The unnecessary truth: reflections on what wasn’t told in the Chevron Ecuador RICO case

Last November, Marissa took a leave of absence from ERI to volunteer on the Chevron v. Donziger trial in support of the Ecuadorian defendants.  These are her thoughts from the case. 

Lago Agrio, Ecuador: It is a Sunday afternoon in the Sucumbíos province in Northeastern Ecuador. Donald Moncayo navigates his way across a series of floating logs at the Aguarico 4 pit. He stops and dips his hand into a thick black pool and holds it up for us to see: black crude left by Texaco’s operations. 

Each year, several dozen delegations of people come down to the Oriente region of Ecuador to participate in one of Donald’s “toxic tours.” Learning about the history of contamination from Donald is how they bear witness to one of the greatest environmental justice battles of the past century.  

I first met Donald under very different circumstances – when he traveled to New York last November to serve as a witness in the now infamous trial for the retaliatory lawsuit that Chevron brought against dozens of Ecuadorian “afectados” (affected peoples), their lawyers, and supporting scientists in an effort to collaterally attack a judgment issued against it by an Ecuadorian court for decades of deliberate contamination in the Oriente

At the time, I had taken a leave of absence from ERI to serve as a volunteer on the trial team in support of the Ecuadorian defendants – the Lago Agrio plaintiffs (the LAPs). ERI has supported justice for the LAPs at various stages, but ERI was not directly involved in the trial, and my work there was independent of my work for ERI. For several months, I worked alongside an amazing team of young volunteer human rights lawyers, a handful of plaintiff-side trial lawyers, their family members and children who volunteered as paralegals, . . .

Courage and solidarity at the EarthRights School Myanmar

A woman pulled the sliding door open, and I drove inside. I parked my motorbike, left my shoes at the door and stepped into the classroom, where everyone was seated in a large circle. This would be my first time meeting the students, a young group who had arrived in Thailand two weeks prior and had just completed their seven day orientation. They came from six different Myanmar states to join the EarthRights School Myanmar, an intensive training in campaigning and advocacy for human rights and the environment, focused on the most urgent issues in their own communities.

I’d been hearing about this group all week, having arrived in Chiang Mai just four days earlier to start my new position as ERI’s Human Rights Storyteller. I’d spent the week in meetings, learning about ERI's programs from the legal, campaigns, and training teams. Each team had briefed me on their current projects supporting the human rights and environmental movements in Myanmar and the Mekong region.

Hour by hour, I’d learned about the devastating realities that communities in these areas are facing. Wading through pages upon pages of assorted notes, scribbled diagrams, memos and legal briefs, the message was clear: there is a lot of work to be done.

So I was excited to meet this group of students who were here to expand their role in this work. Having heard all week about the corrupt governments and massive corporations they will be up against, I was impressed by the enthusiasm and optimism that flowed through the room that night.

After Billy and Nyein Tun, from the school staff, welcomed their students and our fellow colleagues to the celebration, the evening commenced with music and dances performed by the students, drawing from their own traditions but emphasizing a sense of togetherness.

. . .

Barrick Gold Using Coercive Settlement Provisions to Perpetuate Legacy of Environmental Harm

After nearly a decade of litigation over environmental devastation in the Philippines caused by Placer Dome’s mining operations (now Barrick Gold Corp.), Barrick has reportedly given the Province of Marinduque a take-it-or-leave-it settlement offer that would prohibit the Province from spending a penny to clean up the damage the company left behind.

For decades, Placer Dome operated two mines in the Province of Marinduque, during which time it intentionally dumped hundreds of millions of tons of toxic mine waste into traditional fishing areas, and catastrophic dam failures flooded rivers with toxic mine waste. Notably, Placer Dome’s long time business partner during much of that period was notorious dictator Ferdinand Marcos, until he was overthrown. The company left the island soon after a massive toxic waste spill in 1996 that rendered the Boac River “biologically dead.”

The Province sued Placer Dome in Nevada nearly a decade ago. When Barrick acquired Placer Dome in 2006, it inherited the lawsuit, along with a legacy of harms around the world.

The parties have been engaged in settlement negotiations since 2011 and significant details have surfaced about the terms of Barrick’s offer. The amount on the table is reportedly $20 million USD, which, after litigation costs and attorneys’ fees, is expected to be closer to $13 million- far less than the projected cost of cleanup.

But here’s the worst part: Barrick’s take-it-or-leave-it offer would expressly prohibit the Province from using any of the settlement fund to rehabilitate and remediate the environmental damage caused by the mine’s operations or to stabilize the dangerous mine structures abandoned by the company more than a decade ago. According to two Marinduque lawmakers who have voiced opposition to the terms, the agreement would stipulate “that the settlement proceeds can never be used for the . . .

Publish What You Pay Rebuts Industry Claims, Argues for Strong New Transparency Rule

A few months ago, the oil lobby sent a letter to the Securities and Exchange Commission (SEC), demanding that transparency requirements be watered down in the wake of a court ruling that sent mandatory disclosure regulations back to the Commission for a re-write.  Last week, the Publish What You Pay (PWYP) coalition struck back.  In a new submission to the SEC, the coalition underlines the importance of information on extractive companies’ payments to governments for investors and citizens of resource-rich countries and rebuts the industry’s arguments.

