Ecuadorean Appeals Court Upholds Huge Judgment Against Chevron for Pollution in the Amazon

Ecuadorean villagers harmed by Chevron's pollution of a formerly pristine corner of the Amazon rainforest have been seeking legal redress against the company for almost two decades. Yesterday, they moved a whole lot closer to finally achieving justice, as an Ecuadorean appeals court upheld a judgement of 18 billion US dollars against Chevron.

Chevron stands accused of pollution on a truly massive scale. The victims, indigenous peoples and farmers, originally tried to challenge that pollution in Chevron's home forum, the United States, but after years of litigation, a federal court in New York accepted Chevron's argument that the case should be heard in Ecuador. So the plaintiffs filed suit in Ecuador.

And they won. Last spring, an Ecuadorean trial judge found that Chevron is liable for 18 billion US dollars in damages. 

Chevron, of course, appealed. But even prior to that ruling, Chevron, sensing they were going to lose, began claiming that the plaintiffs' case was fraudulent, and actually sued the plaintiffs and their lawyers in New York, asking among other things that the New York court bar the plaintiffs and their counsel from trying to enforce any judgment. Surprisingly, the federal district court issued just such an injunction, but it was quickly overturned on appeal

Now, as of yesterday, an Ecuadorean appeals court has upheld the judgment. This is a huge victory for the plaintiffs, not only in their legal case, but also in the court of public opinion. Chevron's mantra has been that the public should ignore the trial court judgment because it was obtained by fraud. But they made that argument in the Ecuadorean appeal as well, and although I have not yet read the entire decision, it is hard to see how the appellate court could have upheld the verdict without at least implicitly rejecting Chevron's claims of fraud. 

The fight is not over. . . .

Defending the Use of State Law to Address Human Rights Abuses

In the past two weeks we at ERI have submitted amicus briefs in three cases before the Ninth Circuit and Fourth Circuit Court of Appeals, weighing in on a legal doctrine known as “foreign affairs preemption.”  While these briefs will likely receive less attention than the two Supreme Court amicus briefs that ERI will be submitting later this week in the Kiobel and Mohamad cases, they raise key arguments with respect to the ability to use state law claims to respond to human rights abuses occurring abroad.

Both federal appeals courts are sitting “en banc” to hear these cases, meaning that unlike an ordinary appeal where only three judges decide the case, many more judges—from eleven in the Ninth Circuit to all fourteen active judges on the Fourth Circuit—will be weighing in to set a single decision for the whole Circuit. The stakes are high.

First a few words on the doctrine.  The foreign affairs preemption doctrine was created in order to protect the federal government’s control over matters of foreign policy.  When it applies, it allows a court to refrain from applying state laws that intrude upon federal prerogatives in the field of foreign policy.  Those state laws are said to be “preempted”—meaning that they are superseded by the federal interest and cannot be applied.  Foreign affairs preemption applies either when there is a “conflict” with a specific federal law, or when the entire “field” is outside of the state’s authority, because the Constitution puts in the hands of the federal government.

Now back to our amicus briefs.  First, we weighed in on the Ninth Circuit case Movsesian v. Victoria Versicherung, A.G.  That case was originally filed under a special provision of the California Code which allows for the filing of lawsuits to collect on insurance policies . . .

Spread the word: $1 will be donated to EarthRights for every Facebook fan we recruit this week

In honor of Human Rights Day, an anonymous donor has generously offered EarthRights International a creative “matching” donation: we’ll receive $1 for every Facebook Fan (“Like”) we receive through the end of the week, up to $5000!

Update: We made it!

We reached our goal of 5000 Likes and earned $5000. Thank you to everyone!

What can we do with $5000?

If we reach our goal of 5,000 Facebook fans, we’ll receive a donation of $5,000! That’s about what it costs to put one of our EarthRights School students through a full year of our training programs in Thailand!

We need your help!

Please spread this message far and wide amongst your networks.
First, Like our page and we'll receive $1:

Then share our page on your Wall so your friends can take part:

By sharing it widely, you can make a much larger impact!

Want to do more? Or are you not on Facebook?

Use the icons above and below this post to spread the word via Email, Twitter, Google+, Reddit, and any other social sharing sites you use.

This is a great opportunity to support our work without opening your wallet, so please share, share, share! With your help, we can reach our goal of 5000 fans! . . .

On International Anti-Corruption Day, Tell Senator Klobuchar Not to Weaken U.S. Anti-Bribery Laws

Today is International Anti-Corruption Day, so it seems like a great moment to think about what we can all do to assist in the fight against global corruption, which makes products more expensive and less reliable for consumers, increases business costs, and undermines governance in resource-rich countries, exacting an estimated cost of one trillion dollars annually.  As I’ll explain below, one thing we can do is contact Democratic Senators who are planning to propose legislation that could radically undermine U.S. anti-corruption efforts.

