Steven R. Donziger

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Steven R. Donziger (born in 1961[1]) is a Harvard-educated American lawyer, former public defender, writer, speaker and environmental activist who came to prominence representing indigenous groups and farmer communities in Ecuador's rainforest (specifically around the Lago Agrio oil field) in a case against the former oil field operator Texaco, now part of Chevron Corporation. The class action case was originally filed in 1993 on behalf of an estimated 30,000 rainforest villagers in federal court in New York, but in 2001 a U.S. federal judge moved it to Ecuador’s courts at Chevron’s request after the company accepted jurisdiction there.[2][3]

On February 14, 2011, following an eight-year environmental trial that generated a 220,000-page record, a local court in Ecuador ordered Chevron Corporation to pay $18.1 billion to the affected communities.[4] The funds were ordered to be put in a trust set up under the court order and used for a clean-up.[5] The court designated the funds to compensate the affected communities for environmental harm resulting from the abandonment of hundreds of unlined waste pits and the dumping of billions of gallons of toxic oil waste into waterways relied on by local inhabitants for their drinking water.[4] Locals call the area the “Amazon Chernobyl” and claim it is the worst oil-related disaster in the world.[6] The verdict, believed to be the largest environmental judgment ever from a trial court, was unanimously affirmed by an intermediate appellate court in 2012 and by Ecuador’s Supreme Court in 2013, but the latter court was later reduced the award too $9.5 billion by striking a punitive penalty.[7]

Following the judgment, Chevron refused to pay the award and vowed to fight the claimants “until hell freezes over”.[8] Chevron claimed it had been victimized by fraud in Ecuador including the bribery of the trial judge.[7] The appellate courts in Ecuador reviewed and rejected Chevron’s fraud allegations.[9] Donziger and his clients are now pursuing international enforcement actions in courts in Canada and Brazil to seize Chevron assets to force the company to pay the Ecuador judgment.[10] The action in Canada is the most advanced. Chevron previously had assets frozen by the villagers in Argentina, until Argentina's Supreme Court freed the assets in June 2013.[11]

In 2015, the Canada Supreme Court in a unanimous opinion rejected a Chevron jurisdictional challenge to the enforcement action and ruled that the Ecuadorians had a right to use the Ecuador judgment try to seize Chevron’s assets in that country.[10] The Canadian enforcement action is now in a trial court in Toronto where a judge will determine whether the Ecuador judgment is enforceable under Canadian law.[12] Chevron’s main defense in Canada is that the company’s assets there are held by a wholly owned subsidiary, Chevron Canada. Chevron claims that by law such assets cannot be seized; the villagers disagree and the issue is being litigated.[12]

Chevron in 2011 brought a civil RICO (Racketeer Influenced and Corrupt Organizations Act) claim against Donziger, Ecuadorian lawyer Pablo Fajardo, Ecuadorian community leader Luis Yanza, and all 47 named plaintiffs in the case in the U.S. District Court for the Southern District of New York (S.D.N.Y.).[5] Chevron sued initially Donziger and his clients for an estimated $60 billion. Chevron dropped all money damages claims on the eve of trial to avoid a jury.[13][14] During the subsequent bench trial, Judge Lewis Kaplan refused to permit the defendants to present any scientific evidence of environmental damage relied on by Ecuador’s courts to find Chevron liable.[7] Judge Kaplan issued an opinion on March 4, 2014, accepting Chevron's allegations and finding that Donziger and other members of the legal team corrupted the Ecuadorian case by submitting fraudulent evidence, coercing the judge, paying a supposedly impartial expert, paying a Colorado consulting firm to write the expert's report, falsely presenting the report as the expert's own work, bribing the judge to give a ruling against Chevron, ghostwriting the judgment, and then trying to mislead the US courts.[5] Donziger and his colleagues have rejected the allegations made by Chevron, saying they were largely the product of Kaplan’s bias and a witness to whom Chevron admitted paying $2 million and who lied on the witness stand.[15] Donziger and his colleagues also submitted evidence after the trial demonstrating the ghostwriting allegation has been contradicted by forensic evidence after an independent examination of the judge’s office computer found he saved the document that became the judgment more than 480 times prior to its issuance.[16][17] Both Judge Kaplan and the federal appellate court that reviewed the case refused to consider the new evidence that Donziger claims disproves ghostwriting.[18]

