The Dubious Lawsuit against Chevron in Ecuador - Part 1
Posted by Gail the Actuary on June 15, 2009 - 9:50am
Tags: amazon, amazon defense coalition, amazon defense front, amazon lawsuit, chevron, cnn hero, ecuador, goldman environmental prize, pablo fajardo, texaco [list all tags]
[Editor's note by Super G] The Oil Drum staff consists of a diverse set of voices. The story that follows is one staff member's perspective. Other perspectives on this case may be posted in the future.
Recently, a fraudulent lawsuit against Dole was dismissed. According to the WSJ,
Court cases get dismissed all the time, but rarely are dismissals as significant as the two lawsuits against Dole Food and other companies that were tossed recently by a California judge. Among other good things, the ruling is a setback for tort lawyers who troll abroad seeking dubious claims to bring in U.S. courts.
The allegations against Dole, the world's largest fruit and vegetable producer, involved banana plantation workers in Nicaragua who alleged that exposure to the pesticide DBPC in the 1970s left them sterile. The only problem is that most of the plaintiffs had not worked at plantations and weren't sterile. In fact, there's no evidence that farm workers at Dole facilities were exposed to harmful levels of the chemical -- which was legal and widely used at the time -- or that the level of exposure they did experience even causes sterility.
I recently visited Ecuador, as a guest of Chevron. Based on what I learned during that visit, it seems to me that the suit against Chevron has a fair number of similarities to the Dole suit. In this post, I will explain why I think the Chevron case is as dubious as the Dole case.
The Chevron case has gotten widespread publicity in the US, as a result of publicity by the Amazon Defense Front, or, as it is known in the US, the Amazon Defense Coalition. If the plaintiffs win the case, the Amazon Defense Coalition (ADC) will be the recipients of any monies awarded. This is a photo of members of the ADC, assisting the allegedly "independent expert" in gathering soil samples for testing for the court. The independent expert is not in the photo shown below, although he is present in others in the series.
It seems to me that the Amazon lawsuit is filled with myths, misunderstandings, and out-and-out lies. Here are a few I have run across.
It is certainly true that Pablo Fajardo is a lawyer for the case. Pablo Fajardo became a lawyer in 2004 after completing a correspondence law degree, and this is his first case ever. The question is whether he is really has been "spearheading the legal team for the plaintiffs for several years" as the article describing the Goldman award says, or is just a puppet, with other more experienced lawyers really in charge.
Who would these other lawyers be? The original lawyer when a similar case was brought in the US in 1993 was Cristóbal Bonifaz, a native Ecuadorian whose grandfather was president of the country in the 1930s. He is no longer on the case, but he was one of the leading lawyers when the case was first filed against Chevron in Ecuador in May 2003.
Another lawyer for the plaintiffs is Steven Donziger of New York. In a recent letter to the Econmist Magazine, he bills himself as "Lawyer representing Amazonian communities in legal action against Chevron". He has also been involved with the current suit in Ecuador since it was filed in 2003.
So, in 2007, which is about the time when Fajardo was getting these awards, Kohn, Swift & Graf considered themselves "one of the lead plaintiffs' council" in the Amazon litigation.
We find others involved in the case as well. According to a July 2008 Newsweek article:
Just recently, Donziger and other trial lawyers in the case retained their own high-profile D.C. superlobbyist, Ben Barnes, a major Democratic fund-raiser. And they have tapped a capital connection that may pay off even more. Roughly two years ago, when Donziger first got wind that Chevron might take its case to Washington, he went to see Obama. The two were basketball buddies at Harvard Law School. In several meetings in Obama's office, Donziger showed his old friend graphic photos of toxic oil pits and runoffs. He also argued strongly that Chevron was trying to subvert the "rule of law" by doing an end run on an Ecuadoran legal case. Obama was "offended by that," said Donziger.
So there seem to be all kinds of high-profile folks involved in the case. We know that Ben Barnes is being paid by Kohn, Swift, & Graf, because his lobbying registration indicates that that is his employer.
Was Fajardo, on his first case after completing correspondence school for a law degree in 2004, really in charge? Maybe, maybe not.
Myth 2. The death of Pablo Fajardo's brother in 2004 was in some way connected to Texaco or Chevron.
