Chevron: Release The Secret Evidence That Proves Your Guilt In Ecuador

Reposted from Karen Hinton on the The Huffington Post

In the wake of a controversial U.S. court ruling that a $9.5 billion Ecuador judgment against Chevron is fraudulent, the oil giant has been touting loudly its innocence of any environmental crimes in the South American country.

Chevron's lawyers even successfully pressured some CBS News corporate suits to yank a damning 60 Minutes piece from the network's website about the deliberate contamination of the Ecuador rainforest from 1964 to 1992 by Texaco, which Chevron later bought.

(See the dead link here. You can see the segment on my company's web site. So sue me, CBS.)

Instead of succumbing to Chevron's pressure tactics, CBS' lawyers should grow a backbone and demand to see contamination "playbook" documents that Chevron has been forced to produce in an international arbitration proceeding.

They are explosive and prove 60 Minutes got it right, and the U.S. judge got it wrong.

The playbook details how the company hid evidence of contamination during an eight-year Ecuador trial resulting in a $9.5 billion damage award that the Ecuadorians are waiting for Chevron to pay.

Meanwhile, Chevron is claiming in arbitration that the Republic of Ecuador should pay the judgment, and the two parties are duking it out before a panel of corporate trade lawyers who rent office space at The Hague and act as "judges" – more about them later.

The playbook took center stage in a recent arbitration filing by Ecuador. It appears the country's lawyers have gotten their hands on much, if not the entire, playbook, but the corporate trade lawyers are requiring Ecuador to redact or cover up the really damning evidence.

Even so, a recent rejoinder filed by Ecuador reveals enough to demonstrate what a morally bankrupt company Chevron is. (See the redacted rejoinder here.)

Here's what we know about the playbook, pieced together from the filings of both the Ecuadorians in U.S. court and the Republic of Ecuador in arbitration.

In 2011, the Ecuadorians obtained a few pages from the playbook and tried to enter them into evidence during Chevron's "fraud" trial, but Federal Judge Lewis Kaplan refused to allow any evidence of contamination into the record, including the small excerpt from Chevron's playbook.

(See my recent blog about this legal travesty, and this earlier 2011 press release about the playbook.)

During the Ecuador trial Chevron's paid experts wrote the playbook to document how to handle the contamination they found at the well sites in soil and water tests.

Without the knowledge of the Ecuador court, Chevron's experts conducted unofficial and secret pre-inspections of the sites so they could avoid the badly contaminated areas during the official judicial inspections. (See page 63 in the rejoinder.)

Their pre-inspection findings would have been devastating to their case had they been turned over to the court. So they never were. (See page 63.)

Instead, they used the results to avoid the contaminated areas and test at clean spots, usually from soil and water at elevations higher than the huge, unlined and open pits Texaco built to store permanently pure crude and toxic water.

[Quick backgrounder: Texaco explored for oil in Ecuador from 1964 to 1992 and was the sole operator of the well sites during that time. The Ecuadorians filed their original lawsuit in the U.S. against Texaco in 1993, one year after Texaco left Ecuador. A U.S. judge dismissed their lawsuit ruling in 2001 at Texaco's urging the litigation should be heard in Ecuador. That year, Chevron bought Texaco. In 2003, the Ecuadorians re-filed their case in Ecuador but not before the U.S. 2nd Circuit Court of Appeals instructed Chevron that it must accept Ecuador's jurisdiction, which it did.]

Chevron routinely used deceptive methods, such as mixing clean soil with dirty and undercounting hydrocarbons, to hide or reduce toxic chemicals in samplings. (See pages 66-72.)

This table below, taken from the arbitration filing, reflects just a few of the thousands of pages of playbook notes Chevron's experts and field personnel took, describing the contamination and advising the company about ways to avoid it during the official judicial inspection.

It's heavily redacted. If it's true – as Chevron says it is – that the oil giant is innocent, and the truth is what it seeks, then why won't Chevron release the un-redacted, unedited playbook for all to see?

Maybe it has something to do with the 1995 remediation agreement that Chevron argues is its get-out-of-jail-free card.

The agreement, between Texaco and the Republic of Ecuador, released Texaco from government liability in exchange for a cleanup of a relatively small number of pits. It did not, however, release Texaco from third-party claims.

