How a company got away after committing the worst oil spill in history

Open-source intelligence and interviews tell a story about how oil-giant Chevron, when accused of devastating pollution in the rainforest of Ecuador, managed to make its defence a personal case against a human-rights lawyer. Ben Heubl explains the successful tactics and efforts with open information and shows how it shifted America’s attention away from one of the biggest environmental disasters in history.

Steven Donziger is a human-rights lawyer. He has spent the past one-and-a-half years at home. But not, like many of us, under lockdown. He was put under house arrest, on the orders of a judge in the state of New York.

In 2014 that judge, Lewis A Kaplan, had found Donziger and his Ecuadoran allies guilty of bribery and fraud in the US. Kaplan was holding investments in multiple funds with Chevron holdings at the time of his rulings. This judgement complicated the fight by the plaintiffs to collect compensation in the US for the environmental damages in Ecuador. The house arrest was later imposed because the lawyer refused to turn over confidential client information on his electronic devices to Chevron “without any legitimate basis”, he said.

“As a human rights lawyer I have been confined to my apartment for almost two years without trial as obvious retaliation by Chevron and certain judges for successfully helping indigenous communities win a historic pollution judgment that threatens the business model of the fossil fuel industry,” Donziger tells me. “This has been incredibly difficult for me, my wife, and my son. But we are strong, determined, and optimistic about the future. Chevron would not be doing this to me if the company wasn’t trying to shift attention away from its massive toxic dumping in the Amazon, which multiple courts have confirmed”.

Judge Kaplan brought criminal contempt charges against the lawyer, which led to prosecution under Kaplan’s watch and in 2019 to led to house arrest, an $800,000 bond co-signed by Donziger’s wife and a GPS-powered ankle bracelet. Last year, 200 lawyers filed a judicial complaint against Judge Kaplan over ‘misconduct’ and targeting the human rights advocate Donziger. They stated that Judge Kaplan’s rulings have been in ‘lock step’ with Chevron’s interests and requests.

The judge who now presides over the case, District Judge Loretta Preska, was hand-picked by Kaplan and is a leader of the right-wing Federalist Society, to which Chevron is a major donor.

What happened with the legal case against Chevron? On paper, it looks as if Chevron won. The company was freed from paying billions in compensation charges for one of the biggest and most devastating oil spills in history, which Texaco committed and admitted. Texaco was later bought by Chevron. But because Ecuador’s rainforest is not the Gulf of Mexico – BP was made to pay $65bn in compensation to people impacted by the Deepwater Horizon oil spill – you may have not even heard of it.

On top of that, Texaco’s pollution case is more sinister than BP’s spill for which it paid so dearly. It wasn’t just a spill. A mountain of evidence suggests it was part of a deliberate design to externalise costs of production and doesn’t fit into the same category as the accidental Gulf of Mexico spill.

But did Chevron really win? Not in the eyes of Donziger and multiple judges at higher courts in Ecuador and Canada – higher than the courts in the US, that is. They rejected that there was any bribery or fraud involved, Donziger insists. There is more to it. In 2019, the Supreme Court of Canada dismissed claims attempting to force Chevron’s Canadian unit to pay the $9.5bn judgment handed down in Ecuador against the company. An international tribunal ruled a year earlier that the pollution judgment by Ecuador’s Supreme Court against Chevron was procured through fraud, bribery and corruption.

Many of Donziger’s high-profile supporters see things differently. Those include 29 Nobel Laureates (now 55 Nobel Laureates) as well as actor Alec Baldwin and more than 475 lawyers, legal organisations and human rights defenders, who condemn Chevron’s pollution in Ecuador and demand freedom for Donziger.

More people are taking note today. Vice Media Group published a 12-minute documentary last October which garnered more than 1.5 million views.

