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Texaco as carpetbaggerTexaco as carpetbagger
TEXACO AS CARPETBAGGER: USING FORUM NON CONVENIENS TO EVADE LIABILITY FOR THE BIGGEST ENVIRONMENTAL DAMAGE TO RAIN FOREST IN HISTORY
By Edwin Leon
Texaco as carpetbaggerTexaco as carpetbagger
In the 1960s, Carpetbaggers were seen as insidious Northern outsiders with questionable objectives meddling in local politics, buying up plantations at fire-sale prices, taking advantage of poor Southerners and pushing their alien Northern ways on Southern politics.
Texaco as carpetbaggerTexaco as carpetbagger
Texaco came to Ecuador in 1960.Pumped out 1,500,000,000 barrels of oil.Hundreds of wells were drilled and pits were dug.Water flowed to stream and Aguarico River.
Texaco as carpetbaggerTexaco as carpetbagger
Cofán community dropped from 15,000 to a few hundredUsed river water to drink, shower, wash clothes, etcCancer and skin diseases appeared.
1.14 min
Texaco as carpetbaggerTexaco as carpetbagger
Texaco was sued in the US in 1993
US Second Circuit Court of Appeals dismissed on forum non conveniens grounds
Chevron bought Texaco in 2001 becoming the third largest company in America.
In 2003, affected population sued Chevron in Ecuador
We are still waiting for a resolution
Texaco as carpetbaggerTexaco as carpetbagger
Procedural History
First lawsuit in Texas ( August 1993) Sequihua v. Texaco: Dismissed – comity of nations
forum non conveniens.Plaintiffs decided not to appeal
Second lawsuit in New York ( Nov 1993) Accorded plaintiffs discovery Dismissed on comity of nations
forum non conveniensfailure to join two indispensable parties
Ecuador objected jurisdiction but backed up after change of presidents
8 in the last 10 years US courts are “courts of limited jurisdiction. While the power
within those limits is substantial, it does not include a general writ to right the world’s wrongs”
Texaco as carpetbaggerTexaco as carpetbagger
Motion for reconsideration ( August 12, 1997)
Plaintiffs alleged that Republic of Ecuador and PetroEcuador filed a motion to intervene.Court requested further clarificationMotion was denied for three reasons:
1.- Patently and prejudicially untimely2.- Attached limitations and conditions to its proposed waiver of sovereign immunity.3.- They have no interest warranting its intervention because of previous settlement.
The Appeal ( Oct 5, 1998)
Forum non conveniens is not appropriate at least absent commitment from Texaco to submit to the jurisdiction of EcuadorCourt should reweigh the factors relevant to Forum non conveniensCourt should reconsider the merits of the comity issue due to Ecuador’s change in positionCourt agreed with plaintiffs that district court should have allowed the legal claims.
Texaco as carpetbaggerTexaco as carpetbagger
Court’s decision (May 30, 2001)
Texaco consented to suit in Ecuador.Court dismissed the case and determined that Ecuador was adequate alternate forum.Private and public factors favored dismissalClaim under Alien Tort Claims Act did not preclude dismissal.
The second appeal ( August 16, 2002)
US Circuit Court of Appeals for the 2nd Circuit affirmed.Conditioned on Texaco’s agreement to waive defenses based on statutes of limitation for a period of one year.
Texaco as carpetbaggerTexaco as carpetbagger
Part II: The situation in Ecuador at the present time
New constitution in 2008
Number 20 and replaces the one of 1998444 articles and 30 transitory orders
Trial started in 2003
Dozens of inspections were done
Families lived as close as 30 feet from stationPit with toxic waste from 1976 still in ShushufindiGoose neck pipe systems drain waters of the pit into riversSkin diseases in 15 out of 20 children
April 1, 2008, 4,000 pagesDamage for 27 billion US dollars
Global assessment report
Texaco as carpetbaggerTexaco as carpetbaggerNovember 2008: Team of engineers, doctors and biologists submitted a report:
2,091 cases of cancer1,401 deaths from 1985 to 1998Pollution of streams and drinking water in a 1,920 square mile area
Trial in Lago Agrio has 141,000 documents
Texaco as carpetbaggerTexaco as carpetbagger
The Obama Letter
Chevron wanted to push Bush to yank special trade preferences to Ecuador.Lobbyist: “We can’t let little countries screw around with big companies like this
Steven Donziger visited Obama in 2006
Obama vetted the issue with Vermont Sen. Patrick Leahy.
