You see? You’re doing it too! You want to make a humane suggestion, but the realities of the litigation cause you to put in a disclaimer, lest Chevron also be accused of wanting to make a humane suggestion! 🙂

Dear Ted,

Without quibbling on the two points you raise, let me pick up on your comment on remediation. It seems to me that, even now, what is needed is a credible, objective assessment of the current environmental situation and of any real needs for clean-up.

That could be done by a neutral agency, such as the United Nations Environmental Programme, which has done similar work in West Africa. The assessment would also have to determine the relative responsibilities of Petroecuador and of Texaco (if any remains, after the clean-up done in the 1990s) — unless a settlement were worked out, in which Ecuador and Chevron might agree jointly to fund a clean-up, regardless of who caused the pollution. From everything I have read, it appears that the total costs of a real clean-up would be manageable, and far less than the bogus billions awarded by Judge Zambrano.

Unfortunately, in the current litigation climate, no settlement discussion seems realistic in the short term. Plaintiffs (backed by the Correa government) are attempting to enforce their judgment in Argentina, Brazil and Canada; while Chevron’s RICO suit in New York and the arbitration between Chevron and Ecuador remain pending. Both sides currently appear to have too many hopes of winning in a courtroom to settle. But that could change, perhaps dramatically, and perhaps next year. Once the litigation dust clears, i.e., if and when further judicial decisions clarify the legal odds, in my personal view (I do not speak for the company or anyone else) we might all productively redirect our attention from the litigation to the issue of how best to assess and meet the needs of the people of Lago Agrio.

Thanks, Doug. I don’t want to rehash old ground, so I’ll just respond briefly to two of your comments.

First, on the issue of Chevron’s delay, you take a harder line than does Chevron itself, I think. Your view is basically that there was no delay. But as I noted in a previous post, Chevron takes the view that it would have been futile to report what it knew about Judge Guerra, for example, because “[a]s US courts have found, the authorities in Ecuador are in league with plaintiffs’ lawyers. Recall that at this point in time, the government was persecuting two Chevron attorneys already. And Zambrano has an extensive history of misconduct that had gone unprosecuted.”

Second, on the question of why the government didn’t do more to remediate, I think this is a “pox on both their houses” kind of thing. It’s not uncommon to see the imperatives of litigation drive bad decision making, and both sides are probably at fault to some extent: Ecuador for not remediating, and Chevron for seeking to punish Ecuador in the litigation for the remediation it undertook. Another way of looking at this: if both parties with money (Ecuador and Chevron—I take it the LAPs themselves don’t have much in the way of cash) had spent on remediation what they have spent on legal fees, I’m sure a lot of good could have been accomplished in the affected area.

Congratulations on an informative interview with Ambassador Cely. There is much on which to comment. For now I will address four points.

1. The Ambassador touts her country’s judicial reform efforts. Rather than repeat what I have written previously in Letters Blogatory, I think the following assessment by Human Rights Watch, in its WORLD REPORT 2013, sums up the problem well: “Corruption, inefficiency, and political influence have plagued Ecuador’s judiciary for years. Despite a judicial reform program that the Correa administration initiated in 2011, political influence in the appointment and conduct of judges remains a serious problem.”

2. A prime example of political influence in judicial appointments is Ecuador’s new Constitutional Court. Although the National Court did not address the evidence of fraud in the Lago Agrio proceeding, Chevron may yet have recourse, as you note, before the Constitutional Court. Article 94 of Ecuador’s Constitution provides that, once ordinary remedies are exhausted, an “extraordinary action for protection” may be filed in the Constitutional Court against judgments or court orders which, by action or omission, violate constitutional rights (such as due process and the right of defense).

The Constitutional Court consists of nine judges, of whom six were newly appointed in 2012 and three were carryovers from the former Constitutional Tribunal. Let us consider both who named them, and who was named.

The nine judges were selected from among 27 nominees, one third each nominated by the executive (i.e., Correa), by the national assembly (controlled by Correa’s party, Alianza País), and by the “Transparency and Social Control” branch (dominated by Correa allies). The final selection was made from this list by one of the organs of the Transparency and Social Control branch, called the “Citizen Participation and Social Control Council.” This body, in turn, established a committee to evaluate the candidates. The committee was chaired by a former close aide to Correa.

In short, Correa had effective control of the selection process. No one his party wanted to exclude had a chance of gaining a seat on the Constitutional Court.

Now consider who was selected. As one Ecuadorian newspaper headlined, “Eight of the nine judges of the new Constitutional Court are close [afines] to Correa.” (La República, November 5, 2012.) Since La República is critical of Correa, let’s not take its headline at face value, but consider the positions held by the judges immediately prior to their appointments.