There have been lots of positive developments in the fight against global corruption, including:

  • The Department of Justice has successfully concluded a growing number enforcement actions against major international businesses that have committed bribery on a massive scale, often in countries stricken by corruption like Nigeria and Haiti.
  • Countries like Russia and China have passed strict laws against foreign bribery, increasing the probability that our competitors in those countries will be held to the same standards as those operating in the U.S.
  • The U.K. has raised the bar on anti-corruption efforts, passing laws that criminalize all forms of bribery – offical and non-official – and holding companies strictly liable for the actions of their employees.
  • International cooperation is on the increase, allowing for cross-border cooperation on an intrinsically cross-border issue.

On the other hand, however, there are worrying developments here in the U.S.  For example:

  • The U.S. Chamber of Commerce us attacking the Foreign Corrupt Practices Act (FCPA), the groundbreaking U.S. law that launched the global legislative fight against corruption.  They claim – using deeply misleading and often false evidence – that the FCPA is being enforced unfairly against businesses, is over-costly, and disadvantages American companies.  Analysis on the problems with the Chamber’s attacks has been carried out by Professors David
  • . . .

Norwegian Foreign Affairs Ministry Fails to Uphold Human Rights Guidelines on Chinese Company Linked to Shwe Pipeline Abuses

I usually think of Scandinavian countries as great examples of responsible international engagement – they’re known for protecting the environment, promoting human rights, and not tolerating corruption.  That’s why I was so disappointed with a decision coming out of the Norwegian Ministry of Finance this week.  The Ministry elevated corporate fiction and energy politics over ethical obligations this week by rejecting the findings of its own expert consultants, who recommended that Norway’s public pension fund divest from PetroChina, concluding that the Chinese oil company is linked to severe human rights abuses around Burma’s Shwe Gas Project and a crude oil pipeline under construction across the breadth of Burma.

The Government Pension Fund – Global is entrusted with investing Norway’s surplus oil income and is the first or second largest pension fund in the world, occupying 1% of global equity markets.  For almost a decade, the Fund has been charged with observing strict Ethical Guidelines that restrict the kinds of companies it can invest in.  The government has created an expert Council on Ethics, which can recommend that a firm be “excluded” from the Fund’s investment universe if it concludes that the firm violates the Ethical Guidelines.  These recommendations, which are backed up by rigorous factual research and reasoning, are made public but are not binding on the Ministry of Finance, which makes the ultimate decision on divestment.

ERI has been pushing the Council to scrutinize companies that are involved in Burmese oil and gas projects because these projects are associated with systematic human rights abuses.  ERI reports on companies like CNPC PetroChina, Total, and Daewoo that are connected to the building or operation of pipelines have concluded that a proper application of these Guidelines should lead the Council to recommend divestment.  The Council has declined . . .

Xayaburi dam, delayed again, now faces increasing opposition from Thai communities

With today's announcement that the Mekong River Commission will require further study of environmental and social impacts, the governments of the Mekong region have taken an important step toward a responsible decision on the Xayaburi dam project.

At the same time, communities in Thailand are raising their voices in opposition to the project. As noted in today's Bangkok Post, community leaders, supported by some policymakers, are recognizing that this project needs to comply with Thai environmental laws and public consultation requirements - and are preparing to file a lawsuit, if necessary, to protect their rights. After all, the electricity from the project will benefit Thailand, a Thai contractor is slated to build the dam, it is being financed by Thai banks, and the electrical transmission lines will cross Thai territory. Even if the MRC does not stop the project, Thai law may provide an important backstop to ensure that appropriate public consultation and environmental and social assessments are conducted before moving forward with the dam.

Lawyers from the Mekong Legal Network are hard at work with concerned communities, ensuring that all legal avenues on both Thai and regional levels are explored for the protection of one of the last large untamed stretches of river in the world. Today's announcement from the MRC, which comes after months of intense campaigning by local and international groups, shows how engaging legal institutions and promoting the rule of law can have immediate and tangible effects on communities – something that we in ERI have always believed in.

How many lawyers does it take...

You probably know a lawyer joke or two. It’s a profession that bears the brunt of more than its share of bad ones, usually based on the idea that the world would be better place if there weren’t quite so many lawyers walking around.

But you also probably know that, all around the world, there are lawyers who are doing work which is no laughing matter. 

A Cambodian woman grieves the destruction of her homeSo how many lawyers does it take to change a lightbulb? The question we'd rather ask, at ERI, is how many lawyers it takes to stop forced evictions of Cambodia’s poorest communities for land concessions to foreign industries? How many to curb toxic pollution in China or end the construction of destructive mega-dams in Laos? How many advocates will it take to challenge the pariah government of Burma, a regime which uses law to oppress its people and is ruthless in its attacks on individuals and communities standing in the way of its quest for profit and power.