In February they wrote a letter to the US Trade Representative Rob Portman urging the administration to permit the Ecuadorian peasants to have their day in court.
Texaco as carpetbaggerTexaco as carpetbaggerChevron’s request for arbitration
September 2009Permanent Court of Arbitration in The Hague
Argument: Cannot get a fair trial in EcuadorLos Angeles Times says the real issue is the devastating pollution and the affected population
Request to John Watson
Texaco as carpetbaggerTexaco as carpetbagger
New Chevron’s CEO ( Jan 1, 2010)
Amazon Watch wrote open letter which is circulating in the internetThey new of Texaco’s actions in Ecuador.
Reminder that Texaco had admitted to having deliberately released 18 billion gallons of toxic wastewater into the waterways of the Ecuadorian Amazon and to having left hundreds of abandoned unlined pits filled with crude oil and poison sludge.
Confidential memorandum: to report major events only if they attract attention of press and/or regulatory authorities
“… no reports are to be kept on a routine basis and all previous reports to be removed… and destroyed.”
Texaco as carpetbaggerTexaco as carpetbaggerMr. Watson tactics
Violated free speech rights of environmental groups
New York Times and Washington Post
To quash ad campaign sponsored by RAN in February 2010
This man can do something about it now.
Texaco as carpetbaggerTexaco as carpetbagger
Support for the affected population
March 2, 2010, Emergildo Criollo tried to deliver letter.
Lafayette, San Ramon and San Francisco
325,000 people from 150 countries signed the petition
Received by Chevron public relations executives
Texaco as carpetbaggerTexaco as carpetbagger
What is being done for the communities health?
Rainforest Foundation
Founders: Sting and wife Trudie StylerMay 20, 2007 traveled to Ecuador
Texaco as carpetbaggerTexaco as carpetbagger
Trudie visited pits covered with dirt
Met with indigenous communities
Met with sick people
Trudie, Sting, the Rainforest Foundation teamed with UNICEF and the Amazon Defense Front to provide filtered drinking water to the affected region.
Texaco as carpetbaggerTexaco as carpetbaggerLegal Analysis
Complaint Grounds
• Negligence
• Public and private nuisance
• Strict Liability
• Medical Monitoring
• Trespass
• Civil conspiracy
• Violations of the Alien Tort Claims Act
• Equitable relief
Texaco as carpetbaggerTexaco as carpetbagger
The Defense grounds
Failure to join the Republic of Ecuador and PetroEcuador
International comity
Forum non conveniens
Discretionary power to decline to exercise jurisdiction where another court may more conveniently hear the case.
Legally nonbinding practices adopted by states for reasons of courtesy
Texaco as carpetbaggerTexaco as carpetbagger
Does an alternative forum exist?
Nine years in US Courts – balance of public and private interest factors
Seven years of trial in Ecuador – no first decision yet
Three decades of pollution v. two decades of lawsuits
Texaco as carpetbaggerTexaco as carpetbagger
Political situation in Ecuador: 8 presidents in 10 years
20 constitutions.
Sucumbíos Court borders Colombia and Peru
Travel advisory
Wilson Fajardo, Ecuadorian lawyer brother was murdered
Balancing private and public interests factors
Texaco as carpetbaggerTexaco as carpetbaggerConclusion
Because of humanitarian implications in the caseProlonged situation keeps polluting rain forestChevron has no assets in EcuadorThe U S Second Circuit Court of Appeals should have given Aguinda her day in court.