Ecuadorian lawyer Pablo Fajardo succeeded against the petroleum giant with the largest compensation in history for environmental crimes
By Pablo Ximénez de Sandoval, El País
6 June 2011
When licensed in law 32 years back, Ecuadorian Pablo Fajardo brought with him more than a decade of experience in lawsuit courts against one of the largest businesses in the world. In 2005, he sat in a New York courtroom, with a briefcase in which he carried the defense of the indigenous peoples that inhabit the Amazonian province of Sucumbíos. In front of him sat eight lawyers representing the oil company Chevron, accused of hazardously dumping toxic loads for almost three decades. In all, he faced 39 lawyers paid for by the third largest company in the United States. "The least of which had 25 years of experience in law," said Fajardo. He only had one year of experience. "But I have an advantage," says Fajardo. "I haven't had to make anything up. I only have to tell a story."
This is the story of an ecological catastrophe thirty times worse than the Exxon Valdez oil spill, according to the plaintiffs. It is also that of a sentence, dictated by a judge in the town of Lago Agrio, Ecuador, that signed for the most costly compensation demand in history in a judicial action for environmental crimes: 8.560 billion dollars. In between, decades of suffering and death, in a place where surviving the daily misery was already difficult enough.
José Fajardo and María Mendoza left the province of Manabí, on the coast of Ecuador, looking for a future in the northeast, where massive extraction activity was attracting workers. They settled with their ten sons towards the end of the 1980s in a pueblo known as Shushufindi (oar, in the Secoya language), in the province of Sucumbíos, in the heart of the Amazon. Pablo Fajardo Mendoza was the fifth of the brothers. He was 14 years old.
It is difficult to convince someone who has never lived in this region that "there is oil everywhere." In the fields, mixed with the earth. In houses, in the air. Of course, in the streets, because according to Fajardo, the Texaco trucks sprayed the dirt streets with oil, in a type of improvised asphalting so that the dust would not rise. Fajardo remembers a childhood with feet covered in petroleum, stained pants, the walls...everything. It is common to lose a shoe in the streets.
Imagine heading out onto the road after a downpour and you are walking in slippers. Now imagine that instead of water, it is oil flooding the streets. This is life in Sucumbíos.
356 Perforated Oil Wells
According to Fajardo's research, Texaco perforated 356 oil wells in the Ecuadorian Amazon. "But in addition to this, in each perforated well, Texaco constructed four or five pools to dispose of toxic waste." Here toxic water used to extract petroleum was also stored. "The company always constructed the waste pools as close as possible to a river. The idea was to dispose of the toxic loads in an easy and cheap manner." Therefore, the problem of the soil was transferred to the water. This water carried sulfur and other toxic substances from contact with the oil. When evaporated, it would fall in the forest in the form of acid rain. The earth, the water, and the air tasted like oil.
Texaco, acquired by Chevron in 2001, started to drill in the Amazon in the north of Ecuador, in the provinces of Sucumbíos and Orellana, with a concession from the government in 1964. They left the area in 1990 and passed the drilling on to Petroecuador. In this zone lived at least five indigenous tribes before it filled with oil workers. Two of these tribes, the Tetetes and the Sansahuaris, have disappeared forever. The poisoning of the rivers killed the fish. The rest of the tribes moved from a subsistence economy in the jungle to the misery in the market economy, working for the oil company.
Fajardo also worked for Texaco. There was not much else. He was an adolescent and worked as a laborer helping out, for example, to cover oil spills with earth in whatever manner. Meanwhile, he began to collaborate with a mission of religious Capuchins from Navarre, where he was able to study and started to see that it was "to work with the communities." "Leaving the field you realized that the problem was real. There was contamination, your animals were dying, your sons were sick, there was cancer, abortions... and the people had no where to turn." Remember that the only job the authorities had then was to protect Texaco.
Around the mission of the Capuchin priests, the embryo of resistance was launched, a human rights committee formed by farmers and indigenous peoples. Fajardo organized fifty people. He was 16 years old. They threw out the oil company as well as a palm plantation that was the only labor alternative. He ended up making a living through his work in the mission. "The same priests searched for a scholarship for me, from a person I did not know, that financed my university studies." He studied law by correspondence.
"It was a necessity. Every time we turned to the authorities, they told us 'look for a lawyer to help you.'" He decided that he would be the lawyer. The small group grew with those affected in other towns. The case became international with the publication of a book, Amazon Crude, written by Judith Kimberling, a United States lawyer. This attracted the necessary attention to find lawyers to present the first accusation against Texaco. It was the 3rd of November, 1993, in a court in New York, initiated by three US attorneys drawn to the story. In 1994, the adolescent that had organized the affected communities finished secondary education.
Justice in Ecuador
Texaco's defense thereafter was based on the fact that the US was not competent to judge the case. If there was damage, it should be judged in Ecuador. "They had influence in the political and judicial system, they were convinced that they could control the trial. And in fact this was true." The sentence was nine years late in arriving. Texaco won the battle in August 16th, 2002. The Appeals Court of New York accepted that the trial would be done in Ecuador, with the condition that the plaintiffs be permitted a period of one year to retry their case. The petroleum company had no idea of what had just been obtained.
