Paul Paz y Miño of Amazon Watch says four years after Chevron was ordered by the highest court in Ecuador to pay $9.5 billion in damages to Amazon residents, it is still trying to outmaneuver and outspend in the NY Appellate Court
The Real News
22 April 2015
SHARMINI PERIES, EXEC. PRODUCER, TRNN: Welcome to The Real News Network. I'm Sharmini Peries coming to you from Baltimore.
In February 2011, an Ecuadorian court found Chevron guilty of one of the largest environmental disasters on the planet and ordered the oil giant to pay $18 billion dollars. And then later, it was reduced to $9.5 billion in environmental damages for dumping nearly 16 billion gallons of toxic oil drilling water waste into the rivers in the Amazon, the water supply that thousands of people rely on each day. Let's have a look at what some of the people living in the area had to say.
SPEAKER: [Speaking Spanish] I've had three children die. Three daughters. My little girls died. They would run around barefoot. They would be covered in crude. And then later they started dying.
PERIES: The civil society group Amazon Watch recently released some secret tapes sent to their organization by a Chevron whistleblower. Let's have a look at what that is all about.
- Nice job, Dave. I give you one simple task.
- Who picked the spot, Rene?
- Don't find petroleum.
- Who picked the spot, Rene? Who told them where to drill, Rene?
- So it's my fault? I'm the customer, I'm always right.
Chevron called the ruling illegitimate, and vowed to fight it. In 2014 a U.S. Federal court judge sided with Chevron and threw out the environmental damages ruling altogether, arguing that it was obtained through corrupt means.
Well, on Monday, April 20th, the Federal appellate court in Manhattan heard oral argument in the appeal of those charges. Joining us now from New York to discuss all of this is Paul Paz y Mino. Paul has been a professional human rights advocate with expertise in Latin America for more than 20 years. He's the director of outreach and online strategy at Amazon Watch and has overseen the Clean Up Ecuador campaign for the past eight years.
Thank you so much for joining us, Paul.
PAUL PAZ Y MINO, DIRECTOR OF OUTREACH AND ONLINE STRATEGY, AMAZON WATCH: Thank you.
PERIES: So Paul, give us a sense of what happened in court.
PAZ Y MINO: Well, today we heard the appeal arguments for Chevron's retaliatory RICO attack against the Ecuadorians and their lawyers. And what's important to note is that the decision that's under appeal doesn't in any way stop the Ecuadorians from enforcing their legitimate verdict in Ecuador or anywhere else in the world. The appeal that – the decision that was appealed today was an injunction preventing the Ecuadorians and their lawyers from benefiting from that verdict in the United States, which is of course the only place they actually have jurisdiction.
Nonetheless, the appeal was brought forth. And in court I and many others were quite surprised to see the vehemence with which some of the justices questioned the Chevron attorneys. Most amazingly, at one point the, one of the justices simply asked Chevron's lawyer Ted Olson, when is this going to end? And emphatically asked again, when is this going to end? They berated them for trying, bringing similar allegations up at an international tribunal at the Hague, at the same time as pursuing RICO trials here. Because essentially, Chevron has been playing a legal shell game, forum shopping wherever it can, trying to get verdicts in its favor, and trying to find a venue where it can defend itself without resorting to discussing the actual facts in Ecuador.
And then most surprisingly of all, one of the justices said, offered to Chevron, why don't you re-try the case right now in New York? This, you – you tried it in Ecuador and lost. If you want to try it again, can we force you to try it here? And of course this caught Chevron's lawyers and entire legal team completely off guard. The last thing they want to do is have to defend themselves based on the facts of what happened in Ecuador in any court, which they've actually publicly said. That they don't think this case belongs in any court.
But most importantly, this would essentially be a trial about enforcing the verdict in Ecuador. And there, they would call it a re-trial, but it's essentially the same thing the Ecuadorians are pushing for now in Canada. To enforce their legitimate verdict, to force Chevron to pay the $9.5 billion dollars that it owes to clean up and help the Ecuadorians with the health costs for the wave of cancers and other health-related illnesses – or oil-related illnesses that they have suffered.
PERIES: So Paul, even Bloomberg Business said that Chevron used the racketeering act inappropriately, that it influenced the court and disrupted the court organization and boundaries of RICO. What does all of this mean?
PAZ Y MINO: Well, that's the – that's the ironic thing. I mean, I'm not a lawyer, and I know there were plenty of legal experts in the room right there. And the legal ground for their case is paper-thin, at best. Because these actions that they're alleging didn't even take place in the United States. The only reason they've been able to find a way to use the RICO hook is because one of the lawyers working on the case, Steven Donzinger, resides in New York. And so by the longest stretch of a hook, they've decided that because he's located here, they can try to invalidate the legitimate judgment of the nation of Ecuador, which has been upheld by eight justices, it's gone to their highest courts. And before they've even sought to enforce it in the United States, Chevron hit them preemptively with a RICO suit.
Which, frankly, is nothing more than a SLAPP suit. And unfortunate reality is because Chevron can hire 60 law firms and 2,000 legal professionals and four PR firms and spend close to $2 billion dollars fighting this fight, they've been able to push it to this level where they're actually taking a slap suit all the way through to this level of Federal court and it has to be appealed.
The other telling factor about this RICO case is that no evidence of the contamination in Ecuador was actually permitted in court. And that can't be overstated. The whole reason that Chevron is fighting this is because they claim the allegations against them are not valid. And yet the judge didn't look at the actual evidence or allegations against them, including the videos that you mentioned in your opening that were turned over to Amazonwatch by a whistleblower. They were suppressed by the same judge that issued the RICO verdict in favor of Chevron.
PERIES: And what rationale was used to suppress these tapes?