A previous ruling by Judge Kaplan to enjoin collection of the judgment in courts all over the world was reversed in 2011 by the U.S. Court of Appeals for the Second Circuit, which concluded that the New York state statute on which Kaplan's ruling was based was inapplicable.[19] Judge Kaplan's RICO ruling was affirmed by the Second Circuit in August 2016.[20] Because Donziger’s appeal necessarily challenged Kaplan’s jurisdiction and the legal bases for Kaplan’s decision, the Second Circuit did not review the correctness of Judge Kaplan’s factual findings. It also refused, without comment, Donziger’s request that it consider post-trial evidence regarding Guerra and the “ghostwriting” allegations. While Kaplan's ruling does not affect the decision of the court in Ecuador to allow the enforcement actions, it does prevent the villagers from trying to collect damages from Chevron in US courts.

Biography[edit]

Donziger graduated from American University and has a law degree from Harvard University. Before law school, he worked in Central America as a journalist for United Press International and several American newspapers, including the Christian Science Monitor, Philadelphia Inquirer, and Atlanta Constitution.[3] He also founded Project Due Process, a legal aid project that organized law students nationwide to represent Cuban detainees in immigration proceedings. At Harvard Law School friends referred to him as “Big Steve” because of his large physical stature, and he played basketball with Barack Obama, another member of the Class of 1991.[3] Since then, he worked for the Public Defender Service for the District of Columbia for two years. He was the executive director of the privately funded National Criminal Justice Commission, which in 1996 produced a book, The Real War On Crime, which Donziger edited. Donziger later worked in private practice in New York City as a criminal defense lawyer. Donziger also has spoken about is work at the Hay Literary Festival in Wales and at several prominent law schools, including Harvard, Yale_Law_School, NYU, UC Berkeley, and Duke. Donziger has worked on hundreds of cases but is most known for the pursuit of the case on behalf of the plaintiffs of Lago_Agrio_oil_field, seeking damages for environmental harm that Ecuador’s courts have found was created by Texaco.[3]

The Lago Agrio case[edit]

The Lago Agrio oild field is one of several oil fields that were exploited starting in the late 1960s by a joint venture which was ultimately 62.5% owned by Ecuador's state-owned oil company Petroecuador with a subsidiary of Texaco serving as the other owner and "operator." Texaco left Ecuador in 1992. Under a remediation agreement signed in 1994 Texaco cleaned up its share of the joint venture’s oil fields in a three-year process. The Ecuadorian government monitored and signed off on the remediation as having been properly completed in 1998. Donziger and others have claimed that this remediation effort was a "sham".[21] Petroecuador never did fully clean up its share of the oil fields.[22] Texaco was later purchased by Chevron in 2001. In 1993, some 30,000 residents of the area sued Chevron, alleging that Texaco had left behind massive damages to the environment and to human health. Donziger entered the case in 1993, initially as part of the plaintiffs' legal team. By 2003 he had emerged as the plaintiffs' principal spokesman, leading US legal counsel, and head strategist for the Ecuadoran legal team.

According to environmental activists such as chevrontoxico.com, the environmental damage in this case is so vast that it has been called the Amazonian Chernobyl.[23] The plaintiffs say that they have suffered damages including pools of toxic sludge, poisoned drinking water, uninhabitable or unusable property, and community-wide increases in birth defects and chronic illnesses such as cancers and skin lesions.

Lawsuit in Ecuador[edit]

The suit against Chevron was originally filed in US courts. Chevron-Texaco argued the case should be heard in Ecuador and agreed to abide by whatever judgment emerged from that country.[24] Chevron acquired Texaco with full knowledge of the litigation, but did not report the potential liability to its shareholders.[3] In 2001, the US court ruled in favor of Chevron that Ecuador was the proper venue.

The Ecuadorian lawyers refiled the case in Ecuador, and on February 14, 2011, a local court in Ecuador ordered Chevron Corporation to pay $18.1 billion. The award was later reduced to $9.5 billion by the Ecuador Supreme Court.[2]

Attempts to collect from Chevron[edit]

Chevron has openly refused to pay the Ecuadorian judgment in Ecuador. One Chevron spokesperson said “We’re going to fight this until Hell freezes over—and then we’ll fight it out on the ice.”[3] Presently neither Chevron nor any of its subsidiaries has substantial assets or operations in Ecuador.

