Since returning from Ecuador, I’ve had two jobs: digging out from the pile of emails and papers that taking a week off from work generated, and doing my best Woodward and Bernstein imitation. I’ve tried to gather some more information about the sites we saw before writing about them. I’ve spent a fair amount of time speaking with folks about one of the two polluted sites we visited, known as Aguarico 4. This post tries to do two things. First, I want to give you a sense of what I saw at the site. Second, I want to ask a question that I think hasn’t gotten enough attention. The pollution at Aguarico 4 and other sites has been there for decades. Why is it still there? Why hasn’t anyone cleaned it up?

What I saw

We were up very early to take a bus to a small airport about an hour from Quito. Along the way, we had a great view of Cotopaxi, a beautiful volcano more than 19,000 feet high. Cotopaxi is active, but not this week, fortunately. Our outbound flight was upgraded. I believe we were supposed to fly on one of the little planes that we flew for the rest of the trip, but I heard that one of the military pilots was so eager to fly Ambassador Cely, who was with us and who is a highly popular figure in Ecuador, that he pulled rank and made sure that we were on his 727 rather than on the little plane we were meant to fly. I don’t know if that’s true or not.

We flew to Nueva Loja, better known to you and me as Lago Agrio, where we caught a bus to a PetroAmazonas facility. There we had brunch with the Ambassador and the Minister of the Environment. Then we caught a second bus for the drive to the Aguarico 4 site. The drive took us through downtown Lago Agrio, and I was lucky enough to get a shot of the courthouse where it all went down, though unfortunately we weren’t able to stop.

The roads got rougher and rougher until finally we were bumping along dirt roads into the forest. We arrived at a large field where PetroAmazonas workers, soldiers, Ministry of the Environment officials, and reporters milled around. In the center of the field was an oil well, which, we were told, PetroAmazonas used to re-inject production water from other, active wells deep underground, into the reservoirs from which the well had previously been used to extract oil. I am told that this kind of reinjection is accepted industry standard and that according to geologists, the oil is injected so deep below the ground that it does not pose an environmental risk. I understood that the main reason PetroAmazonas wanted us to know that the well was being used for reinjection rather than for extraction was that PetroAmazonas was keen for us to understand that in its view all of the production activities that had produced the pollution we were about to see were done on Texaco’s watch. Chevron spokesman Morgan J. Crinklaw disputed this and suggested that the pollution at the Aguarico 4 pit could have been caused by later operations undertaken by Petroecuador. “Suggested” here is not the same as “proved.” Chevron has pointed me to information about various spills and environmental incidents that have taken place on Petroecuador’s watch, but none as far as I can tell at Aguarico 4, and since I am focusing on Aguarico 4 in this post, I think it would be wrong to infer from issues at other sites that Petroecuador was guilty of polluting the Aguarico 4 site.

It was time to don our hard hats and industrial-grade yellow boots, apply the bug repellent, and walk a short distance into the forest to see the pit. We stopped three times altogether, each time lower in elevation than the one that came before. The third stop was the open pit. I remember it as being roughly the size of, say, a soccer field, though I didn’t measure. The oil was plain to see, right on the surface even after all these years. The vegetation was coated with it. I heard that in some cases oil could be found in the vasculature of the leaves of the plants, but I wasn’t able to see that for myself.

As we were in the middle of the forest, there were no houses very close by (by contrast, at the Yuca 6 site, we could see the house of an indigenous farmer very near to one of the pits). However, we could see the groundwater flowing around and through the polluted pit. We were told that the groundwater carried the pollution generally downhill and into the waters that formed the drinking water supply for the local people. We did not hear a technical presentation from a water scientist, but just by looking it seemed obvious to me that the groundwater was moving through the area and probably carrying along some of the pollutants we could see.

My first reaction to seeing the pits up close was that if I lived near one of them, and it was contaminating my drinking water supply, I would be hopping mad. If the government’s intention was to show the world that there is pollution in the rainforest that is a product of past oil extraction, then “Mission Accomplished.” I say this without trying to make any point at all about attribution of fault or responsibility.

Why Is Aguarico 4 Still There?

The central question that naturally occurred to me and to the other participants in our trip was simple: why is the Aguarico 4 pit still there? Why wasn’t it cleaned up as part of the remediation Texaco did in the 1990s, and why hasn’t Petroecuador or the government cleaned it up since? I want to devote the rest of this post to this question, rather than to the question of Chevron’s liability or lack of liability for damages arising out of the pollution at the site. I spoke with representatives of all parties in an attempt to get to the bottom of this question, which, from the perspective of the health of the environment and of the residents of the area, if not from the perspective of the law, seems to be the question worth asking.

From Chevron’s perspective, as outlined by Crinklaw, the issue is pretty simple. Texaco did not clean up the Aguarico 4 site in the 1990s because under the remediation plan, it was required to clean up soil contamination around the well itself, but it expressly was not required to clean up the pit. No one seems to dispute that that’s what the remediation plan says on its face, though the plaintiffs and the government would have things to say about it (e.g., the plaintiffs would argue that they were never parties to the remediation agreement or to the release). Chevron’s view, simply put, is that remediation of the pit was beyond what it agreed to do, and that having completed the agreed remediation, it was released by the government from further liability.

But on the government’s view, according to Paola Carrera, the Assistant Secretary for Environmental Quality, the reason why Aguarico 4 was not on the list of pits to be remediated was that Texaco had covered the pit with dirt and vegetation when it ceased operations in order to conceal the pollution. When PetroEcuador began to recommission the well for reinjection in 2003, it explored the area and found that the soil was “floating” on top of the pit, and it discovered the crude byproducts beneath. So it removed the vegetation and soil. In other words, on the government’s view, it’s true this pit wasn’t on the list to be remediated, but its absence was due to wrongful concealment of the pit by Texaco.

