Chevron in Ecuador: Doug Cassel Responds to Kevin Jon Heller

[Doug Cassel is Professor of Law at Notre Dame Law School]

Heller’s reply misses the point of my post, Suing Chevron in Ecuador: Do the Ends Justify the Means? I did not ask whether Chevron is an “innocent victim.” I asked whether the ends pursued by plaintiffs’ lawyers (environmental remediation) justify their means (making covert payments to the court’s “independent” expert from their “secret account,” writing his report and then lying about it, meeting secretly with the judge in an abandoned warehouse, etc.).

I answered, “No.” Human rights lawyers cannot vindicate rights by trashing the rights to due process and fair trial. Doing so undermines our moral and professional credibility.

I hold that view as a career human rights lawyer, not (in Heller’s ad hominem) as an “advocate for Chevron.” My post linked to my longer open letter, which made explicit that I billed Chevron for representing it on an amicus brief, but not for the time entailed in writing the open letter.

Heller’s “other side of Chevron” consists of a series of erroneous, tendentious or unsupported accusations, based almost entirely on press statements by plaintiffs’ PR operatives. In the order he raises them:

• Chevron did not lie about environmental damage “documented by its own internal audits.” The audits were done in 1992 and 1993, before Chevron’s predecessor company, TexPet, conducted tens of millions of dollars in remediation during 1995 to 1998, and well before Chevron (which never operated in Ecuador) bought TexPet in 2001. Plaintiffs’ own experts later conceded that significant contamination has not spread beyond the oil facilities.
• Chevron did not “fraudulently” alter a report to its scientific consultants in order to hide “dishonest sampling practices.” This claim was rejected as “baseless” and “fallacious” in an Open Response by the consultants, who include professors at Rice University and the University of California Davis. The allegation, they replied, shows that plaintiffs’ lawyers have “no understanding of how environmental investigations are properly done.”
• Chevron did not use a “secret lab” to “hide dirty samples.” Analyses from what plaintiffs themselves call the “NewFields lab” were submitted to the Ecuadorian court, in reports prominently labeled as “NewFields,” in dozens of filings beginning in 2005.
• Heller notes that two Chevron lawyers were indicted in Ecuador for allegedly false claims about TexPet’s remediation program. He seems not to know that the charges were later dismissed. Nor does he note that the indictments came only after President Correa met with plaintiffs’ lawyers and announced publicly that anyone who signed off on the remediation should be prosecuted. Heller is also (understandably) unaware of an email between plaintiffs’ lawyers, obtained under court order, warning that if Chevron lawyers “get a hold of this, it’s gonna hurt us. It’s pretty much irrefutable evidence of us collaborating with the [public prosecutor] to get [the two lawyers] convicted.” As a U.S. court concluded, plaintiffs “attempt[ed] to procure criminal prosecutions for the purpose of extracting a settlement [from Chevron].”
• Chevron’s consultants did not “misrepresent” their studies. The letter from “leading scientists” cited by Heller was published in 2005 – before the principal studies were completed, and before both plaintiffs’ and Chevron’s experts concluded that no significant contamination had spread beyond the oil facilities. The 2005 letter recommended that Chevron’s consultants submit their reports to peer review by publication in scientific journals; they have since done so (1, 2, 3). The letter also recommended that oil companies do environmental health impact assessments. Chevron concurs. Since 2007 its Environmental, Social and Health Impact Assessment process “requires that all new capital projects be evaluated for potential environmental, social and health impacts.”
• Heller asserts that Chevron “tried to bribe the Ecuadorian government into quashing the case.” One might expect that such an unqualified accusation would be supported by evidence. Heller cites only a Huffington Post article – authored by an Amazon Watch activist – which, in turn, cites only a press release by plaintiffs’ PR office which, in turn, cites (a) the same Huffington Post article, (b) “anonymous” Ecuadorian officials, and (c) Chevron meetings with Ecuadorian officials. The Ecuadorian official in question rejects the accusation. Chevron correctly points out that there is nothing wrong – quite the contrary – with the company and the government meeting to engage in a constructive dialogue. The company categorically denies any attempted bribery.
• Chevron did not threaten the judge with jail time “if he did not rule in favor of the company.” Chevron did inform the judge of evidence of criminal conduct by plaintiffs’ lawyers and reminded him of his obligation under article 292 of Ecuador’s criminal code, enforceable by jail time, to report crimes to an investigating judge.
• Chevron did not try to entrap a judge into taking bribes and then pay off the individual who offered the bribe. As plaintiffs’ own lawyer on this issue (a former Assistant U.S. Attorney) informed his colleagues: “Chevron is telling the truth when they claim … not to have even known about these conversations until [the next month].”
• A Chevron attorney was indeed sanctioned for discovery excesses in one U.S. case. But Chevron has not been sanctioned for “vexatious lawsuits.” While its suit for malicious prosecution against a former attorney for plaintiffs was dismissed, the suit was understandable: in the underlying case against Chevron, the court sanctioned plaintiffs’ attorney for a Rule 11 violation and dismissed his clients’ claims because of their “deliberately deceptive practices.” (1, 2)

In short, the “other side” of Chevron turns out to be no more than a pastiche of press releases, hastily and uncritically assembled. Surely the readers of Opinio Juris deserve better.