[Pnews] How the Environmental Lawyer Who Won a Massive Judgment Against Chevron Lost Everything

Prisoner News ppnews at freedomarchives.org
Wed Jan 29 12:37:18 EST 2020


https://theintercept.com/2020/01/29/chevron-ecuador-lawsuit-steven-donziger/ 



  How the Environmental Lawyer Who Won a Massive Judgment Against
  Chevron Lost Everything

Sharon Lerner - January 29, 2020
------------------------------------------------------------------------

_Last August, during_ the second-hottest year on record, while the fires 
in the Amazon rainforest were raging, the ice sheet in Greenland was 
melting, and Greta Thunberg was being greeted by adoring crowds across 
the U.S., something else happened that was of great relevance to the 
climate movement: An attorney who has been battling Chevron for more 
than a decade over environmental devastation in South America was put on 
house arrest.

Few news outlets covered the detention of Steven Donziger, who won a 
multibillion-dollar judgment in Ecuador against Chevron over the massive 
contamination in the Lago Agrio region and has been fighting on behalf 
of Indigenous people and farmers there for more than 25 years. So on 
August 6, Donziger left a Lower Manhattan courthouse unnoticed and 
boarded the 1 train home with an electronic monitoring device newly 
affixed to his ankle. Save for the occasional meeting with his lawyer or 
other court-sanctioned appointment, he has remained there ever since.

“I’m like a corporate political prisoner,” Donziger told me as we sat in 
his living room recently. The attorney, who is 6-foot-3, graying, and 
often used to be mistaken for New York Mayor Bill Blasio when he was 
able to walk the city streets, was surprisingly stoic and resigned about 
his predicament during my two visits to the apartment he shares with his 
wife and 13-year-old son. But on this particular Wednesday, as the 
winter sunlight in his living room was dimming and the charger for his 
spare ankle bracelet battery flashed on a nearby shelf, his optimism 
about his epic battle against one of the biggest oil companies in the 
world seemed to be flagging. “They are trying to totally destroy me.”

Donziger is not exaggerating. As he was arguing the case against Chevron 
in Ecuador back in 2009, the company expressly said its long-term 
strategy was to demonize him 
<https://www.documentcloud.org/documents/6661647-Demonize-Donziger.html>. 
And since then, Chevron has continued its all-out assault on Donziger in 
what’s become one of the most bitter and drawn-out cases in the history 
of environmental law. Chevron has hired private investigators to track 
Donziger, created a publication <http://theamazonpost.com/> to smear 
him, and put together a legal team of hundreds of lawyers from 60 firms 
<https://www.csrwire.com/press_releases/35294-Chevron-Using-60-Law-Firms-and-2-000-Legal-Personnel-To-Evade-Ecuador-Environmental-Liability-Company-Reports>, 
who have successfully pursued an extraordinary campaign against him. As 
a result, Donziger has been disbarred and his bank accounts have been 
frozen. He now has a lien on his apartment, faces exorbitant fines, and 
has been prohibited from earning money. As of August, a court has seized 
his passport 
<https://www.makechevroncleanup.com/press-releases/2019/6/20/judge-kaplan-ordered-the-seizure-of-his-passport-computer-and-cell-human-rights-defender-steven-donziger-refused-to-turn-them-over-here-is-his-explanation> 
and put him on house arrest. Chevron, which has a market capitalization 
of $228 billion, has the funds to continue targeting Donziger for as 
long as it chooses.

In an emailed statement, Chevron wrote that “any jurisdiction that 
observes the rule of law should find the fraudulent Ecuadorian judgment 
to be illegitimate and unenforceable.” The statement also said that 
“Chevron will continue to work to hold the perpetrators of this fraud 
accountable for their actions, including Steven Donziger, who has 
committed a litany of corrupt and illegal acts related to his Ecuadorian 
judicial fraud against Chevron.”

The developments that led to Donziger’s confinement were, like much of 
the epic legal battle 
<https://www.newyorker.com/magazine/2012/01/09/reversal-of-fortune-patrick-radden-keefe> 
he’s been engaged in for decades, highly unusual. The home confinement 
is his punishment for refusing a request to hand over his cellphone and 
computer, something that’s been asked of few other attorneys. To 
Donziger, who had already endured 19 days of depositions and given 
Chevron large portions of his case file, the request was beyond the 
pale, and he appealed it on the grounds that it would require him to 
violate his commitments to his clients. Still, Donziger said he’d turn 
over the devices if he lost the appeal. But even though the underlying 
case was civil, the federal court judge who has presided over the 
litigation between Chevron and Donziger since 2011, Lewis A. Kaplan, 
drafted criminal contempt charges 
<https://www.courthousenews.com/wp-content/uploads/2019/08/donziger-osc.pdf> 
against him.

