Oil Giant Shelves RICO Case and Now Plans to Call Experts To Assert Massive Pollution In Ecuador Is Not Its Problem, Say Legal Papers
Amazon Defense Coalition
30 August 2011 - FOR IMMEDIATE RELEASE
Contact: Karen Hinton at +1.703.798.3109
New York, NY – Ecuadorian indigenous residents are accusing a New York federal judge of improperly allowing Chevron to re-litigate an eight-year pollution trial that it lost to help bail out the company from a potential $18 billion clean-up liability, according to legal papers filed in recent days in New York federal court.
In a series of motions, the Ecuadorians detail how New York federal judge Lewis A. Kaplan repeatedly has denied them time to prepare for a controversial trial scheduled for November where Chevron seeks to have Ecuador's entire judicial system declared unfit. The Ecuadorians also asked Kaplan to dismiss the case entirely because it has no legal basis.
In the court filings, the Ecuadorians assert that Kaplan is "pushing this case towards a trial date for which the Ecuadorian plaintiffs cannot possibly be prepared."
"Continuing on this course will prejudice the Ecuadorian Plaintiffs, deprive them of their due process rights, foster an injustice, and result in a proceeding" with a "pre-determined result," said the papers, filed by the Texas law firm Smyser Kaplan & Veselka, which recently joined the case on behalf of the Ecuadorians.
Chevron's hope is to use a favorable decision from Kaplan to try to block the lawful enforcement of a final Ecuador judgment in countries where Chevron operates. Chevron has stripped its assets from Ecuador and vowed to never pay the judgment despite promising to do so in 2002, when it persuaded a federal judge to move the case from the U.S. to Ecuador. When seeking the transfer of the case, Chevron heaped lavish praise on Ecuador's court system.
Ecuador's government has said that the planned November trial – in which Kaplan will opine on whether Ecuador provides "due process" to all litigants – "runs counter ... to long-established jurisprudential norms." Several international law scholars and environmental groups also filed briefs saying Kaplan can cite no proper basis for the trial under the Constitution or any statute. See here and here.
The Ecuadorians – who are among thousands of people who live mired in oil pollution covering a 1,500 square mile are of the Amazon where Chevron operated – believe Kaplan already has decided to rule in the oil giant's favor. The judge recently called the case, which has lasted 18 years and produced more than 200,000 pages of trial evidence in Ecuador, a "game" that was "brought about by the imagination of American lawyers" trying to enrich themselves.
Kaplan also repeatedly has questioned the very legitimacy of the plaintiffs, using the modifier "so-called" when describing them in his decisions.
Kaplan has come under such scathing criticism that the federal appeals court in New York will hear argument Sept. 16 on whether he should be recused and whether the November trial on Ecuador's judiciary can proceed.
In the recently filed legal papers, the Ecuadorians criticized Kaplan for allowing his planned November trial to "mushroom into a re-trial of the merits of the underlying action in Ecuador."
The Smyser firm accused Kaplan of setting up a "through the looking glass" proceeding where numerous witnesses who testified for Chevron in the Ecuador trial will be called back to recount their same testimony before Kaplan, who would then pass judgment on Ecuador's entire judicial system. Kaplan also has refused to stay the trial while the Ecuadorians appeal his draconian scheduling orders.
Chevron previously sued the Ecuadorians and their U.S. counsel before Kaplan, alleging the entire 18-year litigation was a "racketeering" conspiracy. When Steven Donziger, the U.S. counsel for the Ecuadorians, called Chevron's bluff and demanded an immediate jury trial on the charges Chevron dropped him as a defendant and had Kaplan bar him from fully participating in the November trial, which will be heard by the judge alone.
The Ecuadorian plaintiffs and Donziger have labeled the oil giant’s allegations "absurd" and say they are designed to distract attention from Chevron's environmental crimes in Ecuador and subsequent sham remediation.
Lawyers for Donziger also filed papers asking Kaplan to reconsider his earlier orders to avoid "a one-sided show trial without any semblance of fairness or due process or concern for the merits."
On Feb. 14, an Ecuador court found Chevron liable for an $18 billion judgment to cover cleanup of what experts consider one of the largest oil-related disasters ever. The Ecuador court found that to lower production costs, Chevron discharged billions of gallons of toxic waste into Amazon lands and waterways from 1964 to 1992, leading to increased rates of cancer and the decimation of indigenous groups.
The magnitude of pollution damage caused by Chevron in Ecuador dwarfs the size of the BP Gulf spill, where liability has been estimated between $60 billion and $100 billion, according to the plaintiffs.
The trial court in Ecuador also sanctioned and fined Chevron's lawyers for unethical behavior, including filing frivolous motions to delay the proceedings and threatening the judge with jail time if he didn't rule in the company's favor.