There is also no suggestion that Texaco, which was swallowed by Chevron in 2000, didn’t do it. It admitted to having committed the horrendous environmental crimes in the Ecuadorian rainforest. But then, as the official story goes, as told by Chevron, Texaco cleaned it up and left. Chevron blames Texaco’s partner in Ecuador for the remaining mess.

But the pollution didn’t vanish. How could it? A conservative calculation shows that at least 18 billion US gallons (68bn litres) of toxic waste and 17m gallons of crude oil were dumped on sensitive rainforest soil on an area spanning 4,400 square kilometres (1,700 square miles). Rex Weyler, co-founder of Greenpeace International, told me that the amount of polluted waste dumped in the area could be as much as 140 billion gallons, or nearly nine times the 16bn gallons Chevron admitted to in court documents, he says.

This waste kept on affecting the local indigenous people and their drinking water. You don’t have to look far for visual evidence that the pollution remained in the soil. It’s blatantly obvious in some of the photographs that were taken recently. Lou Dematteis, an American photographer, took impressive footage, some of which Donziger later posted on his Twitter feed.

Campaign to ‘demonise Donziger’

Chevron attacked in different ways. It bet on shifting the attention away from the pollution and making it all about the lawyer, the person, Steven Donziger. Donziger calls this ‘control of consciousness’: “I think control of consciousness is a pretty interesting field. They’ve been able to launder their narrative to this judge in New York, Judge Kaplan, to give it legitimacy. A lot of people believed it. Other people think it’s a joke. There are 29 appellate judges who rejected it [Kaplan’s judgement]. But those judges are in Ecuador and Canada. A lot of Americans don’t want to pay attention to them.”

Instead of making it about the Ecuadorian people, “they made it about me,” he says on the phone. On the website where Chevron takes note of the legal challenge, it mentions Donziger in almost every paragraph (legal case explainer). In the end, there is a video that reads in big letters ‘Fraud’. The video is meant to discredit Donziger. It claims he hoped to personally benefit from the trial. It features exhilarating music in the background and concludes: “Steven Donziger thought he was going to get rich by suing a big oil company but in the end, the US district court’s decision helped to expose the fraud, bribery and most importantly, the truth”.

Today, Donziger runs his own campaign. On social media, he shows up with a face-mask reading ‘FreeDonziger’. The message is clear. He wants to clear his name. It seems to work. Many Twitter users are appalled and turn into supporters. His posts, covering images of pollution that remained at the ground-zero, attract thousands of likes.

My impression is that the human-rights lawyer, who gave more than two decades of his life to sue the oil company, isn’t beaten by his ankle monitor. But the proceedings did take a toll on his life. “I am fine. It’s tough as hell and I am a little sad about it”, he says.

One frustration is that his trial keeps being postponed. A total five times, now and counting. The last time was in early January by senior US district judge Loretta Preska in Manhattan. The next hearing is planned for 10 March with the appellate courts to get him off home detention – which he says, is both unprecedented in US legal history and illegal. The trial itself is set for 10 May. He faces a maximum of six months behind bars, Reuters reports.

A PR company helps to shift attention

The campaign to shift attention away from the toxic pollution and cancer-affected families in Ecuador to the individual worked. But how? Evidence for the so-called ‘demonisation campaign’ is visible from as early as 2009. Chevron engaged a multinational PR company to respond to ‘bad press’ it received for a film that presented an account on the rainforest oil pollution. An internal memo between Chevron and staff at Hill+Knowlton Strategies, a global public relations consulting company based in New York City, leaked from March 26, 2009.

The email exchange which Donziger shared with me (see below and the link here) presents evidence on how the PR firm was consulted by Chevron in the matter on how to respond to the documentary Crude. Donziger was interviewed and featured as the lawyer on behalf of the plaintiffs.

Chris Gidez, back then working at the PR firm, advised: “We should direct out statements mainly at Donziger”. A moment later Gidez clarifies and concludes his thoughts with: “Our L-T strategy is to demonize Donziger. This film provides us [with] a great opportunity to do so”.