During the Ecuador trial, tests found contamination levels at the so-called remediated Texaco pits as high or higher than the ones not cleaned. The Ecuadorians accused Texaco of simply throwing dirt on top of the contamination to hide it.

Chevron's playbook backs that up.

At pits Texaco said it cleaned, Chevron – according to its own playbook – found contamination during its secret PIs or pre-inspections. To avoid or reduce the contamination Chevron, during the official judicial inspection, took soil only from the top layer.

Ecuador's rejoinder references the playbook notes of Shushufindi 24, Sacha 21 and Lago Agrio 6, all three well sites that Texaco said it cleaned.

In its secret, pre-inspections Chevron discovered otherwise. (See pages 68-69.)

The rejoinder reads: "During the JIs (judicial inspections) Chevron's experts sought to avoid finding pollution by sampling only to depths that it knew to be clean. For example, at Shushufindi 24, the soil boring log at pit 2 shows that during its PI, (pre-inspection) REDACTED "Then at the JI, Chevron strategically chose to take surface soil samples only – avoiding the known contamination below."

Chevron: What did you find at Shushufini 24, Sacha 21 and Lago Agrio 6?

If you found little or no contamination, then all is well.

If you found contamination and withheld it from the court, then your remediation agreement comes unraveled as does your entire legal case.

Chevron will say today that pre-inspections were allowed, but that's not what its attorneys said during the trial. Chevron wrongfully accused the Ecuadorians of pre-inspections, telling the court that pre-inspections were a "violation of legal security and due process of law," and "no technical team from ChevronTexaco Corporation has performed any secret tests here."

The rejoinder reads:"Yet by that time, Chevron's experts had conducted PIs at least REDACTED (number of) sites and taken over REDACTED (number of) samples." (See page 65.)

Chevron wants its shareholders to believe the Ecuadorians are history, even though enforcement lawsuits are underway in three countries and an appeal of the U.S. ruling is pending before the Second Circuit Court of Appeals, which reversed an earlier Kaplan attempt to stop enforcement of the Ecuador judgment.

And, while the Republic of Ecuador is fighting aggressively Chevron's arbitration claim, it is doubtful the arbitration panel will rule against the oil giant.

Brought in 2009, Chevron's arbitration action is based on alleged violations of Ecuador's Bilateral Trade Agreement with the United States.

For some time now, multi-national corporations have been abusing these trade agreements. Allowing it to happen are the corporate trade lawyers who sit on arbitration panels as judges and then rotate off as lawyers representing corporations before panels composed of their trade lawyer buddies.

Best example is the successful claim by Phillip Morris against Australia because the country placed warning signs on cigarette packs about the dangers of smoking after Phillip Morris began selling cigarettes there. See here.

International arbitration is fraught with serious conflicts of interest, and some countries are considering ending bi-lateral trade agreements due to numerous upside down arbitration rulings that have put the interest of corporations above a country's residents.

The Ecuadorians' best bet is in Canada, Brazil and Argentina where they have filed enforcement lawsuits to seize Chevron's assets in those countries as payment for the judgment.

Who knows? The entire Chevron playbook may see the light of day in one of those courtrooms soon. Or, 60 Minutes could stand by its work and demand to see it.

Ironically, during Chevron's "fraud" trial, Kaplan quoted former Supreme Court Justice Louis D. Brandeis' famous maxim that "sunlight is said to be the best of disinfectants" but when it comes to the allegations leveled by the Ecuadorians and their lawyer, Steven Donziger, Kaplan and the corporate trade lawyers hanging out at the Hague prefer the dark side of the moon.

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Chevron in the Gulf

Ever since BP’s disastrous oil spill, there have been no new drilling permits in the Gulf. Well, that’s changed and the first company to get a permit…drum roll please… Chevron. Never mind that they have destroyed the Ecuadorian Amazon. Never mind that they have been sued by indigenous tribes for the death and disease they have caused. Never mind that they refuse to take responsibility for their actions. They now get to try the same thing in the Gulf. Because the environment and livelihood of the region haven’t already taken enough of a hit.

