Injunction Shows "Judicial Arrogance" and Violates the Constitution, Says Bert Neuborne of New York University
Amazon Defense Coalition
28 June 2011 - FOR IMMEDIATE RELEASE
Contact: Karen Hinton at +1.703.798.3109
New York, NY – Nine prominent U.S. law professors, including a former member of Congress, have joined a group of international law scholars from South Africa and Australia in asking a U.S. appeals court to overturn the decision of a federal judge who claims he has worldwide authority to block a group of Ecuadorian citizens from enforcing their environmental judgment against Chevron for dumping billions of gallons of toxic waste into the lands and waterways of the Amazon.
The U.S. professors have asked the United States Court of Appeals for the Second Circuit in New York to dissolve an unprecedented injunction issued in March by Judge Lewis A. Kaplan purporting to block the Ecuadorians from enforcing the $18 billion judgment anywhere in the world. In anticipation of an adverse judgment in Ecuador, Chevron had sold its assets in the country and forced the plaintiffs to seek to collect any final judgment in other nations where the oil giant operates.
In an effort to stop enforcement of the Ecuadorian judgment, Chevron filed a completely separate lawsuit before Kaplan in February of this year asking that he declare Ecuador's entire judicial system broken. Without an evidentiary hearing and with the government of Ecuador not represented in the case, Kaplan quickly issued an injunction asserting that he had the power to order the private Ecuadorian citizens to forego initiating enforcement proceedings throughout the entire world – even in courts outside the United States where the U.S. judge obviously does not have jurisdiction.
Kaplan's unusual decision sparked an international controversy that has been growing for weeks and has attracted the attention of scholars in South Africa, Australia, Italy, Spain, and Finland in addition to the law professors in the United States. All say Kaplan's order disregards international law and the U.S. Constitution and would wreak havoc with the normal rules of transnational litigation.
Separately, Ecuador's government filed a brief with the U.S. appeals court blasting Kaplan for his "gratuitous belittlement" of the country's court system and asking that the injunction be dissolved.
Among the U.S. law professors arguing that Judge Kaplan is acting improperly is Richard L. Ottinger, who served for 16 years in the U.S. Congress and is the former Dean of Pace Law School in New York, and Pammela Quinn Saunders, a former attorney with the U.S. Department of State who teaches at Drexel University in Philadelphia.
The U.S. professors say Kaplan's injunction not only runs afoul of the U.S. Constitution and international law, but also interferes in the domestic affairs of Ecuador and is "a futile act" in that it would be impossible to enforce.
Burt Neuborne, a professor at New York University Law School and the Legal Director of the Brennan Center for Justice, filed an amicus brief with the appeals court concluding that Kaplan's ruling "sends an unmistakable message of American judicial arrogance to the rest of the world."
Neuborne, a leading authority on international litigation who has taught at NYU since 1972, warned that Kaplan has no authority under the U.S. Constitution to issue the injunction and that his approach will lead to "increased levels of reciprocal judicial suspicion and hostility" toward U.S. courts from other nations.
Eight other U.S. law professors – part of the group that includes Ottinger and Saunders – joined a separate amicus brief asserting that Kaplan's injunction "constitutes an internationally unlawful attempt to intervene in the domestic legal affairs of Ecuador."
The U.S. professors said Kaplan's injunction "is much more likely to antagonize the courts of other states" that be treated as persuasive authority, as the judge claims. They also said the injunction was "breathtaking in its attempts to arrogate a world-wide and exclusive jurisdiction in this case" to a U.S. court without any legal authority to back it up.
Joining the American professors in signing the amicus brief were scholars from Australia, South Africa, Italy, Spain, and Finland.
The other American law professors who have asked that Kaplan's injunction be dissolved include Rebecca Bratspies from CUNY Law School in New York City, an expert on international law and the environment who clerked on the United States Court of Appeals for the Eighth Circuit; Naomi Roht-Arriaza, a specialist in international human rights issues in Latin America, a former clerk for the United States Court of Appeals for the Ninth Circuit, and a faculty member at Hastings College of Law; and James D. Wilets, a noted authority on international comparative law and the Chair of the Inter-American Center for Human Rights at Nova Southeastern University in Ft. Lauderdale.
The American professors signing the brief also include Cesare Romano, a specialist in transnational litigation from Loyola Law School; Stephen C. McCaffrey, a specialist in transnational water issues from Pacific McGeorge School of Law; and David N. Cassuto, a environmental law specialist at Pace Law School who clerked for the United States Court of Appeals for the Eleventh Circuit.
The $18 billion judgment against Chevron was issued in February of this year after an intensively litigated eight-year trial. In a 188-page decision, the Ecuador court found that Chevron systematically dumped toxic "water of formation" into the Amazon when it operated hundreds of well sites from 1964 to 1992.
The dumping decimated indigenous groups in the area, increased cancer rates, and poisoned the water supply in a region the size of Rhode Island where tens of thousands of people live, according to evidence before the Ecuador court.
The Ecuadorian plaintiffs – who live mostly in indigenous and farmer communities that rely on contaminated rivers and ground wells for their drinking water – say the damage Chevron caused in Ecuador dwarfs that caused to the Gulf of Mexico by BP's Deepwater Horizon spill, where the total liability is estimated by industry analysts to be as high as $100 billion.
The environmental trial against Chevron was held in Ecuador because the company requested in 2002 that it be shifted to the South American nation from U.S. courts. At the time, Chevron repeatedly praised the fairness and transparency of Ecuador's courts as a way to avoid a trial in the U.S., the venue preferred by the Ecuadorians.
As the scientific evidence against it began to mount in the ensuing trial in Ecuador, Chevron shifted its strategy and began to attack Ecuador’s courts. It also announced it would not abide by any adverse judgment in Ecuador, despite previously promising to do so to induce a U.S. court to move the venue.
"Chevron will do anything it can to avoid paying for the damage it caused in Ecuador, including ignoring court decisions," said Karen Hinton, the U.S. spokesperson for the Ecuadorians. "The company constantly makes contradictory arguments before different courts to foster delay."
In considering Chevron's recent legal motions, Judge Kaplan caused a stir by seeming to insult the Ecuadorians and their government. Kaplan called the lawsuit against Chevron a "game" that was "dreamed up" by American lawyers to help solve the "balance of payments" deficit of the United States. He also questioned the very existence of the plaintiffs, using the modifier "so-called" when writing about them in his decisions.
The Ecuadorian citizens responded by asking the appeals court to recuse Kaplan because of his "deep-seated antagonism" toward their lawsuit. They also have rejected Kaplan's jurisdiction and will seek to lawfully enforce any final judgment from Ecuador in other countries regardless of what he decides, said Hinton.
In its amicus brief, Ecuador's government leveled a fusillade of criticism at Kaplan for what it called his "gratuitous belittlement" of the country's legal system and his disregard for international legal norms. That brief noted that Chevron and other foreign investors in recent years have won large monetary judgments in Ecuador’s courts against the government and the powerful state-owned oil company Petroecuador, undermining Chevron’s contention that those courts lack independence.
Ecuador, a U.S. ally and trading partner, is a democracy whose Constitution guarantees due process rights and provides for separation of powers. President Obama recently called Ecuador's President, Rafael Correa, to congratulate him after an electoral victory.
The New York appeals court has scheduled oral argument on the case for September 12 in Manhattan.