Later Chevron engaged other companies to produce material to concentrate the limelight on Donziger. A YouTube video channel by the ‘Amazon Post’, a campaign organised by Chevron, features more than 100 videos, mainly about the lawyer. The films are composed in multiple languages, including Portuguese as well as in English and Spanish, allegedly to draw a wider audience.

Some of the videos have a very educational sound to them. The author isn’t secretive that this is Chevron’s content. In the description, Amazon Post usually states that the video involved Chevron in the development. But it also often states that the content contains ‘general facts’ (an example below).

There are also various Twitter handles organised by and promoting Chevron’s case. One is by the Amazon Post. We can use follow.me, a tool to analyse what the handle @AmazonPost talks about the most. We can build a little word cloud of the content it discusses. Donziger’s name stands out as an elementary part of its content.

On the Amazon Post website, we find a whopping 471 blog posts featuring Donziger’s name in them (according to the search function). As the representative lawyer he would feature in some of them but nearly all of them? It seems there is a specific focus on him. The many cover photos featuring Donziger’s face corroborate it.

There are other similar channels out there including all kinds of social media handles promoting Chevron’s defence in the Ecuador case. There is JuicioCrudo, translated ‘Crude judgment’, which is about the “latest news, evidence, and documents obtained by Chevron that demonstrate the judicial fraud perpetrated against the company in Ecuador”, so it self-identifies.

It also shows that Chevron might still be investing in keeping the crusade going further. One of the latest posts on Juiciocrudo.com, features an article with the headline ‘2020: The year Ecuador finally admitted fraud against Chevron’.

The question is: Why does a company need so much social media campaigning, videos, posts and online social media handles, if the defendant is convinced and confident it is in the right?

“To me, this abusive targeting of a human rights lawyer is maybe the clearest acknowledgement by the company of its own guilt”, Donziger tells me.

Others, too, have noticed that the limelight shifted away from the suffering in Ecuador to Donziger. Karen Hinton, former press secretary for NYC Mayor Bill de Blasio, is one of them who I spoke to. She worked pro-bono for the group defending the indigenous Ecuadorians and for its US legal adviser Donziger. Between 2008 and 2013, she was paid by Donziger to represent the Ecuadorians as the US media spokesperson. Then she worked for almost nothing: “I worked for free until I had a brain injury,” Hinton says. She thinks the current direction of attention [on Donziger] is misdirected. It shouldn’t be about Donziger’s ankle tag, she says.

“More block and tackle will continue until Chevron outlives Donziger, which it will. Another reason why celebrities, constitutional scholars and human rights groups should fight for the Ecuadorians now, not the ankle cuff”, she wrote in a blog post last year. “I get his constitutional right argument, but Ecuadorians are dying in the rainforest from the chemical stuff smeared over their land and into their bodies. Let’s find another fundraiser who Kaplan can’t block from asking for money to help the Ecuadorians. Get the lawsuit launched in Canada.”

Other tactics

There are other tactics to change the narrative. Influence on the media is one. Donziger posted on Twitter documents that claim Chevron executives were involved to “kill or redirect” a media report about the spill in Ecuador. The email exchange is posted here and describes the communication between Dave A Samson, general manager for public affairs for Chevron between 2004 and 2020, and Rhonda Zygocki, who spent 34 years with the Chevron Corporation. Chevron killed other stories as Chris Hedges, an American Pulitzer Prize-winning journalist documented.

Other tactics included attempts to rebut peer-reviewed scientific research findings on the health effects from the pollution. Chevron commissioned a study to challenge and refute the scientific findings on the cancer rates encountered among residents. Several studies produced damning evidence. At least six independent health studies found concerning results in the section of the rainforest where Texaco operated between 1964 and 1990.

One is by the US National Institutes of Health. It’s mostly indigenous people who lived near ground-zero oil sites, near pits where the waste was dumped and within oil blocks. Oil fields are still dangerously close to human settlements.

