and plaintiffs’ luck quickly soured. After the Ecuadorian Supreme Court upheld the ruling against Chevron, the company moved its assets out of the nation and into the U.S., thereby preventing the Ecuadorian plaintiffs from collecting the damages.
“The environmental claims against Chevron are false and unsupported by scientific evidence,” Sean Comey, senior advisor of external affairs at Chevron, wrote in an email.
To this day, Chevron hasn’t paid a cent of the $US9.5 ($13) billion in damages, leaving the plaintiffs with no funding to clean up the oil spills and waste, or even treat the resulting illnesses. And the oil company’s goal wasn’t just to keep their money, it was ” as it said in a 2009 company memo ” to “demonize Donziger,” who it said won the case through illegal means.
“Donziger is an adjudicated racketeer,” said Comey. “He committed criminal acts in the U.S. and abroad in pursuit of his extortion scheme in the Ecuadorian courts.”
In 2012, Chevron invoked the Racketeer Influenced and Corrupt Organisations (RICO) Act ” originally created to stop mafia activity in the 1970s ” to file a case against Donziger, Camacho, and another plaintiff, Indigenous leader Javier Piaguaje, claiming the Ecuadorean decision was procured by bribery and fraud. The judge on the case was New York U.S. District Court Judge Lewis Kaplan, who in one previous suit had ruled in favour of tobacco companies without disclosing his previous industry ties. In the courtroom, he praised Chevron as “a company of considerable importance to our economy.”
Through a controversial discovery process, Chevron obtained, among other things, Donziger’s private diary entries. But the company’s central piece of evidence was the testimony of their sole witness: Alberto Guerra, a disgraced Ecuadorian judge who’d been removed from the bench over allegations of corruption and who had accepted hundreds of thousands of dollars and other benefits from the company. After meeting with Chevron’s lawyers 53 times, Guerra testified that Donziger and his team had offered the judge in the original trial a $US500,000 ($698,050) bribe and had ghostwritten the 2011 decision against Chevron. In a related case three years later, he admitted he had lied in his testimony.
Donziger, meanwhile, said some of the company’s other assertions were true. He said his team had, in fact, paid a court-appointed expert who wrote an independent report and worked with an American consulting firm, which drafted parts of that report. Yet he maintained that those actions fully comported with standard Ecuadorean “law, custom and practice.” Chevron pointed to this as evidence of a larger illegal fraud, but Donziger says “it was totally appropriate how we maintained that relationship.”(It’s also worth noting that the controversial report was not even cited in the final verdict against Chevron). He has consistently denied Guerra’s allegations of bribery, which were the centrepiece of Chevron’s case.
Kaplan barred Donziger and the other plaintiffs in the case from even mentioning Chevron’s pollution in the Amazon in the case, which he deemed “not relevant.”
The Chevron suit originally sought $US60 ($84) million in damages, but just weeks before it went to trial, the company dropped its monetary claims, thereby removing the defendants’ right to a jury and giving Judge Kaplan the sole responsibility of determining the defendants’ fate. In 2014, after a full trial before Judge Kaplan, Donziger and the other defendants were found guilty of engaging in conspiracy and criminal conduct.
“Donziger and the Ecuadorian lawyers he led corrupted the Lago Agrio case. They submitted fraudulent evidence. They… falsely presented [a damages assessment] as the work of the court-appointed and supposedly impartial expert, and told half-truths or worse to U.S. courts in attempts to prevent exposure of that and other wrongdoing. [They] wrote the Lago Agrio court’s Judgment themselves and promised $US500,000 ($698,050) to the Ecuadorian judge to rule in their favour and sign their judgment,” Judge Kaplan found. “If ever there were a case warranting equitable relief with respect to a judgment procured by fraud, this is it.”
The ruling was affirmed by a decision issued by the Second Circuit Court of Appeals in August 2016, with the appellate court finding “no basis for dismissal or reversal” of the district court’s judgment, noting that “the record in the [case] reveals a parade of corrupt actions”¦ including coercion, fraud and bribery, culminating in the promise to Judge Zambrano of $US500,000 ($698,050) from a judgment in favour of the [plaintiffs].”
Kaplan’s findings set off a slew of further attacks on Donziger. In 2018, based on the judge’s findings, Donziger’s legal licence was suspended without a hearing.