These are a couple of typical quotes:
"In my case, in 2004 when we were starting the case, one of my brothers was killed. I cannot say Texaco is to be blamed for this, and neither can I say the opposite. This was never investigated. There have been a lot of things, a lot of pressure and persecution.” -- Pablo Fajardo, Ecuador TV, April 22, 2008
Fajardo affirmed that “in these 15 years we have received a lot of pressure, starting with threatening phone calls, and campaigns to damage the professional reputation of experts defending the FEDAM’S cause. Undoubtedly the most dramatic experience of these clashes is the death of Pablo Fajardo’s brother eight days prior to the beginning of the oral proceedings in this case. “I cannot prove Texaco was behind this, but the truth is my brother was killed,” said Fajardo. – Europa Press (Zaragoza), September 3, 2008
The death of Pablo's brother Wilson Fajardo most certainly has been investigated. There is no evidence whatsoever that Texaco was involved. Instead, it seems to an "execution" by FARC, related to drugs and the theft of "white gasoline" from pipelines for use in cocaine preparation. His brother was tortured and shot in the head at close range.
This is the complaint filed by Pablo Fajardo with the police at the time of his brother's death. At no point in the complaint does he mention Texaco. Instead, he asks that the friends who his brother had been drinking with that night be taken into protective custody.
This is an editorial from El Commercio talking about the 20 FARC deaths by hired assassins in the past year, which mentions Wilson Fajardo. He was a journalist working for Radio Ecuador, and seems to have offended FARC by talking about the link between drug trafficking and the theft of white gasoline.
There are numerous other documents available with respect to this case. These are a few (1, 2, 3, 4, 5, and 6 ). There are additional documents that are too large to be loaded on this server, including the forensics report, the police report, and the prosecutors' report. E-mail me at Gail Tverberg at comcast dot net if you would like these.
Myth 3. Chevron or Texaco has been harassing or intimidating Pablo Fajardo through threatening phone calls and break-ins to their office.
If the story of the death of Pablo's brother could be worked into an endless anti-Texaco publicity stunt, why not carry the whole process one step further? Accuse Texaco of threatening phone calls and break-ins. No one would ever be able to check these out. Letters to high level human rights organizations would be particularly impressive. According to an email I received from a contract at Chevron:
It is the same with their other public accusations [besides Wilson Fajardo death], which include attempted kidnapping and robbery, throughout this trial. In fact, in many of those purported cases they have not bothered to file police complaints, so there is actually no investigation. Instead, they have gone to the media or to international human rights groups with the sole intention of making false accusations to create the appearance of persecution without actually enduring any persecution whatsoever.
In each case that has been investigated you will find enormous holes. The robbery of computers, which they initialy blamed on Chevron personnel, were carried out by members of the FDA against their own technical team because their expert refused to submit a false report during the Judicial Inspections. The alleged "kidnapping" attempt against one of their family members was in fact a botched buglary attempt completely unrelated to the case, according to police who later investigated the incident. In this case, there actually was an investigation and we have the police report we can show you. Again, no mention of Chevron or anyone associated with Chevron.
While I don't have direct evidence to show that all of these allegations are false, I think one should categorize the statements regarding harassment as myths, unless Fajardo or the ADC can produce evidence to back them up.
Why would Pablo Fajardo and the ADC be so eager for favorable publicity? I think at least part of the reason is because they want the public to donate to their cause. They are collecting donations on their US web site. They are even offering tax receipts, suggesting that their activity is sanctioned by US tax officials. I wonder where their money is really going (pay US lawyers, pay US lobbyists, pay to "educate" journalists on their story, pay the "unbiased expert" in Ecuador), and who is auditing it. The ADC is a Non-Government Organization based in Ecuador.
Myth 4. When Texaco came to Ecuador, it had a huge negative impact on the lives of the people of Ecuador.
Texaco was granted a concession to look for and develop oil in Ecuador in 1964. Its first discovery of oil was in 1967, and oil began flowing about 1970.
Figure 3 gives show the history of oil production in Ecuador. Texaco (or really Texaco's subsidiary Texaco Petroleum, abbreviated "TexPet") started oil production about 1970, and by 1973 had ramped production up to the production plateau of about 200,000 bpd for the particular fields it developed. By 1976, the government of Ecuador through its company Petroecuador had taken over 62.5% owner of the consortium, and TexPet became minority owner with 37.5% ownership. In 1990, Petroecuador became the lead operator, and by 1992 TexPet was completely out. Thus, TexPet's influence was greatest in the "blue" period, declining in the "red" period, and out by the "green" period.
So how did the people of Ecuador fare when TexPet began production?
