Ambassador Nathalie Cely responds to Chevron advocate Doug Cassel’s recent comment on Ecuador’s charges that Chevron was guilty of misconduct in the lead-up to the judicial inspections in Lago Agrio. I’m very pleased that partisans on both sides have been able to give their views an airing here. A note for email subscribers: there are lots of footnotes; please read this in your browser!

I write to respond briefly to Mr. Doug Cassel. He states that he has now investigated my charge that Chevron misled the Lago Agrio court during the judicial inspections. I, of course, respect Mr. Cassel’s willingness to engage in this debate in the first instance and appreciate that he does not have much of the information at his fingertips. I confess, though, that I find it interesting that he was nonetheless able to generate within 24 hours a point-by-point response, in impressive detail, that echoes Chevron’s arguments in the arbitration, all the while denying links to the company.

I also appreciated that Mr. Cassel is not an environmental expert and that he has not been afforded access to all of the documents which the Republic has received through U.S. discovery from Chevron’s numerous experts. But the gist of what Chevron did is not all that complicated: Chevron systematically used its pre-inspection data to avoid sampling during the judicial inspections where it knew there would be contamination.

Does Chevron deny that it conducted extensive, expensive pre-inspection testing? And does Chevron truly contend that it did not use those results to determine where they would sample during the judicial inspections? To me the notion that Chevron’s experts by happenstance chose locations that generally did not repeat findings of pollution strains any sense of reasonableness.

There has been so much noise in this debate that too often the voices of our indigenous citizens have been drowned out. Chevron accuses the indigenous citizens’ lawyers of fraud. One trial court in the U.S. has sustained that charge. Chevron has attacked the Republic’s elected officials and its judiciary. And my government too has responded in kind to Chevron’s attacks. 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.

In his original reply to my post, Mr. Cassel proposed a resolution of this long-running dispute based on a “credible, impartial mechanism to assess whether there is ongoing environmental damage and, if so, who is responsible.” Regardless of what the indigenous plaintiffs’ lawyers may or may not have done, the fact is that Chevron asked that the dispute be resolved by an Ecuadorian court but Chevron has since disavowed the resulting judgment. Here’s the question: What will Chevron accept? If, as Mr. Cassel suggests, any resolution of the dispute depends on an honest analysis of conditions in the Oriente, where will that analysis come from that is satisfactory to all parties? And given the concerns above, will Chevron actually permit an honest assessment from anybody, and free from the tactics it has employed to date?

In the absence of reasoned discourse, the dispute will continue to be a source of conflict that will help nobody. If, on the other hand, Mr. Cassel does have any influence at Chevron, I would ask him to advocate for the honest assessment he has previously proposed so that the true victims can be helped. But until such time, this dispute will remain in the hands of the lawyers and experts, and my business will remain the traditional duties of an Ambassador in a foreign land—to represent my country’s political and economic interests in this great country.

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Mr. Cassel makes two broad points. First, Mr. Cassel points out that Texaco was a minority participant in a joint venture with the state oil company and that Texaco signed an agreement with the state to clean the Oriente. What Mr. Cassel ignores is what I discussed in my original post: For 25 years Texaco was the Operator of the oil extraction operations in the Oriente and as the Operator, Texaco made all of the decisions related to finding, extracting, and cleaning up crude oil.

Second, Mr. Cassel points to the state-owned oil company’s practices as if they excuse Chevron’s liabilities. But as far as I understand the Lago Agrio court’s decision, it did not require Chevron to pay for the clean up of contamination caused by the state owned oil company. The Republic is working with its state-owned oil company to change its practices and to take care of its people. The difference there is that the state-owned oil company is doing its part. As I’ve said, we are not running away from PetroEcuador’s responsibility. And Chevron should stop running away from its own.

Finally, Mr. Cassel has raised a number of detailed responses to the evidence I had presented earlier. I respond to some of those points below. But, like Mr. Cassel, I am not an environmental engineer. All of these points have been argued by Chevron and the Republic in the arbitration. I will leave it to the Republic’s lawyers and experts to rebut Chevron’s arguments in the arbitration where all of the evidence may be heard.

