S5, Ep3 | The Trial

S5 Ep3 The Trial

[00:00:10] When we left off last time, it was 2003 and the Ecuadorian plaintiffs had just agreed to refile their case against Chevron Texaco down in Ecuador. At the center of this case were these waste pits, unlined pits where Texaco would dump toxic waste water from oil drilling. When the case was first filed in 1993 in New York, Texaco said it had cleaned up its fair share and that anything left was Petro Ecuador's mass. The plaintiffs said the cleanup was no good and that Texaco had overseen all operations and should clean it all up, that it should be based on who did what, not who got what percentage of the profits. Ten years later, the arguments hadn't changed. But the defendant had. Chevron's acquisition of Texaco was complete in 2001, and it had inherited this case as part of that acquisition. Today, we're going to look at what happened next as the trial got underway in Ecuador. A bunch of people told us that if we wanted to understand what the oil pollution in the Amazon really looked like, we had to talk to Donald Moncayo. He was born and raised right at the epicenter.

[00:01:40] Menomena, Mungiu, the three elements, he employs Metro.

[00:01:44] And he was born about 200 meters from the second, well, Texaco Drilled in the Amazon. Daniel There, minority interest in nineteen sixty seven.

[00:02:10] I'm Amy Westervelt and this is Drilled. Season five, La Luchino, this is episode three. The trial.

[00:02:28] If you haven't listened to episodes one and two, go back and do that.

[00:02:32] This is one of those seasons. You're gonna have to listen to the episodes in order to keep up.

[00:02:40] All right, American attorney Steven Donziger would partner up with Ecuadorian attorneys who would file the case in the courts there when the case started kicking off in Ecuador in 2003. Donald Moncayo was the guy who would lead court officials and any visiting press on what the plaintiffs called the, quote, unquote, toxic tours, showing them abandoned waste pits and pools of oil. People who took that tour would have heard him say something like this.

[00:03:10] He enforcing the law, they say, to Fox equals would be nice. Those workers cannot beaning mean Wuterich will remain.

[00:03:18] In short, all the toxic waste was released into these unlined pits. Also, they put in a curved tube so that the pit would not overflow and that oil would settle on either side. They called these tubes gooseneck.

[00:03:30] This was literally a moment where you they gonna so you can see impotency and bodies. Those were used.

[00:03:36] Examples is that one Beedie Hedo SCADA reuse land when 100 percent of these goose necks were directed towards rivers, lagoons or streams. So all that toxic waste they're pumping out would disappear into the lagoons, rivers or streams.

[00:03:52] Say is a no sucrose grows in the back or there, then Orioles', Borghetti.

[00:04:00] So those of us who were at the lower part of the river. We had no drinkable water. And still today there's no drinkable water in the countryside.

[00:04:13] And Stephen Donziger had first gone to Ecuador in 1983 to help with research for this case. He saw a lot of the things that Moncayo talks about.

[00:04:22] And it was just almost unimaginable, the degree to show the open air toxic waste pits that have been deliberately gouged out of the jungle.

[00:04:33] Also, in 1983, the original case was filed against Texaco in New York. That same year, the U.S. signed a bilateral investment treaty with Ecuador. These trees basically exist to protect U.S. companies that are doing business in other countries and to boost American exports. One important thing they provide is access to international arbitration. A separate system that allows the parties to circumvent local courts. Marcos Orianna is an expert on this system. He teaches law at American University and is the U.N. Special Rapporteur on Toxics and human rights in Toronto in Brisbane.

[00:05:12] Arbitration can be described as a private system of adjudication that decides on the propriety of governments or measures. But it lacks the safeguards for accountability and transparency that characterize constitutional democracies governed by the rule of law. We look back in time in its origins. International vestment arbitration came to replace colonial systems, colonial systems of extraction of domination.

[00:05:46] [00:05:46]In other words, once it was companies rather than countries that became the colonizers in the world, they needed a new system. [8.4s]

[00:05:56] [00:05:56]When the former colonies acquired independence, the advent of decolonization largely after the Second World War and the advent of the United Nations, the former imperial powers needed a legal system to protect the economic interests of the rich. Corporations and international investment arbitration offered such an alternative. [23.0s]

[00:06:21] Today, in this current day of age, many in civil society see the arbitration regime as.

[00:06:29] As yet another tool of corporate globalization. And this is because when governments regulate in the public interest, they become the targets of corporations that utilize the arbitration system to challenge those acts of authority.

[00:06:46] The US Ecuador Investment Treaty went into effect in 1987. So by the time this case that was originally filed against Texaco in New York in 1983 was refiled against Chevron in Ecuador. In 2003, the system Oriana describes was very much in effect. On top of that, Lucio Gutierrez was president.

[00:07:09] Gutierrez had been elected as something of an anti corporate revolutionary. But within the first few months of his presidency, he had become very pro trade and particularly cozy with the United States. None of that boded well for the indigenous plaintiffs seeking compensation for the damage that had been done in the Amazon.

