As sustainability pros, we’re not often gifted with the most positive news. Today, though, a big piece of great news.
After nearly 1,000 days of imprisonment, and decades of fighting, Steven Donziger has finally been released from arbitrary detention. His surreal story, and fight against Chevron’s destruction of the Amazon, should be an inspiration for us all. Now a free man, I can’t wait to see what Donziger will accomplish next.
If you don’t know his story, buckle up for a crazy ride.
A Harvard-educated attorney, one of Donziger’s very first cases out of school would become the one to define his entire career. In 1993 he was part of a team working on an environmental case against oil giant, Texaco. For nearly 30 years, Texaco had been dumping millions of gallons of oil throughout the Ecuadorean rainforest in what would become known as the Amazon Chernobyl. Gizmodo notes the total spillage was 80 times worse than that of the BP Deepwater Horizon disaster. Yet, given the victims were mostly poor, rural farmers in the developing world, Texaco was able to get away with this behavior unnoticed. The result was a litany of health issues including cancer, skin conditions, and birth defects.
When the case finally did go to trial in New York, it had ballooned into a 30,000-person class action lawsuit against Texaco. Shining a light on egregious behavior wasn’t a good look for the company. The need to fix this PR issue became even more apparent when Chevron bought Texaco in 2001. They successfully lobbied to move the case to Ecuador, arguing the system there would be able to provide a fairer environment for a trial. Of course, the real reason was likely because Ecuador does not have jury trials, the system isn’t nearly as transparent as in the United States, and media would be less likely to bring their cameras to South America.
Ecuadorian judges saw right through this, ruling in favor of the plaintiffs. Chevron was ordered to pay US$18 billion in damages to families and to clean up the contaminated areas of the country. Almost immediately (and this is where the real lunacy begins) Chevron appealed the decision. They didn’t feel responsible for any wrongdoing by Texaco, even though there was significant corporate precedent on responsibilities of acquiring companies. Their argument was that Texaco had sufficiently cleaned up the toxic waste. Any remaining cleanup was the responsibility of Texaco’s local partner, Petroecuador. To thwart having to pay any restitution, Chevron promptly moved all its assets out of Ecuador.
During the appeal trial, the company called a judge from the original trial as a star witness. The judge claimed Donziger and his team bribed him with half a million dollars to sway the decision. Never mind Donziger had to bootstrap the entire case from the beginning. Suddenly, there was apparently plenty of cash to splash around. Another point of note. The star witness and his family had been moved to the U.S. and were receiving a US$12,000 a month stipend…from Chevron. Nothing to see here folks. In a move that should really surprise nobody, the judge eventually recanted his claims, saying most of them were fabricated or exaggerated.
Unfortunately for Donzier and the citizens of Ecuador, the die was cast. A 2014 ruling found that even if the star witness was lying, the substance of the case was still the same. It also upheld accusations of fraud against Donziger. In 2018, the International Court of Arbitration in The Hague further determined widespread fraud in the case and threw out the original compensatory ruling. Chevron also demanded Donziger pay back legal fees to the tune of US$800 million.
But the strange twists and turns of this saga were just beginning.
Before going any further, though, it’s important to take a step back (how’s that for a cliffhanger?).
On the surface, this all looks like a pretty stock-standard trial against a major corporation doing evil and trying to get away with it. It definitely is, and these are not new. We’ve mostly all become resigned to the notion big corporations rarely, if ever, lose these fights. Their teams of lawyers, and deep pockets, mean they can squash any opposition fairly easily.
What we have with the Ecuadorian case, and all the madness that follows, is something much more sinister. You’ll see shortly how all of this evolved from an environmental lawsuit into a case aimed squarely at discrediting someone’s reputation. Nobel laureates, international lawyers, and even the United Nations have all called Chevron’s actions beyond the pale and punitive. Even Chevron’s legal team has said they were “…going to fight this until hell freezes over, and then we’ll fight it on the ice.” By their own numbers, Chevron has already spent over US$1 billion appealing and pursuing this case. Why continue fighting a 30-year battle that the company already seems to have won?
One of my favorite Chinese idioms is “杀鸡儆猴,” which translates to “kill the chicken to scare the monkey.” This is exactly what’s going on here. It’s a good old-fashioned scare tactic where Donziger is the sacrificial chicken. In discrediting him, this is meant to scare all the environmental activist monkeys who would dare take on Chevron in the future. And if you’re thinking, what could Chevron possibly do that would scare any environmental lawyer from taking them on, just read what’s been done to Donziger.
We’ve already seen through claims of witness tampering the beginnings of a character assassination against Donziger. A 2020 release of internal Chevron e-mails shows a concerted effort to “demonize” Donziger through a years-long smear campaign that included hiring a private investigator and assembling a legal team numbering in the hundreds. While not exactly on the books, judges sympathetic to Chevron were also placed in ruling positions over the various appeals in this case.
One particular judge, US District Judge Lewis A. Kaplan, has been a central character throughout all of this. Kaplan was the judge during the original appeal in 2014. As part of this appeal, he ordered Donziger to turn over his cellphone and laptop to Chevron for further investigation. Donziger refused, citing attorney-client privilege. For this, Kaplan charged him with six counts of contempt. Because of these contempt charges, and based on other rulings by Kaplan, the New York State Bar Association suspended Donziger from practicing law. He has since been disbarred entirely.
When the U.S. Attorney’s Office refused to pursue those six criminal contempt charges against Danziger, Kaplan instead appointed a private law firm to prosecute. This move was highly unusual, eliciting concern from legal scholars and senators. What’s more concerning is this private firm, meant to impartially represent the U.S. Government, counted Chevron as one of their clients. Both Kaplan and the firm forgot to disclose that bit of information.
It was 2018 by the time Donziger had his day in court. At this stage, he had been fighting Chevron for 25 years. In another highly unusual move, Kaplan handpicked the judge for this trial. Usually, selection is done randomly to prevent the type of unethical actions clearly going on here. The judge, Loretta Preska, was hardly impartial. She served on a board for a group receiving substantial contributions from Chevron. Again, this went undisclosed.
Rather than a trial by jury, which Donziger requested, Preska would try the case herself. She quickly disqualified part of his legal team. Then, she ordered Donziger to pay an US$800,000 bond, a U.S. record for this type of case. Once he posted this astronomical sum of money, Judge Preska deemed Donziger a flight risk. In 2019, he was ordered to undergo home detention while waiting for his trial. That included the use of an ankle monitor to prevent him from leaving his home.
Soon 2019 turned into 2020, bringing with it the global pandemic. Still, no trial. Donziger would not enter a courtroom again until July 2021, nearly two years since being put on house arrest. During that period he had no way to earn an income, which didn’t matter since his bank accounts had been frozen. Judge Preska found Donziger guilty on all six counts of contempt, sentencing him to the maximum penalty of six months in prison.
In a Covid-safety scheme, Donziger was released from prison and placed back on house arrest. As I write this, he’s closing in on 1,000 days of detention. A Twitter post by Donziger, who has been posting continuously the past three years, notes his umpteen days of detention include, “…45 nights in prison, 5 in a halfway house, 890 with an ankle claw, hundreds of harassing phone calls, 10 urine tests, 4 strip searches, [and] major sleep deprivation.” He adds, though, he’d “…do it all over for the honor of representing the indigenous peoples of Ecuador.”
The people of Ecuador still haven’t received a single cent. They continue the clean up.
Chevron posted fourth-quarter 2021 earnings of US$5.1 billion and a record free cash flow of US$21.1 billion. None of their executives, to my knowledge, have been under house arrest.