The Loathing of Big Oil
Lawyer Steven Donziger speaks from home confinement on Chevron’s strategy to punish those holding them accountable for environmental atrocities.
By Milan Loewer
I first saw Steven Donziger a couple of weeks ago leaning out of the seventh-floor window of his two-bedroom apartment on 104th between Broadway and Riverside. He was talking through a loudspeaker to a group of supporters who had gathered on the street below to mark the six-hundredth day of his house arrest. The maximum sentence for his alleged crime is 180 days. So how did this human rights lawyer end up confined in his home for the better part of the last two years—and in whose interest?
The story goes back over half a decade. It begins in 1964, the year that the Texaco petroleum company began building oil fields in the Lago Agrio region of northeast Ecuador. Over the next thirty years, Texaco dumped millions of gallons of toxic waste into pristine rainforests, massively polluting indigenous land. The extent of the damage remains unclear to this day, but several peer-reviewed studies have shown that the waste caused widespread cancer and other health problems in indigenous and rural communities throughout the region. In 1993, Donziger initiated a suit against Texaco. Twenty-nine years later, the case remains largely unresolved.
Seven years into the litigation, Texaco merged with Chevron. When, in 2011, Ecuadorian courts awarded the plaintiffs $18 billion (which was later reduced on appeal by the Ecuadorian Supreme Court to $9.5 billion), it was Chevron that was held liable for the damages. But rather than pay to remediate the damage they caused, Chevron launched an enormous (at least $2 billion) legal campaign against the affected communities and their representatives in an attempt to paint the judgment as a product of fraud. In the 10 years since the ruling, Chevron has specifically focused its attack on Donziger himself: Internal documents reveal that the company’s long-term strategy to deal with the fallout of the Ecuador case has been “to demonize Donziger.” To hear the Wall Street Journal tell it, Donziger has “exploited the left’s loathing of Big Oil,” supposedly in an attempt to extort Chevron for billions of dollars and personally enrich himself.
The most important part of this smear campaign has been a successful RICO (Racketeer Influenced and Corrupt Organizations Act) suit that Chevron filed against Donziger in 2011 in the Southern District of New York. Through this suit, Chevron obtained an injunction preventing the Ecuadorian plaintiffs from enforcing the Ecuadorian judgment in the US. Given that Chevron no longer has any assets in Ecuador, this injunction has been a serious roadblock to enforcing the ruling.
Chevron had two primary allegations in the RICO case. First, they alleged that Donziger had helped draft the report of a supposedly independent court-appointed expert named Diego Cabrera. It is true that Cabrera’s report detailing the environmental damage was largely written by a Colorado-based environmental consulting firm, Stratus, and the contact between Cabrera and Stratus was facilitated by Donziger’s team. However, it is not particularly unusual for an expert to outsource a significant part of their work, and Chevron was apparently up to the same tricks: A different court-appointed independent expert in the case adopted many materials wholesale, without citation, that were prepared by Chevron’s own experts. Most importantly, “Cabrera’s” report wasn’t even used as a source in drafting the final judgment; the judge had an immense quantity of other evidence to rely on, much of which Chevron had provided.
But it was the second, far more serious allegation that the judge, Lewis A. Kaplan, emphasized in his 2014 ruling in the RICO case. According to Chevron, a former Ecuadorian judge named Alberto Guerra had been bribed by Donziger to ghostwrite the decision of the presiding judge, Nicolas Zambrano. Chevron’s only evidence of this is Guerra’s own dubious testimony.
In 2011, prior to his deal with Chevron, Guerra was a low-level, corrupt judge with $146 in his bank account and thousands of dollars of debt. But his fortunes changed dramatically when Chevron relocated him to the United States at a cost of over $2 million. Once in the U.S., Chevron offered him an enormous benefits package, and coached him for at least 53 days prior to his presentation of the bribe story. But in 2015, a year after his testimony against Donziger, Guerra admitted to lying in the RICO case under oath, in front of an international tribunal. The extraordinary irony of this whole saga is that, in its effort to convince the US court that Donziger is a fraudster who obtained an unfair judgment in Ecuador, Chevron itself committed fraud.
The RICO case put Donziger’s ethics under close scrutiny; meanwhile, the court completely ignored Chevron’s unethical and illegal actions. During the case in Ecuador, Chevron set up front companies posing as independent labs to evaluate soil samples. They paid a convicted felon and drug trafficker to stage a video that purported to show bribery. They tampered with evidence and surveyed sites before a court visit to the area so that they could appear to “randomly” lift clean samples from polluted sites in the presence of the judge.
