I very much appreciate the Ambassador’s constructive tone. I will do everything I can to assure that prayers lead to progress.

Over the last couple of weeks, Mr. Cassel and I have had an opportunity to exchange our respective thoughts on the ongoing and multiple disputes regarding Chevron’s liability for the pollution of the Ecuadorian rainforest. I appreciate Mr. Folkman’s efforts in facilitating the dialogue, and I likewise appreciate the reasoned tone offered by Mr. Cassel. We always welcome thoughtful, constructive and honest dialogue.

Our concern over the last several years is that there has been much too little of such reasoned dialogue. It instead appears that our litigation adversary concluded that the company would be better served by publicly targeting not only the indigenous plaintiffs, but also by attacking Ecuador’s political leadership. In doing so, Chevron awakened a sleeping giant. Call it a cultural phenomenon or whatever one would like but political leaders in Ecuador and, for that matter, across Latin America, consider it a duty on behalf of the State to defend the sovereign and to vigorously respond when attacked.

We hope by this recent exchange that Mr. Folkman’s readers will learn that Chevron is not the only party feeling aggrieved. Ecuador too believes that it has been wronged—wronged by Chevron’s multi-year public relations war, and wronged by what we now believe to have been an elaborate, multi-faceted effort by Chevron to mislead the Ecuadorian courts in an effort to cover up Texaco’s pollution.

Only reasoned discourse will allow for the resolution of these serious issues.

Until then it is my fervent hope that neither the parties to the dispute nor the media forget for one moment the plight of the indigenous citizens of Ecuador who confront every day hazardous conditions that threaten their heath and the health of their families. I instead encourage all parties to keep our indigenous citizens in your prayers.

Let me begin with what I consider to be the most important point, one on which—I hope—there may eventually be common ground. Ambassador Cely notes that I “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.’” She then asks whether Chevron would agree to such a proposal, and urges me to advocate that Chevron agree.

In fact, my proposal was and is explicitly directed to all three principal parties—Chevron, Ecuador and the Lago Agrio plaintiffs—and I urge all three to give it consideration. I do not know whether any of them would agree to it. So far, none has.
For her part, Ambassador Cely states that “until such time” as Chevron agrees, “this dispute will remain in the hands of the lawyers and experts.” She apparently wants Chevron to agree first, but makes no commitment that, even if Chevron did so, Ecuador would agree. Her phrasing at this stage is understandable: I would not expect litigating parties, including Ecuador, to negotiate in public through blog posts.

Nonetheless I hope that the parties—all the parties—will consider exploring privately, among themselves, whether there is a way to resolve the controversy fairly and expeditiously. I note that, even though Donziger allies Aaron Page and Karen Hinton have weighed in on other matters in response to my post, they and other plaintiffs’ advocates have been conspicuously silent on my proposal for a “credible, impartial mechanism to assess whether there is ongoing environmental damage and, if so, who is responsible.”

Their silence, too, is understandable. Plaintiffs’ lawyers are currently attempting to enforce a $9 billion dollar judgment against Chevron. As long as they harbor high hopes of collecting on that jackpot, they are unlikely to agree to an alternative mechanism that would—let’s not kid ourselves—result in a far lower number.

On the other hand, they might take into account, among other downside risks of adamantly clinging to their judgment, the material risk that it will not be enforced. Consider one of their best cases: suppose Judge Kaplan’s judgment is eventually reversed on some point of law (I do not suggest that it will be). Even then, his findings of fact—that Donziger committed fraud, bribery, extortion, money laundering, witness tampering and obstruction of justice in the Ecuador litigation—are both collectively credible and damaging to the plaintiffs’ chances of enforcing their judgment in any jurisdiction.

In evaluating their posture, plaintiffs might also consider the most recent judicial development. Chevron has sued Donziger bankroller Russell DeLeon in Gibraltar, his domicile, for conspiring with Donziger to shake down the company. On March 14 the judge in Gibraltar denied DeLeon’s motion to strike out Chevron’s suit. While the judge refrained from findings of fact at this early procedural stage, the tone of his 72-page opinion is not promising for DeLeon (who, like Donziger, has negotiated to pocket a substantial share of any proceeds from the Ecuador judgment). The judge acknowledges, “In normal circumstances I should be reluctant to investigate and determine whether a foreign court which claimed to have considered fully and fairly and determined a Claimant’s allegations had in fact done so.” But in this case, the evidence casts such serious doubt that the judge is exceptionally “allowing a matter to proceed which calls into question the whole integrity of another country’s judicial and political system.”

I would not presume to advise plaintiffs’ counsel on their odds of success. They will make their own evaluation. Unless and until they conclude that their judgment is in trouble, they are unlikely to take seriously my proposal for an alternate resolution. And without plaintiffs’ agreement, it becomes more difficult for Chevron and Ecuador—even assuming they could devise a bilateral agreement—to resolve the controversy.

So an alternate resolution will not be easy; above all, it will require “political will” by at least two and perhaps all three parties. But without an alternate resolution, the prospects appear dim for any early vindication of whatever legitimate claims the residents of Lago Agrio may have.

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.