“This brings me to the main thrust of the Ambassador’s post, namely Ecuador’s claim that Chevron has dirty hands. Her lawyers, it seems, have drafted a point-by-point counter-memorial on Chevron’s sampling techniques. Their characterizations differ from my understandings. But rather than perpetuate this litigation-by-blog on sampling methodologies, by my batting the ball back, let us simply accept that the question is before the arbitrators, who will be in a position to resolve it on the basis of full briefing by both sides. I am content to accept their resolution.”

“The important point is that the outcome on sampling—whatever it may be—will not render reliable the falsified evidence presented by plaintiffs’ counsel in the Lago Agrio litigation. Nor will it reveal the true extent of any ongoing environmental harm in Lago Agrio. Nor will it tell us which party—Texaco or the State oil company—is responsible for any ongoing harm.”

“I am thus in partial agreement with Ambassador Cely’s statement that, “At some point, after the parties are finished attacking one another, it would be helpful to lower the rhetoric and study—and confirm—what we know: that massive, widespread contamination exists in the Oriente and that a large portion of that is the direct result of Texaco’s actions.” I agree that we should focus on the extent of ongoing contamination in the Oriente. I do not agree that we “know” whether a “large portion” of that is due to Texaco’s agreed portion of the clean-up, or how much is due to the State oil company. But there is no need for us to agree on these issues in advance. An honest and professionally capable study should supply credible answers.”

“In short, the real issues were not credibly resolved by the fraudulent Lago Agrio proceeding. Until they are credibly resolved, justice promises to remain elusive.”

There was a dispute about what level of toxins was legal or illegal under Ecuador’s laws, and the Ecuador court ruled it was 1,000 TPH, the legal limit for residential areas. All of the pits I named above are above 1,000 TPH. In the US, 1,000 TPH would be considered hazardous to human health. Most States have 100 TPH limits. And, while I could spend another 15 minutes answering each and every one of your comments to my comments, etc., let me end with two points:

If the RAP wasn’t conducted properly — and Chevron’s own tests show that it was — then Texaco committed fraud against the Government and the RAP is invalid. Chevron’s only defense falls flat. And, while I disagree with your characterizations of the third-party carve out, it’s moot given that Texaco did not do what it said.

What makes this so offensive and even sinister is that after Texaco and the Government announced the areas had been cleaned, people actually built homes near the covered pits, thinking they were clean when, in fact, they were not. Texaco had cleared out all of the vegetation, leaving a perfect spot for a home.

Now if you think it’s OK to leave near pits with TPH levels of above 1,000 TPH, then there’s a lot of cheap land in the rainforest. Maybe you should buy some and build a vacation home near Sacha 57, Pit 2.

Ms. Hinton’s effort to discredit the clean-up is not persuasive. Yes, journalists have seen “oil-laced water” pulled from the soil of pits at Lago Agrio — but whose pits: Texaco’s or Petroecuador’s? Consider, for example, the most highly publicized instance, namely Ecuadorian President Rafael Correa’s photo-op visit to Lago Agrio. As the Economist noted, “the tar pit into which Mr. Correa dipped his hand earlier this month is the responsibility of Petroecuador, a state company.”

Hinton cites a 2001 report by Ecuador’s Inspector General. Yet she neglects to mention that inspectors from Ecuador’s Ministry of Energy and Mines testified in 2002 that the Inspector General’s report failed to use the contractually agreed remediation criteria, and addressed sites outside the concession area and sites that were not part of the remedial action plan. In fact, they concluded, Texaco “completed the full [remedial action plan] scope and more.”

Hinton also asserts that Ecuador approved the clean-up without knowing what Texaco had done, and that Texaco defrauded Ecuador. In fact, Ecuador oversaw and inspected Texaco’s remediation at each pit and site in the clean-up. Ecuadorian officials signed interim reports describing exactly what work was being performed at each pit. Sampling at each pit was conducted by an Ecuador-approved laboratory, and the sampling results were provided to Ecuadorian officials. Ecuador and Petroecuador confirmed that the clean-up of each pit complied with the standards in the remedial action plan.

