Criminal indictment obscures the reality of extractives contamination (commentary)

  • The jailing of Steven Donziger, a U.S. lawyer credited with helping communities in Ecuador win a $9.5 billion judgment against Chevron for oil contamination, raises serious questions about the U.S. judicial system.
  • Donziger’s criminal contempt proceedings exemplify what some legal scholars refer to as “strategic lawsuits against public participation” (SLAPP) — complaints that bully critics into silence and disavow wrongdoing..
  • “The lack of justice afforded to Donziger has a chilling effect on human rights advocacy and curtails efforts to mend an environmental and humanitarian tragedy,” write authors Suzana Sawyer and Lindsay Ofrias.
  • This post is a commentary. The views expressed are those of the authors, not necessarily of Mongabay.

Steven Donziger, the U.S. advisory lawyer for the Ecuador legal team that won a $9.5 billion ruling against Chevron over oil contamination in 2011, surrendered to a six-month prison sentence for criminal contempt of court charges last month. As anthropologists who have collectively conducted more than 20 years of research on the effects of oil operations in Ecuador, we are disturbed by his imprisonment.

The lack of justice afforded to Donziger has a chilling effect on human rights advocacy and curtails efforts to mend an environmental and humanitarian tragedy.

While seemingly straightforward, Donziger’s criminal conviction triggers vertigo upon closer inspection. Presiding Judge Loretta Preska found that Donziger defied a court order issued in 2018 by Judge Lewis Kaplan in the Southern District of New York. But stark irregularities in the criminal procedure challenge assumptions about how the U.S. judicial system should work.

More problematic, however, are the contorted factual findings upon which Judge Kaplan’s order rests, having emerged from a near 20-year Kafkaesque labyrinth of legal proceedings. All of this hides Chevron’s legacy of systematic dumping of oil-extraction wastes into the northern Ecuadoran Amazon.

Oil spill in Ecuador. Image courtesy of Suzana Sawyer.

Some background is in order.

In 2011, the Ecuador court found Chevron liable for $9.5 billion, monies to be used to remediate toxic soils and attend to the poor health of local people. Anticipating that ruling, Chevron filed a RICO countersuit that landed in Kaplan’s court, transforming a contamination claim into a corruption case.

Fast-forward to 2014, when Kaplan determined that the earlier Ecuador ruling had been procured through fraud. That judicial decision rendered Chevron’s Ecuador liability void and unenforceable in the United States. Furthermore, Kaplan ordered Donziger to relinquish in trust for the benefit of Chevron any properties garnered from the 2011 Ecuador judgment. Because Chevron claimed that Donziger was benefiting from efforts to have the Ecuador ruling enforced overseas, Kaplan subpoenaed his files again. Donziger declined to hand over sensitive attorney-client material. In consequence, Kaplan charged him with criminal contempt of court.

What astonishes the most, however, is the degree to which Kaplan’s 2014 ruling got it wrong. Kaplan’s findings of bribery and ghostwriting relied on one key witness — Alberto Guerra — who was the recipient of a private protection plan (as Chevron whisked him and his family away to the U.S.). He also received hundreds of thousands of dollars of corporate support.

In fact, within a few years of testifying before Kaplan, Guerra admitted before an international tribunal to having lied about the bribery scheme to the U.S. court.

Protest against the oil spills. Image courtesy of Suzana Sawyer.

Findings that the Ecuador legal team manipulated and exaggerated evidence of contamination pivoted on a decade of industry science that reshaped how the chemistry of hydrocarbons should be analyzed. This method, although effective for assessing recent spills and leaks, was woefully incapable of recognizing the effect of decades-old oil contamination. Findings of corruption hinged on the belief that a purportedly tainted expert report (the Cabrera Report) formed the basis for the largest portion — more than $5.4 billion — of the Ecuador ruling. It did not.

The parameters of Chevron’s logic (which Kaplan assumed) are shamelessly misguided. Ultimately, Chevron never, not once, produced substantive evidence of fraud, despite having obtained the entire “universe” of their adversary’s internal strategizing and communications.

As for Donziger, he never played the outsize role Kaplan claims he did. Undeniably, Donziger was key in securing monies to sustain the lawsuit and defend the countersuit. He was not a part of the litigation process in Ecuador. Donziger is the U.S. face of a lawsuit that successfully sued a U.S. oil conglomerate for its contamination in far-off lands.

Neither Chevron nor the oil and gas industry are willing to tolerate this precedent.

Chevron’s extensive retaliatory campaign has depicted the affected communities in Ecuador as greedy extortionists or pawns in Donziger’s so-called master scheme. They are neither.

Having long collaborated with Indigenous and non-Indigenous peoples in the region, we have instead witnessed a powerful grassroots movement against environmental injustice unwaveringly committed to healing oil’s toxic legacy.

The Union of People Affected by Chevron-Texaco (UDAPT), a local nonprofit organization co-founded by six Indigenous nationalities and eighty rural, settler communities, has formed emergency-response committees to recover soil health, purify contaminated water, revitalize cultural livelihood, rebuild the local economy, and care for a growing cancer patient population.

Clinica Ambiental, an environmental health clinic in the region, along with UDAPT, is addressing exposure to heavy metals and hydrocarbons by taking biopsies, diagnosing cancers, and facilitating access to traditional medicine and hospital treatments. Their 2016 collaborative study found that one out of every four families living near oil installations have experienced at least one incidence of cancer. Amisacho, another community organization focused on healing, is innovatively experimenting with how fungi and plants break down hydrocarbons in soil and water.

Operating on shoestring budgets, these organizations would significantly benefit from a fraction of the reportedly $1 billion Chevron has spent in legal fees to avoid liability over the past decade.

Oil contamination of water. Image courtesy of Suzana Sawyer.

Donziger’s criminal contempt proceedings exemplify what some legal scholars refer to as “strategic lawsuits against public participation” (SLAPP) — complaints that bully critics into silence and disavow wrongdoing. With their heavy emotional and financial toll, these cases seek to punish and break individuals and movements demanding accountability for environmental and human rights abuses.

For this reason, Donziger’s case deserves utmost scrutiny.

However, lest we forget, a legal vortex of crafted conspiracy serves to conceal base injuries and undermine efforts to effect change. Chevron’s extractive harms devastating Ecuadoran communities warrant significantly more.

Suzana Sawyer is a professor of anthropology at the University of California, Davis. She is the author of The Small Matter of Suing Chevron (Duke University Press 2022) as well as other books and articles focused on Indigenous peoples and resource extraction in Ecuador and beyond. Lindsay Ofrias is completing her Ph.D. in anthropology at Princeton University, examining the political economy of oil contamination and grassroots struggles for healing in the Ecuadoran Amazon. She is also the director of a feature-length documentary (currently in production) that explores the criminalization of peaceable protest.