August 23, 2017

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Civil Society Groups Ask U.S. Supreme Court to Reject Chevron's Attempts to Undermine Amazon Pollution Case

Supreme Court Presented With Evidence of Chevron's Bribery, Intimidation and Retaliation Against Civil Society Groups and Indigenous Communities

Submitted by: Amazon Watch

Categories: Environment, Human Rights

Posted: May 01, 2017 – 03:09 PM EST

 

OAKLAND, Calif., May 01 /CSRwire/ - Several prominent environmental and human rights groups are demanding that the U.S. Supreme Court block Chevron's ongoing attacks on their Free Speech rights and its use of false evidence in the historic Ecuador pollution case, where the oil giant faces the largest environmental judgment ever after admitting that it dumped billions of gallons of toxic waste into the rainforest.

Seventeen separate environmental and human rights groups filed two amicus briefs today urging the justices to overturn Chevron's retaliatory racketeering suit against Ecuadorian Amazonian communities and their lawyers. The briefs seek a reversal of an unprecedented lower court ruling, issued by federal judge Lewis A. Kaplan, that allowed Chevron to use U.S. courts to personally sue the villagers, their lawyers, and also Ecuador's entire judicial system to try block a legitimate $9.5 billion environmental judgment issued in the South American nation after the oil giant insisted the environmental trial be held there.

"It is imperative that the Supreme Court take action to stop what might be one of the most disturbing abuses of our civil justice system in history," said Paul Paz y Miño, Associate Director at Amazon Watch, another organization that signed on to one of the briefs. "To avoid compensating its victims in Ecuador, Chevron bribed a witness, fabricated evidence, and committed crimes and fraud before a U.S. court."

"Corporate accountability advocates must not be at risk from legal action from U.S. corporations simply for expressing their First Amendment rights of free speech," said Erich Pica, President of Friends of the Earth, U.S. "As it stands this decision endangers the very foundation of human rights and environmental advocacy. That is why Friends of the Earth has filed this brief along with others in the environmental and human rights community." 

Groups signing on to the briefs also include: 350 Bay Area, Center for Environmental Health, CT Citizens Action Group, Food and Water Watch, Global Exchange, The Global Initiative for Economic, Social and Cultural Rights, Greenaction for Health and Environmental Justice, The International Accountability Project, Justice in Nigeria Now!, Marin Interfaith Task Force on the Americas, Media Alliance, Pachamama Alliance, Rights Action, and the Sunflower Alliance.

The environmental judgment against Chevron, handed down in 2011 and affirmed unanimously by Ecuador's Supreme Court in 2013, imposed a $9.5 billion liability on the company after it admitted discharging an estimated sixteen billion gallons of toxic oil waste into the territories and waterways of indigenous and farmer communities. The case took place in Ecuador after Chevron filed fourteen sworn affidavits before a separate U.S. federal judge, where the case was originally filed, praising that country's court system.

Chevron, which operated in Ecuador under the Texaco brand from 1964 to 1992, never cleaned up its pollution which continues to contaminate groundwater and rivers relied on by local communities for their drinking water and fishing, according to the Ecuadorian courts. Many independent studies have demonstrated cancer rates and other health problems in the affected area have skyrocketed, causing numerous deaths among the local population.

Seeking to escape its cleanup responsibility and end growing international outrage from the environmental and human rights community, Chevron embarked on a multi-million dollar legal assault designed to intimidate and suppress anyone who continued to speak out about its actions in Ecuador. The effort was presumably part of the strategy revealed by internal Chevron memos from 2009 recommending the oil giant "demonize Donziger", the lead U.S. lawyer working on the Ecuadorians' behalf. The suit, filed under the Racketeer Influenced and Corrupt Organizations (RICO) Act, also named multiple environmental organizations, journalists, bloggers, and Chevron shareholders as "non-party co-conspirators" in an effort to subpoena thousands of documents and force these groups and individuals to secure legal counsel. The RICO trial itself, labelled a "Mockery of Justice" by the Ecuadorian legal team and described as "Dickensian farce" by prominent attorney John Keker of Keker and Van Nest, LLC, prohibited evidence of the actual contamination in Ecuador and was conducted without a jury despite the requests by the Ecuadorian defendants to assign one.