PAZ Y MINO: All evidence of contamination was struck from the record. And these tapes show evidence of Chevron's own employees and contractors finding toxic contamination in areas that they swore, and still swear to this day, are fully remediated and nontoxic. So from the very beginning Chevron argued successfully with Judge Kaplan to prevent any discussion of actual contamination, and these videos show that. So he blocked it.
Although interestingly enough, he did allow Chevron to enter into evidence edited outtakes from a documentary made about the toxic contamination in Ecuador called Crude, by Joe Berlinger. Those clips were allowed, and they were actually edited. And the defense in the RICO case showed how they were edited to mis – to mislead the judge into believing that there was something nefarious going on that wasn't. And yet he still permitted them.
The amount of bias that went on in Judge Kaplan's RICO case would make the layman on the street with even a rudimentary understanding of our judicial system gasp. The entire case is founded on the testimony of a corrupt witness, who is admittedly receiving up to $2 million dollars from Chevron in order to testify, which is a clear violation of ethics, and in our view it should invalidate his entire testimony because it's been bought and paid for by Chevron.
But time and again, the only cases you'll find of anyone defending them are people that they've either intimidated, threatened with legal action, or paid off in this case.
PERIES: And just so that we set the record straight here, how do we know Chevron is absolutely responsible for the spill, particularly given that there's been some reports of the Ecuadorian state company itself was also drilling in the same place?
PAZ Y MINO: Sure. It's important to note Chevron and Texaco admitted during the first stage of this trial to deliberately discharging almost 16 billion gallons of toxic foundation water into the Ecuadorian Amazon over the course of their time as the sole operator there. There's no doubt whatsoever, and they don't contest, that they made the actual financial decision to dump toxic pollutants into what was the pristine Amazonian rainforest. Texaco was the first company to drill for oil in the rainforest in history, and they created 916 open-air waste pits to dump their toxic waste. The normal practice everywhere else in the world, and by law in the United States, was to re-inject the foundation waters, because they're toxic and the only safe thing you can do with them is return them into the ground.
But rather than do that, as a cost-cutting measure, they dumped it. And they admitted dumping it. What they have said is that after they left in 1992, the responsibility from that point forward is Petroecuador's, the state oil company of Ecuador. Nobody is absolving Petroecuador of its responsibility for any environmental damage that happened subsequently. But unfortunately for Chevron, 18 billion gallons of toxic waste, that doesn't just disappear, even after decades.
So the initial crime that they created is still polluting to this day, still sits there. And there's no way for them to hide it. Which is exactly why they've resorted to a legal campaign of vilifying their critics and trying to destroy the careers of the human rights lawyers who are holding them to account. They simply can't defend themselves on the evidence.
And again, in 1992 when they left, Chevron claims that Texaco signed an agreement with the government of Ecuador to remediate a portion of the 916 pits and well sites left behind. The evidence of these tapes that have been leaked show that even the small portion that they claim to have remediated are toxic. So there's nowhere left for Chevron to hide. First they're responsible wholly for the things they did as sole operator. Second, even the feeble defense that they had of remediating a small portion is completely blown out of the water when you see their own tapes showing the toxic contamination's still there more than a decade after they claimed it was cleaned up.
PERIES: And Paul, just also give us a headline on what's going on in the Hague right now. I understand that Chevron is seeking to hold the Republic of Ecuador accountable for their role in denying Chevron's justice through an international arbitration. What is all that?
PAZ Y MINO: Well, there's no dearth of creativity in Chevron's schemes to try to find someone else to be responsible for their crimes. And in this case, they're essentially trying to make the Ecuadorian taxpayer cover their burden for what they did in Ecuador. They're trying to sue Ecuador under a bilateral trade agreement which is completely undemocratic. It doesn't allow the Ecuadorian plaintiffs to even be in the room, let alone present evidence in their case. So we consider it to be completely invalid and inappropriate. But their argument is that they weren't afforded due process in Ecuador, and therefore Ecuador's government needs to be responsible.
The irony of course is this is the most litigated case in the history of Ecuador. It's been reviewed by eight judges there, and evidence against them, the evidence that was used to determine their liability was almost overwhelmingly Chevron's own evidence submitted to the court. And yet they're still able to push this through this trade agreement at the Hague. It appoints three justices, or members of the tribunal, who are paid. They've already profited quite a lot of money just over hearing this case. And it doesn't allow the actual affected people to have a voice in their venue. So we don't consider that a legitimate method for Chevron to respond.
Ironically, it [inaud.] them quite hard today in the second circuit when one of the justices continually asked why they were seeking this case in the Hague at the same time as they launched their RICO attack, because you had a totally separate body with different evidence, more access to Ecuador, who might come to a completely different verdict about the Ecuadorian judiciary and the decision. So the Justice Wesley continued to ask, what would you do if you got a different verdict there versus here? How do you reconcile that? Why were you doing that?
And the reason, of course, is that Chevron has been forum shopping ever since it knew it was going to get a negative verdict against it in Ecuador. That's why their RICO case is here, that's why it's in the Hague. What they want to do is find as many forums as they can to listen to their case without considering the evidence presented by the actual people harmed in the Amazon. That's what they've done in those two cases.
In Canada, however, where the Ecuadorians are pursuing enforcement of their verdict, presuming a trial there, Chevron will have to defend itself based on the evidence of what happened in Ecuador, and that's a completely different ball of wax. Because there's absolutely nowhere for them to hide. Whenever the evidence is actually considered, Chevron loses. And it will lose in Canada, as well.
PERIES: Paul Paz y Mino, thank you so much for joining us, and please keep us abreast of what else is unfolding there.
PAZ Y MINO: Thank you.