I am not going to respond in depth to Professor Cassel’s recent post on Chevron’s responsibility for the “rainforest Chernobyl” caused by its predecessor’s dumping of million gallons of crude oil and billion gallons of toxic waste into the Ecuadorian rainforest. The plaintiffs’ attorneys have prepared a lengthy and thoroughly footnoted reply to his open letter; interested readers can find it here. I do, however, want to mention a couple of things.
First, I want to apologize for describing Professor Cassel as an “advocate for Chevron,” which he considers an ad hominem attack. I have to admit, I don’t understand what is ad hominem about the description; after all, Black’s Law Dictionary defines an advocate as “a person who assists, defends, pleads, or prosecutors for another.” Personally, I don’t consider “advocate” to be an epithet; I regularly referred to myself as an advocate for Radovan Karadzic, and all of my work was pro bono. But my goal was not to offend Professor Cassel.
Second, I want to thank Professor Cassel for acknowledging his relationship with Chevron in the body of his post on Opinio Juris. As I said before, I do not think that we should disregard his opinions on the case simply because he received money from Chevron to write a brief on its behalf. I was simply concerned that less-interested readers might not find Professor Cassel’s disclosure on their own, given that it came on page four of a letter to which he linked in the post.
Third, I also want to thank Professor Cassel for providing links to material supporting the majority of his claims. Unlike his previous post, which did not contain any such links, readers can now look at the underlying material and judge for themselves which of us has the better of the argument. I would note, though, that many of the links are to Chevron’s own materials and legal briefs, which is no different than what I did in my post — a practice that Professor Cassel found objectionable when I did it. I would also note that the “press statements by plaintiffs’ PR operatives” to which I linked each contained extensive links to the primary material relied upon by the plaintiffs, which allowed readers to judge the merits of the plaintiffs’ claims for themselves.
Finally, I think it’s important to remind readers that there is one reason, and one reason only, that this case was heard before an Ecuadorian court: because that is what Chevron wanted. Indeed, the company filed numerous different affidavits in U.S. federal court attesting to the fairness of the Ecuadorian court system — a system in which Chevron had often won lawsuits. Now that it has lost the case and suffered a large but eminently fair judgment against it, Chevron has suddenly discovered that the Ecuadorian court system is somehow hopelessly corrupt. A clearer case of buyers remorse is difficult to imagine. Unfortunately for Chevron, buyers remorse is not a legal defense.
Make no mistake: this is a case that pits David against Goliath. Only now Goliath is claiming that he is actually smaller than David and that David stole the slingshot he used during the fight.