But unfortunately for Donziger, Judge Kaplan, a former tobacco industry lawyer, has used his discretion extremely selectively in an effort to protect Chevron’s financial interests. He has consistently granted nearly all of Chevron’s discovery orders—including for outtakes from a film made by Joe Berlinger about the ecocide in Ecuador and for Donziger’s personal diary. Meanwhile, he has required Chevron to share very few of its internal documents with Donziger—let alone the private diaries of its executives. The company is like a black box, and in the rare event that something escapes, it’s usually thanks to a whistleblower, not a court order.
Judge Kaplan’s injunction didn’t stop Donziger and his team from trying to enforce the judgment in other countries. But three years ago, Chevron claimed that Donziger had violated the injunction by selling around $1.2 million worth of interests in any future award that might be obtained through enforcement actions in Canada or elsewhere. Kaplan then ordered Donziger to pay Chevron over $4 million to reimburse their legal costs. Since Donziger claimed he didn’t have the money, Kaplan also ordered him to turn over his computer and cellphone for data harvesting in search of undeclared assets.
Donziger did not immediately comply, and instead appealed the order; in response, Kaplan charged him with criminal contempt. It is on this charge that Donziger has been kept on pretrial house arrest for nearly two years. No lawyer in this district convicted of criminal contempt has ever served more than 90 days, out of a maximum sentence of 180 days. Donziger has now been confined to his home for six hundred and forty-three.
In 2010, former Chevron general counsel Charles James said of the case, “We’re going to fight this until hell freezes over, and then we’ll fight it on the ice.” Whatever Chevron’s plans might be, the next chapter of this saga will unfold on May 10th at 10:45 a.m., not in hell, but at 500 Pearl St., where Judge Loretta Preska, a member of the Federalist Society, will serve as judge and jury in the criminal contempt case. Despite the forces aligned against him, Donziger faces the fire with confidence.
The Blue and White: Could you start by telling us how you got involved in the Ecuador case? What impact have Texaco/Chevron’s environmental crimes had on the communities in Lago Agrio?
Steven Donziger: This case is fundamentally about a conflict between indigenous peoples in the Amazon and a big American oil company called Chevron. Their lands had been destroyed and poisoned by years and years of systematic and deliberate dumping of toxic oil waste from the 1960s to the early 1990s, including dumping into the streams and rivers that they relied on for their drinking water, their bathing, and their fishing. This absolutely decimated five indigenous groups in the Lago Agrio area of Ecuador, which I first visited in the early 1990s. When I went, it was a harrowing scene. It looked apocalyptic. There were literally large lakes of oil in the rainforest that had been dumped there by Texaco. When the indigenous peoples complained, they were told by the engineers that oil was like milk and was rich in vitamins. There was a massive amount of abuse of the local communities in the name of greater profits. We decided to take on the case … and ultimately, after 18 years of litigation, the affected communities won.
B&W: How did Chevron react to losing the case?
SD: This was the first time in history that indigenous groups held a big oil giant accountable on this scale for massive pollution of their ancestral lands. But rather than pay the [$9.5 billion] judgment, Chevron immediately launched into an aggressive attack targeting the community leaders and their lawyers. Chevron’s general counsel threatened indigenous peoples with what he called “a lifetime of litigation” unless they dropped the case. It was a pure intimidation play. They also launched a campaign to demonize me and to use me to distract attention from their environmental crimes in Ecuador, by alleging that I was actually the one who had committed wrongdoing. They charged me with racketeering on the theory that the entire case that I worked on for 18 years at that point was an extortion racket, which is completely preposterous.
B&W: How would the existence of a jury have changed the outcome of the RICO case?
SD: A jury would have seen through it and rejected Chevron’s argument. It was obvious that this was an attempt by a giant oil company to crush the idea of human rights law using a trial based on false evidence. That’s why Chevron took it to Judge Kaplan. He has a long history of siding with the corporate sector and was a lawyer for the tobacco industry prior to his career as a judge. He also holds investments in Chevron. If you’re a corporation, you want Judge Kaplan on your case.
B&W: How did Chevron manage to get a bench trial in the RICO case?
SD: I think it was illegal to not have a jury in my case. I’m the only person ever in US history charged under civil RICO who did not get a jury. They did that by dropping damages claims. Under the Seventh Amendment to the Constitution, if there’s no money damages claimed, you don’t get a jury. And Chevron still managed to impose millions of dollars in court costs and fines on me without a jury after the trial. This was their scheme to manipulate the system—to deny me a jury, but still impose millions of dollars of monetary damages on me.
B&W: So how did a criminal contempt of court case arise from this original RICO case?
