Chevron in Ecuador: Doug Cassel Responds to Kevin Jon
Heller
by Doug Cassel , March 27th, 2012
[Doug
Cassel is Professor of Law at Notre Dame Law School]
Heller’s reply misses the point of my
post, Suing Chevron in Ecuador: Do the Ends Justify
the Means? I did not ask whether Chevron is an “innocent
victim.” I asked whether the ends pursued by plaintiffs’ lawyers (environmental
remediation) justify their means (making covert payments to the court’s
“independent” expert from their “secret account,” writing his report and then
lying about it, meeting secretly with the judge in an abandoned warehouse,
etc.).
I answered, “No.” Human rights lawyers cannot
vindicate rights by trashing the rights to due process and fair trial. Doing so
undermines our moral and professional credibility.
I hold that view as a career human rights lawyer, not
(in Heller’s ad hominem) as an “advocate for Chevron.” My post
linked to my longer open letter, which made explicit
that I billed Chevron for representing it on an amicus brief, but not for the
time entailed in writing the open letter.
Heller’s “other side of Chevron” consists of
a series of erroneous, tendentious or unsupported accusations, based almost
entirely on press statements by plaintiffs’ PR operatives. In the order he
raises them:
- Chevron did not lie about environmental damage
“documented by its own internal audits.” The audits were done in 1992 and 1993, before
Chevron’s predecessor company, TexPet, conducted tens of millions of
dollars in remediation during 1995 to 1998, and well
before Chevron (which never operated in Ecuador) bought TexPet in 2001.
Plaintiffs’ own experts later conceded that significant contamination has not spread beyond the oil facilities.
- Chevron did not “fraudulently” alter a report to
its scientific consultants in order to hide “dishonest sampling
practices.” This claim was rejected as “baseless” and “fallacious” in an Open Response by the
consultants, who include professors at Rice University and the University
of California Davis. The allegation, they replied, shows that plaintiffs’
lawyers have “no understanding of how environmental investigations are
properly done.”
- Chevron did not use a “secret lab” to “hide dirty
samples.” Analyses from what plaintiffs themselves call the “NewFields
lab” were submitted to the Ecuadorian court, in reports prominently
labeled as “NewFields,” in dozens of filings beginning in 2005.
- Heller notes that two Chevron lawyers were
indicted in Ecuador for allegedly false claims about TexPet’s remediation
program. He seems not to know that the charges were later dismissed.
Nor does he note that the indictments came only after President
Correa met with plaintiffs’ lawyers and announced publicly
that anyone who signed off on the remediation should be prosecuted. Heller
is also (understandably) unaware of an email between plaintiffs’ lawyers,
obtained under court order, warning that if Chevron lawyers “get a hold of
this, it’s gonna hurt us. It’s pretty much irrefutable evidence of us
collaborating with the [public prosecutor] to get [the two lawyers]
convicted.” As a U.S. court concluded,
plaintiffs “attempt[ed] to procure criminal prosecutions for the purpose
of extracting a settlement [from Chevron].”
- Chevron’s consultants did not “misrepresent”
their studies. The letter from “leading scientists” cited by Heller was
published in 2005 – before the principal studies were
completed, andbefore both plaintiffs’
and Chevron’s experts concluded that no significant contamination had
spread beyond the oil facilities. The 2005 letter recommended that
Chevron’s consultants submit their reports to peer review by publication
in scientific journals; they have since done so (1, 2, 3). The letter also
recommended that oil companies do environmental health impact assessments.
Chevron concurs. Since 2007 its Environmental, Social and Health Impact
Assessment process “requires that all new capital projects
be evaluated for potential environmental, social and health impacts.”
- Heller asserts that Chevron “tried to bribe the
Ecuadorian government into quashing the case.” One might expect that such
an unqualified accusation would be supported by evidence. Heller cites
only a Huffington Post article –
authored by an Amazon Watch activist – which, in turn, cites only a press release by plaintiffs’ PR office which,
in turn, cites (a) the same Huffington Post article, (b) “anonymous”
Ecuadorian officials, and (c) Chevron meetings with Ecuadorian officials.
The Ecuadorian official in question rejects the accusation.
Chevron correctly points out that there is nothing wrong – quite the
contrary – with the company and the government meeting to engage in a
constructive dialogue. The company categorically denies any attempted
bribery.
- Chevron did not threaten the judge with jail time
“if he did not rule in favor of the company.” Chevron did inform the judge
of evidence of criminal conduct by plaintiffs’ lawyers and reminded him of
his obligation under article 292 of Ecuador’s criminal code,
enforceable by jail time, to report crimes to an investigating judge.
- Chevron did not try to entrap a judge into taking
bribes and then pay off the individual who offered the bribe. As plaintiffs’ own lawyer on
this issue (a former Assistant U.S. Attorney) informed his colleagues:
“Chevron is telling the truth when they claim … not to have even known
about these conversations until [the next month].”
- A Chevron attorney was indeed sanctioned for
discovery excesses in one U.S. case. But Chevron
has not been sanctioned for “vexatious lawsuits.” While its suit for
malicious prosecution against a former attorney for plaintiffs was
dismissed, the suit was understandable: in the underlying case against
Chevron, the court sanctioned plaintiffs’ attorney for a Rule 11 violation
and dismissed his clients’ claims because of their “deliberately deceptive
practices.” (1, 2)
In short, the “other side” of Chevron turns out to be
no more than a pastiche of press releases, hastily and uncritically assembled.
Surely the readers of Opinio Juris deserve better.
