Chevron has filed its opposition to Steven Donziger’s motion to dismiss for lack of subject-matter jurisdiction. It’s a creditable brief—it lacks the pizzaz of the Donziger brief covered in the prior post, but it’s well done.

Let’s focus on what Chevron says about the harm it is seeking to remedy.

On the one hand, Chevron has a good point to make about the relevant legal standard: a plaintiff shouldn’t have to prove that the future harm an injunction is meant to prevent is absolutely imminent or certain to occur. (And by the way, note the irony here: a big corporation arguing for a relaxed standard for showing injury for standing purposes, and a bunch of environmental activists arguing for a stricter standard!) Chevron also has a good point when it argues that the injury here, if there is an injury, is one that it, Chevron, rather than anyone else, will suffer. In many of the key standing cases, the plaintiff is able to show a harm, but the problem is that the plaintiff can’t show how his harm differs from the harm to be suffered by any other member of the public. The decision on this motion could come down to what the judge thinks about the legal standard and about standing generally rather than about the particular facts alleged.

But still, it’s striking to me that Chevron is forced to point to non-standard harms to justify the court’s intervention:

  • “Chevron has suffered injury in fact in the form of legal fees and further expenditures in connection with the § 1782 proceedings and enforcement actions, as well as lost management time and goodwill.”
  • “Chevron faces the real threat of responding to ongoing and contemplated enforcement actions in the United States and elsewhere, as well as the threat of future reputational harms, asset seizures, and disruption of business operations.”
  • “The corrupt judgment with which Defendants in the present continue to threaten Chevron and its subsidiaries totals $9 billion.”

I’m no expert on standing—I sense Professor David Shapiro nodding his head from afar in agreement—but it does seem to me that there is little connection between the past harms, all of which could be remedied by money, and the injunction Chevron seeks. I think Chevron does face a risk from future efforts to enforce the Lago Agrio judgment (though I think that the history of the litigation shows that it is highly unlikely that there will ever be an attempt to obtain recognition of the judgment in the United States), but Chevron does not seek to enjoin the filing of such actions. So the harm, I guess, is the risk that Chevron will lose. But Chevron says there is no risk it will lose, because the judgment is obviously fraudulent and any court would judge them unworthy of recognition. So here is the problem, as I see it. If the is a risk that the courts of Canada, say, could recognize the Ecuadoran judgment, then what does that say about the merits of the RICO claim? I don’t know if anyone else has taken this view, but there seems to me to be a bit of a problem in Chevron’s position: it faces a risk of harm only if the Ecuadoran judgment could be recognized, which would undermine the RICO action.

I don’t know how this is going to come out, but either way the decision is bound to be interesting.