One (Alfredo Ruiz Guzmán) is a former law school dean. I am not aware that he has any links to Correa.

But the other eight do. One (Patricia Tatiana Ordeñana) was a Correa ally on the Correa-dominated Citizen Participation and Social Control Council. Another (María del Carmen Maldonado) was assistant to the President of that Council. A third (Fabián Jaramillo) was legal coordinator for Correa’s economic planning office. A fourth (Antonio Gagliardo) was the prosecutor who dismissed charges against Correa’s lawyer and against the judge who entered Correa’s libel judgment against the El Universo newspaper — despite what Human Rights Watch calls “credible evidence” that Correa’s lawyer had given the judge a “draft of the sentence in a pen drive beforehand.”

That leaves four new judges. Three (Court President Patricio Pazmiño and Judges Ruth Seni Pinoargote and Manuel Viteri) were members of the prior Constitutional Tribunal. The fourth (Wendy Molina Andrade) was assistant to Pazmiño when he was President of the prior Constitutional Tribunal.

The problem is that the prior Constitutional Tribunal was a Correa patsy. In January 2011 (over a year before Chevron first contacted me about its case), I co-signed a letter to the Inter-American Commission on Human Rights, together with, among others, Hernán Salgado Pesantes, who during 1991 to 2003 was the only Ecuadorian ever elected to serve as a judge, and later Vice President and President, of the Inter-American Court of Human Rights. Our letter was later endorsed by, among others, José Ayala Lasso, the former Ecuadorian diplomat who in the 1990s served as the first United Nations High Commissioner for Human Rights.

Our letter advised the Commission of “serious questions regarding the impartiality of the decisions of the Constitutional [Tribunal], which has favored the interests of President Correa’s Regime almost unconditionally during recent years.” We cited the Tribunal’s review of the constitutionality of “more than ten decrees of states of exception declared by the President,” pointing out that the Tribunal “has ruled constantly in favor of the Executive, ignoring [evident] violations of the constitution …”

In his separate letter, Ambassador Ayala Lasso deplored the response given by President Correa when asked about a possible Constitutional Tribunal ruling against his proposed referendum to reform the judiciary. With disarming candor, Correa answered that he “will not permit it” (“no lo permitirá”). In fact, Correa had no worries; sources inside the Tribunal informed me at the time that President Pazmiño had already decided to approve the referendum, even before receiving the formal request to review its constitutionality.

These nine judges, then, will review any request by Chevron for constitutional review. What are the chances that they will conduct a serious and impartial review of Chevron’s now overwhelming evidence that plaintiffs’ lawyers and the trial judges rigged the trial?

3. Your interview reports that Ambassador Cely pointed to Chevron’s “delay in bringing its evidence forward.” Yet Chevron can hardly be blamed for the cloak and dagger techniques (secret bank accounts, secret meetings, code names, and coded messages) with which plaintiffs hid their fraud. Only in January 2009, when the documentary film “Crude” was shown at the Sundance Film Festival, did plaintiffs’ cover-up begin to unravel. Noting improper conduct in one scene, Chevron’s lawyers asked a New York federal judge to order the filmmaker to turn over the outtakes. Not until May 2010 did the judge agree to this unusual and controversial request. That summer the court of appeals largely affirmed. Based on the outtakes, in November 2010 the federal judge ordered discovery and a deposition of plaintiffs’ lawyer Steven Donziger (who had commissioned the film).

Meanwhile plaintiffs and their Ecuadorian judges were racing to close the evidentiary record in Lago Agrio. On September 17, 2010 – two months before discovery was ordered against Donziger in New York – the Ecuadorian trial judge closed the record. He was then recused, but the new judge – Judge Zambrano – again ordered the record closed on October 19, 2010 — even as Chevron’s lawyers were presenting him with what limited evidence of fraud they had at the time and were asking him to investigate. Zambrano refused to investigate. Soon thereafter (February 2001), he entered the $18 billion judgment against Chevron.

In short, it appears that Chevron acted diligently to attempt to uncover the fraud, while the Ecuadorian trial judges hastened to close the record before the company’s efforts could bear fruit.

4. On one point I agree with Ambassador Cely. It is indeed “outrageous” that Ecuador ceased cleaning up Lago Agrio because of litigation tactics. As she rightly asks, “Why didn’t we remediate this, if we care so much about this?” The answer, it would appear, is that the Government cares more about winning its battle with Chevron than it does about the health of the residents of Lago Agrio, who have now endured over two decades of contamination by the State oil company, only to see the clean-up halted. If the Government wants to show that it actually cares about human rights, as the Ambassador claims, a good place to start is by resuming the clean-up of Petroecuador’s pollution of Lago Agrio.