Figure 4 shows an areal photograph of one of the well sites, taken in 1975, after production was ramped up by TexPet. As one can see, the footprint is very small. The surrounding land is still virgin forest. It is hard to see why the infrastructure by itself would have had huge impact on Indians living nearby.
Figure 5 shows the same area, after the government of Ecuador completed its community resettlement plan. Families were given 50 hectacre (124 acre) plots to farm, with the requirement that they clear the trees on at least half of the land. The families moving to this land were farmers, not workers in petroleum fields. This activity was much more disruptive to native peoples than the oil drilling.
Life expectancies have risen dramatically over the years, and are now very close to US life expectancies. According to IndexMundi, the 2008 life expectancy at birth is estimated to be 76.81 years. The corresponding US life expectancy is 78.14 years.
If one looks back, there has been a huge improvement in life expectancy. According to Globalis, the life expectancy for men in Ecuador was 50.1 years in 1960; 55.4 in 1970; 59.7 in 1980 and 64.7 in 1990. If oil production was having a terribly detrimental impact on life expectancy, it is hard to see it from the data.
Myth 5. The pits shown on television and featured in magazine articles are Chevron's responsibility to remediate.
ADC has been taking reporters on tours and giving them the impression that the pits they are showing them are Chevron's responsibility to clean up. In every instance I am aware of, the pits that have been shown are those that are Petroecuador's responsibility to clean up, rather than the responsibility of Chevron.
On the map above, the wells drilled prior to 1990 are shown in brown; the wells drilled subsequent to 1990 are shown in green. Since Chevron and TexPet had nothing whatsoever to do with the wells drilled since 1990--the green dots--there is no way the pits associated with these wells are Chevron's responsibility.
With respect to the pits associated with the brown dots, a Remediation Action Plan was developed in 1995, overseen by Petroecuador and the Republic of Ecuador. TexPet was assigned its share of the pits (about 37.5%, based on its participation in the consortium). TexPet remediated the pits it was assigned. The remediation of these pits took three years (1995 to 1998) and cost $40 million. Each of the pits was signed off individually. When the overall group was completed, TexPet was given a document releasing it from further liability. This is an English-language version of the document--the Spanish version was what was actually signed.
Petroecuador was still using many of the pits it was assigned, so elected not to clean them up at that time. It has since started the clean-up. Petorecuador posted this advertisement in a newspaper 2006, indicating it was looking for workers to work on its assigned brown dot sites.
When I was visiting in Ecuador, I had the opportunity to see a number of pits--some cleaned up by TexPet and some assigned to Petroecuador. The sites that TexPet had cleaned up were pretty much invisible.
Figure 8 shows one site which had been cleaned up, and now had cattle grazing on it. We saw others as well--one pit was remediated to a palm oil plantation and another had been remediated back to rain forest. The type of remediation for each pit was determined by the needs of land owners. Without geographical coordinates to tell where the pits had been there, it would have been impossible to detect where the former pits had been.
We also had the opportunity to see an unremediated pit that dated from 1990. It was a site that had been assigned to Petroecuador to clean up. Petroecuador had chosen not to continue using the site, but had also failed to clean it up. In the 19 years since 1990, any volatile hydrocarbons had long since vaporized. What was left looked very much like asphalt. We threw a large stone so it hit the surface. It simply landed on top of the asphalt-like substance. We did not try to walk on it because we did not have boots, and did not know if there would be a spot that would not hold our weight and would have water underneath. We heard that others had walked on top.
Clearly neither of these types of sites would be helpful to the cause of the ADC for showing journalists. So what did the ADC do? It found pits that Petroecudor had been using more recently, and had not cleaned up. The journalists didn't know any better, and fell for their story. That is why one sees all of the photos of yukky looking Petroecuador pits in all of the journal articles and television articles about the lawsuit against Chevron. I expect the photos Ben Barnes showed Obama were also of recently used Petroecuador pits, that he represented as Chevron's responsibility to clean up.
We also stopped and talked to Petroecuador workers at a site they were cleaning up. We asked them questions about how far out from the pit it was necessary to dig to get all the hydrocarbons, and about their general technique. Everything we were told indicated that they were using exactly the same clean-up technique that TexPet had used in 1995 to 1998, that ADC is now criticizing.
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I will have to finish the rest of the story later. There is at least this much more to tell, but the post is getting too long, and web page would never open if I kept adding graphics to this page.