On March 3, 2010, EarthRights International (ERI) argued to the Ninth Circuit Court of Appeals that the landmark environmental and public health case brought by indigenous Peruvian Achuar and the U.S. NGO Amazon Watch against Los Angeles-based oil giant Occidental Petroleum (Oxy), Maynas Carijano v. Occidental Petroleum, should be litigated in Los Angeles, where Oxy is headquartered. The case challenges Oxy’s 30 year-old legacy of massive pollution in the northeastern Peruvian Amazon, and the appeals court will be deciding whether the oil giant will face suit in its own hometown or whether the case will move to Peru.
ERI’s Legal Director, Marco Simons, argued the appeal for the Achuar and Amazon Watch, telling the court that the Achuar came to Los Angeles after Oxy pulled out of Peru, leaving its contamination behind, and that Oxy should have no problem defending a suit in its own backyard. Judges on the three-judge Ninth Circuit panel expressed skepticism of Oxy’s motives for attempting to move the case to Peru under the doctrine of forum non conveniens (“inconvenient forum”), and asked numerous probing questions of Oxy’s counsel. “This is highly unusual, for a firm that’s headquartered here, decision-makers here, lawyers here, documents and witnesses here, to make this kind of a forum non conveniens motion,” said Judge Kim McLane Wardlaw. (Listen to an audio recording of the argument.)
Although the Achuar came to the United States because they believed that Oxy’s home was the most appropriate place to seek justice, ERI will assist them in pursuing their claims wherever they need to do so. Lily la Torre, the Peruvian indigenous rights lawyer who has been the Achuar’s legal advisor for many years, noted, “The plaintiffs are fully prepared to litigate this case, here in the U.S., or in Peru, and Oxy will be held liable for their decades of toxic contamination and for causing the Achuar people so much harm and suffering.”
Oxy’s environmental practices in Peru’s Corrientes River Basin, where the Achuar live, were extensively documented in the 2007 report, A Legacy of Harm: Occidental Petroleum in Indigenous Territory in the Peruvian Amazon, which ERI co-authored with Racimos de Ungurahui and Amazon Watch. The report found that Oxy’s contamination of the Achuar’s pristine rainforest environment has led to an epidemic of heavy metal poisoning, include lead and cadmium poisoning, among the Achuar. Other main findings of the report, which are now allegations in the lawsuit, include:
- Oxy dumped over nine billion barrels of “formation waters,” a toxic oil byproduct, directly into rivers and streams used by the Achuar for drinking, bathing, washing, and fishing – an average of 850,000 barrels per day.
- Oxy used earthen pits, prohibited by U.S. standards, to store drilling fluids, crude oil, and crude by-products. These pits, dug directly into the ground, were open, unlined, and routinely overflowed onto the ground and into surface waters, leaching into the surrounding soil and groundwater.
- Oxy’s inadequate infrastructure and poor maintenance led to numerous oil spills directly into the environment.
- Oxy violated several international rights norms – including several in the American Convention on Human Rights and the International Convention on Civil and Political Rights – in its actions on Achuar territory, including the right to life, the right to health, the right to a healthy environment, and indigenous people’s rights.
- Oxy violated Peru’s General Water Law and General Health Law, as well as environmental statutes meant to be applied in the hydrocarbon sector.
Moving the case to Peru may not serve Oxy’s interests. “When Chevron was sued for similar toxic pollution in the Amazon, they succeeded in moving the case to Ecuador,” said Atossa Soltani, Executive Director of Amazon Watch. “Now Chevron has a $27 billion damages claim in the Ecuadorian court in a decision that is likely to go against the company in the coming months. A similar protracted litigation may well afflict Oxy if the case moves to Peru.”
The Achuar case, Maynas Carijano v. Occidental Petroleum, No. CV-07-5068, was filed in May 2007. In April of 2008, Judge Philip Gutierrez of the U.S. District Court for the Central District of California ruled that the case is more appropriately heard in Peru under the legal doctrine of forum non conveniens. Along with ERI, the plaintiffs are represented by the Los Angeles firm Schonbrun DeSimone Seplow Harris & Hoffman LLP and San Francisco lawyer Natalie Bridgeman. A decision from the Ninth Circuit Court of Appeals is likely to be issued in late 2010 or 2011.