The Other Side of Chevron

by Kevin Jon Heller

In his recent guest post, Doug Cassel attempts to portray Chevron as the innocent victim of illegal and unethical conduct by the lawyers for the plaintiffs harmed by its predecessor’s dumping of 16.8 million gallons of crude oil and 20 billion gallons of toxic waste into the Ecuadorian rainforest.  Cassel writes as an advocate for Chevron, so he can hardly be expected to discuss both sides of the story.  It is thus critically important to understand the reprehensible behavior that Chevron has engaged in from the earliest days of the litigation.  Here, in no particular order, are some highlights:

1. Chevron has repeatedly lied about the environmental damage caused by its dumping — damage just as repeatedly documented by its own internal audits.

2. Chevron fraudulently altered a report that they gave to their paid scientific consultants in order to hide the fact that they had engaged in dishonest sampling practices in the affected areas (deliberately sampling only areas predetermined to be clean).

3. Chevron has used a secret lab in the United States to hide dirty samples taken from the affected areas.

4. Chevron lawyers have been indicted in Ecuador for making false claims about Chevron’s fake “remediation” of affected sites — which included paying Ecuadorians to build houses on top of dirty sites so they could not be tested.

5. Chevron’s paid scientific consultants misrepresented epidemiological studies linking Chevron’s dumping of waste to health problem in the affected area.  (See this letter signed by 50 leading scientists from all over the world.)

6. Chevron has tried to bribe the Ecuadorian government into quashing the case.

7. Chevron threatened the presiding judge in the case with jail time if he did not rule in favor of the company.

8. Chevron tried to entrap a sitting judge into taking bribes, doctored videotapes that recorded the scheme, and then paid the individual involved a great deal of money to keep quiet.

9. Chevron attorneys have been sanctioned in U.S. courts for abusing the discovery process, including taking depositions in order to harass witnesses, and for filing vexatious lawsuits against lawyers for the plaintiffs and against filmmakers who have documented the damage Chevron has caused.

These examples could be multiplied indefinitely.  But I think they are enough to rebut Cassel’s attempts to portray Chevron as the innocent victim in the case.

http://opiniojuris.org/2012/03/17/the-other-side-of-chevron/

7 Responses

  1. Dear Mr. Heller,  Every one of your links in support of your allegations takes me back to a one-sided press release issued by the Amazon Defense Coalition, a defendant in the US fraud proceedings who stands to gain about $800 million under the Ecuadorian $18.2 billion judgment.  Can you cite to an unbiased source for your claims?

  2. Observer,

    Actually, two of the links are to different sources.  More importantly, though, all of the press releases on the plaintiffs’ website have extensive links to news articles and primary documents.  I encourage you to read the linked material and decide for yourself whether the claims in the post are accurate.

    I do have to ask: why did you not leave a similar comment on Cassel’s post?  He was paid to write the amicus (which, again, does not mean he’s wrong) and did not provide even one link to material supporting his claims.  Are you equally skeptical of his post?

  3. Is it true or not that (i) Chevron has conducted no drilling since 1992, (ii) that all the drilling since then and most if not all of the environmental damage has been done by the Ecuadoran state oil company, and (iii) the plaintiffs have promised not to sue the Ecuadoran state oil company?  Is it true that the plaintiffs have not provided any medical evidence of harm to individuals?  Are Cassel’s allegations about the conduct of the plaintiffs’ counsel true or not?

  4. Belated reply – been traveling.

    1.  The two weblinks that are not Amazon Defense Coalition press releases are themselves based on statements by the Amazon Defense Coalition.  Not very impressive, especially since those press releases and weblinks engage in hyperbole and intentionally omit important information.  Bad, bad.

    2.  I did not leave a message on Cassell’s post because I have been diligently reading the various filings and decisions in the SDNY fraud litigation, including the preliminary injunction decision in which the court concluded that there was a substantial likelihood Chevron would succeed on the merits of their claims of fraud.  BTW, The Second Circuit decision overturning the injunction did so on grounds that there was no statutory basis for the injunction, and expressly said they were not commenting on the merits.  Also BTW, the issue of “substantial likelihood of success on the merits of the fraud claim” is back before the SDNY in the form of a Chevron request for a pre-judgment attachment. We should all look carefully at that decision too when it comes out.  And finally BTW, the Second Circuit has rejected plaintiffs’ and Donizger’s repeated claims that the SDNY judge (Kaplan) is biased against them.

    3.  I have also read the decisions in the other district courts applying the crime/fraud exception to override the atty-client privilege of Donziger, Fajardo et al, so it isn’t just the SDNY.  And I watched the outtakes of Crude, read the information about how one plaintiff’s expert report concluded that the evidence of pollution was weak, but when that report was presented by the plaintiffs’ lawyers to the Ecuadorian court it had new pages and forged signature (not shown to the expert) reaching the opposite conclusion, and also read the deposition testimony of how the so-called independent expert’s report was written by Donziger, Fajardo and their friends (in English, no less, and then translated to Spanish for the expert to sign).  It is obvious from those materials that the plaintiffs’ original lawyers and experts committed fraud, blatant fraud.  And, yes, before reaching that personal conclusion I also read the materials to which the press releases linked.