Hinton’s reference to “illegal levels of toxins” tested at various sites is doubly dubious. As for “illegal,” I am advised that the tested levels met applicable standards, both during the clean-up and during the judicial inspections. As for “toxins,” the human health risk assessments in evidence at the trial showed no risk to human health in the area.

Finally, Hinton asserts that the only claims covered by the 1998 release given to Texaco are claims by Ecuador’s government, not claims by local residents. She either does not know, or does not mention, that the international arbitral tribunal last year unanimously rejected that argument. The three arbiters ruled that the release covers all collective claims for environmental damage, no matter who brings them. The only claims not released are individual claims for personal harm.

The tribunal left for future determination whether the Lago Agrio suit is for collective or individual harms. On my reading of the complaint and the judgment, however, the answer seems clear: it is a collective claim.

It is unfortunate that the Republic of Ecuador approved the remediation in 1998 but it did so without the knowledge that Texaco had once again conducted the work on the cheap, just as it explored for oil in the first place, maximizing profits and minimizing safety.

Texaco committed a fraud against the Republic of Ecuador. Not one reporter or blogger has ever investigated and written about this fraud, even though the remediation agreement is the centerpiece of Chevron’s defense to the contamination charges.

Someone should be asking Chevron about the tests it submitted to the Ecuador court at Sacha 94, Sacha 51, Sacha 65, Sacha 57, Shushufindi 48, among many others. These and other tests found illegal levels of toxins at the so-called cleaned well sites.

In addition, the agreement carved out the Ecuadorians’ claims. It only released Texaco from government claims.

I certainly agree that getting paid for advocacy is not improper, and if Cassel simply disclosed the facts of his consulting arrangement then your point would be well-taken. But I think it is off-the-mark because Cassel is purposely leveraging his credibility as an “independent” voice — insisting, for example, that “I speak only for myself, not for the company” — while keeping the audience in the dark about facts pertaining to his independence. As I noted, he spent over a year insisting that he was NOT being paid for his “open letters,” but rather propagating them solely for their moral urgency. Then he admitted to a consulting relationship, but characterized it as an “independent external” one. How it differs from any typical consulting relationship is unclear. Moreover, you, the editor of this site, are left to “assume that [Cassel] has some kind of financial arrangement with Chevron.” This seems unsatisfactory. Why doesn’t Cassel simply make the disclosure himself? Has he made it earlier in his posts on your site? (I genuinely don’t know.) In any event, the issue is not “academic integrity” in the abstract, but the minimum of “full disclosure” typically provided in the context of public advocacy that respects the audience and gives it the information it need to asses even “arguments on the merits.”

Aaron, I took Doug to mean that he is not currently representing Chevron in any proceeding and that he does not speak for Chevron in this post.

My own view is that it’s not particularly important to know the details of Doug’s arrangement with Chevron. I assume that he has some kind of financial arrangement with Chevron, but I also prefer to take his arguments (many of which I’ve disagreed with, as you know) on the merits. I do the same with Steven Donziger, Karen Hinton, etc., who also have or had financial interests in the case. And of course Ambassador Cely receives a salary from the government of Ecuador. I don’t know whether you have been compensated for your work on the case or not, but in general it seems to me to be kind of pointless to try to evaluate the arguments people make about the case, here or elsewhere, through the lens of their financial stake in the case, since it seems that nearly everyone who advocates for any of the parties has one.

I do think that there is a live issue about whether law professors should accept paying consulting arrangements, and if so if they should have to disclose them. As I recall, Kevin Jon Heller has criticized Doug on these grounds. I’m not saying that’s not fair to do, and certainly it’s fair for you to raise the issue, but that kind of ad hominem meta-discussion seems less interesting to me than a discussion about the merits, at least for Letters Blogatory purposes. Maybe a forum devoted to academic integrity would take more interest in the issue you flag.