Accordingly, the plaintiffs who won the judgment have sought to have it recognized and enforced against Chevron assets in other countries. The plaintiffs filed their first such enforcement action in Canada in 2012.[25] A preliminary jurisdictional issue was appealed all the way to the Supreme Court of Canada, which in September 2015 ruled in favor of the plaintiffs' ability to pursue their enforcement action in Canada.[26][27] The case was sent back to the trial court, which in January 2017 ruled that the plaintiffs could proceed against Chevron Corp., but not against its subsidiary, Chevron Canada, which technically owns all the assets in the country. The plaintiffs stated they would appeal this decision, while simultaneously pursuing recognition of the judgment against Chevron Corp.[28]

The plaintiffs have also initiated enforcement actions in Brazil and Argentina, which have moved slower. Argentine courts initially froze certain Chevron-related bank accounts while the action proceeded, but this decision was later reversed by Argentina's Supreme Court[29] -- notably, just days before Chevron announced multibillion-dollar investment in Argentina's Vaca Muerta shale "super-field".[11] In Brazil, in May 2015 the country's Attorney General issued a nonbinding recommendation that the judgment not be recognized in light of Chevron's fraud allegations.[30]

Public relations[edit]

To call public attention to the case and to put pressure on Chevron to clean up the pollution, Donziger helped his Ecuadorian clients organize a public relations campaign that garnered attention from major media outlets. His efforts included bringing plaintiffs to Manhattan to appear in their native dress in court, arranging for plaintiff to attend Chevron's annual shareholders meetings, and arranging “toxic tours” of the Lago Agrio oil fields for reporters.[31]

Partly through Donziger’s invitation, celebrities such as Trudie Styler, Sting and Daryl Hannah have publicly supported the Lago Agrio plaintiffs.

Donziger also interested the television news show 60 Minutes into doing the feature segment "Amazon crude" on the Lago Agrio case. The May 2009 broadcast, anchored by Scott Pelley, was highly critical of Chevron.

In 2005 Donziger convinced documentary filmmaker Joe Berlinger to make a film about the case. Crude debuted at the Sundance Film Festival in 2009, followed by a theatrical release.[32]

Donziger's cooperation with the filming of the documentary Crude led Chevron to ask Judge Kaplan for access to 600 hours of video outtakes that were not included in the final film. ruled for Chevron, writing that Berlinger had not acted as a neutral journalist, but as an agent for the plaintiffs, despite Berlinger's assertions that he always had final authority over the content of the film. Robert Redford called the potential negative ramifications for this decision "both shocking and profound" in its effect on the journalist community, the film world and society in general.[33] Included in the out-takes acquired by Chevron were scenes showing Donziger expressing skepticism about the reliability of the Ecuadorian courts, an independent court-appointed expert at a plaintiff lawyers' strategy meeting, and Donziger telling his environmental experts that in the end the case would be decided by whether the plaintiffs could exert the political pressure he thought necessary to neutralize Chevron’s corruption. Chevron submitted the Crude out-takes as evidence in its suit against Donziger in US federal court.[34]

Donziger testified in his own defense at the RICO trial and has adamantly denied Chevron's allegations.[35]

References[edit]