    4.  I am nowhere near as troubled that a lawyer would accept money for participating in the preparation of an amicus brief (which is, of course, common for counsel) as I am troubled by false press releases by a so-called NGO that will get access to $800 million if they get away with fraud (and their fellow fraudsters will get over $17 billion).  And I have spent the personal time to read those materials in reaching those conclusions.

    5.  Yes, Texaco stopped ALL work in Ecuador, except remediation, in 1992 (and perhaps a little earlier – some documents say 1990).  Ecuador and Texaco later agreed the remediation was adequate.  Plaintiffs don’t talk much about that in their press releases or legal filings.  Remember my comment above about omitting important information.

    6.  Yes, the plaintiffs cut a deal to not sue Petroecuador in return for Petroecuador’s cooperation.  Neither Petroecuador nor the Republic of Ecuador deny that.  Plaintiffs avoid talking about it too, whether in their filings or in their press releases.   Remember my comment above about omitting important information. 

    7.  Plaintiffs have now withdrawn their petition before the Inter-American Human Rights Commission which led to the amicus brief from Cassell.  Funny, that.

    8.  The Amazon Defense Coalition press releases have now begun to attack Ecuador itself for negotiating a possible compromise with Chevron, and in pretty vicious terms.  Sad that the NGO doesn’t want a remediation solution here, but instead wants to control $18+ billion.

    9.  The investment treaty tribunal has three times ordered Ecuador to not cooperate in enforcing plaintiffs’ mega-billion judgment.  Those orders were unanimous, including Ecuador’s party-appointed arbitrator.

    10.  None of this means there is no environmental or health damages in Lago Agrio, or that Chevron is not responsible in part for that damage. It does mean, though, that the expert reports from plaintiffs showing the extent of such damage, and the Ecuadorian court decisions holding Chevron responsible and calculating the sums at mucho-billions, are so tainted by undeniable fraud that they are simply not helpful in deciding “who, when and how much.”  To determine the extent of pollution and healthcare problems attributable to the oil activities, and the extent to which that is properly attributable to pre-1992 Texaco or to post-1992  Petroecuador, we need real independent impartial expert evidence, not a so-called “independent expert report” ghostwritten by Donziger, Fajardo and their tame experts.

    11.  To anticipate a possible concern, when Chevron persuaded the NY federal courts to order dismissal of the original Aguinda law suit in the SDNY, in favor of the Ecuador courts, Chevron expressly (and consistent with common practice for such dismissals) reserved it rights under the NY statute covering non-enforcement of foreign judgments for, inter alia, fraud.  Same thing in the other circuit where a similar suit was also dismissed on forum non grounds around the same time [it’s late and I forget which circuit]. 

    12.  Before you ask, I have no affiliation with Texaco, Chevron, the oil biz, Chevron’s lawyers, Ecuador, the plaintiffs, etc., and I get no $$$  or other benefits from Chevron’s side of this mess (or any side, for that matter).  If you think I have neglected to deny some conflict relationship by artful choice of words, consider it denied as well.

  5. Mr./Ms. Observer: Who are you? If you hold such strong opinions, identify yourself. I am the paid U.S. spokesperson for the Ecuadorians. I have worked in Washington DC since 1987, representing a U.S. Congressman, a Cabinet Secretary, numerous trade associations representing both nonprofit and corporate interests. I have four children either in or headed to college, so I have no interest in aligning myself with a “corrupt” organization conspiring to commit fraud, as Chevron charges.  I can tell you from my four years of working on this case that the real crimes in this case are those committed by Chevron’s predecessor, which Chevron bought, and Chevron itself by manipulating evidence in the Ecuador trial and attempting to cover it up.

  6. In response to Douglas’ comment (whoever Douglas is) — We have submitted medical evidence. There are a number of health studies that have been entered into the court record. See iinks below. 

    Texaco operated the consortium the entire time. As operator, Texaco — now owned by Chevron — is responsible for the contamination. We filed the lawsuit in 1993, one year after Texaco left Ecuador.

    There is no agreement with anyone NOT to sue. Just as BP has sued Transocean and Haliburton in the Gulf Coast disaster, Chevron has the right to sue Petroecuador and, in effect, has done so through the international arbitration claim. 

    By the way, the U.S. 2nd Circuit Court of Appeals completely dismisses Chevron’s argument that it is not responsible for the contamination since it never explored for oil under its name in Ecuador. The judges stated clearly that Texaco’s liabilities are Chevron’s liabilities.

    Mr. Cassel’s charges are false, distorted, and based completely on Chevron’s press releases and legal briefs. Talk about ghost-writing — his letter/blog uses phrases directly from Chevron documents. Mr. Cassel never bothered to contact the Ecuadorians and their representatives for their side.

    Health study links:

    Incidence of Childhood Leukemia and Oil Exploitation in the Amazon Basin of Ecuador

    http://bit.ly/GEFbCA
    Exposures and cancer incidence near oil fields in the Amazon basin of Ecuador
    http://oem.bmj.com/content/58/8/517.full
    Geographical differences in cancer incidence in the Amazon basin of Ecuador in relation to residence near oil fields
    http://tinyurl.com/7mgdjgd


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  1. […] On Saturday, Doug Cassel posted on his recent experience as a paid consultant for Chevron which prompted him to write an open letter to the human rights community questioning whether the ends justify the means. The post attracted a lot of comments as well as a response by Kevin Heller. […]