Kaplan then asked federal prosecutors to bring criminal contempt charges against Donziger for failing to hand over his electronic devices and passports and failing to give up his rights to fees from the Ecuadorian case. Donziger said he refused to turn over the devices because they contained private messages with legal clients.
When the prosecutors declined to press charges against Donziger, Judge Kaplan did something previously unheard of in the American judiciary: He appointed a private law firm to levy the criminal charges, setting what Donziger called a “really scary legal precedent.”
Kaplan went even further, eschewing standard processes of random assignment to handpick Judge Loretta Preska, an advisor to the pro-business Federalist Society with a history of ruling in favour of energy companies, to oversee the case. She has kept Donziger on lockdown for the past year, saying he represents a flight risk. On May 20, she announced that due to the coronavirus pandemic, the trial will not take place until mid-September ” and decided that Donziger is not entitled to a jury trial.
This past March, Seward and Kissel, the firm handling the charges against Donziger, admitted for the first time that they’d counted Chevron as a client as recently as 2018, confirming Donziger’s lawyer’s suspicions. Based on the firm’s conflict of interest, Donziger’s attorney Andrew Frisch recently filed a motion to dismiss the entire case because of prosecutorial misconduct, using the same approach former national security advisor Michael Flynn’s lawyers used to get his charges dropped.
“The extraordinary misconduct and bias in this case threaten the integrity and reputation of this Circuit,” the motion says.
In the years since the initial victory against Chevron in 2011, the movement for environmental and climate justice has exploded. Activists have held government allies for their contributions to the climate crisis.
“This kind of pressure from the grass roots is responsible for many significant advancements in environmental justice,” Donziger said.
As the movement has grown, however, the fossil fuel industry has lawyered up to fight its opponents, often with the same corporate law firms. For instance, Gibson, Dunn and Crutcher ” the firm that represented Chevron in their RICO case against Donziger ” also represented the oil giant in climate cases brought by New York City, San Francisco and Oakland. Another firm, Paul, Weiss ” where Judge Kaplan worked for 17 years before he was appointed to the bench in 1994 ” defended Exxon in the same cases.
“These firms are grifters in the sense that they make massive sums of legal fees by representing fossil fuel companies to block any meaningful change to deal with the planet,” said Donziger.
For those massive sums, the firms deliver. The California cities’ suit was thrown out on the grounds that the global issue of climate change couldn’t be addressed in the courtroom, and New York City’s case was also dismissed as the judge said he didn’t find enough evidence of Exxon lying to shareholders.
But in some cases, corporations aren’t even aiming to win. Activists say Chevron’s counterattack on Donziger and the Ecuadorian plaintiffs is an example of a Strategic Lawsuit Against Public Participation, or SLAPP lawsuit, which aim to intimidate and exhaust their opponents into silence. In some cases, purveyors of SLAPP suits will drop them just before they go to trial. In Donziger’s case, Chevron didn’t drop the civil RICO charges ” but they did drop the monetary damages.
Chevron disputes this characterization of the suit. “The U.S. District Court for the Southern District of New York… held that the judgment against Chevron was [a] product of fraud and racketeering, finding it unenforceable in the United States,” said Chevron’s Comey. “
But in recent years, corporations have levied an increasing number of SLAPP lawsuits against opponents of not only oil drilling in the Amazon, but also of polluting industries in the U.S., including oil and gas pipelines, highway expansion, and forestry.
Seventy-eight year old Florida activist Maggy Hurchalla was the victim of one of those SLAPP suits. Her alleged crime was to email Martin County commissioners and urge them to back out of a deal with Lake Point Restoration, a company mining for limestone along Florida’s Atlantic coast in order to preserve the health of wetlands. In 2013, the company sued her for libel, saying she sabotaged their project by providing false information to government officials, and last year, a jury decided she should pay nearly $US4.4 ($6) million in damages to the corporation. This past April, the Florida Supreme Court rejected her latest appeal.
Hurchalla maintains that she did nothing wrong. “It is the very basis of democracy, that we should be able to talk about things that are controversial to our public officials,” she told Gizmodo. Commenting on the case, the company’s attorney has said: “The First Amendment’s very important, but it has limits… You are not allowed to tell falsehoods. You’re not allowed to lie… And, if in fact, you do not tell the truth, and those falsehoods were designed to injure or harm a business, there’s a consequence for that.”
