Steven R. Donziger

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][4]

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.^[5] The funds were ordered to be put in a trust set up under the court order and used for a clean-up.^[6] 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.^[5] Locals call the area the “Amazon Chernobyl” and claim it is the worst oil-related disaster in the world.^[7] 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.^[8]

Following the judgment, Chevron refused to pay the award and vowed to fight the claimants “until hell freezes over”.^[9] Chevron claimed it had been victimized by fraud in Ecuador including the bribery of the trial judge.^[8] The appellate courts in Ecuador reviewed and rejected Chevron’s fraud allegations.^[10] 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.^[11] 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.^[12]

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.^[11] 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.^[13] 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.^[13]

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.).^[6] 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.^[14][15] 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.^[8] 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.^[6] 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.^[16] 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.^[17][18] Both Judge Kaplan and the federal appellate court that reviewed the case refused to consider the new evidence that Donziger claims disproves ghostwriting.^[19]

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.^[20] Judge Kaplan's RICO ruling was affirmed by the Second Circuit in August 2016.^[21] 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

Donziger graduated from American University and has a law degree from Harvard Law. 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 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] After law school, he worked for the Public Defender Service for the District of Columbia for two years. He then served as 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, 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, seeking damages for environmental harm that Ecuador’s courts have found was created by Texaco.^[3]

The Lago Agrio case

Background

The Lago Agrio case stems from the environmental impacts of Texaco’s production operations from 1964 to 1992 in several oil fields located a 1,500-square mile area of Ecuador’s Amazon rainforest. The oil fields were operated by Texaco under a consortium structure with Ecuador's state-owned oil company Petroecuador. Today Chevron maintains that the Texaco subsidiary in the consortium operated autonomously, while the plaintiffs in the environmental case disagree, pointing to internal memos that show local officials seeking approval from Texaco headquarters for environmental and other operational decisions.^[22]

Texaco left Ecuador in 1992, without conducting any remediation. As various authors have summarized:

No one disputes that over a 26-year span, Texaco's operations sullied the rainforest. The question is the extent of the contamination, who bears responsibility for it, and what lasting harm, if any, it has caused. Texaco dumped billions of gallons of wastewater and other potentially hazardous drilling byproducts in the Oriente, according to Ecuadorian court records. It left behind unlined containment pits of petroleum and other contaminants.^[2]

One challenge of drilling oil wells is what to do with “produced water”—a malodorous liquid, fortified with heavy metals, that comes mingled with the oil that is pumped out of the ground. In the United States, it is standard practice, once the oil has been isolated from this mixture, to “reinject” the produced water, pumping it deep underground into dedicated wells, in order to prevent damage to the local habitat. But reinjection is expensive, and in Ecuador Texaco simply dumped the liquid into swimming-pool-size pits. Produced water does not biodegrade, and when Donziger and his colleagues visited the Oriente they discovered that hundreds of oily pools pockmarked the rain forest.^[3]

Early U.S. Litigation

Donziger, then a young criminal defense attorney, together with a coalition of plaintiffs-side lawyers, human rights advocates, and legal academics, helped a handful of individuals file a class action lawsuit against Texaco in its home state of New York, demanding a clean-up on behalf of all 30,000 residents of region. For over nine years, Texaco resisted that case on the grounds that the better forum to hear the claims was Ecuador—despite prevailing concerns about corruption and the capability of Ecuador's court system to handle such a large and complex case. During that time, Texaco agreed to condict a limited remediation of a few dozen of the hundreds of abandoned waste pits, and by so doing obtained a legal release in which the government of Ecuador relinquished its right to bring further legal action.^[4] The individual plaintiffs to the Lago Agrio case maintain that the release does not affect their own private claims and say that as a practical matter, the remediation was "sham".^[23] After imposing a number of conditions, including that Chevron submit to the jurisdiction of Ecuadorian courts and waive any jurisdictional defenses, U.S. courts agreed with Chevron (which had merged with Texaco during the pendency of the litigation) and dismissed the case from U.S. courts.

Ecuador Litigation

Donziger and his colleagues promptly refiled the case in Ecuador, where it was assigned to heard in by the local court in the small oil town of Lago Agrio. Donziger began to serve a more central managerial role, in part because of his fluency in Spanish. a young Ecuadorian lawyer, Pablo Fajardo, became the plaintiffs' lead in-court lawyer.^[24] Later he, along with Luis Yanza, the local organizer behind the case from is beginning, would win the [Goldman Environmental Prize] for their efforts.

The case took over 8 years, involved the development and filing of over 100 technical environmental reports, and generated an evidentiary record of over 220,000 pages. As in the U.S., The plaintiffs claimed to have suffered grave health consequences, including skyrocketing rates of cancer, childhood leukemia, birth defects, and other ailments. A series of studies published in leading peer-reviewed journals like the [International Journal of Epidemiology] confirmed that there were statistically higher rates of cancer and other health problems in the areas affected by the oil contamination.^[25] A report prepared by experts for the plaintiffs estimated that these cancers would eventually claim the lives of nearly 10,000 people.^[26] Nonetheless, the claims in the case were collective in nature, seeking damages that would be used for collective relief in the form of clean-up and health clinics.

