Two powerful New Yorkers have been indispensable in protecting Chevron from having to pay $9.5 billion to clean up its massive oil contamination in the Amazon rainforest after an Ecuadorian court decision. The contamination was an intentional injustice that killed and injured thousands of Ecuadorians — many Indigenous people and many children.
The Ecuadorian lawsuit, first filed 25 years ago, continues to languish because Chevron refuses to pay damages while 200,000 pages of lawful evidence of contamination by Chevron and Texaco have been ignored in a New York court.
Chevron’s intent in this case always has been to turn the focus from its own wrong-doing to the criminalization and de-legitimization of the Ecuadorians and their legal system.
The brain behind this travesty of justice is Chevron, but the muscle is Judge Lewis A. Kaplan and Chevron’s attorney Randy Mastro. Together, the two New Yorkers have demonized, criticized and belittled the 30,000-plus Ecuadorians who have tried for decades to clean up their polluted rainforest.
Judge Kaplan was appointed by former President Bill Clinton and now serves as the senior judge of the United States District Court for the Southern District of New York. As for Mastro, Chevron hired him and his firm, Gibson Dunn, to rescue the oil giant from the Ecuadorian lawsuit. Mastro once worked at New York’s City Hall as a deputy mayor for his longtime pal Rudy Giuliani, who is now Trump’s personal lawyer.
Around the time an Ecuadorian court ruled against Chevron in 2011, the California-based company retaliated in Judge Kaplan’s courtroom by accusing the 47 Ecuadorian plaintiffs of fraud and bribery. Judge Kaplan heard the case and ruled in Chevron’s favor in 2014, even though no credible evidence of fraud and bribery has surfaced.
The result of their joint judicial attack on the Ecuadorians is likely to ensure big oil companies can more easily thrive at the expense of Indigenous peoples across the globe. The Business and Human Rights Resource Centre has tracked more than 450 cases of attacks against human rights defenders working on corporate accountability. Moreover, the Centre found that “the most common [attack] is judicial harassment [40 percent of cases].”
An example of such judicial harassment was found in Judge Kaplan’s courtroom during the Ecuadorian fraud and bribery trial. Judge Kaplan belittled the Ecuadorian plaintiffs, instructed Mastro to apply the Racketeer Influenced and Corrupt Organizations Act (RICO) to the case, and ultimately blessed Chevron’s argument that the Ecuadorians and their supporters are “criminals,” “liars” and “frauds.”
These Ecuadorians, however, have been working for decades to tell their story of how Texaco polluted the rainforest and how, after buying Texaco in 2000, Chevron lied about many aspects of the case, including the so-called “cleanup.” Still, protecting Chevron and Texaco have proven to be more important to Judge Kaplan and Mastro, as well as a group of legal and public relations consultants who have received and are receiving a nice chunk of change from the oil giant every month.
Taking Chevron to Trial
Ecuadorians filed the original lawsuit against the New York-based Texaco in 1993. Expensive legal footwork, paid for by Texaco and Chevron, convinced Judge Jed Rakoff with the Southern District Court of New York to move the case to Ecuador in 2003. Chevron owned Texaco completely by then and wanted the case tried in Ecuador because the company believed Texaco’s former oil industry, corporate and government connections in Ecuador would convince its courts to rule for Chevron and against the Ecuadorians.
Still, from the onset of the legal case and until 2011, the media did not shy away from telling their audiences about Texaco’s environmental assault: 1,000 unlined, toxic oil pits and 18 billion gallons of dumped wastewater into Ecuadorian rainforest streams and soil, as well as illnesses and deaths from the contamination. “60 Minutes,” The New York Times and The Washington Post joined dozens of other media outlets that laid out the evidence against Texaco and Chevron.
But immediately after the Ecuadorian court ruled against Chevron in 2011, things changed. Chevron’s higher-ups searched for a way to terrorize the Ecuadorian plaintiffs as well as their attorneys and supporters in a US court. Mastro filed a retaliatory lawsuit quickly, and Judge Kaplan allowed Mastro to say whatever he wanted about the plaintiffs’ alleged fraud, bribery and lies, and refused to allow the Ecuadorian lawyers to show damning evidence of contamination.