SLAPP suits aim to overwhelm critics with mental and financial burdens so they retreat. Hurchalla says she is choosing not to stress too much about her predicament ” “I’m fine, regardless of owing $US4.3 ($6) million,” she said, laughing ” but the financial burden has been considerable. A bank account she shares with her husband is subject to being garnished. Hurchalla is retired, but any wages she earned would be subject to garnishment, too. And in 2018, Martin County sheriff’s deputies seized two of her kayaks and her 2004 Toyota, , though she got them back.
“If I didn’t have a… defence fund and I didn’t have patient lawyers, I couldn’t have gotten this far. Most people couldn’t,” she said. “[The suit is] clearly about, “˜shut up,’ and it’s clearly about, “˜if we shut you up, everybody else will shut up.'”
Hurchalla’s case may be headed for the federal Supreme Court. “I am keeping on hoping because I’m keeping on believing that the U.S. Supreme Court does believe in the First Amendment,” she said.
She’ll be facing an uphill battle, though. The Supreme Court is notoriously pro-business, and it’s conservative tendencies are representative of a larger movement toward conservatism in courtrooms around the country.
In this pro-business environment, fossil fuel companies are more likely to continually be let off the hook in the courts for the damages they’ve caused, thanks to what Donziger called the “corporate capture of elements of our judiciary.”
“The fossil fuel industry has really dug in and is using its enormous financial clout and its influence in the federal courts to resist and openly attack this citizens’ movement and the advocates and lawyers who are on the frontlines,” he said in an email.
Close ties between corporations and their law firms with courts aren’t new. A 2014 Reuters study found that, over an eight-year period, lawyers at one of a dozen corporate law firms ” including Gibson, Dunn and Crutcher ” were six times more likely to have their cases heard by the Supreme Court. Many of those lawyers worked for past or current justices. Lawyers at Gibson, Dunn and Crutcher have no shortage of connections to powerful courts ” President George W. Bush appointed a partner to be his Solicitor General and to the U.S. Court of Appeals for D.C., and several former clerks for Supreme Court justices went on to become partners at the firm. Under the Trump administration, even more corporate-friendly judges have won appointments, including multiple Gibson, Dunn and Crutcher partners.
“President Trump”¦ chooses judges from the most extremist pro-business wing of the legal profession, vetted by the Federalist Society and not the American Bar Association, which historically was the process,” said Donziger. “You simply cannot be appointed to a federal court in the U.S. in today’s world unless you are aggressively hostile to the environment or to governmental action needed to protect the environment.”
With more pro-business judges in the courts, more of the blatantly pro-corporate approach to law exemplified by Clinton-appointee Judge Kaplan could be on the way.
The $US9.5 ($13) billion that Chevron owes Donziger’s clients in the Ecuadorian Amazon is a lot of money. But Donziger said for the oil company, which has spent millions to sue him and has a market capitalisation of $US175 ($244) billion even amid tanking global oil demand, it’s not just the money that’s on the line ” it’s their business model.
Chevron says it has nothing to do with the current case against Donziger. “Donziger’s continuing lawlessness is now a matter for prosecutors and the U.S. courts to decide,” said Comey. “Chevron is not involved in Donziger’s criminal prosecution.”
But in practice, Kaplan’s verdict in the RICO case against the lawyer means the company can refuse to pay the plaintiffs in the United States.
“I think their litigation strategy in this case, and as it regards me personally, is not only to try to evade paying the funds for cleanup to the people they owe it to in Ecuador, but also to kill off the very idea of this case,” said Donziger. “They don’t want more of these cases, and they want to use what they’re doing to me as evidence that those who enter this arena to take on these fights with big corporate polluters ultimately will pay a very heavy price.”
Those fights with corporate polluters are central to the future of the planet. Chevron is responsible for more greenhouse gas emissions since 1965 than any company besides Saudi Aramco. Any legitimate climate action plan will have to do away with these industries, which make the planet uninhabitable by design.
Of course, none of this will be easy. Chevron has “basically as much money as they want to spend, to attack,” said Donziger. And because the fossil fuel industry sees that they could be next, they’ve thrown their backing behind Chevron.
“There is a massive amount of industry-wide solidarity in the fossil fuel industry,” said Donziger. “A lot of [other fossil fuel] companies were filing friend-of-the-court briefs in litigations.”
That unified front backed by billions of dollars is what the climate movement is up against. While the climate movement lacks the money of Big Oil, it has people. Any chance for success at preserving the planet and people’s dignity will require a similarly concerted effort on the movement’s behalf.