The folks over at Rainforest Action Network say it pretty well:

Why is this so appalling? Mainly because Chevron has never met a community it wasn’t willing to pollute if there were profits to be made, which could be seriously bad news for the Gulf Coast residents still reeling from last year’s spill. Chevron doesn’t have the best track record when it comes to protecting the environment, and the company will do whatever it takes to avoid cleaning up its messes. Just ask the people of Ecuador, or the people of Nigeria and Kazakhstan, or even the people right here in Richmond, California — all of whom live every day with pollution from Chevron operations that the company refuses to take responsibility for.

They also recap some of the lessons from last years report The Lasting Stain of Oil.

It’s clear to corporate polluters cover up evidence, don’t take precautions to protect the environment and communities, and use extensive PR to get away with environmental genocide. Chevron has been very effective with this, using their Human Rights Hitmen to avoid all responsibility for what they have done in Ecuador.

With all that has happened to the Gulf in the past year, it is incredibly disappointing that any drilling is happening, much less by Chevron. The region or our world simply doesn’t need to have another ecological disaster at the hands of Big Oil.

Be sure to read the RAN post on Chevron in the Gulf.

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Ecuadorian and U.S. Judge Base Their Opposing Decisions On Chevron Evidence

So within three weeks of each other, Ecuadorian Judge Nicholas Zambrano and U.S. Judge Lewis Kaplan issued opposing decisions about the massive eco-disaster lawsuit in Ecuador. They have, oddly enough, one thing in common: both are based largely on evidence presented by Chevron.

On February 14th, Judge Zambrano awarded the Ecuadorian plaintiffs $9.5 billion in damages against Chevron for the intentional contamination of the Amazon rainforest. He based his judgment on over 60,000 soil and water samples that showed illegal levels of contamination. Over 50,000 of the samples had been taken by Chevron itself, and the rest by the plaintiffs. Judge Zambrano also adopted the conclusions of Chevron’s own expert on the damage costs; Chevron-sponsored consultant Gerado Barros estimated $6 billion in soil and water remediation costs. (The rest of the damage award is for medical facilities, cleaning drinking water and other expenses.)

In other words, Judge Zambrano based his decision mostly on Chevron’s own evidence.

On March 8th, Judge Kaplan granted Chevron a preliminary injunction to prevent the Ecuadorians’ U.S. attorneys from enforcing Judge Zambrano’s February 14th decision on grounds that the decision is fraudulent, citing Chevron’s briefs 162 times, compared with 10 cites from the plaintiffs’ briefs.

But, how can Judge Zambrano’s decision be fraudulent if it’s largely based on what Chevron submitted to the Ecuadorian Court?

Good question. Here are a few more:

If the Ecuadorian courts are corrupt – as Judge Kaplan and Chevron have argued – why did it take eight years for the court to rule?

Wouldn’t a year or two been enough to fake a “fixed” trial?

And, why would the plaintiffs even bother to ask for a 4,000-page global assessment report much less “ghostwrite” it, as Chevron alleges?

Those are just some of the disconcerting questions folks should wonder aloud about while merits of this case keep getting “lost” in (Chevron induced) legal haze.

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Critical News Coverage Online & UK Spell Out Chevron’s Misconduct

The U.S. mainstream media has ignored largely the charges of misconduct that the Ecuadorians suing Chevron have leveled against the California-based oil giant in U.S. and Ecuadorian courts. Lately, though, some of the company’s unethical and, in some instances, illegal actions are being told in other venues: both online and in the U.K.

Online blogger Brendan DeMelle from DeSmogBlog unveiled a number of memos written by Texaco officials and consultants show exactly how Ecuadorian government officials and Texaco executives worked hand in hand during the 1990s, especially during the negotiation of the so-called “remediation” agreement between the government and Texaco. (The Ecuadorians have sued Chevron for the oil contamination, which purchased Texaco in 2001.) During the trial in Ecuador, the plaintiffs discovered that oil sites supposedly cleaned by Texaco in exchange for the release of government claims were just as contaminated as those not cleaned. Two Chevron lawyers and seven former government officials have been indicted for falsifying the verification of the agreement. For more information about the remediation, click here.

And, there is this from Guardian environmental editor, John Vidal, who wrote that “oil is the dirtiest industry in the world and Chevron, one the world's largest companies, must be the oiliest. That's saying something when you consider it has rivals including BP, Shell, Exxon and Oxy." Vidal wrote:

“Its lawyers must be some of the busiest in the world. Court records show that in the past 20 years, the company has been made to pay around $2bn in fines and settlements to governments and communities for tax evasion, and environmental violations around the world.

