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New Evidence That Chevron Used U.S. Professors to Defraud Ecuador Court In $18 Billion Environmental Lawsuit

Alvarez & Mackay Under Spotlight For Defending Efforts to Hide Contamination From Ecuador Judge

New Evidence That Chevron Used U.S. Professors to Defraud Ecuador Court In $18 Billion Environmental Lawsuit

Alvarez & Mackay Under Spotlight For Defending Efforts to Hide Contamination From Ecuador Judge

Published 02-07-12

Submitted by Amazon Defense Coalition

Chevron is refusing to deny that it defrauded Ecuador's courts by altering a key document to induce U.S. academic "experts" -- including a prominent professor at Rice University in Houston -- to endorse fake testing methods to hide the presence of massive quantities of cancer-causing toxins at the company's former well sites in Ecuador's Amazon rainforest.

"We have smoking gun evidence that proves Chevron used U.S. professors as part of a failed plan to hide the presence of massive amounts of life-threatening toxic contamination from the courts of Ecuador," said Karen Hinton, the U.S. spokesperson for the 30,000 Ecuadorians who brought suit against the oil giant.

The U.S. professors hired by Chevron to defraud the Ecuador court, Hinton said, are Dr. Pedro J. Alvarez currently the chair of the Department of Civil and Environmental Engineering at Rice University, and Dr. Douglas Mackay, an adjunct professor at the University of California, Davis.

Alvarez was called on to disavow the report in a letter sent by Aaron Page, a representative for the rainforest communities that was also copied to David W. Leebron, the President of Rice. Other letters were sent to Mackay and Dr. Robert Hinchee of Integrated Science and Technology, Inc., who also signed a statement based on the altered report.

The three professors, in a joint statement in response to the letters apparently approved by Chevron's legal team, defended their report but curiously refused to address the fraud issue or the documents that show they based their opinion on an altered report.  See here.

Despite Chevron's scheme to hide the contamination, the Ecuador court in 2011 found the company liable for dumping billions of gallons of toxic waste into the rainforest. The court relied on scientific evidence from the plaintiffs, third-parties, and even Chevron itself, which bungled its own plan early in the trial by submitting soil and water samples that showed illegal levels of contamination.

The Ecuador court found that Chevron's deliberate dumping of toxic waste poisoned streams and rivers relied on by local inhabitants for their drinking water, decimated five indigenous groups, and caused dramatically higher rates of leukemia. The $18 billion judgment was affirmed on appeal on January 3.

Chevron operated in Ecuador under the Texaco brand from 1964 to 1992.

The documents, which were ordered released by a U.S. federal court in Colorado during a discovery proceeding, suggest that Chevron's legal team concocted a plan to guarantee the company would find only "clean" soil samples from dozens of contaminated well sites inspected by the court while "dirty" samples would be sent to a secret laboratory where they would not be disclosed.

Chevron's technical team carried out the scheme by secretly visiting dozens of company well sites in the rainforest where they would mark spots where they could find "clean" soil and water samples, usually located uphill from contaminated waste pits. The plan to defraud the court was written up in a Chevron document called the "Judicial Inspection Playbook" that contained a summary table outlining the company's sampling and testing program. See here and here.

After Chevron's secret pre-inspections, Chevron's technical experts miraculously would discover only "clean" soil and water samples during the official court inspections days later. Based on these samples, the company would "report" to the court that there were no detectable levels of contamination at a particular site despite the visible presence of oil waste. 

When the obviously deceptive sampling practices came under attack by the plaintiffs, Chevron hired Professors Alvarez and Mackay to defend the company.

Their report submitted to the court concluded that there was "no foundation" for allegations that Chevron's sampling program "deliberately hides or minimizes the existing contamination."

The problem, though, is that the professors based their opinion on a doctored version of the "Judicial Inspections Playbook" that omitted the explicit instructions to lift only "clean" samples. The doctored version instead altered language in eight places to make it appear that the company was doing a valid environmental assessment at the well sites.

A document comparing the original "Playbook" with the eight changes in the doctored version given to Alvarez and Mackay can be seen here

An illustration of how Chevron's fraudulent sampling scheme in Ecuador worked can be seen in this photo of Shushifindi 38, a Chevron well site closed in the 1980s that is still polluting soils and groundwater. During the trial, Chevron reported to the court that it found no "detectable contamination" at the site by lifting soil samples from a dense forest up-gradient from the obviously contaminated pit in the photo. 

Pablo Fajardo, the lead lawyer for the rainforest communities, said the documents ordered released by the U.S. court "clearly prove Chevron engaged in a meticulous planning process to defraud the Ecuador court during the judicial inspections process, which was the central part of the entire trial."

Fajardo said: "Chevron's fraud is ongoing in that the report signed by Alvarez and his colleagues is part of the official trial record now being relied on by the appellate court. It's outrageous that Chevron does not withdraw this report."

Chevron's deceptive sampling plan is also consistent with previous statements made by an Ecuadorian contractor for the company, Diego Borja.  Borja told a friend that while working for Chevron he would swap out contaminated soil samples collected during the judicial inspections with clean samples from other locations, which would be submitted to the court. Borja also said in a taped conversation that the laboratory Chevron used during the trial was not independent as the company claimed.

Chevron has long been accused of using fraudulent junk science in Ecuador. In the mid-1990s, it used a deceptive laboratory test (called the TCLP) that guaranteed it would only find a tiny fraction of actual toxins in the soil as part of a sham clean-up effort required by Ecuador's government.

In the meantime, Chevron's legal position in the historic litigation continues to weaken. Not only did the company lose the trial in Ecuador, it recently suffered a setback when a U.S. federal appellate court reversed a trial court decision that issued a worldwide injunction barring the Ecuadorians from trying to enforce their judgment. Further, the credibility of Chevron's technical experts is diminishing rapidly in light of the obvious fraud they were committing in Ecuador, said Hinton.

Chevron has stripped its assets from Ecuador in anticipation of an adverse judgment, forcing the plaintiffs to consider standard collection actions against Chevron in other countries should the trial judgment become enforceable.

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The Amazon Defense Coalition is a part of a regional, national and global struggle for environmental and collective rights in the Ecuadorian Amazon

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