Secret Pre-Testing: Contrary to Mr. Cassel’s assertions, the secret tests done by Chevron were neither open nor done by both sides. While it is true that both parties conducted court-ordered site assessments immediately before each judicial inspection, that is not the secret testing I mentioned. Instead Chevron conducted several inspections at each site months before each judicial inspection, creating what its experts called “Playbooks” for each site that directed them how to identify the contamination and how best to avoid it at the judicial inspections. 1 If Chevron’s secret pre-inspections really had been open and court-authorized as Mr. Cassel claims, Chevron’s experts would not have had “access issues” to these sites during their secret testing. 2

On the single occasion when the indigenous plaintiffs conducted a site assessment more than the days before a judicial inspection (in that case one week in advance of the very first Judicial Inspection), the stated purpose was to verify their sampling procedures—not to guarantee or skew any results. 3

And unlike Chevron, the indigenous plaintiffs did not take samples from locations involved in their pre-JI site assessments for purposes of the official Judicial Inspection itself and indeed openly marked the locations at which they sampled. 4

Paradoxically, Chevron vigorously objected to the indigenous plaintiffs’ exercise. The day before the Sacha 6 Judicial Inspection, Chevron went so far as to ask that the Sacha 6 JI be cancelled or postponed precisely because the plaintiffs had conducted sampling outside of the JI process. According to Chevron, any sampling or inspections not in the presence of the court was illegal. Because of plaintiffs’ sampling days before, Chevron claimed that the “sites have been unlawfully altered, which makes it impossible to comply with any procedural steps there with evidentiary force.” 5 Chevron went so far as to claim that the plaintiffs’ actions were “a violation of rights to legal security and the due process of law provided for in Article 23(26) and (27) of Ecuador’s Political Constitution.” Not only were they illegal, Chevron argued, but “Plaintiffs’ ‘furtive’ actions by themselves constitute a severe environment negative impact whose magnitude is unknown.” 6

The day after their Court filing, at the Sacha 6 Judicial Inspection, counsel for Chevron expressly assured the court that “no technical team from ChevronTexaco Corporation has performed any secret tests here.” 7 Yet by that time Chevron’s experts had conducted PIs at many sites and taken hundreds samples.

Surveillance: To clarify, my concern with Chevron’s use of aerial imagery and resident interviews to find hidden pits is not that they found those pits. My concern is that those pits were hidden and not reported in the first place. One of the difficulties in unraveling the facts of oil operations in the Oriente is that Chevron’s affiliate did not maintain adequate records of its operations and in fact explicitly ordered its people to destroy adverse evidence. 8 And further, even after Chevron identified these pits that had been covered and not previously reported, Chevron often did not notify the Court of their existence.

Abuse of pre-testing: As Mr. Cassel discusses, Chevron claims to have established a “clean perimeter” around its former operations. But it would have been one thing if Chevron had found a “clean perimeter” and then acknowledged that what is inside that perimeter is contaminated. Chevron instead went to great lengths to find a “clean perimeter”—and then claimed that the clean samples from this perimeter were representative of what was inside that perimeter. Ironically for Chevron, it appears the Lago Agrio court used Chevron’s “clean perimeters” for what they were, an admission by Chevron that everything inside of the “clean perimeters” was dirty and must be remediated.

Notes:

  1. Chevron’s SSF-18 Judicial Inspection Playbook. In the case of SSF-18, Chevron’s secret testing took place on January 17, 2004 and August 12-13, 2005. The Judicial inspection did not take place until October 12, 2005.
  2. Sacha Sur JI Summary at BJORKMAN00061688
  3. Calmbacher Dep. Tr. (Mar. 29, 2010) at 47:7-48:5, 52:19-25
  4. Judicial Inspection Acta for Sacha 6 (Aug. 18, 2004) at 8727 (“We do not intend to obtain samples from the holes that have already been drilled, but rather to go to an undisturbed site, drill holes, extract samples, proceed to analyze them at the field laboratory and obtain the other necessary samples to send to the laboratories.”); see also id. at 8726 (“[W]e have collected soil samples, but not covertly, which is why there are cement markers. … If our intent had been to deceive, if our intent had been to conceal, then we would never have left markers or we would have tried to remove them.”).
  5. Chevron Escrito 17 de agosto 2006, 17H30, c 79, f. 8455 ¶ 6.
  6. Id. ¶ 5.
  7. Judicial Inspection Acta for Sacha 6 (Aug. 18, 2004) at 8704.
  8. Texaco internal letter CGE-398/72 (July 17, 1972).