Tuesday, March 15, 2011

U.S. Judge Channels Chevron Lobbyist With Judicial Activism …

We wanted to follow up a little more on the recent outrageous decision by Judge Lewis Kaplan prohibiting the enforcement of a $9.5 billion judgment against Chevron Corp. for its environmental damages in the Ecuadorian Amazon. We blogged about it last week here.

Let’s zero in on the “public interest” reasoning Judge Kaplan offered during a hearing on February 8, 2011, when he issued a temporary restraining order for Chevron, prohibiting the Ecuadorians from enforcing the judgment (emphasis ours):

“Public interest warrants some consideration also, I think. I don't denigrate the interests asserted on behalf of the Ecuadorian plaintiffs, if indeed what they claim happened occurred, if they have a right to relief in Ecuador. They are entitled to it in the fullness of time, by which I mean not indefinite delay but prompt proceedings to examine the bona fides of any judgment.

“On the other hand, we are dealing here with a company of considerable importance to our economy that employs thousands all over the world, that supplies a group of commodities, gasoline, heating oil, other fuels and lubricants on which every one of us depends every single day. I don't think there is anybody in this courtroom who wants to pull his car into a gas station to fill up and finds that there isn't any gas there because these folks have attached it in Singapore or wherever else.”

[See Chevron v. Donzinger, S.D.N.Y, Case No. 1284CHEC, Transcripts of hearing on February 8, 2011, pages 49-50, via Southern District Reporters, P.C.]

Judge Kaplan’s reasoning was very interesting because he essentially channeled an unnamed Chevron lobbyist who was quoted in a Newsweek piece written by Michael Isikoff back in July of 2008 going over Chevron's efforts to deploy lobbyists " to squeeze Ecuador by ending its trade preferences unless the government forced the plaintiffs to dismiss the lawsuit ":

“We can’t let little countries screw around with big companies like this – companies that have made big investments around the world.”

The similarity in Judge’s “reasoning” and the quote from Chevron’s lobbyist is pretty striking. Isn’t it?

We think Judge Kaplan’s TRO-related decisions represent a clear and arguably extreme example of judicial activism. As noted over at chevroninecuador.com, the job of determining whether a particular sector of the economy or individual industry demands extraordinary legal protection belongs to Congress, not the courts. His de facto policy-making on behalf of one specific corporation, Chevron, is therefore much more breathtaking (and inappropriate) when viewed from a “checks and balances” perspective.

Also see this story in Politico about Chevron’s efforts to end Ecuador’s trade preferences. Congresswoman Linda Sanchez called it “extortion.”