[00:07:29] In 2002, the appellate court in New York had ruled that the case against Texaco, which was now Chevron Texaco, should be tried in Ecuador. But the New York court said any final ruling and financial penalty imposed against Chevron Texaco would be enforceable in the United States.

[00:07:50] We filed and there was a hearing the very first day you show up and both sides present their case or their theory of the case. The very first day.

[00:08:05] And on that day, I'll never forget Texaco's law or Chevron's lawyer, local lawyer. His name is Adolfo K.A. has. Been with the company for years and years. Read their response to our lawsuit.

[00:08:22] Every word of it. It must have taken him hours, you know. And that told me two things. One is their entire strategy was obstruction and delay. Like, you don't need to read every word of a 100 page document. You just could have summarized it. And number two is a main defense was that they were denying that the Ecuadorian courts had jurisdiction because they were Chevron even. And even though they had bought Texaco, it was Texaco that did it, not that. So they had agreed in the U.S. as a condition of getting the case out of U.S. courts and avoiding a jury trial. They agree they would accept jurisdiction in Ecuador and the first thing they did on the first day of the trial is to claim the case should be dismissed because of a lack of jurisdiction. And Holy Moses. I mean, I just couldn't believe it. I mean, maybe I was naive, but like, how do you argue one thing in one place? And then you go to that other court where you. You're bound by your promise. And you just switch. Try to switch it on the first day.

[00:09:31] The request for dismissal was denied. And the trial got under way in 2003. Trials in Ecuador work a lot differently than they do in the US. They run according to the civil law system. Also sometimes called the Roman system, whereas the U.S. got its legal system called the common law system from the UK. The key difference lies in jury trials. We caught up a hundred Gado, an expert on Latin American law, to explain.

[00:09:59] Well, one aspect of American exceptionalism, which I think is truly exceptional, is the jury system in non criminal cases and civil cases like it. In the short run case, even England, which is a mother country from where the United States copy the jury system, abolish it in the 19th century, and there are no more jury, civil case juries, human cases in England.

[00:10:21] The initial hearing in the Chevron trial in Ecuador only lasted six days. Both sides presented their case to Rackley, to a judge in Ecuador. It's the judge's responsibility to figure out the truth in legal cases, to investigate figure things out. And that can take months or years. We had Donziger walk us through that first day in court in La Golok.

[00:10:43] So, you know, I'll never forget the first day of the trial in Ecuador, just like I'll never forget my first trip, you know, in 1993. It was the first day the trial was in in October. But the first day was really important because the affected communities, the indigenous groups, there's five indigenous groups who were part of the lawsuit and a lot of other non-indigenous Amazon communities.

[00:11:10] They organized to come in from all over the surrounding Amazon rainforest, you know, by canoe and bus and walking.

[00:11:20] You know, however, they could get to this town where the trial was going to be held, the towns called Lago Agrio, which has so much symbolic importance because the only reason log of exists is because that's the place Texaco first found oil in 1967.

[00:11:39] There were very few people in the courtroom initially in the morning, which Donziger thought was strange. He thought maybe the guards had scared some of the plaintiffs off or maybe they just weren't used to being able to go into the courtroom.

[00:11:52] [00:11:52]It was a very kind of Wild West town, and that's where the trial was convening in a building that was like a commercial building that was rented out by the local court to have a court there. The people come in from all over the Amazon and they had organized this big march and there were pictures and signs who CTCA and everyone was dressed up in their traditional clothing. I got to the court and to the building that housed the court. The courtroom was upstairs, maybe three flights of stairs. And the first thing I saw was these armed guards. They looked like SWAT teams from the military that were standing guard outside the court. [43.1s]

[00:12:36] And as the morning wore on in the Chevron lawyer, K.A. started reading this really boring opposition that started to take hours.

[00:12:48] I was like, wait a second. You know, I can't wait for there to be a lunch break because I'm going down to the street and I'm going to bring everyone up into court.

[00:12:57] And probably around, I don't know, eleven, thirty in the morning, you know, late morning when we're soon about to break. I suddenly hear this, like rising chant from the street.

[00:13:12] No.

[00:13:13] You know, all sorts of chants, noise. And it was like the crescendo. It was like building into a crescendo.

[00:13:37] But you could hear the noise rising and rising. And it made me feel so good because I knew exactly what it was. I know it was the people affected. After decades of abuse were coming to assert themselves and kind of let it all out.

[00:14:05] And by then, I mean, there had to be hundreds, maybe a thousand, two thousand people on this little street, this dirt street right in front of the courthouse. And they were standing on trucks and there were microphones. I started talking to some of the people who would travel from their ancestral ways to this town. And I'm like, why are you guys in the courtroom?

[00:14:30] Come up with me. Come, come up with me. And many of them looked at me and they're like, oh, we can go into court.