The alleged fraud and bribery attack came after and during three separate levels of the Ecuador court system upholding the original ruling. One appellate court even reviewed all the evidence for a second time, known as de novo review, and upheld the guilty verdict of the original Ecuador ruling.
Moreover, Judge Kaplan issued a global injunction to deny the Ecuadorians’ request to seize Chevron’s assets outside Ecuador in order to obtain the $9.5 billion damage award. The injunction was based on the fraud and bribery charges against the Ecuadorian plaintiffs. The Second District Court of Appeals reversed Judge Kaplan’s global injunction almost immediately — literally three days after appeal arguments. (Chevron removed all its assets from Ecuador so, of course, Ecuadorians are now trying to obtain the damage award by seizing it in Canada.)
The only substantive evidence ever identified by Mastro to provide a basis for the charges, and thus the global injunction, was the words of a single witness, Alberto Guerra, a former Ecuador judge barred from Ecuador’s court system long before the Chevron case. Guerra admitted in a separate legal action that he lied in Judge Kaplan’s court about the fraud and bribery charges. Chevron paid him at least $2 million and maybe more for his tainted testimony.
While no credible evidence of fraud has surfaced, it’s still worth noting that even if such claims were true, Chevron’s $9.5 billion in damages would, if paid today, go directly toward removing toxic oil and chemicals from streams and soil, and the building of a hospital. None would go directly to an Ecuadorian.
While Chevron has refused to pay for the cleanup, the company has doled out at least $2 billion to Gibson Dunn to file the retaliatory lawsuit. Sixty other law firms were hired to assist, and all of them got (and are getting) their money.
It’s also worth pointing out an additional telling fact: In 2010, Judge Kaplan presided over the notorious cases of 14 Gambino members charged with racketeering crimes in New York City. On the heels of this case, Judge Kaplan took control of Chevron’s retaliatory lawsuit against the Ecuadorians, and for all practical purposes, compared Ecuador to the Gambino Mafia and instructed the corporate “rescue squad” at Gibson Dunn to file civil racketeering charges of fraud and bribery against the plaintiffs.
Judge Kaplan, who never allowed the Ecuadorians to present contamination evidence in his court, said the Ecuadorians’ lawsuit against Chevron was nothing but a “game … dreamed up” by one of the Ecuadorians’ US attorneys, Steven Donziger. For over a decade, Chevron, with help from the New York City office of Hill & Knowlton, demonized Donziger because he was pivotal in helping the Ecuadorians win their case. Chevron, with Judge Kaplan’s help, is now going after every penny Donziger has, and seeking to disbar him.
In a hearing scheduled for June 28, Chevron has asked Judge Kaplan to hold Donziger in contempt of the fraudulent racketeering decision because he is helping his clients raise funds to pay case expenses to enforce their judgment against Chevron in other countries like Canada. The entire hearing is an exercise in harassment and judicially-sanctioned abuse of a human rights campaign.
Justice for “Little Countries”
There is no doubt Chevron is responsible for the contamination because Texaco never did its part in cleaning up the mess. After eight trips to the Ecuadorian rainforest, I have seen plenty of contamination covered up with dirt brought in by Texaco to hide the toxins. The toxins were never removed and, in fact, the new dirt encouraged Ecuadorian families to move right on top of the contamination, since they thought Texaco had cleaned its old oil pits.
Meanwhile, Judge Kaplan has once again issued his global injunction instructing the world’s courts on how to operate their court systems, and often has affirmed the biggest eye-opening statement given by a Chevron lobbyist, Wayne Berman, to Newsweek about the case in 2008.
“We can’t let little countries screw around with big companies like this –companies that have made big investments around the world,” Berman said.
These big companies make big investments in themselves and none in the people who have suffered from their profits.
Disclosure: The author is attending the June 28 hearing to provide information to supporters and reporters about Steven Donziger’s ability to raise funds needed to force Chevron to pay the damage award. Since 2013, the author has worked pro bono for the Ecuadorians’ case.