The rebuttal study in question is called ‘Cancer mortality and oil production in the Amazon Region of Ecuador, 1990-2005’, published by the International Archives of Occupational and Environmental Health (2008). It’s a peer-reviewed study, by Michael Kelsh, who today is a director at the Center for Observational Research at biotechnology company Amgen, according to Linkedin. The study attempted to refute previous findings on cancer prevalence, and Kelsh’s research found “no elevated risk of cancer for those living in oil-producing regions of Ecuador’s Amazon”, notes Chevroninecuador.org. Donziger says the study never declared a conflict of interest.

Apart from the data collection, the study’s independence and impartiality were also questioned. Chevron commissioned the study. There is also Kelsh’s long-term employment by Chevron as a consultant, and links between Chevron’s board and Exponent, Inc., Kelsh’s employer at the time of the study. Open data on social media confirms Kelsh’s employment with Exponent between 2001 and 2011. Chevron’s largest shareholder was a director on Exponent’s board. Exponent was criticised for assisting industry efforts to loosen chromium regulation.

It is also noticeable that the independent health studies which found evidence for elevated cancer rates seemingly discontinued after the period between 2001 and 2010. Science is expensive. The cash to continue any such research ran low. My enquiries as to whether anyone continued in-depth research were futile.

There are also tactics to hamper understanding by journalists, some argue. Chevron made the legal case excruciatingly difficult to understand, says Rex Weyler, director of the original Greenpeace Foundation and a co-founder of Greenpeace International in 1979. “Part of the reason the court cases are so complicated is that it’s Chevron’s strategy to make them complicated and to make the court cases as impenetrable as possible, so that journalists like yourself and many others find it frustrating to try and sort it all out when in fact the case is extremely simple. They [Texaco] committed the crime. They were proven to have committed the crime. They were convicted of the crime. A settlement or judgement was made. And now they’ve refused to pay,” Weyler tells me on the phone.

How the pollution continued after Texaco left

Texaco left Ecuador and that should have been it. But pollution by other companies continued. Donziger thinks Texaco set a dangerous example insofar as it taught other companies how to get away with causing pollution without being held accountable. “There are other companies that operate in same area and continue to pollute. Many were ‘inspired’ by Texaco’s original sin of poor design”, he argues in an email.

Needless to say, Texaco’s clean-up was insufficient and contamination in soils and waterways - on which the local population relies on for drinking water, fishing, and bathing - persisted. Texaco was released from liability through a settlement with Ecuador years earlier, the international tribunal found in 2018.

To this day, researchers and photographers find evidence of the prevailing damage. Although perhaps small in comparison to the original Texaco environmental crime, researchers found that the oil pollution from other companies ‘leaked’ into the new millennium.

For our print story this month, we gathered scientific evidence from a study by academic Juan Durango Cordero, a PhD researcher in the field of agronomic and environmental sciences with a specialisation in functional ecology and geography. Durango Cordero’s peer-reviewed paper confirms that oil pollution continued between 2001 and 2011 in and around the study area where Texaco once polluted the rainforest.

Durango Cordero tells me in an email that the information on oil spills “is very sensitive with the Ecuadorian government”. Also, there is no data that proves that oil spills definitely continued to today, he says. “For the ongoing pollution… I am sure it is ongoing but how can we be sure [without data]?”. The lack of publicly available and updated spill data in the Ecuadorian rainforest raises serious questions on oversight by the government.

Study area

The paper also discusses areas with poor oversight (see in red in the graphic). Overlaid, you also see the various oil pipelines and protected areas, as well as where various indigenous tribes settled. The result is a jaw-dropping map highlighting that the Ecuadorian government may still be incapable of fighting environmental pollution, both against domestic and foreign companies that are responsible for spills.

The caveat remains, as Durango Cordero says, how can we tell without updated data?