SD: Kaplan ordered me to turn over my computer and cell phone to Chevron on the theory that I, a human rights lawyer working out of a two-bedroom apartment, owed Chevron, the largest oil company in the United States, millions of dollars to reimburse them for their legal fees. Kaplan tried to use this discovery order to destroy my financial infrastructure and to bankrupt me. When I appealed the order to the appellate court in New York, Kaplan charged me with criminal contempt. But the US Attorney’s office, the regular federal prosecutor, refused to prosecute me.
After the US attorney declined to prosecute the case, Kaplan appointed a private prosecutor who works at a law firm called Seward & Kissel. [Private prosecution is incredibly rare in the United States, and is essentially a holdover from feudal English common law.] This firm has had none other than Chevron as a client. And he appointed a friend of his, Loretta Preska, as the judge in the criminal contempt case. She has denied me a jury and locked me up in my home; and, by the way, she is a member of the Federalist Society, to which Chevron is a major donor. This whole case is riddled with unethical, flagrant conflicts of interest. It should be dismissed for obvious reasons. This is a Chevron corporate prosecution of a lawyer who beat them in court. Fundamentally, I’m being prosecuted by Chevron as a way to criminalize my legitimate, successful advocacy to hold Chevron accountable for its environmental atrocities in Ecuador. They are trying to send a message to other human rights lawyers.
B&W: I really don’t understand exactly how Kaplan charged you with criminal contempt. Was it legal for him to charge you with criminal contempt during the appeal process?
SD: I don’t think it was legal to charge me with criminal contempt. What I did was not wrong. Often, lawyers [ask to be placed in civil contempt so that they can] appeal a discovery order to a higher court. This is what I did. Kaplan agreed, and I appealed. Then he charged me. No one’s ever heard of someone being charged with criminal contempt for appealing a discovery order.
B&W: So how did he get away with that? How does that work?
SD: It works because the judges, in my view, protect each other, even when they’re wrong. There’s very little public accountability of judges. It’s a lifetime appointment. There’s no functional mechanism to punish a judge or to remove a judge. So judges feel like they have all this authority, and combined with the fact our federal appellate courts are increasingly moving toward a more pro-corporate position as a result of the judicial appointments of the Trump administration, it’s hard to get a truly neutral tribunal or panel now. So judges believe they can get away with exercising their power in an abusive way. In my case, so far, Kaplan has gotten away with it, to a degree. But more and more people are noticing. So I think there is a measure of accountability, but it’s an accountability that comes partly from outside the judicial system, and ultimately, if the appellate court doesn’t stop it, he’s not going to be stopped.
“There’s a constant battle in our society over who’s going to control the resources and the political power.”
B&W: You mentioned the Federalist Society. The right has certainly been very effective in promulgating their ideology in the legal profession. But do the explanations for this prosecution go deeper than that? Kaplan, as you’ve talked about, was invested in Chevron, but it doesn't seem to me that he imagined that he would personally, financially benefit from the outcome of the case. The outcome wouldn’t substantially affect the value of those investments. Do you think these material connections go deeper than what we already know about?
SD: It’s a lot of factors. I could talk for hours. There are interests in our society that want to keep corporate profits as high as possible. Chevron is one of them; there’s some law firms; there’s also judges who agree with that philosophy. Many of them are members of the Federalist Society. On the other side, there’s people who think differently. There’s a constant battle in our society over who’s going to control the resources and the political power. I don’t condemn America or even our federal courts as a whole. I think the system is relatively good compared to most countries, but there is this little pocket here in New York that Chevron has captured.
Chevron’s running a state prosecution against the lawyer that beat them in court and secured the largest environmental judgment ever. All of this is unprecedented in US history. It’s a violation of the rule of law. It’s a violation of international law as well. But it’s happening. I can’t explain the precise reasons why it’s happening, but it’s pretty obvious that Chevron is a very powerful entity in our society. They’re very clever. They hire the best lawyers and they have concocted this scheme to lock me up so I can’t continue my work enforcing the Ecuador judgment against their assets.
But I don’t think it’s been successful. Even though I’m locked up, the case is still viable. There’s lawyers other than me working on it. There’s so many people in the world who are in solidarity with the Ecuadorians and with their lawyers. And this solidarity is partly a result of their overreach.
B&W: You just mentioned that the case is still viable. Where are you looking to enforce the judgment?
SD: Chevron has assets in over 100 countries. The Ecuadorians do not need US courts to collect the assets. Modern states have comity relationships that formally respect each other’s court decisions. But the specifics go into internal stuff. There’s a lot of countries that are viable. Lawyers are studying them to see what the best options are for the people of Ecuador. I’m not deeply involved in that at the moment.