Chevron did not outright deny that it covered the pit, but according to James Craig, another Chevron spokesman, “There’s no indication in aerial photographs that the pit at Aguarico 4 was ever covered.” The government has provided me with three aerial photographs of the site, taken in 1976, 1986, and 1990, but to be honest it’s difficult for me to derive much information from them. According to Assistant Secretary Carrera, a comparison of the 1976 and 1986 photos shows that two of the three pits that were at the site originally have disappeared. I think the presence of the blue overlays on the 1986 photo, which mark the locations of the two pits, makes it difficult to see whether this is so. The third pit seems clearly visible in the 1986 photo and the 1990 photo, though between 1986 and 1990 it appears its shape and dimensions may have changed; but again, it’s hard to know.

Let’s leave to the side the question of why Aguarico 4 wasn’t on the original remediation list. What’s kept the government or PetroEcuador from remediating the site since then? When considering this question, bear in mind the following clause from Article 397 of Ecuador’s 2008 constitution:

In case of environmental damages, the State shall act immediately and with a subsidiary approach to guarantee the health and restoration of ecosystems. In addition to the corresponding sanction, the State shall file against the operator of the activity that produced the damage proceedings for the obligations entailing integral reparation, under the conditions and on the basis of the procedures provided for by law.

According to Chevron’s Crinklaw, PetroEcuador had planned a large-scale remediation, but it stopped remediating due to political pressure from Donziger and his team. Chevron points to Donziger’s “Plan Anti-PEPDA” (“PEPDA” was the name of the early remediation plan) and to correspondence in which Donziger, seeking to stop the remediation, tells Juan Pablo Sáenz, one of the Ecuadoran lawyers on the team: “You have to go to Correa to put an end to this shit once and for all.” Chevron also points to a letter from Richard Stalin Cabrera Vega, the supposedly independent expert, to the Lago Agrio court asking that the remediation at Agrarico 4 and several other sites be stopped so as not to impede his inspections. Since we know that the plaintifs’ team ghostwrote Cabrera’s report, the implication is that they ghostwrote this letter, too. Chevron even points to its expert linguist, Gerald McMenamin, who testified that in his opinion Pablo Fajardo wrote the Cabrera letter. Maybe so: I’ve previously expressed skepticism about this kind of expert testimony, and unlike the Cabrera report itself, there does not seem to be any direct evidence that the Cabrera letter was ghostwritten.

Why were the plaintiffs opposed to the PEPDA remediation? The truth is much more nuanced than Chevron suggests. It’s true that Donziger wanted the PEPDA remediation stopped, but as the emails Chevron has cited show, his team’s motives were mixed. On the one hand, they seemed to think that the remediation would not be high-quality and effective: “The remediation they do isn’t good,” Pablo Fajardo wrote. “What’s going to happen is that they’re going to veneer more or less what Texaco did.” But on the other hand, Donziger’s team had strategic reasons, too, for wanting the remediation not to go forward. Fajardo wrote that “The financial cost is extremely low,” which to me suggests the plaintiffs thought that their damages case might be harmed if the remediation came too cheaply. He also wrote that the remediation would allow “Texaco to say that the State finally assumed its duty and is going to clean up what it ought to.” This suggests a PR concern—a concern that a government clean-up would allow Chevron to deflect blame.

I asked Donziger about this email, and he sent me the following written statement:

At the time of the emails, our legal team had concluded based on a variety of observable facts that Chevron was trying to seduce corrupt elements within Petroecuador to work with it to undermine the legal claims of the villagers by getting it to undertake a sham remediation by covering toxic waste pits with dirt. Chevron’s plan was to point to the sham remediation to tell the world that Ecuador’s government was assuming responsibiity for damage that Chevron had caused. Indeed, this is exactly what happened at the time. Any opposition by the communities to the Petroecuador clean-up was based on the fact that it was grossly inadequate, ignored the wishes of the affected communities, and was part of a subterfuge by Chevron to get out of its own legal obligations. If Chevron, Petroecuador or any other party wants to work with the communities to design and finance an actual and comprehensive remediation of the damage caused by Chevron, the communities and their counsel of course would be committed to doing so at the first possible opportunity.

But whatever Donziger’s motives, according to the government they had nothing to do with the reasons why the site is as it is today. The government’s case, according to Carrera, is that Petroecuador had a plan for remediation and that it has remediated hundreds of sites out of the more than 2,000 sites that ultimately must be remediated (though here the government and Petroecuador are not perfectly aligned: the government has been critical of the quality of some of Petroecuador’s initial remediation efforts and sent it back to do more). But the process was slow, and as I noted in my prior post, unspecified “legal problems” (I believe these must relate to the BIT arbitration between Chevron and Ecuador that is still pending) have led the Republic to maintain the status quo.

As I noted in the prior post, on the one hand, it isn’t clear to me what those legal problems were, but on the other hand, I am not privy to the government’s legal advice. I suppose the main concern is spoliation of evidence. It’s not clear to me why the answer isn’t simply for the government to invite Chevron to test the sites and to do its own testing, and then to remediate them.

I asked Chevron to comment on the reasons for the lack of government remediation: as far as Chevron knows, is there any reason why the government couldn’t or shouldn’t simply remediate the Aguarico 4 site today? No, according to Chevron spokesman Craig: “Ecuador can and should complete the remediation of its share of former Consortium sites, including the pit at Aguarico 4. It has on several occasions acknowledged that it has this responsibility.” So the legal reasons for not remediating today, which seem to be the only reasons keeping the remediation from going forward, remain shrouded in mystery.

Except as noted, the photographs included in this post are © 2014 Ted Folkman