Progress

Not all is bad. There is some progress. After campaigning by Amazon Watch, a not-for-profit that supported Donziger’s case, three large banks have now decided to no longer finance oil deals in Ecuador.

Another silver lining is that overall, the world encounters fewer new oil spills – at sea that is. The numbers and amount of at-sea spills declined consistently after 1994 – though the devastating oil spill by the Iranian oil tanker Sanchi in 2018 threw a healthy declining trend overboard.

A dangerous outlier or the start of a new trend? It is true that growth in crude and other tanker-trade steadily grew but ITOP, an organisation active in spill response, says that for the Sanchi accident, it is “the only major spill of non-persistent oil featured and resulted in significantly lower environmental impacts compared to some crude oil spills [it] listed.”

HHow bright is Chevron’s future?

2020 was pretty tough on the giant. Nonetheless, the company is doubling down on the fossil fuel business amid increasing signs for a long-term decline in the crude market. In 2015, Chevron had to slash its budget by 24 per cent to weather low oil prices. Little changed. Today’s analysts’ statements suggest the company is in for a slow recovery. On 29 January, the firm reported an unexpected loss in the fourth quarter of 2020, even as oil prices climbed.

Chevron will stay strong as a lobbyist. Data by InfluenceMap, a UK based non-profit think tank all about climate and sustainability issues, shows it. Chevron consistently supports the inclusion of oil and gas in a future energy mix, the analysts wrote.

There might be an understanding that the climate is changing but the firm’s actions signal reluctance to change its stance. “In Chevron’s 2020 climate lobbying report, the Vice President of Corporate Affairs said his company recognizes the need for a low-carbon future, but oil and gas have a vital role in any global transition”, InfluenceMap wrote. There are small exceptions. Chevron did support the City of Houston’s goal of carbon neutrality by 2050, according to reports from last April. But it’s a drop in the bucket compared to the environmental challenges at stake.

“Chevron appears to be opposing almost all forms of climate-motivated regulation, particularly US methane regulations and renewable fuel standards, whilst actively pushing a US energy policy agenda that accelerates oil and gas production”, their evaluation concludes. For the past decade that might have sufficed. Even today, its environmental business rating seems to be decent.

Refinitiv, a large data provider, publishes environmental, social, and governance (ESG) rating scores for companies, based on how well they perform on their ESG commitments and effectiveness. Chevron Corp scores pretty decently, with 82 out of 100 in the environmental category – 89 for emissions, 78 for resource use and 80 for innovation. The problem is that the company might not fare so well if it continues its crusade against emissions and environmental responsibility, especially under a new pro-environmental agenda by the new US administration.

What about Texaco’s pollution? Is it all over? No! Donziger comments that the opera ain’t over until the fat lady sings: “Chevron faces huge financial risk of judgment enforcement and seizure of oil assets in Canada and other countries,” he says. That might be one reason why juiciocrudo.com and other sites keep posting.

What does the Texaco case mean for America’s future?

Donziger thinks the way he is being treated signals a failure of the US legal system. The new political climate now in the US could affect oil and gas, which is in turmoil. E&T dedicated much of our print issue to why the oil sector struggles with the emergence of renewables. America’s past president was a boon for fossil fuel lobbyists. Trump withdrew his nation from the Paris pact, arguing that it unfairly left the two other top polluters, India and China, free to use fossil fuels.

Trump rolled back environmental regulation to maximise the nation’s fossil fuel production. During his presidency, oil and gas output boomed. Now it’s Joe Biden’s turn. His latest edicts include stopping new oil and gas leases on public lands. The climate under Biden may improve but will Biden go after companies and their dirty past in the midst of a global pandemic and economic struggle?

Donziger hopes that at least the new climate “will make people respect the rule of law more”. But he also sighs and says: “I mean, this is deep. I don’t know what’s going to happen”.

Source: eandt.theiet.org

Read the latest issue of the OGV Energy magazine HERE.