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Thu 6 May 2021

Steve Donziger faces a court case for criminal contempt after decades fighting to prove Chevron’s responsibility polluting the Amazon rainforest, reports Stephen Delahunty

US-based lawyer Steve Donziger has spent more than 600 days of house arrest after enduring what he described as a “corporate political persecution” following decades-long legal battle with the oil giant Chevron.

In 2011, Donziger and a team of Ecuadorian lawyers won a $9.5-billion verdict against Texaco, now Chevron, in a case of massive oil pollution he referred to as the “Amazon Chernobyl”. It is the largest, and arguably the most bitter, human rights and environmental court battle in history.

Since then, a series of litigations involving a US judge acting as prosecutor and jury on behalf of a massive oil company have resulted in a misdemeanor charge brought against the human rights lawyer. The charge carries a maximum sentence of six months in prison.

Donziger’s contempt charge will be heard by Judge Loretta Preska who was on the advisory board of the New York chapter of the Chevron-funded Federalist Society. The Seward & Kissel law firm – that has previously done work for Chevron – will prosecute Donziger after the US Justice Department declined to take the case. 

Despite increasing domestic and international calls for the case to be thrown out, this month Preska denied all Zoom access to Donziger’s upcoming trial in a move his lawyers said is designed to limit public access to an unparalleled one-sided case. 

Marty Garbus, the lawyer representing Donziger, condemned the move as an “obvious and transparent attempt to hide public scrutiny of a farcical proceeding with a biased judge, no jury, and a private Chevron prosecutor.”


A ‘Lifetime of Litigation’

The history of Donziger’s investigations into reports of pollution in the Lago Agrio region of northern Ecuador began in 1993 – although Texaco had been drilling in this part of the Amazon since the 1960s.

When Chevron bought Texaco in 2001, it argued the oil company had cleaned up its area of operations. Any remaining pollution, it claimed, was the responsibility of its partner Petroecuador.

However, evidence has shown that between 1964 and 1992, Texaco dumped 16 billion gallons of toxic wastewater into rivers and pits. The pollution flowed into rivers and streams used by the indigenous population for drinking water. Amazon Frontlines, a human rights group, estimates there are still 1,785 pools and 704 open pits of toxic wastes registered in the Lago Agrio region.

Judicial site inspections confirmed that the average Chevron waste pit in Ecuador contained 200 times the contamination allowed by US and world standards. This included illegal levels of metals known to damage the immune and reproductive systems and cause cancer. According to Amazon Watch, the company saved about $3 per barrel of oil by ignoring regulations, and earned an extra $5 billion over 20 years. 

Donziger travelled to Ecuador hundreds of times while building the case before the legal action eventually went to court. During the trial, Chevron stated that if the victims pursued the case, they faced a “lifetime of litigation.”

After an eight-year trial, in 2011 the court ruled that 30,000 plaintiffs – mostly farmers and indigenous people – should be awarded billions of dollars to clean up the contaminated soil and improve the region’s health facilities. 

Two Ecuadorian appeals courts confirmed the decision, and seventeen appellate judges ruled unanimously that Chevron was responsible for the pollution in an area covering 1,700-square miles. 

The historic victory was short-lived. 

Chevron claimed Donziger’s team ghost wrote a supposedly independent assessment and offered a $500,000 bribe to sway the judgment. 

Donziger denied any wrongdoing and Ecuador’s Supreme Court later affirmed the original ruling, but Chevron refused to pay and sold up all its assets in the country.

Chevron then hired law firm Gibson, Dunn & Crutcher – previously censured by England’s High Court of Justice for fabricating evidence – to file a ‘racketeering’ case against Donziger. This charge is normally reserved for prosecuting organised crime syndicates. 

Judge Kaplan at the US Court of Appeals for the Second Circuit in New York agreed to hear the case. However, on the eve of the trial Chevron dropped its financial claims which allowed Kaplan to dismiss the jury and decide the outcome himself. 