“But its handling of the Ecuadoran case breaks new ground in how a corporation tries to fight its corner and avoid its liabilities.”

Vidal includes a long list of Chevron’s misdeeds in Ecuador and in the U.S., including its denial that Texaco’s operations caused any harm to the environment or to people during its three decades of oil exploration in the Amazon rain-forest.

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Chevron Tries To Delay Ecuadorians’ Demand For Jury Trial As Oil Giant Continues To Victimize Its Victims

It’s no secret that Chevron is willing to do just about anything to get out of taking responsibility for what they have done to the Ecuadorian Amazon. They have thrown the proverbial kitchen sink at indigenous groups seeking justice for Chevron’s mess. They also have the backing of a U.S. judge who recently issued an outrageous court decision that ignored key evidence of Chevron’s fraud in Ecuador. The decision also enjoined the Ecuadorians from enforcing a recent $9.5 billion judgment in the United States.

Now Chevron wants to delay and possibly prevent the victims of their contamination from having a jury trial on Chevron’s outrageous charges of extortion and racketeering. Apparently, Chevron is now working hard to delay its own counter-suit in New York which has already been panned as “corporate bullying.” Chevron’s claims are pretty far fetched. The oil giant is arguing that attempts to inform the public about its misconduct through negative press releases and lobbying efforts with elected officials is the equivalent of “extortion and racketeering.” The Ecuadorians, along with their attorneys, consultants and supporters who also have been named in the lawsuit, deserve their day in court in front of jury.

Thankfully, we are seeing effective push-back against Chevron’s latest delay tactics. The highly-respected San Francisco attorney John Keker is representing one of the plaintiffs’ lawyers. He stated his concern that Chevron is trying to skirt a jury trial.

At a hearing this week, Keker said that Chevron is trying to avoid facing a jury on key issues. He said the Ecuadorians and their attorneys “want a jury trial on the very serious issues of which he is being accused.”

In a Courthouse News article, Keker also defended the trial in Ecuador which returned the $9.5 billion judgment.

Keker objected to what he called the "wholesale condemnation" of the Ecuador judicial system, which he said was implicit in Chevron's request to separate a decision on the enforceability of the judgment from the so-called “extortion” charges.

"Decrying the Ecuadorean court system in a vacuum ... seems to use to be wrong," Keker said. "It has trials. It has opposed proceedings. It has judges. It has appeals."

`Keker added that Chevron's constant requests to hurry proceedings, and Kaplan's subsequent approvals, have compromised the plaintiffs’ defense. In support of this claim, he pointed to Kaplan's recently signed order to show cause, which the judge granted after meeting with Chevron's lawyer ex parte. […]

“Everything that they say almost is disputed, but they've been having their way because there was nobody around to dispute them," Keker said Tuesday.

Chevron is playing fast and loose with its facts and is making irresponsible accusations about people who are fighting for justice in the Amazon. Like a bully on the playground, it is not used to people standing up and saying no.

We can only hope that Chevron’s lies judicial won’t trump the facts in the case.

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Evidence Shatters Chevron's Defense in World's Largest Oil Contamination Case

Enviro Bloggers Focus Attention on Oil Giant’s Misconduct

The Ecuadorians suing Chevron for the world’s largest oil contamination disaster have submitted the first part of their final written argument to the Ecuador court, outlining the evidence that clearly demonstrates Chevron's liability in the $113 billion environmental damages lawsuit and the fraud behind the company's primary defense of remediation.

The court filing -- called an "alegato" in Ecuador -- details in exacting detail how evidence gathered by independent experts, the plaintiffs, and from Chevron itself proves the case against the oil company. Read the summary and press release about the argument. The lawsuit was first filed in U.S. federal court in 1993 but was shifted to Ecuador at Chevron's request. The plaintiffs are tens of thousands of persons who live in area of Ecuador where Chevron operated several large oil fields from 1964 to 1990, reaping excess profits by using substandard practices.

Meanwhile, several environmental bloggers are shedding some much-needed light on the oil giant’s misconduct. Read the Huffington Post blog Huffington Post blog, Mother Jones, the WonkRoom and ChevroninEcuador.