In another legal peculiarity, in July, Kaplan appointed a private law 
firm to prosecute Donziger, after the Southern District of New York 
declined to do so — a move that is virtually unprecedented 
<https://www.courthousenews.com/when-feds-demur-judge-charges-ecuador-crusader-himself/>. 
And, as Donziger’s lawyer has pointed out 
<https://www.documentcloud.org/documents/6664334-Letter-Re-Chevron-Law-Firm-Ties.html>, 
the firm Kaplan chose, Seward & Kissel, likely has ties to Chevron.

Making the case even more extraordinary, Kaplan bypassed the standard 
random assignment process and handpicked someone he knew well, U.S. 
District Judge Loretta Preska, to oversee the case being prosecuted by 
the firm he chose. It was Preska who sentenced Donziger to home 
detention and ordered the seizure of his passport, even though Donziger 
had appeared in court on hundreds of previous occasions.

Manuel Silva a peasant shows an oil spill in Lago Agrio,in Ecuador 
eastern Amazonian jungles,Monday,Dec.14,1998. Ecuadorean Indians have 
suited Texaco Inc. accusing the company of turning the region's rain 
forests into a "toxic waste dump" by drilling for oil.(AP Photo/Dolores 
Ochoa).

Ecuadorian local Manuel Silva shows evidence of an oil spill in Lago 
Agrio on Dec. 14, 1998. Indigenous Ecuadoreans sued Texaco, accusing the 
company of turning the region’s rainforests into a “toxic waste dump” by 
drilling for oil.

Photo: Dolores Ochoa/AP


      A Tainted Witness

Despite Donziger’s current predicament, the case against Chevron in 
Ecuador was a spectacular victory. The twisted legal saga 
<https://www.newsweek.com/chevron-lobbyists-fight-ecuador-toxic-dumping-case-93189> 
began in 1993, when Donziger and other attorneys filed a class-action 
suit in New York against Texaco on behalf of more than 30,000 farmers 
and Indigenous people in the Amazon over massive contamination 
<https://chevroninecuador.org/assets/docs/2012-01-evidence-summary.pdf> 
from the company’s oil drilling there. Chevron, which bought Texaco in 
2001, has insisted that Texaco cleaned up the area where it operated and 
that its former partner, the national oil company of Ecuador, was 
responsible for any remaining pollution.

At Chevron’s request, the legal proceedings over the “Amazon Chernobyl 
<https://intercontinentalcry.org/chevrons-amazon-chernobyl-case-moves-canada/>” 
were moved to Ecuador, where the courts were “impartial and fair,” as 
the oil company’s attorneys wrote in a filing 
<https://www.documentcloud.org/documents/6662579-Impartial-and-Fair.html> 
at the time. The move to Ecuador, where the legal system does not 
involve juries, may have also appealed because it spared Chevron a jury 
trial. In any case, an Ecuadorian court ruled against Chevron in 2011 
and ordered the company to pay $18 billion in compensation, an amount 
that was later reduced to $9.5 billion. After years of struggling with 
the health and environmental consequences of oil extraction, the 
impoverished Amazonian plaintiffs had won a historic judgment from one 
of the biggest corporations in the world.

But Donziger and his clients never had a moment to savor their 
David-over-Goliath victory. Even though the ruling was subsequently 
upheld by the Ecuadorian Supreme Court, Chevron immediately made clear 
that it would not be paying the judgment. Instead, Chevron moved its 
assets out of the country, making it impossible for the Ecuadorians to 
collect.

That year, Chevron filed a Racketeer Influenced and Corrupt 
Organizations, or RICO, suit against Donziger in New York City. Although 
the suit originally sought roughly $60 billion in damages, and civil 
trials involving monetary claims of more than $20 entitle a defendant to 
a jury, Chevron dropped the monetary claims two weeks before the trial.

In its statement, Chevron wrote that the company “focused the RICO case 
on obtaining injunctive relief against the furtherance of Donziger’s 
extortionate scheme against the company.”

