Chevron in Ecuador

The archive of the Clean Up Ecuador campaign website

Law Scholar Criticizes U.S. Judge Kaplan for Using "Judicial Slander" to Undermine Ecuador Pollution Case

Hinton Communications
10 November 2014 - FOR IMMEDIATE RELEASE
Contact: Karen Hinton at +1.703.798.3109

New York, NY – A prominent U.S. law scholar is criticizing a federal judge and Chevron for using tainted witness testimony and "international judicial slander" to illegally undermine efforts by Ecuadorian rainforest villagers to collect a $9.5 billion environmental judgment needed to clean up the extensive contamination of their ancestral lands.

Burt Neuborne, a professor at New York University School of Law, has filed a brief that faults Judge Lewis A. Kaplan and Chevron for engaging in what he called an "extraordinary venture in international judicial slander" against Ecuador to undermine the validity of the pollution judgment, which was affirmed recently in a 5-0 decision by the country's Supreme Court.

Chevron had insisted the dispute over who is responsible for the toxic dumping be heard in Ecuador after the villagers originally filed their claims in New York in 1993. The company later started to attack Ecuador's courts when evidence of its systematic toxic dumping began to mount during the eight-year trial in the country, which ended in 2011. Chevron then came back to the U.S. and asked Judge Kaplan to deem the Ecuador judgment unenforceable, which he did in March of this year after denying the villagers a jury of impartial fact finders.

"The District Court's experiment with conducting its own foreign policy must be reversed," Neuborne wrote in the brief, which asks a federal appellate court to throw out Kaplan's controversial ruling.

Kaplan, long accused of harboring animus toward the Ecuadorians and their court system, invited Chevron to file the racketeering case in 2010 and then assigned it to himself. He also repeatedly called the villagers the "so-called" plaintiffs and referred to their litigation as a "giant game" designed to help "fix the balance of payments deficit" of the United States. (Kaplan also refused to consider any of the scientific evidence of Chevron's pollution in Ecuador. For more on Kaplan's flawed proceeding, see this summary.)

Neuborne, the founding director of the Brennan Center for Justice and considered one of the nation's foremost civil liberties scholars, is representing two Ecuadorian villagers on a pro bono basis in their appeal of Kaplan's ruling. Also appealing the ruling is New York attorney Steven Donziger, the longtime legal advisor to the villagers.

In the latest submission, filed on behalf of Hugo Camacho and Javier Piaguaje, Neuborne made the following arguments:

  • Chevron's allegation that the plaintiffs in Ecuador engaged in bribery comes from "a crooked Ecuador ex-judge who was removed from the bench for corruption" and that the oil company presented a "bought-and-paid-for bribery story" that was uncorroborated. He pointed out that Chevron's lawyers met 53 times with the company's paid witness, Alberto Guerra, to rehearse his false testimony before he presented it in court.
    "If such thin, uncorroborated testimony by a conceded liar and crook justifies a finding of judicial bribery, no verdict (or judge) is safe from corrupt collateral attack," Neuborne argued.
  • Judge Kaplan had no basis to assert jurisdiction over the Ecuadorian villagers given that they reside in the Amazon and have had no contact with the U.S. When Kaplan ruled the villagers could not enforce their judgment – despite unanimous decisions to the contrary by two appellate courts in Ecuador – he vastly overstepped his authority and conducted his "own foreign policy" from Manhattan in violation of international law.
    "No American court has ever found the courts of a sister democracy incapable of administering justice fairly on such a flimsy record," said Neuborne.
  • Judge Kaplan and Chevron also made a critical mistake by trying to block the Ecuadorian villagers from trying to enforce their judgment not only in other countries, but also in the United States. Given that each U.S. state has separate laws governing the enforcement of foreign judgments, Kaplan had no right to dictate to judges in all 50 states how they should rule on the Ecuador judgment. And he had no right to rule on the validity of a foreign judgment absent an effort by the villagers to enforce it in New York, which has not happened, according to Neuborne.
    "Where the enforcement of money judgments issued by another sovereign are concerned, judges in New York have no more supervisory authority over their colleagues sitting throughout the United States than they have over their own international colleagues," he said.
  • Neuborne also emphasized that Kaplan's findings that lawyers for the Ecuadorians had engaged in wrongdoing – while fiercely contested by Donziger in his own appeal – does not allow Chevron an "all purpose get out of jail free" card against innocent Ecuadorian rainforest villagers who had no control over how their international lawyers litigated the case.

In finding against Chevron, the Ecuador trial court relied on 105 expert technical reports documenting Chevron's responsibility for what experts consider to be one of the worst oil-related ecological disasters on the planet. Evidence showed that to save on production costs, Chevron deliberately dumped billions of gallons of toxic waste into the rainforest and abandoned more than 900 open-air toxic waste gouged out of the jungle floor.

The Ecuador court also imposed an additional $9.5 billion punitive penalty on Chevron after finding that the company tried to corrupt and sabotage the trial process by threatening judges and filing hundreds of frivolous motions. Ecuador's Supreme Court later threw out the punitive penalty on technical grounds, effectively halving the amount of Chevron's liability.

Chevron operated in Ecuador from 1964 to 1990 under the Texaco brand.

Briefing in the appeal of Kaplan's ruling will end later this month with the submission of Donziger's reply brief. In the meantime, Donziger and the Ecuadorians have been supported with "friend of the court" briefs filed by 17 civil advocacy and human rights groups and more than 30 international law scholars. For background on the various supporting briefs, see here.

Chevron's supporting briefs were submitted largely by entities that have received significant funds from the oil giant, such as the U.S. Chamber of Commerce and the legal arm of the National Organization for Women. See here for background. Chevron also failed to muster even a single "friend of the court brief" for a critical argument on enforcement of the Ecuador judgment that will be heard December 11 before Canada's Supreme Court.

For a summary of the overwhelming evidence against Chevron in the Ecuador case, see here; for a video about Chevron's deliberate dumping in Ecuador, see here; for a 60 Minutes segment that documents Chevron's human rights violations, see here; for an article in Rolling Stone magazine about Chevron's unethical litigation tactics, see here; for a summary of a complaint filed against Chevron CEO John Watson before the International Criminal Court, see here.

For roughly 50 years, Neuborne has been one of the nation's foremost civil liberties lawyers. He served as National Legal Director of the American Civil Liberties Union from 1981-86, was Special Counsel to the NOW Legal Defense and Education Fund from 1990-1996, and was a member of the New York City Human Rights Commission from 1988-1992. He has argued numerous U.S. Supreme Court cases and has litigated hundreds of constitutional cases in the state and federal courts.