A key Chevron witness was Alberto Guerra – a former Ecuadorian judge who had historically testified that he accepted bribes

Guerra claimed that Donziger had approved a “bribe” to an Ecuadorian judge and written the final court ruling for the judge, allegedly transferred on a computer thumb drive. No corroborating evidence was ever offered. Guerra later admitted lying about these facts, proven by an investigation of his computer.

Despite this, Kaplan found Donziger conducted a “pattern of racketeering activity” which made him liable for millions of dollars in Chevron’s legal costs. 

The oil company was also granted seizure of his laptop and cellphone, which Donziger refused. 

This resulted in the current charge of ‘criminal contempt’ and Kaplan assigning the case to Judge Preska in August 2019. 

Donziger has been under house arrest since.

In a lengthy statement sent to Byline Times, a spokesman for Chevron contended that an international tribunal in 2017 had confirmed the Ecuadorian decision was “fraudulent” and he denied the company had persecuted Donziger.

However, Ecuador is appealing this particular tribunal decision. The appeal is administered by the Permanent Court of Arbitration in The Hague, in part on its findings of judicial fraud in the case. 

Ecuador’’s attorney general, Inigo Salvador, said “it worries us that the tribunal is asking a country to lift a sentence of one of its courts that was issued as part of a dispute between private parties.”


A Corporate Political Prosecution

Donziger has been unable to practice law while detained. He says his battle with Chevron has come at a huge personal, family and financial cost. 

“I never thought this could happen in the US,” Donziger said. He explained how he believes this his case is designed to give a warning and marks the opening of a new front in the war against environmental defenders. 

“This is a corporate political prosecution,” he added. His lawyers have estimated the oil giant has spent over $2 billion on 2,000 lawyers, public relations teams, and private investigators.

However, Donziger has global allies. The Law Students for Climate Accountability organised a national boycott of the firm for its willingness to “use its legal skills in the interest of high paying companies.”

More than 475 international lawyers, bar associations, and human rights advocates signed a letter criticising Kaplan’s ruling for persecuting Donziger “based on false witness testimony provided by Chevron, personal animus, and… to protect Chevron from a valid foreign court judgment.” 

The letter added: “Such arbitrary detention sets a dangerous precedent for human rights attorneys in the United States and around the world.”

They’re joined by the European Parliament, who has called for an investigation into Chevron’s and Gibson Dunn’s conduct. 

Additionally, more than 50 Nobel laureates have made their feelings clear in a letter of support for Donziger and the indigenous peoples and communities in Ecuador and their decades-long struggle for environmental justice. It states: “[Chevron’s] goal is to intimidate and disempower the victims of its pollution and a lawyer who has worked for decades on their behalf.”

Amnesty International has also called on the US justice department to conduct a criminal investigation into the oil company and Gibson Dunn’s conduct, witness bribery, and fraud in the Ecuador pollution litigation.


A Dirtier Turn

As the trial draws closer, The Daily Dot discovered last month that searches for terms related to the case on Google throw up sponsored ads by Chevron, in an attempt to bump down articles that are more favorable and sympathetic to Donziger.  

It’s also using public relations wires to help push its story, as well as an actual sock puppet Twitter account from their PR head.

A spokesman for Chevron told Byline Times that the oil giant is not involved in the contempt case. 

“Donziger has no one to blame but himself for his problems,” the spokesman said. “The court initiated the pending criminal case against him.”

Rick Friedman, Donziger’s longtime counsel, said the case illustrates the wisdom of the founding fathers in having “checks and balances” in the Government, and called on the US Justice Department to intervene and dismiss the case outright.

“The judiciary has ignored the executive branch which is ordinarily in charge of prosecutions. It has eliminated a jury, which historically has been a bulwark against judicial overreach. It is punishing a defendant before he has been convicted. If the trial does happen, it is imperative that an unbiased judge and disinterested prosecutor be assigned to the case.”

Despite his cases’ narrative turning into one of his own persecution, Donziger reminded his supporters there are ten of thousands people in Ecuador still awaiting justice for a massive environmental pollution.

His trial for criminal contempt is scheduled to begin behind closed doors next month.

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