In previous posts, I’ve talked about the ways in which the American Petroleum Institute (API) has twisted facts and invented doomsday scenarios to avoid disclosing their payments to the public.  Unsurprisingly (and unapologetically), they regurgitated the same misleading arguments in their most recent submission to the SEC.  API insists that the only way to address their concerns is for the SEC to keep payment disclosures confidential, to publish only an anonymized compilation of country-level data, and to grant reporting exemptions so big, you could sneak an oil tanker through them.  PWYP’s comment puts these absurd arguments to rest.

First, PWYP shows that not only human rights groups that want these disclosures; investors are also keen to see what extractive companies pay for their natural resources.  In fact, investors with over $5.6 trillion in assets under management have come out in support of detailed, public disclosure of natural resource payments to governments.  In addition to socially responsible funds, these investors include UBS, one of the largest asset managers in the world, which clearly makes decisions based on expected returns rather than ethical considerations.  As it turns out, the interests of investors and communities converge when it comes to mandatory transparency.  Both groups have a strong desire to see . . .

Parks without people: ecotourism and conservation refugees in northern Loliondo

Masaii Community Meeting

Our recent legal action against Thomson Safaris is not only ERI's first foray into challenging the phenomenon of “conservation refugees,” it is also a case that has great personal meaning for me.

Ten years ago, before I went to law school, I traveled to a remote Northwest region of Tanzania near Serengeti National park to study the balance between conservation efforts and indigenous peoples. In the Loliondo Division, the low line where the blue sky meets the ground is broken only by the bright red shuka of a Maasai warrior.  We were unmistakably in the heart of Tanzania.  I turned on my local phone.  First message: Welcome to the United Arab Emirates.

“It’s the OBC people. They have brought their cellphone towers here,” explained a local Maasai guide. The “OBC people” were big-game hunters from the UAE who had government permission to hunt on ancestral Maasai land—land that generations of Maasai relied on for sustenance.  Permission was allegedly given without the consent of the Maasai themselves.

That was only the beginning. During my time there, I became familiar with the threats faced by the Maasai communities of SoitSambu, Monorosi and Sukenya were facing to their customary rights to use and occupy their traditional land. The irony: many of those threats came with words like “conservation” and “eco-tourism.”

According to the government of Tanzania, at least 40% of the land in Tanzania comes under some form of environmental protection. But few people realize that the world famous Serengeti National Park was established at a high cost: the eviction of the Maasai and their animals into the nearby Ngorongoro Conservation Area in the late 1950s. In the ensuing years, as increasing numbers of Westerners flock to Northwestern Tanzania on luxury safaris and tours, the Maasai herders have . . .

Renewed protests at Conga mine again result in armed police response

Campesinos gather at the Conga mine site

We’ve previously written about Newmont Mining’s proposed Conga mine in Peru, and in January we filed a legal action seeking documents from Newmont relating to violence against anti-mine protestors. On Wednesday, February 19, hundreds of mostly campesino protesters from Celendín, Bambamarca, and neighboring communities arrived at the site of the Conga project to inspect the status of the operations and to demand a halt to all activity.

According to protesters and their supporters, by late afternoon, hundreds of members of the police special forces “DINOES” arrived in mining company buses to disrupt the nonviolent protest activity. They say that police first launched insults at the protesters, and then teargas and pellets. The protesters were surrounded and forced to retreat and seek refuge in the adjacent hills. As of the time of writing, the number of those injured or detained was still unknown. Functionaries from the Regional Government for Cajamarca expressed concern for these attacks, and called for an end to police attacks aimed at impeding the right to protest.

As the protesters stated in a letter addressed to the head of Minera Yanacocha, Newmont’s Peruvian subsidiary, dated February 18, this protest action was necessary to respond to their concern about the activity at the project’s site – including the presence of heavy machinery – that threatens the water, the environment and the rights of the campesino communities that live in the area. The protesters demand the voluntary suspension of all activity and the withdrawal of heavy machinery until the legality of the Conga project is definitively resolved before national and international tribunals.

Yanacocha, for its part, claims that the project has been suspended since November 29, 2011, and while it denies that operations have resumed, it does admit that the company . . .

BusinessWeek demonstrates why it’s better for your lawyers to believe in your case

Photo courtesy of Rainforest Action Network

Yesterday, BusinessWeek picked up on Michelle’s blog post from last week highlighting the inconsistent positions taken by Gibson Dunn, the law firm that represents Chevron, on an issue that is central to Chevron’s case against attorney Steven Donziger. Paul Barrett’s article confirms that Gibson Dunn is arguing both sides of the issue, but says that this isn’t a problem because “That, for better or worse, is what lawyers do.” Perhaps unintentionally, Barrett makes a pretty strong case for why you want lawyers who believe in your case.