Instead, that case was decided solely by Kaplan, who ruled in 2014 that 
the Ecuadorian judgment against Chevron was invalid because it was 
obtained through “egregious fraud 
<https://www.nytimes.com/2014/03/05/business/federal-judge-rules-for-chevron-in-ecuadorean-pollution-case.html>” 
and that Donziger was guilty of racketeering, extortion, wire fraud, 
money laundering, obstruction of justice, and witness tampering. The 
decision hinged on the testimony of an Ecuadorian judge named Alberto 
Guerra, who claimed that Donziger had bribed him during the original 
trial and that the decision against Chevron had been ghostwritten.

Guerra was a controversial witness. Chevron had prepped him on more than 
50 occasions before his testimony, paid him hundreds of thousands 
<https://chevroninecuador.org/assets/docs/2013-12-17-respondents-track-2-rejoinder.pdf> 
of dollars, and arranged for the judge and his family members to move to 
the United States with a generous monthly stipend that was 20 times the 
salary he received in Ecuador. In 2015, when Guerra testified in an 
international arbitration proceeding, he admitted that he had lied 
<https://www.courthousenews.com/ecuadorean-judge-backflips-onexplosive-testimony-for-chevron/> 
and changed his story 
<https://www.courthousenews.com/shaky-chevron-witness-assailed-in-new-brief/>multiple 
times. According to Chevron, Guerra’s inaccuracies didn’t change the 
thrust of his testimony. For his part, Judge Kaplan wrote that his court 
“would have reached precisely the same result in this case even without 
the testimony of Alberto Guerra.” In its statement, Chevron said that 
Guerra was relocated to the U.S. for his safety and noted that the court 
found that the company’s contacts with the Ecuadorian judge were “proper 
and transparent.”

Lawyers for Donziger said the changes in Guerra’s testimony completely 
undermined his original bribery allegations, which Donziger has 
consistently denied. In any case, that evidence emerged after the trial, 
and an appeals court declined to consider the new information and ruled 
against Donziger in 2016.

    “He has effectively been convicted of bribery by the finding of a
    single judge in a case in which bribery wasn’t even the charge.”

Had Donziger been criminally charged with bribery, a jury would have 
assessed Guerra’s credibility. Instead, in the RICO case, which was 
civil, the decision about a key witness came down to one person — Kaplan 
— who chose to believe him. That choice has set the stage for the legal 
losses Donziger has suffered since, according to some close watchers of 
the Chevron case.

“On the basis of Kaplan saying, ‘I believe this witness; I find Donziger 
guilty of the crime of bribery of the judge’ — on the basis of that, 
he’s been destroyed. That is the pinnacle element of all of the other 
claims against him. And if you take that one out, the rest of them — 
they’re just not there,” said Charles Nesson, an attorney and Harvard 
Law School professor. “He has effectively been convicted of bribery by 
the finding of a single judge in a case in which bribery wasn’t even the 
charge,” Nesson said of Donziger. “I teach evidence 
<https://wiki.harvard.edu/confluence/display/GNME/Main>, that you have 
to prove what you assert. But the proof in this case is the thinnest.”

Nesson, who represented Daniel Ellsberg in the Pentagon Papers case and 
the plaintiffs in the suit of W. R. Grace featured in the book and film 
“A Civil Action 
<https://www.penguinrandomhouse.com/books/76093/a-civil-action-by-jonathan-harr/9780679772675/readers-guide/>,” 
teaches Donziger’s case in his “Fair Trial 
<https://cyber.harvard.edu/teaching/2019-09/fair-trial-fall-2019>” 
course, using it as an example of a decidedly unfair trial. “Donziger 
epitomizes a person in asymmetric civil litigation who can now be denied 
a fair trial,” he explains to his students.

Nesson is one of several 
<https://amazonwatch.org/news/2019/1001-chevrons-legal-thuggery-run-amok> 
legal scholars who have opined that Kaplan has a soft spot for Chevron, 
which the judge once described as “a company of considerable importance 
to our economy that employs thousands all over the world, that supplies 
a group of commodities, gasoline, heating oil, other fuels, and 
lubricants on which every one of us depends every single day.”

