Chevron claims that a cartoon criticizing the oil company's lawsuit against Ecuadorian villagers is an extortion attempt.
By Tom Hintze, AlterNet
13 February 2014
Political cartoonist Mark Fiore is no stranger to controversy. In 2010, after winning the Pulitzer Prize for animations he made for SFGate, news broke that Fiore's app had been rejected from the Apple store for allegedly violating the terms of service by ridiculing public figures. But in a quick reaction to the bad publicity, the tech giant reversed its decision and invited Fiore to re-submit his app, which was quickly accepted, and soon after, the policy was summarily changed.
So it wasn't a total surprise when Fiore discovered that one of his animations had been named by Chevron in its most recent court filing against Ecuadorian citizens harmed by the oil giant. "I saw a Facebook post from my friend at Amazon Watch, Paul Paz y Miño," said Fiore. "They did prepare me for this eventuality, and worse. Strangely enough, I was taking the ferry into my San Francisco office and was within sight of the Chevron refinery."
The dispute started back in 1964, when Texaco began drilling for oil in the Ecuadorian Amazon. Over the course of nearly three decades of oil exploration in the region, activists with the campaign Chevrontoxico.com estimate that Texaco dumped more than 18 billion gallons of toxic wastewater. The company spilled 17 million gallons of crude in the jungle, all of which contaminated groundwater and set the stage for a major ecological and public health crisis. Chevron bought Texaco in 2001 and inherited the skeletons in its closet. The current suit, a class-action by over 30,000 indigenous and campesino people, centers on the Lago Agrio oil field, and was started in 1993. In 2011, Chevron was ordered to pay $18 billion in damages. That number has since been reduced to $9.5 billion. The company appealed the ruling, and when that failed, decided to countersue the plaintiffs.
In the legal brief, dated Jan. 31, 2014, Chevron claimed that conspirators had "unleashed a barrage of near-daily press releases, letters to government officials and shareholders, web videos, and cartoons in an effort to extort a payoff from Chevron." The documents allege that "Chevron continues to be threatened with a variety of 'real, immediate, and direct' injuries" extending from the initial ruling by an Ecuadorian court that Chevron pay $9.5 billion to clean up the damage done to over 30,000 villagers in the Amazon rainforest.
"Extortion," the crux of accusations against the activists, journalists, lawyers, and the cartoonist who led a 10-year public campaign against Chevron in the Lago Agrio case, is mentioned six times in the filing.
"The nutshell version is this," explains Fiore. "Chevron was sued by villagers in Ecuador for leaving toxic waste all over the jungle. Chevron lost the case and was hit with a multibillion-dollar judgment. Chevron appealed and lost that, too. Then Chevron filed RICO charges against the villagers and the lead attorney on the case....accusing them of racketeering and being involved in a huge conspiracy to clean up the jungle and extort money from Chevron."
RICO, or the Racketeer Influenced and Corrupt Organizations Act, was originally signed into federal law in 1970 as a way to leverage criminal and civil penalties against organized crime. For the first time, it allowed those who "ordered" or "assisted" criminal activities to be prosecuted for those same activities, and not a lesser charge. Lawyers for Earth Rights International (ERI), an organization that is representing Amazon Watch and other organizations, describe how Chevron is twisting the law: "Using RICO has the added benefit of allowing Chevron to label anyone who speaks out against the company a 'co-conspirator' without having to demonstrate any actual wrongdoing—or face liability for slander or defamation."
The cartoon in question features a corporate lawyer named Donny Rico, dressed to look like a mobster and wearing a ring on each pinky finger, explaining how he helped Chevron turn the tide on corporate accountability lawsuits by using RICO statutes to countersue plaintiffs.
The cartoon is blatantly critical of Chevron's legal strategy, labeling the oil giants as the real mobsters, ruthless in their protectionism and desire to avoid paying out for "spreading cancer, birth defects, killing people, and just generally wrecking the place." The cartoon also describes the great lengths Chevron has gone to in order to persecute the plaintiffs, organizers and witnesses who testified against the company in the case. This included threatening activists, journalists, lawyers, and organizations with subpoenas to turn over massive communications records complete with identity and location information.
In October 2012, ERI wrote: "The information Chevron wants could be used to create a detailed map of the individuals' locations and associations over nearly a decade," preempting current widespread debates over the effectiveness of metadata collection like this.
The logic presented in the court brief, or the "critical question," as the documents put it, states that "[F]or a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm."
This language is taken directly from the Supreme Court's June 2013 ruling, written by Chief Justice Roberts, that struck down the Defense of Marriage Act (DOMA) and eliminated the challenge to Proposition 8, paving the way for gay marriage to be legalized. That ruling, in particular, has already been twisted by other litigators with unexpected fallout. In July 2013, Paula Deen's lawyers used the same language to argue that the lawsuit against her be dismissed because the plaintiff, Lisa Jackson, was white, and therefore unable to argue that she suffered "personal and tangible harm" from the former Food Network host's use of the N-word. That motion failed to get the case dismissed, but the suit was eventually settled in August 2013.
There is also an unmistakable echo of the Citizens United decision in the claim that Chevron, a multinational, multibillion-dollar corporation, suffered "personal and tangible harm" from the Lago Agrio suit. Amazon Watch spokesperson, Paul Paz y Miño, made the link explicit: "If Citizens United gave unprecedented political power to corporations, this effort from Chevron is offering a way for any corporation to crush anyone critical of their efforts."
"Ask yourself," Paz y Miño told me, "what would have come of efforts to pursue the tobacco industry if they had successfully sued all parties in the class-action suit under RICO? Or if groups will be able to organize their community to speak out about the dangers of fracking if energy industry representatives can cow organization efforts by effectively threatening suits and forcing widespread discovery such as in the Chevron case?"
Marco Simmons, a lawyer with ERI, explained how this would work to set a legal precedent, but why, at least so far, it hasn't. "Corporations are clearly trying to use the legal system as a weapon against activists, who have had some success in using the law to hold corporations accountable. I don't think it will work. Most judges can see through these kinds of tactics; when Chevron tried to subpoena documents from Amazon Watch, the court denied Chevron's request entirely based on the First Amendment, and rejected Chevron's 'conspiracy' argument, saying that rather than proving that AW was engaged in any wrongful activity, 'All that Chevron has shown this court is that Amazon Watch has been very critical of Chevron’s operations in Ecuador.'"
Simmons emphasized that the current lawsuit was driven by semantics and failed to address the main issues at stake. "Chevron is not attempting to prove that it is not responsible for pollution in the Ecuadorian Amazon," he said.
So what are people doing to fight back? In December 2013, a coalition of organizations, including Amazon Watch, the Sierra Club, 350.org and Food and Water Watch, condemned Chevron's actions and demanded accountability in a public letter. The coalition said it expected other individuals and organizations to join.
As for Mark Fiore, the animator remains resolute: "I dive into the aggressive legal tactics of Chevron in the cartoon, and what Chevron is doing just reinforces the point of the cartoon beautifully."