Are we sure readers aren’t being misled here? Doug Cassel seems to be reverting to his position that his only engagement with Chevron was to co-sign an amicus brief submitted by the company in response to an application for precautionary measures made by the Ecuadorian plaintiffs to the Inter-American Commission about two years ago. (The “proceeding” lasted about a week because the Ecuadorian courts almost immediately provided the assurances regarding undue influence that the plaintiffs had requested in the application.) He subsequently went on a campaign to malign the Ecuadorian plaintiffs with “open letters to the human rights community” and such, all the while protesting his independence and stating in “full disclosure” that he had “billed Chevron for my time on the [amicus] brief (but not for my time on this letter)” etc. Then last summer, in another letter, he revealed that in fact he had an ongoing “independent external consulting” relationship with Chevron. He declined to specify how much he was being paid and whether the relationship preceded his “open letters,” or whether the letters led (coincidentally, no doubt) to the consulting relationship. Now he is back to being a “former representative” – or at least has managed to get Ted Folkman to say so. I’m confused and would be curious to hear more full “full disclosure” from Professor Cassel.

The nature of the relationship is meaningful not only for the usual reasons, but in particular as it relates to the substance of the Cassel/Chevron attacks on the plaintiffs. Without getting sucked too deep into the swamp of procedural and ethical problems with the way Kaplan handled his trial last fall (which will doom it at the Second Circuit, where, realistic observers have known from the beginning, the endgame of Chevron’s RICO gambit will play out), I can briefly summarize that Chevron’s “extortion” claim is a quixotic attempt to criminalize protected speech and petitioning activity, while the “bribery” claim is outright manufactured. (The only person who claims bribery happened is a “fact witness” whom Chevron improperly paid hundreds of thousands of dollars in cash and benefits (including no less than reunification with his family in the United States), and whose testimony has flagrant inconsistencies despite the fact that he was coached by Chevron lawyers on a daily basis, literally, for months.) That leaves the “fraud” claim, based on the fact that the Ecuadorian plaintiffs touted an expert they paid and worked with as “independent.” While Donziger candidly admitted some misgivings about how that expert was handled, it remains true that: 1) Chevron has never been able to point to any provision of Ecuadorian law that prohibited the plaintiffs’ conduct with the expert; 2) the issue was fully briefed to the Ecuadorian trial court, which did not find wrongdoing but struck the expert as a way of avoiding controversy, and this decision was affirmed on appeal and by the Ecuadorian Supreme Court; and 3) Chevron routinely touted its paid experts as “independent” to the public and the Ecuadorian court. Judge Kaplan, of course, expressly refused to consider any evidence of Chevron’s conduct. And now Professor Cassel shows up again as “independent,” espousing Chevron’s cause.

I’d say we’re all confused. Perhaps Professor Cassel can be a bit clearer this time about the nature and history of his financial relationship with Chevron.

Thanks for the clarification, Doug. I describe you as an advocate for Chevron, which I believe is accurate, and I suppose it would be accurate to say you are a former representative of Chevron on the Inter-American Convention issues.

Thanks for publishing this exchange of views. However, to clarify, I am not a “representative” of Chevron. I speak only for myself, not for the company. No one should assume that Chevron necessarily agrees with any of the statements in my posts, including this one. I have not discussed the content of this post with the company, and would not want readers to take the last paragraph of my post (in your words) as an “olive branch” from Chevron. I do not know whether the company would agree to my proposal (even if the other parties were to agree; and unfortunately, I also have no information to date to suggest that Ecuador or the plaintiffs’ lawyers would agree). Ever since my very first commentaries on the case two years ago, I have consistently urged a credible settlement, above all because I believe that to be in the interests of the residents of Lago Agrio.

That said, as I have also repeatedly made clear, I believe that Chevron is right and Donziger is wrong on two central issues: (1) whether plaintiffs’ counsel committed serious and systematic wrongdoing in the Lago Agrio litigation, and (2) whether ongoing environmental damage attributable to Texaco — rather than to Ecuador’s own State oil company — has been proved. In my view, the evidence to date shows beyond any doubt that Donziger and certain of his colleagues committed grave misconduct in the litigation, and that there is as yet no credible evidence of current, ongoing environmental harm attributable to Texaco’s operations which ended 22 years ago.

However, my proposal for settlement implicitly recognizes that further environmental analysis by a credible, impartial party, agreed to by all parties — in lieu of the fraudulent environmental evidence presented by Donziger — could perhaps reveal new information, and could in any event become the basis for a scientifically informed settlement. I urge all the principal parties to consider constructive ways to settle this otherwise seemingly never-ending litigation.