  1. ^ "Overexposed – The American Lawyer". Law.com. April 25, 2011. Retrieved July 22, 2011. 
  2. ^ a b Paul Barrett, Amazon Crusader. Chevron Pest. Fraud?, Business Week, March 9, 2011.
  3. ^ a b c d e f Patrick Radden Keefe, Reversal of Fortune, The New Yorker, Jan. 9, 2012.
  4. ^ a b Ecuador Judge Orders Chevron to Pay $9 Billion, New York Times, Feb. 14, 2011.
  5. ^ a b c Judge Lewis A. Kaplan, Opinion: Chevron Corporation v. Steven Donziger et al, US District Court for the Southern District of New York, Mar. 4, 2014.
  6. ^ Steven Donziger, Chevron’s “Amazon Chernobyl” in Ecuador: The Real Irrefutable Truths About the Company’s Toxic Dumping and Fraud, Huffington Post, May 26, 2015.
  7. ^ a b c Alexander Zaitchik, Sludge Match: Inside Chevron’s $9 Billion Legal Battle With Ecuadorean Villagers, Rolling Stone, Aug. 28, 2014.
  8. ^ Chevron vs. Ecuadorean Activists, The Global Post, May 3, 2009.
  9. ^ Chevron Appeals Pollution Ruling to Ecuador National Court, Arbitration Panel, Environmental News Service, Feb. 7, 2012.
  10. ^ a b Sean Fine, Ecuadoreans can sue Chevron in Canada, Supreme Court rules, Globe & Mail, Sep. 4, 2015.
  11. ^ a b Chevron's Argentine Shale Dream: Supreme Court Decision Paves Way For YPF Deal To Develop Vaca Muerta, Forbes (Jun. 2013)
  12. ^ a b Colin Perkel, Ecuadoreans face off against Chevron in an Ontario court, Globe and Mail, Sep. 15 ,2015.
  13. ^ Christie Smythe, Chevron’s Ecuador Defendants Denied Jury Trial by Court, Bloomberg, Oct. 7, 2013.
  14. ^ David McAfee, Chevron Axes Damages To Skirt Jury In Ecuador Ruling Row, Law360, Sep. 30, 2013.
  15. ^ Eve Hershaw, Chevron’s Star Witness Admits to Lying in the Amazon Pollution Case, Vice News, Oct. 26, 2015.
  16. ^ Adam Klasfeld, Secret Report Shoring Up $9.8B Verdict Against Chevron Unveiled, Courthouse News Service, Apr. 16, 2015.
  17. ^ Adam Klasfeld, Amazon Judge's Data Spun Before Secret Tribunal, Courthouse News Service, Mar. 31, 2015.
  18. ^ Stan Parker, 2nd Circ. Won't Revisit $8.6B Chevron Pollution Case Fraud, Law360, Oct. 28, 2016.
  19. ^ Michael Goldhaber, The Global Lawyer: Chevron's Ecuador Case Veers Off Script at Second Circuit, The AmLaw Daily, Sep. 19, 2011.
  20. ^ Patricia Hurtado and Erik Larson, Ruling Blocks $8.6 Billion Order in Ecuador Fight, Bloomberg, Aug. 8, 2016.
  21. ^ "OPINION: Donziger's Case Against Chevron, In His Own Words, Law360 (Apr. 2015)". 
  22. ^ http://fortune.com/2014/09/17/wheres-preet-the-unasked-question-in-chevron-v-donziger/ Fortune
  23. ^ "ChevronToxico". ChevronToxico. 
  24. ^ Republic of Ecuador v. ChevronTexaco Corp., 376 F. Supp. 2d 334; 2005 U.S. Dist. LEXIS 12562
  25. ^ "Chevron's Ecuador Oil Fight Comes to Canada URL, Canadian Business (Oct. 2012)". 
  26. ^ "Top Canada court: Ecuador villagers can sue Chevron in Ontario, Reuters (Sept. 2015)". 
  27. ^ "Ecuador vs. Chevron, By Way of Canada, Counter Punch (Sept. 2015)". 
  28. ^ "Canadian court issues ruling in legal battle between Ecuadorian villagers and oil giant Chevron, The Start (Jan. 2017)". 
  29. ^ "Lago Agrio: Argentine Court Freezes Chevron Assets". Letters Blogatory. 
  30. ^ "Senior Brazilian Official Backs Chevron in Oil Pollution Case, Bloomberg (May 2015)". 
  31. ^ Patrick Radden Keefe, “Reversal of fortune”, New Yorker, 9 Jan. 2012.
  32. ^ "CRUDE: The Real Price of Oil". Top Documentary Films. 
  33. ^ Redford, Robert (June 4, 2010). "Joe Berlinger vs. Chevron: Why We Must All Defend Independent Filmmaking". Huffington Post. 
  34. ^ http://archive.fortune.com/2010/09/13/news/international/chevron_ecuador_litigation.fortune/index.htm Fortune
  35. ^ "OPINION: Donziger's Case Against Chevron, In His Own Words, Law360 (Apr. 2015)". 

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