In contrast, the judge has exhibited antipathy for Donziger, according 
to his former lawyer, John Keker, who saw the case as a “Dickensian 
farce,” in which “Chevron is using its limitless resources to crush 
defendants and win this case through might rather than merit.” Keker 
withdrew 
<http://admin.csrwire.com/system/press_release_pdfs/35574/original/Keker_Withdrawl_Motion.pdf?1367623064> 
from the case in 2013 after noting 
<http://admin.csrwire.com/system/press_release_pdfs/35574/original/Keker_Withdrawl_Motion.pdf?1367623064>that 
“Chevron will file any motion, however meritless, in the hope that the 
court will use it to hurt Donziger.”

Steven Donziger sits for a portrait at his home in Manhattan, NY, where 
is on house arrest for his work with Amazon, Wednesday, January 15, 
2020. ( Annie Tritt for The Intercept)

Donziger displays the ankle monitor he is required to wear.

Photo: Annie Tritt for The Intercept

Donziger’s current prohibition from working, traveling, earning money, 
and leaving his home shows how successful Chevron’s strategy has been. 
But even as his fate hangs in the balance, Donziger’s case matters far 
beyond the life of this one lawyer.

“It should be nothing short of terrifying for any activist challenging 
corporate power and the oil industry in the U.S.,” said Paul Paz y Miño, 
associate director of Amazon Watch, an organization devoted to the 
protection of the rainforest and Indigenous people in the Amazon basin. 
“They’ve made it clear there’s no amount of money that’s too much to 
spend on this case,” he said of Chevron. “They will stop at nothing.”

The Chevron case may be most devastating for the plaintiffs in the 
Amazon, who never received their judgment despite being left with 
hundreds of unlined waste pits and contaminated water and soil from 
millions of gallons of spilled crude oil and billions of gallons of 
dumped toxic waste. Everything that’s happened to Donziger “is small 
potatoes compared to the fact that Kaplan has rendered the damage the 
company actually did as totally irrelevant,” said Nesson.

But the latest twists and turns in the Chevron case may also be 
particularly bad news for climate activists. A mere 20 companies 
<https://www.theguardian.com/environment/2019/oct/09/revealed-20-firms-third-carbon-emissions> are 
responsible for a third of the greenhouse gases emitted in the modern 
era; Chevron ranks second only to Saudi Aramco 
<https://theintercept.com/2019/09/18/saudi-arabia-aramco-oil-climate-change/> 
among them. And it’s increasingly clear that addressing the climate 
crisis will require confronting these mega-emitters, whose resources for 
litigation dwarf that of any individual.

Making Chevron and other companies clean up the messes created by their 
oil production will speed the transition away from fossil fuels, 
according to Rex Weyler, an environmental advocate who co-founded 
Greenpeace International and directed the original Greenpeace 
Foundation. “If hydrocarbon companies are forced to pay for the true 
costs of their product, which include these environmental costs, it will 
make the alternative energy systems more competitive,” said Weyler.

Accordingly, Weyler feels that the climate movement should focus on 
Chevron’s case — and Donziger’s legal battle. “One of the most effective 
things climate activists can do right now to change the system would be 
to not let Chevron get away with polluting in these countries, whether 
Ecuador, Nigeria 
<https://www.business-humanrights.org/en/chevron-lawsuit-re-nigeria>, or 
anywhere” said Weyler. While some human rights and environmental 
advocates have tried to call attention 
<https://amazonwatch.org/news/2019/1114-global-human-rights-and-environmental-communities-condemn-the-house-arrest-of-steven-donziger> 
to Donziger’s case and Chevron’s bullying 
<https://www.protecttheprotest.org/2019/02/25/the-first-annual-slapp-awards-2018/> 
of him, Weyler felt that the outcry should be louder.

After seeing what’s happened to Donziger, and some of his former allies, 
whom Chevron has gone after as “nonparty co-conspirators 
<https://www.rollingstone.com/culture/culture-news/sludge-match-inside-chevrons-9-billion-legal-battle-with-ecuadorean-villagers-71779/>,” 
people may be afraid to stand up to the company. Donziger himself is 
living in fear. There is no set punishment when a judge files for 
criminal contempt of court, so he spends his days worrying over what 
will happen to him next. “It’s scary,” he told me. “I don’t know what 
they’re thinking.”

But Weyler pointed out that Chevron, which could still be forced to pay 
the multibillion-dollar judgment by courts in another country, is also 
afraid. “They are afraid of the precedent. Not only is Chevron afraid, 
the entire extraction industry is afraid of the precedent,” said Weyler. 
“They do not want to be held responsible for the pollution of their 
industry.”

-- 
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