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| Crude contaminates an open toxic pool in the the Ecuadorean Amazon rainforest near Lago Agrio. Photo by Caroline Bennett / Rainforest Action Network, CC BY-NC 2.0. |
Court rulings are stacking up against the plaintiffs in the global Chevron-Ecuador litigation. About a month ago, the Dutch Supreme Court, affirming arbitral orders, refused enforcement of the $9.5bn judgment that Ecuadorean courts entered against Chevron, successor to Texaco, for oil pollution at Lago Agrio, feeding into the Amazon River (e.g., AP). Plaintiffs’ appeals have fared poorly since Canadian courts rejected enforcement earlier in April (e.g., Reuters), piling on adverse outcomes in the United States, Brazil, and Argentina.
If you’re new to the Chevron-Ecuador case, beware the rabbit
hole. It’s almost impossible to
summarize how we’ve come to this point in the course of a quarter century. The quickly dated 2015 book Law of the Jungle by Paul M. Barrett is
still an excellent and objective port of entry (Amazon). (My co-instructor/spouse and I plan to assign
it in our comparative law class in the fall semester.) You also can read about the case through the
columns of George Mason Law Professor Michael I.
Krauss at Forbes; he’s followed developments
closely over the years.
In short, there was some awful pollution in remote oil
fields in Ecuador, reckless extraction and vacant regulation in the 1970s and
1980s wreaking devastating, long-term, far-reaching, and literally downstream consequences
to human life and the environment. That
part is hardly in dispute. What has been
less clear and is hotly contested is whom should be blamed.
Enter the polarizing personality of Donziger, Harvard Law ’91,
who, it must be said, is a genius for having designed a new model of global
environmental litigation. He solicited
wealthy and famous, like, Sting famous, investors to raise money for the high
costs of litigating against transnational Big Oil behemoths in an effort to
tame them with the rule of domestic law.
At what point Donziger’s litigation lost the moral high ground—somewhere
between the get-go and never—is the subject of much speculation. However, that corruption was rampant in
Ecuadorean courts is beyond dispute, and the role of the lawyer when justice
might require, say, cash prepayment of a new “court fee,” raises some thorny
questions in ethics and cultural relativism.
What is for sure is that when you start talking about Big Oil as
occupying the moral high ground, something already has gone terribly wrong.
One can only make an informed guess about where liability for
Lago Agrio should land. Texaco/Chevron
probably bears a slice of moral, if not legal, responsibility, at least in a
strict-liability, “Superfund” sense. But
through an unascertainable and poisonous mix of lax regulation, corruption, foolhardy
assumption of responsibility, and their own recklessness practices, the state
of Ecuador and its state-owned enterprises (SOEs) in oil extraction were vastly
enriched and probably bear principal responsibility for the disaster, morally
and legally. Arguable then is how thoroughly
moral responsibility should flow back to the industrialized world along the
pipeline of oil demand; I won’t step into those inky depths.
Donziger and the Ecuador litigation is a capstone course for
law school, so I’m not here to state a thorough explication. I mention the case because it strikes me that
it exemplifies two serious problems in contemporary tort law, intersecting on this
unusual tangent.
The first problem is that both state actors and transnational
corporations operate above domestic law and without accountability to private
claimants in international law, and that portends a disastrous end to life on
earth. What ought not be forgotten about
the Chevron-Ecuador legal fiasco is that underneath all of the legal
finger-pointing, there remains an unmitigated environmental catastrophe. And what’s worse, it’s ongoing. Ecuadorean
operations in the area still use reckless extraction processes such as unlined oil
pits, and Big Oil is bidding to reclaim a piece of the action. People are still being poisoned, and the Amazon
is still being polluted.
Meanwhile, follow the oil downstream, and Hasan Minhaj will show you
(embedded below) how Brazil is newly doubling down on rain forest destruction. I’m talking about the good old-fashioned, small-animals-fleeing-for-their-lives-from-set-fires-and-bulldozers
kind of destruction that was the stuff of my childhood nightmares in the dark
age before we recycled. Human civilization
and our rule of law on earth have not yet figured a way to attack this problem
on the international level, much less to protect the human rights of local citizens
within an offending country. Our own
alien tort statute was recently defanged vis-à-vis transnational corporations—in a case about Big Oil, by
the way—and it’s not clear that the law’s landmark 1980 application in Filártiga
v. Peña-Irala, bringing a foreign state torturer to justice, would even
be upheld in federal court today.
The second problem is that in places where we do observe the
rule of law, namely, here in the United States, legal transaction costs have
spiraled so high that our courts have become available only as playgrounds for
the rich and powerful, whether to settle disputes among themselves, subsidized by
us, or to quash the claims that we, the little people, might dare to file in
our puny arrogance. We know this problem
on the mundane, ground level as “access to justice.” I suggest that this is the same problem that Donziger—giving
him the benefit of the doubt at the get-go, for the moment, assuming reasonably
that his multitude of motives must at least have included compassion for victims
of pollution among the world’s poorest people—was up against in trying to take
on Big Oil. Documents in the RICO case
contain tidbits about Donziger’s financing, such
as a rock star’s “two equity positions in the case, one for 0.076 percent
and 0.025 percent.” It turns my stomach
to read about human rights litigation as an investment opportunity, perhaps
ripe for an initial public offering. (“Call
now for your free report; first time callers can get a free tenth-ounce Silver
Walking Liberty Coin!”) If that’s how we’re
setting legal norms around human rights and deterring threats to human life, then
that says more about us than it does about Steven Donziger.
These are the days that I want to give up on the human
experiment and hunker down in willful ignorance to marshal my resources and plan
for a contented retirement.
Though I’m a little short on resources. Can I still buy shares in that Roundup litigation?