These are just some of the issues that the lawyers of the Mekong Legal Network - a group of committed and inspirational legal professionals and civil society leaders from Burma, Cambodia, China, Laos, Thailand, and Vietnam – contend with day in and day out.

As frontline defenders of human and environmental rights, these lawyers become targets themselves, risking their livelihoods, liberty and even their lives to stand up for people and their homelands.  They put themselves in jeopardy of having their licenses to practice revoked. Laws against “incitement” mean lawyers can face criminal charges for taking up sensitive cases.  MLN laywers meeting with</body></html> . . .

Talks with Peru mine protestors break down, President Humala declares state of emergency

Last week, Benjamin blogged about the ongoing protests by communities challenging the controversial Conga mining project in the Cajamarca region of Peru. At the time, all eyes were on recently elected Peruvian President Ollanta Humala to see how he would respond to the protesters’ demands that he halt the $ 4.8 billion project—which will pose serious environmental impacts for the surrounding communities.

Late Sunday evening, Humala finally responded. But his response was not what the protestors had been seeking.

After the Administration and leaders of those opposing the project were unable to reach an agreement for resolving the protest, the President decided to take unilateral action, calling on the force of the State. In a televised address Sunday night, President Humala announced that he was declaring a sixty-day state of emergency in four provinces in the Cajamarca region, authorizing the deployment of the Peruvian armed forces to assist local police in the zone, and giving the military sweeping authority. The government, he said, had “exhausted all paths to establish dialogue as a point of departure to resolve the conflict democratically".

This measure is nothing short of extreme, and it raises serious concerns for Peru’s obligations under both international and InterAmerican human rights law. Beyond the deployment of the domestic military against its own citizens, the directive also threatens to suspend critical constitutional freedoms, such as the right to free assembly and travel, for the same 60-day period. In addition, the state of emergency may be used to justify invasive private property searches normally prohibited by the Peruvian constitution; and it could permit arrests without warrants.

This development is a worrisome one, and we will be following it closely from the ERI Amazon office. . . .

Moving Hearts and Minds and Making History in Burma

It’s times like these that I wish I had a crystal ball.  Not only because it seems like hundreds of people have called, emailed, and walked into our offices to ask us the question that’s on all of our minds:  “What is going to happen in Burma?  What does Secretary Clinton’s visit mean?” 

EarthRights has been working on human rights and environmental issues in Burma for over 15 years.  Our staff from Burma have been living Burma’s difficult history for their entire lives.  We’ve seen hopes raised and then dashed too many times to not feel a little bit gun shy this time around.  Yet in spite of the many different opinions of our staff, colleagues, friends and family members inside Burma and out, we all agree that something is happening, and change is in the air.

Hillary Clinton meets with Aung San Suu Kyi in BurmaHillary Clinton meets with Aung San Suu Kyi in Burma

Yes—the elections touted by the regime that brought to power this new leadership were terribly flawed; the military still dominates most political institutions and controls the economy; the army continues violent offensives in ethnic minority lands, with all of the concomitant human rights abuses.  Even the most optimistic agree that it will take a long time before any of what we’ve heard from Burma’s capital is felt on the ground by those who have suffered the most.  It took decades to build one of the world’s most notorious armies… those half-million soldiers won’t change their brutal ways overnight.

What we also know, in the midst of the unknown, are the fundamental preconditions to lasting change in Burma.  Speaking with Secretary Clinton today, Aung . . .

Trading Water for Gold? Communities Unite, Seeking Halt to Mining Project in Peru

The Peruvian town of Cajamarca and its neighboring communities have come to a complete halt as thousands of local residents have united in protest against a mining company’s plan to drain the communities’ principle source of water for the purposes of opening up a gold mine. 

The mining company, Minera Yanacocha, is a gold and copper mining joint venture owned primarily by Newmont Mining Corporation of Denver, Colorado, with funding from the International Finance Corporation (IFC), the private-investment arm of the World Bank Group.  It operates the largest open pit gold mine in Latin America, just 18 km outside of the town of Cajamarca, and is now looking to further expand that mine with a new project, called Conga.

It is the Conga project that is bringing the town of Cajamarca to a standstill. And rightly so.  The company’s plan for the project is to move all the water from nearby lagoons into separate reservoirs, claiming that such a task will neither threaten the communities’ access to water, nor cause irreparable damage to the environment.  Although the company prepared an Environmental Impact Assessment, and the Ministry of Energy and Mines approved it, the Minister for the Environment has thoroughly critiqued the report, finding that the project raises serious environmental objections and requires additional hydrogeological analysis. 

The potentially affected communities are not buying the company’s environmental claims either.  They have already seen the destructive forces of Yanococha’s mining operations and the company’s powerful influence in national politics.  For the communities, there is a real fear that the new Conga Project is simply more of the same, and they are taking action to stop it. 

Thousands of residents have gone on strike, and joined in massive and non-violent protests and vigils demanding that President Humala himself put a halt to the . . .