Today
Sun 5 December 2021

The case of the environmental lawyer demonstrates the continuing force of the fossil fuel industry – in tandem with political interests and private courts, says Thomas Perrett

Environmental lawyer Steven Donziger has been sentenced by federal judge Loretta Preska to six months in prison after being found in contempt of court following a lawsuit enacted by multinational oil firm Chevron.

In May, Preska had found Donziger guilty of “wilfully” defying court orders by refusing to grant the court access to his computer and other electronic devices, stating that: “It seems that only the proverbial two-by-four between the eyes will instil in him any respect for the law.”

In a statement to the court, Donziger – who had been under house arrest for 787 days – said: “I have been attacked and demonised for years by Chevron in retaliation for helping Indigenous peoples in Ecuador try to do something to save their cultures, their lives, and our planet in the face of massive oil pollution. That’s the context for why we are here today.”

This is the latest instalment in an ongoing battle between Donziger and Chevron, highlighting the increasingly punitive lengths to which fossil fuel companies are prepared to go against those drawing attention to their destruction of land, settlements and homes.


A Miscarriage of Justice

The verdict against Donziger has been decades in the making. Having initially won a $9.5 billion settlement in 2011 representing the citizens of Ecuador’s Lago Agrio region – who sued Chevron for environmental damages in 1993 – Donziger was placed under house arrest and fined $3.4 million following a case in which Chevron alleged that he had bribed the Ecuadorian judge.

The lawsuit depended on the testimony of Chevron’s star witness, Alberto Guerra, the judge in the initial case, who claimed that the decision against Chevron had been ghostwritten and that Donziger had bribed him.

However, it has since been revealed that Chevron had prepped Guerra on more than 50 occasions prior to his testimony, had relocated his family to the US with a substantial stipend, and had paid him handsomely.

Moreover, Guerra has subsequently admitted to having exaggerated the truth, according to documents obtained by VICE. When directly questioned by Eric Bloom, a lawyer representing the Republic of Ecuador, about how he had strengthened his negotiating position with representatives of Chevron, Guerra responded: “I must recognise that I did exaggerate about [some things], yes.”

This decision has been widely regarded as a perversion of justice.

Attorney and Harvard Law Professor Charles Neeson was quoted in The Intercept, saying that Donziger had “effectively been convicted of bribery by the finding of a single judge in a case in which bribery wasn’t even the charge… I teach evidence; that you have to prove what you assert. But the proof in this case is the thinnest,” he said.

The judge responsible for the decision – Lewis A. Kaplan – hired a private law firm, Seward and Kessel, an organisation with deep ties to Chevron, to prosecute Donziger on the subsequent contempt of court case.

According to a motion issued on behalf of Donziger by his attorneys: “Seward is known for its expertise in the financial services industry and substantial hedge-fund practice. The firm’s clientele includes commercial banks, investment funds, institutional investors, and shipping and transport companies. Seward regularly participates in oil and gas industry conferences.”

The motion also argued that Seward and Kessel’s clients include Euronav, the world’s largest crude oil tanker operator, which has stated in public filings that its business includes chartering “vessels to leading international energy companies, such as Chevron”.

This extraordinary measure, in which a federal judge has handed prosecutorial power to a private body with a proven alignment with the fossil fuel industry, demonstrates an arguable conflict of interest.

Steven Donziger’s example is now being used to dissuade other climate activists.


The Exxon Example

Counter-suing plaintiffs bringing court cases against oil companies has become an increasingly popular tactic for the fossil fuel industry.

In recent years, a series of lawsuits have claimed that oil giant ExxonMobil, despite having been aware of the damage that climate change would cause, knowingly misled the public about the environmental implications of burning oil and gas.

Currently, the states of New York and Massachusetts are suing Exxon, as Colorado did two months ago, following the firm’s complicity in causing the Fourmile Canyon Blaze, which has destroyed 169 homes, causing $14 billion worth of damage across 14 counties.

Exxon’s tactics are similar to those used by Chevron against Donziger. It alleges that a “conspiracy” took place in La Jolla in California in 2012, when a team of lawyers and scholars met with the aim of establishing parallels between fraud cases aimed at big tobacco firms and cases against big oil.

On January 9 2018, Exxon sought testimony from several individuals involved in the meeting, aiming to establish evidence for a lawsuit alleging “civil conspiracy, and violations of ExxonMobil’s constitutional rights”.

There are parallels between this case and the ‘conspiracy’ which Chevron alleged took place between Donziger and Alberto Guerra. The oil companies have claimed that their corrupt opponents have subverted the rule of law, yet despite allegations of corruption and racketeering, it is these companies that rely on a system in which private courts act in their favour, and which allows them to curtail the democratic freedoms of their detractors.

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In light of a recent Intergovernmental Panel on Climate Change (IPCC) report – which concluded that climate change represented a “code red for humanity” and that extreme weather events such as droughts, floods and heatwaves would become increasingly common if fossil fuels were not made obsolete – the evidence implicating fossil fuel companies in the destruction of the planet is growing ever stronger.

The number of climate change litigation cases against fossil fuel companies has doubled since 2015. While some 800 cases were filed from 1986 to 2014, more than 1,000 cases have been brought in the past six years. Although the majority of these cases are still filed against governments, some plaintiffs have found success in targeting the private sector.

Environmental activist group, Friends of the Earth, for instance, won a significant victory against Royal Dutch Shell earlier this year, as the company was forced to commit to cut its emissions by 45% compared to 2019 levels by 2030.

But the Donziger case demonstrates the still-considerable force of the fossil fuel industry, in tandem with political interests and private courts – over whistleblowers, activists and lawyers. Despite the legitimacy of the basis for environmental lawsuits, there are still loopholes which companies can exploit to retaliate against those criticising them.

Environmentalists can now expect to receive a substantial backlash when litigating against the fossil fuel industry.

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