The first brief filed today, prepared by the San Francisco firm of Gross & Belsky P.C. and signed by Friends of the Earth, Food and Water Watch, Global Exchange, and a dozen other human rights organizations, affirms that the initial ruling by Federal Judge Lewis Kaplan tramples the First Amendment rights of U.S. citizens who dare to speak out against human rights abuses, environmental destruction and corporate misdeeds: 

If upheld, the opinions below will exert a chilling effect on such activities. Participants in public discourse will face the possibility of incurring crushing defense costs and possible liability if they act in coordination with someone later found to have engaged in illegal activities or to have issued false statements. The cost of defending against even non-meritorious RICO charges imposes a formidable deterrent to advocating positions adverse to deep-pocketed interests. 

The second brief, filed by Amazon Watch and Rainforest Action Network and prepared by lawyers at the environmental group Earth Rights International, details extensive evidence that Chevron committed corrupt and illegal actions in Ecuador and during Kaplan's RICO proceeding.

Chevron's RICO case, based largely on factual findings that the villagers and their counsel bribed the Ecuador trial judge, has completely collapsed since the trial ended. Chevron's main witness who testified about the supposed bribe, Alberto Guerra, admitted he had lied on the stand while a separate forensic analysis proves the trial court judgment was not "ghostwritten" as Kaplan had found based on Guerra's testimony. Chevron bribed its star witness (Guerra) with a suitcase full of cash, tried to entrap another judge in a fake bribery scandal, manipulated the results of soil and water samples of its own pollution, and tried to engineer a political dismissal of the case by pressuring Ecuador's government. The brief focuses on new evidence demonstrating Kaplan's findings to be based on false evidence fabricated by Chevron's key witness. From the brief:

Chevron's wrongdoing confirms that the Second Circuit's decision – which invites a losing litigant to challenge the validity of the judgment in collateral proceedings in another country, especially in U.S. federal courts – is untenable. After securing dismissal of the original Lago Agrio litigation from New York in favor of an Ecuadorian forum, Chevron tampered with evidence of pollution, lied to the Lago Agrio court, sought to entrap a judge in a fabricated bribery scandal, and paid millions of dollars to avoid damaging testimony. Chevron sought to undermine the proceedings not just to win the case in Ecuador, but also to create the appearance of corruption so it could prevent enforcement if it lost in its chosen forum. 

Making matters worse, the judgment below only re-examines events in Ecuador to Chevron's benefit: it sits in judgment of the judicial process in Ecuador, without bothering to determine whether, as the Ecuadorian court found, Chevron is actually responsible for the harms. Chevron never contested in this action that it dumped toxic oil drilling wastes into streams and unlined pits on a massive scale. Nor has it denied here that the Ecuadorian plaintiffs have suffered terribly for Chevron's recklessness. 

"It's the worst kind of abuse of the justice system to attack the very people Chevron deliberately poisoned by dumping toxic waste into their drinking and bathing water for decades," added Paz y Miño. "Chevron admitted to these outrageous acts but instead of compensating its victims it has spent huge sums in legal actions to try to avoid its responsibility for a cleanup. Its so-called RICO case was not only based on false evidence, it was nothing more than a corporate-financed show trial that frankly is a stain on our country's judiciary in the eyes of the world. Chevron refuses to accept defeat at the hands of indigenous people in Ecuador. So it concocted an elaborate lie of victimhood which has since completely unraveled."

"This case is the worst example of the fossil fuel industry polluting the environment and then using its wealth and legal might to escape justice. Rather than pay for a cleanup, Chevron has spent hundreds of millions of dollars on legal retaliation and made wild conspiracy claims which would have been rejected outright were they not coming from high-priced legal teams at Gibson, Dunn & Crutcher," said Ginger Cassady, Program Director at Rainforest Action Network. "Chevron wants to scare anyone away from helping the Ecuadorians and clearly is willing to break the law to do it."

Despite Chevron's so-called victory in its RICO case, no actual legal remedy has been obtained by the oil giant. The Ecuadorians continue to pursue legal actions around the world to seize Chevron's assets to pay for the judgment. Already, Canada's Supreme Court has backed the villagers, ruling unanimously that Chevron had no right to use the U.S. court decisions to block recovery of assets. Chevron has an estimated $15 billion worth of assets in Canada, which is more than enough to cover the entirety of the Ecuador liability.

Implications of this decision stretch far and wide, as Greenpeace and other environmental organizations have also recently been targeted by corporations using RICO as a tool for intimidation. Upon the filing of Chevron's case in 2010, the Americans for Tort Reform even referred to it as the "new playbook to go after corporate gadflies."

"With human rights and the environment itself under assault by the Trump administration and its gang of climate deniers, the right to free speech and freedom to defend the environment has never been more important," said Kevin Koenig, Ecuador Program Director at Amazon Watch. "This is a watershed case that needs to be reviewed by the Supreme Court."

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