B&W: Let’s say that, worst-case scenario, you are convicted and jailed by Preska. Do you think that would actually be in Chevron’s interest, and would the message that it would send to other lawyers outweigh all the backlash that’s bound to come?
SD: I can’t predict the future. I think there’s risks for Chevron in continuing with this strategy of overreach. More and more people realize they’re acting in a corrupt fashion. To lock a lawyer up in jail ... that would make me a political prisoner. I also think it would attract even more attention to the atrocities they committed in Ecuador. So I think there’s a lot of risk for Chevron. Chevron calculates risk one way, and I calculate another way. I don’t know how it’s going to turn out. But I don’t think Chevron management is acting in the best interests of Chevron shareholders the way they’re locking up a lawyer.
B&W: Would it be fair to say that, to an extent, these people at the top have some kind of emotional investment in your destruction, and they’re not thinking rationally from their perspective?
SD: I think it's pretty obvious they’re emotionally committed to my destruction. I never try to lose my professionalism, but I think they’ve lost their professionalism. I think they see this as a little game. They’ve deployed 60 law firms and 2,000 lawyers to destroy me, and I’m still here. The case is viable. They’re the ones who face a $9.5 billion financial risk, not me. They think somehow they can evade this judgment by continuing to attack one person, when there’s so many other lawyers working on this. I think that’s a serious miscalculation. So, yes, I do think it can be explained through this bizarre, emotional commitment to defeating me. But as with most things in the dialectical process of life, outcomes are uncertain. And there’s certainly an argument to be made that I've gotten 10 times stronger because they’ve overreached. So if they want to keep doing this, I keep going. And I have more and more support around the world; more and more support on social media platforms; more and more lawyers who support me; 20,000-plus people on our email list. I have a defense fund; I’m getting donations. We’re getting stronger. So we’ll see how it plays out.
“What’s happening to me is a sideshow.”
B&W: If the plaintiffs aren’t ever able to collect on this judgment, would you still say that this case will have had a positive impact?
SD: This case has had a hugely positive impact. It continues to do so through various means. Number one, the Ecuadorians won the case. Chevron is not used to being held accountable in court, much less by indigenous peoples, but in Ecuador, they were put through an eight year trial and they lost. That judgment, 188 pages, is now part of the historical record. It’s something that anyone can read. It has been affirmed by the Supreme Court of their country and also by the Supreme Court of Canada. Thousands of people have read it. It documents a deliberate attempt to save money by systematically dumping billions of gallons of toxic oil waste into the rainforest in a way that killed people. Secondly, the fact that they continue to spend on dozens of law firms and hundreds and hundreds of lawyers to attack me and the Ecuadorian community leaders tells you they’re feeling great risk. And third, just read the media articles. They’ve been exposed. That’s also significant accountability. Their own shareholders are holding them accountable—they’re challenging management for the mishandling of the Ecuador litigation. I would say the case is a resounding success. There’s still a way to go with this journey so the people can collect the money they need to clean up. But make no mistake about it: The affected communities in Ecuador have won the case. What’s happening to me is a sideshow. The main event is the pollution case in Ecuador. The people won and Chevron lost.
B&W: I’ve seen you talk elsewhere about various ideas for organizations that could be set up by you or by others to help fund cases like this in the future if this money is ever collected on. Can you talk a little bit about that and about what the model for human rights work might look like in the future?
SD: The possibilities to do human rights work are endless in this world. Courts are increasingly open, at least in some countries, and some international bodies, to human rights claims. I think Chevron knows it has committed significant violations around the world. Ecuador is not the only place it’s polluted. There’s a whole international movement to make ecocide a fifth atrocity crime. What Chevron did in Ecuador, frankly, is the very definition of ecocide. That could impose criminal liability on their executives. The trends for the Chevrons of the world are looking increasingly bleak. The trends for human rights are increasingly positive.
My personal situation, despite being locked up for two years on a misdemeanor with no trial, is positive. They are doing this to me because we are effective, not because we’re ineffective. If we were ineffective, they would not be spending this amount of money and taking these risks. They would ignore me. So, there’s a lot to look forward to. We’re hopeful, we’re resilient. Ultimately, the important thing is that the people of Ecuador deserve to collect on the judgment that they won.
Readers can follow Donziger on Twitter @sdonziger and Instagram @stephendonziger, and sign up for his mailing list at www.freedonziger.org. Readers can also donate to Amazon Watch, which works with communities impacted by environmental atrocities, and to Donziger’s defense fund.