Barrett has done us a service in confirming that, according to Gibson Dunn, Chevron allowed their lawyers to argue against them in another case. So Gibson Dunn may not be unethical, but Chevron might be a little stupid. Barrett also conveniently overlooks the fact that Gibson Dunn is not simply taking different positions in different cases - it's arguing against Chevron's position in another case that, because it is at the Second Circuit Court of Appeals, will be binding on the lower court deciding the Chevron case.

Barrett is right that the rules allow Gibson Dunn to take a position in one case that could harm or even destroy their legal position in the Chevron v. Donziger lawsuit, as long as Chevron agrees. Doing so, however, doesn’t bolster their credibility. It’s generally more effective to convince a judge that you actually believe in the position you’re taking, not that you’ll simply “argue either way, depending on the interests of whoever is paying [your] bill,” as Barrett describes it.

As lawyers who take cases that we believe in, arguing positions that we believe are correct, my co-counsel and I don’t have to face the dilemma that Gibson Dunn faces – and we don’t face judges who are skeptical of our positions because they think we’re simply hired guns. Sure . . .

Chevron's own lawyers jeopardize fate of Chevron-Ecuador RICO lawsuit

Chevron probably isn’t too happy with Randy Mastro and the rest of its dream team at Gibson Dunn & Crutcher right now. Gibson Dunn represents Chevron in its “sue the victims” case against a group of Ecuadorian villagers and their attorneys. The Ecuadorians won a $9.5 billion judgment in Ecuador against the company for massive pollution, and Chevron retaliated by filing a law suit under the Racketeering and Corrupt Organizations Act (RICO), claiming the Ecuadorian judgment was obtained through fraud.

Last week, however, in a completely separate case, Gibson Dunn may have shot the Chevron case in the foot, arguing to the Second Circuit Court of Appeals that a private party can’t seek an injunction under RICO. This is the opposite of the argument they’ve made in Chevron’s RICO lawsuit in the district court in New York.

In that case, Chevron is seeking an injunction to prohibit the Ecuadorians from collecting on the Ecuador judgment. (The company initially sued for money damages as well, but dropped the damages claims on the eve of trial to avoid a jury trial.) Donziger and the Ecuadorians have argued that private parties like Chevron aren’t allowed to seek injunctions under RICO, while Gibson Dunn, on behalf of Chevron, has repeatedly argued the opposite. Judge Kaplan has indicated that he thinks this question is open to debate.

If it is indeed an open question, it may not be open for much longer.

Last Friday, in Sykes v. Mel Harris, Gibson Dunn urged the Second Circuit to “confirm that private RICO claims for injunctive relief fail as a matter of law” – in other words, private plaintiffs cannot seek injunctions under RICO. If Gibson Dunn wins that argument, the decision will control Chevron’s case against Donziger and will doom Chevron in the lower . . .

Cindy Cohn, our co-counsel, is awesome

The current issue of California Lawyer profiles Cindy Cohn, ERI's co-counsel and friend, and highlights her work defending privacy and challenging government surveillance for the Electronic Frontier Foundation (EFF). Cindy is a passionate defender of rights of all sorts. We first worked with Cindy on the Bowoto v. Chevron litigation; she was co-counsel on the case before she became the Legal Director of EFF, and continued working on the case until the end, even though it did not really fall within EFF's portfolio of privacy and digital rights work.

More recently, we've had the pleasure of working with Cindy and her team in challenging Chevron's subpoenas to email providers for account information of journalists, activists, lawyers, and others associated with the campaign against Chevron's legacy of contamination in Ecuador. The opportunity to work with Cindy and her colleagues at EFF was one of the reasons that we wanted to take on this fight, and we're delighted to see this profile giving recognition to the importance of her work.

Supreme Court rules that Daimler is too big to be sued

Memory Park, in Buenos Aires, is a memorial to victims of the Dirty Wars

In the Daimler AG v. Bauman decision handed down on January 14th, the U.S. Supreme Court delivered another strong blow to human rights. This one, though, was much quieter. We didn’t have to wait in line at midnight to get in to hear the arguments. The press coverage was minimal. But like so many dark horses, there’s a lot more to this decision.

The suit was brought in California by employees of DaimlerChrysler’s Buenos Aires plant who were tortured, disappeared, and killed during Argentina’s “Dirty Wars.” The victims alleged that the plant management worked with the military regime to turn over employees who they considered “subversive.” The decision did not address whether these abuses occurred, but rather whether the court in California – where Daimler did billions of dollars’ worth of business where its subsidiary Mercedes Benz USA (MBUSA) had its regional headquarters – had jurisdiction, the authority to hear the case, at all.

The big takeaway was what may be a dramatic change to the Court’s approach to “general jurisdiction,” the authority of a California court to hear a case against a defendant that has nothing to do with California. To determine whether there is general jurisdiction over a person or company, the Court has up to now used a test which looks at whether the company has  “continuous corporate operations” that are “so substantial and of such a nature” that it would be fair to sue them in that state, even for actions that did not occur there.

The Court held that Daimler could not be sued in California. While the decision itself did not come as a surprise, the majority’s reasoning was troubling, seeming to require that courts now examine not only a business’s contacts within that state, but also in comparison to its contacts in other . . .