Joanna Zelman of the Huffington Post wrote:

“Could there be enough "overwhelming" evidence against Chevron to merit a payment of over $100 billion? Tens of thousands of Ecuador's residents are the plaintiff in an environmental damages lawsuit against Chevron, and they believe the evidence speaks loud and clear….”

Responding to Chevron’s efforts to distract attention away from the contamination with accusations of corruption against the Ecuadorian court, Han Shan of ChevroninEcuador wrote:

“But here we are with the final arguments, and the judge deliberating on a decision that is widely expected to be delivered this year. The plaintiffs have brought on DC mega law firm Patton Boggs and high-profile lawyer James Tyrrell, who vows that the plaintiffs will be able to enforce a judgment against Chevron and win major damages to be put to environmental cleanup and healthcare in their communities.”

Wonk Room's Brad Johnson headlined his blog with, "Chevron, Under Pressure For Destruction of Amazon, Was Top Lobbyist Last Quarter," He wrote: "Chevron, responsible for a multi-billion-dollar environmental disaster in Ecuador, is instead spending millions to shore up political support and to evade the clean up." Senate disclsoure forms reveal that oil giant Chevron spent $2.9 million lobbying the federal government last quarter, eclipsing even Exxon ($2.6 million) and BP ($2.2 million)."

Chevron has long argued, as its primary defense at trial, that a "remediation" conducted between 1995-98 released it from any responsibility. Despite Chevron’s claims, a summary of the plaintiff’s alegato concludes the legal release used by Chevron as a result of that remediation is "null and void" because it was based on numerous false and misleading representations by the company. Instead of actually cleaning up the waste in the area, the limited “remediation” was largely accomplished by simply covering a small number of waste pits with dirt and then using an inappropriate laboratory test that counted only a fraction of the actual contamination to “prove” that the remediation had been effective.

"The evidence makes it clear and unmistakable that Chevron is guilty," the summary of the alegato concludes. "Guilty of polluting the rainforest with toxic sludge from lucrative oil drilling operations, guilty of a shoddy and haphazard cleanup operation, guilty of letting toxic waste continue to devastate the rainforest and its inhabitants' lives, and perhaps worst of all, guilty of trying to cover it all up by destroying documents and making false accusations of fraud before courts in the U.S. and Ecuador."

The document concludes that Chevron is responsible for ongoing contamination that is harming the environment and human health to this day, even though the company fled Ecuador in the early 1990s and stripped its assets out of the country. The main arguments are as follows:

• Chevron treated the environment "recklessly" and deliberately disposed of billions of gallons of toxic waste into rivers and streams over the 26-year period that it operated a large oil concession in Ecuador's Amazon region. "These lax operational practices have had a devastating impact on the rainforest ecosystem and its inhabitants," according to the document.


• Chevron dumped more than 16 billion gallons of chemical-laden "produced water" into streams and rivers over 70 years after the industry had stopped the practice in the United States due to its damaging environmental impacts.


• Chevron built and then abandoned more than 900 toxic waste pits filled with oil drilling byproducts such as barium, heavy metals, chloride, and acid -- all of which need extensive remediation.


• Chevron polluted the air by flaring gas with no controls, spilled thousands of barrels of oil, had no spill response plan, and ordered the destruction of records documenting oil spills.

The plaintiff’s "alegato" also found that "there is irrefutable evidence of contamination" at every one of Chevron's 45 well and oil production sites inspected by the parties during the trial phase of the case in the affected area, which is 1,500 square miles in size and covers a swath of rainforest roughly the size of Rhode Island. The chemicals and compounds found -- all of which are toxic and some of which are known carcinogens -- include barium, benzene, cadmium, chromium, copper, etheylbenzene, polycyclic aromatic hydrocarbons, vanadium, xylene, and zinc.

The alegato also explains how it is Chevron -- not PetroEcuador -- that is responsible for the contamination given that the vast majority of pollution occurred at the time Chevron's 356 well sites were drilled and operated by the American company. The legal concept of "joint and several liability" also imposes on Chevron responsibility for 100% of the damage it caused because of the substandard system it built and operated.

The submission is the first of three parts. The second and third parts -- which deal with damages and issues relating to due process -- will be released in the coming days. Earlier damages assessment reports submitted by the plaintiffs found the company could be liable for up to $113 billion in costs.

Chevron submitted its alegato to the Ecuador court in early January.

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