The international climate movement is gaining strength, thanks to a new guard of young activists. Yet in that broader push for climate justice, the plight of Donziger’s clients in the Ecuadorian Amazon has not become a major focal point. If activists focus their attention on getting Chevron to pay up, it could set a precedent to win justice for other frontline communities who have suffered because of extractive industries. Chevron alone has faced allegations of human rights abuses in not only the Amazon, but also sub-Saharan Africa (the case was dismissed), Burma (the case was settled out of court), and the U.S. (Chevron paid $US5 ($7) million in damages for a refinery explosion, but the refinery is still there). A win for Lago Agrio communities would not only secure funding for them to clean up their homes, it could also illustrate the true cost of a fossil fuel company doing business and embolden more activists to take on Big Oil around the world. Right now, renewable energy is already out-competing oil, and energy companies are starting to sweat. Forcing them to pay for the costs they’d previously externalized could further do them in.
Whereas climate lawsuits can seem abstract because it’s difficult to hold specific companies accountable for a particular extreme weather event ” and even harder to hold them accountable for future damages ” Donziger’s case also has clear, direct victims.
“From my point of view, the climate movement really needs to get behind this, too because if we’re going to actually push to hold the fossil fuel industry accountable for its climate damage, that’s an even harder battle,” Paul Paz y MiÃ±o, the associate director of Amazon Watch, an organisation focused on protecting the Amazon rainforest that has been supporting the Ecuadorian plaintiffs, told Gizmodo. “If you can’t win that battle, what hope have you to show that all these climate-related issues go back to their operations? I feel “¦ we, essentially, as a global society, can’t afford for this to be lost.”
That’s particularly true for the 30,000 people in the Ecuadorian Amazon who have lived amid poisoned water and soil for half a century. Without the money in damages from Chevron, the Amazon communities have little funding for clean up or medical treatment.
“The pollution continues to affect the people and the wildlife. The problems continue,” said Yanza. “Even in the last few years, many people have gotten sick and some have even recently died from cancer.”
Camacho said that it may be easy for Chevron executives to ignore the pollution they leave in other countries, but people in the Amazon still feel its acute effects. “Because they live in other countries, they do not care about the suffering we are going through here and the damage they caused, the lives of the people who have passed away,” he said.
Without fundamental changes to the oil and gas industry’s business model, this toxic legacy is bound to repeat itself, especially in places like Lago Agrio, where companies feel they can get away with abuses because as Paz y MiÃ±o said, “it’s kind of hidden, it’s in the Amazon, it’s in Ecuador, it’s where brown people live.”
A 2020 Amazon Watch analysis found that tens of millions of acres of the Amazon are slated to be auctioned off for new oil drilling projects. Pollution from oil and gas sites ” which already cover two thirds of the rainforest in Ecuador and Peru ” pose grave threats to Indigenous people. They also destroy habitat on which tens of thousands of species depend. And they result in deforestation, thereby destroying one of the world’s most essential carbon sinks, which means the damage ultimately affects all of us.
Donziger has lost many freedoms in his fight for residents of the Ecuadorian Amazon, but he said that his clients have lost far more along the way. And he doesn’t see his losses as a sacrifice.
“People in the North don’t have to make “˜sacrifices’ ” that’s a canard used by industry to scare people. They just need to live responsibly on an individual level with an understanding that action must be taken on a political level to create the necessary changes,” he wrote in an email. “Once those changes are made, the quality of life for everybody is enhanced. We all gain. Our children gain. Future generations will have a better quality of life.”
Throughout his many months on home detention, Donziger has not given up hope that he will regain his freedom or that Chevron will be forced to pay the damages to his clients. Chevron seems to be banking on him running out of energy, but he said he won’t do so.
“Short-termism as a way of thinking infects the fossil fuel industry to its core, but the public needs to have a much longer-term perspective to see all the benefits that can accrue from effective political action on these critical issues,” he said.
Since they won their 2011 judgement against Chevron, the Ecuadorian plaintiffs have taken the company to court in four other countries and at Hague to attempt to force them to pay up, but none of those efforts have been successful. Still, Donziger’s clients haven’t given up, either.”The fight is hard, but I at least have hope that justice can be served,” said Yanza.
Of course, time is not on our side. The world needs to phase out oil altogether as soon as possible to avert complete climate catastrophe. In the process of doing so, the oil industry should be forced to grapple with its toxic legacies.
“There’s a debt that needs to be paid,” said Camacho.