Sharon Lerner details the story of how the oil company Chevron is using the US legal system to hit back against a US lawyer Steven Donziger who won a big environmental case against them in Ecuador brought by the indigenous people there whose land had been massively contaminated by the oil giant.
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.
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. 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 to smear him, and put together a legal team of hundreds of lawyers from 60 firms, 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 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.
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 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. And, as Donziger’s lawyer has pointed out, 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.
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” 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 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 and changed his story 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.”
Chevron carefully chose the charges so that Donziger’s case would not be tried by a jury but by a single judge that was Kaplan, a judge who has praised Chevron in the past saying it was “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” and who chose to believe the single witness Guerra.
This case is clearly an attempt by Chevron and big oil generally to intimidate climate change activists, using friendly judges in federal courts. This illustrates how in the US system, people with deep pockets can exploit the system to their advantage. That is how Scientology manages to retain its tax-exempt status and big corporations can avoid paying taxes and not have their executives go to jail for their wrongdoing.