In February 2011, the Ecuadorian trial court issued a judgment in the plaintiffs' favor, ordering Chevron to pay roughly $9 billion in environmental and other damages, and an equivalent $9 billion figure in punitive damages. This decision was reviewed and affirmed on appeal by an intermediate appellate court, and Ecuador's highest court of direct appeal, the [Corte Suprema de Justicia (Ecuador)|National Court of Justice].^[27]

Attempts to collect from Chevron

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.^[28] 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.^[29][30] 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.^[31]

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^[32]—notably, just days before Chevron announced multibillion-dollar investment in Argentina's Vaca Muerta shale "super-field".^[12] 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.^[33]

Public relations

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.^[34]

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.^[35]

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.^[36] 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.^[37]

RICO lawsuit

Rather than wait to contest enforcement of the judgment in the courts of Canada, Argentina, or Brazil, Chevron responded to the imminent issuance of the Ecuador judgment by filing a "collateral attack" against Donziger and others in the United States.^[6] Just days before the Ecuador judgment issued, it filed a lawsuit under the RICO (Racketeer Influenced and Corrupt Organizations Act) statute against Donziger, Fajardo, Yanza, and all 47 named plaintiffs in the Ecuador case, accusing them of "fraud" and "extortion" against Chevron by maintaining their case, which Chevron claimed was a "sham."

Two years later, while the litigation was pending, Chevron added a claim that the plaintiffs' legal team had bribed the presiding trial court judge in order to be able to "ghostwrite" the judgment against Chevron. The only direct evidence for this claim came from Alberto Guerra, a former Ecuadorian judge who had been dismissed from the bench for corruption, but who claimed he was involved in the bribery and ghostwriting scheme. He came forward with his story after extensive negotiations with the corporate investigative firm Kroll Inc. on the cash and benefits he could expect in return. He ultimately received tens of thousands of dollars in cash, relocation of his entire extended family to the United States, and a range of other benefits. His account—which involved the plaintiffs' handing over the ghostwritten judgment a few days before it was issued—was later debunked by an analysis of the hard drives of the trial judge's computers, which showed that judgment was written slowly and incrementally over the course of fourth months before issuance.

At the beginning of the case, both sides demanded that it be decided by a jury. Days before trial, Chevron abruptly dropped all its "money damages" claims against Donziger, leaving only its claim for injunctive relief—i.e., a court order that Donziger and others could not "profit" from the allegedly corrupt judgment. This move allowed it to petition Judge Kaplan to overrule Donziger's demand for jury consideration and decide the case by himself.^[15] Donziger protested the move as deeply unfair given what he saw as Judge Kaplan's bias against him and favoritism toward, citing the judge's own comments from the bench, such as:

The imagination of American lawyers is just without parallel in the world. It is our one absolutely overwhelming comparative advantage against the rest of the world, apart from medicine. You know, we used to do a lot of other things. Now we cure people and we kill them with interrogatories. It’s a sad pass. But that’s where we are. And Mr. Donziger is trying to become the next big thing in fixing the balance of payments deficit. I got it from the beginning.

~

[W]e are dealing here with 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. I don’t think there is anybody in this courtroom who wants to pull his car into a gas station to fill up and finds that there isn’t any gas there because these folks [the Ecuadorians] have attached it in Singapore or wherever else [as part of enforcing their judgment].^[38]

However, Donziger's multiple attempts to force Kaplan's disqualification were rejected by Kaplan himself, and Donziger's emergency application for a writ of mandamus was denied. At trial, Donziger, who was forced to represent himself pro se for much of the RICO proceeding, was represented by a trial lawyer who had joined the case only weeks before, and assisted by a small crew of law students and recent law graduates. He testified in his own defense and has adamantly denied Chevron's allegations.^[23]

In March 2014, before the analysis of the Ecuadorian judge's hard drives was complete, Judge Lewis Kaplan of the U.S. federal district court in Manhattan issued a decision in favor of Chevron on all of its claims. Although Chevron had dropped all its damages claims against Donziger, Kaplan's order imposed a "constructive trust" on any proceeds that Donziger or the two Ecuadorian plaintiffs who had appeared (solely to contest jurisdiction) might receive in the future from any enforcement of Ecuador environmental judgment. (Chevron also promptly threatened to force Donziger to pay for $32 million of its legal fees related to the case.)

Kaplan's decision was appealed to the United States Court of Appeals for the Second Circuit, which affirmed. It remains unclear what influence the decision will have on the ongoing enforcement efforts in Canada, Argentina, and Brazil. Chevron argues that Kaplan's decision should be given "persuasive" weight because of its detailed "factual findings." Donziger argues that the entire RICO case was an improper collateral attack and biased from the beginning.

References

External links

• Steven Donziger website
• ChevronToxico website, critics of Chevron
• Chevron website, pages on the Ecuador litigation