On May 7th, 2003, inside the period, the accusation was presented again before the Justice Court of Sucumbíos. Pablo Fajardo collaborated with US and Ecuadorian attorneys who had taken over the cause. The fifth son of José Fajardo and María Mendoza had graduated with a degree in law in 2004. The following year, he assumed the cased as the head attorney. The war of experts and technicians lead to 106 different expert reports, 58 of those financed through Chevron, and the rest, of the other party. "All confirmed the presence of hydrocarbons."
By then, all of this litigation was being paid for by a Philadelphia law firm, Khon & Graf, for whom the Texaco-Chevron case was an investment risk. This meant that if they won they would get paid a portion of the compensation, and if not, they would not charge. Based on a controversial expert report, the persons affected by the spill claimed $27.3 billon in compensation, the estimated cost of the reparations for the deaths, the illnesses, and the complete cleaning and recovery of the affected region.
"There were heart-breaking testimonies. I know people that had died during the lawsuit. For example, a woman and her daughter who both have cancer. All were people like this, that had lived this." The people told before the court how their relatives fell into the toxic wells and died from poisoning. "One woman fell trying to rescue her cow and swallowed the oil; she died soon after." The incidence of cancer in the region is abnormally high, according to the plaintiffs.
In 2004, eight days before starting the expert phase of the trial, William Fajardo Mendoza, Paulo's brother, was found dead. He was 28 years old. He was savagely tortured before being murdered. "I cannot affirm that Chevron is behind this," Pablo Fajardo always said, and he maintains this. By this time he was warned that they were also coming after him. This was evident one night when two armed men guarded the door of his house, while he was hidden in the home of one of his neighbors. He has three sons: 14, 7, and 3 years old. All of the family dispersed throughout other towns for security.
Massive Contamination on Par with Chernobyl
The plaintiffs that Fajardo represents (already a group of 30,000 fieldworkers and indigenous persons) present the case of massive contamination on par with that of Chernobyl, the oil spill caused by the Exxon Valdez ship in Alaska or the recent BP oil spill in the Gulf of Mexico. "The difference is that those were accidents. But in Ecuador, Texaco designed the system to contaminate. The objective was to extract petroleum with the least investment possible." According to one of the experts, in the 26 years that Chevron operated in Sucumbía, they saved $8.5 billion neglecting the most elemental norms of security and disposal of waste.
On the part of Chevron, Fajardo heard in recent years all types of arguments. Among other things, they claimed that "oil does not contaminate." Also, "that the Amazon is to be used for oil extraction and nobody should be living there." In another moment they commented that "the cancer was produced from the lack of hygiene on the part of the indigenous peoples." Also, they have started to claim "that oil is biodegradable and in a few weeks the effects will not be noticeable."
The last was 2009 onwards. "They have seen that the trial is a real threat." They presented 14 distinct accusations throughout the entire United States against that platform of the affected persons and whoever worked with them in order to demand information. And they obtained it. "They have all of our emails."
On February 1st, 2010, Chevron planted a RICO (Racketeer Influenced and Corrupt Organizations) case, the special US federal law for organized crime. Chevron's new theory is that the plaintiffs form part of a criminal association whose goal is extortionate the company. Meanwhile, an employee of Chevron, tells Fajardo, to bribe the judge and record it on a hidden camera, to show that he was supposedly corrupt.
The 14th of February, the historic sentence was issued in the courtroom of Lago Agrio that condemned Chevron-Texaco to pay $8.560 billion. But the company did not have property in Ecuador; this is why they had to be repossessed outside of Ecuador. Nonetheless, Lewis Kaplan, a judge from the South District of New York, decreed that the sentence was unenforceable in the US while he remained undecided over the competence of the courts. "This judge does not know the problem. He has issued wrongful rulings and an economic conviction, not a lawful one," says Fajardo. The two parties lean upon the sentences in Lago Agrio and New York. Patton Boggs, a law firm in Washington, has taken up the case on the part of the Ecuadorian plaintiffs.
"Chevron has said that they are not going to pay. But they have investments in 50 countries, and the sentence in Ecuador says that the compensation could be charged in whichever part, it does not have to be in the United States. We will have to obligate them to pay," states Fajardo. This means that they must present new demands there where Chevron has properties that can be seized to fulfill the sentence issued in Ecuador. Kaplan, the judge, has clearly stated that, for now, in the United States it will not happen. "This judge acts from ignorance regarding the case and is guided by Chevron's lies," claims Fajardo.
The Story Continues
The story is not finished. During recent years, between 20 and 30 million dollars have been invested in the lawsuit by US attorneys in particular that have been relieving in the case, and donations that the plaintiffs receive from around the world. Fajardo claims that they have knowledge from "shareholder sources" that Chevron spent $300 million on lawyers in 2010 alone, and in total in this litigation they have already surpassed $1 billion.
The Ecuadorian son of illiterate fieldworkers will have to return to sit many times with his briefcase in front of the dozens of attorneys that Chevron wants to put on the case. And he will continue to hear that the oil does not contaminate, that the problem of the indigenous people is that they do not bathe, that he presides over a criminal organization. During 18 years, and those that remain, Chevron has utilized all defense strategies imaginable. All except one. Never have they been able to deny that the earth, the water, and the air of Sucumbíos are full of oil. And so it continues.
Translated from Spanish to English by Amazon Watch