[00:14:39] I'm like, Yeah, it's your country. It's your court. It's your case. Yes, you can come. When we went back in, I marched up the stairs with, you know, who knows how many people behind me to Jeunesse, women who traditional clothing and all sorts of people mooches pack the hell out of that courtroom. And, you know, it was really an emotional day.

[00:15:08] If Chevron had entertained ideas that this case would move to Ecuador and be forgotten, Danziger's media savvy took care of that. Reporters flew in from all over the world, met with Donziger and the Ecuadorian attorneys, took the toxic tour with Moncayo and sent reports back home. Here's a clip from NPR's All Things Considered.

[00:15:27] As the trial got underway in October 2003 in northern Ecuador, a trial is underway against Chevron Texaco. The civil suit accuses the company of contaminating the groundwater of a formerly pristine area of the Amazon.

[00:15:42] The Ecuadorians, who after that initial 60 trial ended the court and both legal teams brought in various experts to conduct field investigations to determine the extent of contamination in the areas where the plaintiffs lived. And whether or not the cleanup that Texaco had done back in the 90s was sufficient. The court gathered various other pieces of information, too, including historical information on whether or not it really was common practice in the oil industry to dump wastewater in unlined pits. Tim Lugger, Negro. The geologist and longtime oil industry worker we heard from last time was pretty emphatic that it was not you would never waste water in unlined pit.

[00:16:26] Never. Everyone knows that's toxic water putting that into a rainforest. They had tarps in those days to impermeable vinyl sheeting. It's just normal has been forever.

[00:16:44] But given how long the case had been going on by this point and how much time had passed since Texaco had left the country, the trial dragged on and on one year than it was two years, three years. In December 2006, more than three years after the trial had started in Lago Agrio, Chevron filed a complaint against the government of Ecuador for failing to resolve cases quickly. That complaint was in reference to a different set of cases, complaints that Texaco had brought out back in the 90s. But the message was clear speeded up already or will sue in arbitration. On top of all of the obvious reasons Chevron may have wanted to officially complain about the Ecuadorian court system. There was a major change around this time in the country's leadership.

[00:17:31] No, no, no.

[00:17:35] Hi.

[00:17:41] In the run up to the election of Rafael Correa in November 2006, various business analysts and think tanks in the U.S. warned that if he were elected, Ecuador would go the way of Venezuela and Bolivia turning against U.S. corporate interests. Among other concerns was the fact that Correa was staunchly against extending the bilateral investment treaty with the U.S., which was set to expire at the end of 2006. Even fairly mainstream media outlets like NPR played into the idea that Correa was the scary second coming of Chavez.

[00:18:17] Yesterday's balloting reduced a field of 13 to two men, one a banana tycoon, the other a Left-Wing supporter of Venezuela's president, Hugo Chavez.

[00:18:27] Alvaro Noboa, who wrested control of his family's banana business to become one of Ecuador's wealthiest men, held a slight lead. Through the night, running a close second was Rafael Correa, a former economy minister who challenged the political orthodoxy, advocating cheap credit for the poor and renegotiation of all foreign oil contracts.

[00:18:46] By this point, Texaco had long since pulled out of Ecuador, and Chevron wasn't doing business there either. In fact, they never had. But still a president that was promising to renegotiate foreign oil contracts. Really what you want when you're a U.S. oil company defending yourself in Ecuador's courts.

[00:19:19] It would be another five years before the judge in Ecuador would rule on the case against Chevron. And a lot would happen in the meantime.

[00:19:37] Next time on Drilled, we hear from the other attorneys in this case talking about mobilizing to put people in front of the courthouse to the thousand people in front of the courthouse to pressure. And he's saying literally, we have to pressure the judge. We have to make him know who's boss.

[00:19:57] Chevron's attorneys get dated accusations of fraud and bribery flat on both sides. And an incredible international PR war kicks into gear.

[00:20:09] The Sequoia's took us to their community hut where we saw the driving force behind the suit. Steven Donziger, a New York lawyer, far from home. Did she seem aggressive policy?

[00:20:20] These are people who never believed they had a right to sue an American company in their own court system. Yeah. But you know what Chevron says? They say that this is being driven by a New York plaintiffs lawyer, and they don't mean that as a complex.

[00:20:39] Drilled is an original production of the Critical Frequency podcast network. The show was created by me. Amy Westervelt. This season, my co reporter is Karen Savage. Our editor is Julia Ritchey. Sound Design and mixing by Mark Bush, original score by B. Beamon. Additional production help from Sarah Ventry, special thanks to Laryssa Ikeda. Thanks to NPR for some of the clips used in this episode. Our artwork for this season was drawn by Matt Fleming. You can find corresponding stories, photos and documents for this season on our Web site at Drilled. News dot com. If you are a patriot and subscriber, thank you. Your support is helping to make this season. And as a special thank you, if you would like to get next week's episode early, go check your feed because it's there now. If you're listening to this and you're not a Patriot subscriber and you can't wait for next week's episode, go ahead and sign up its patron dot com slash Drilled. Thanks for that and thanks for listening. And we'll see you next time.