texaco as carpetbagger texaco as carpetbagger: using forum non conveniens to evade liability for the...

Texaco as carpetbaggerTexaco as carpetbagger

TEXACO AS CARPETBAGGER: USING FORUM NON CONVENIENS TO EVADE LIABILITY FOR THE BIGGEST ENVIRONMENTAL DAMAGE TO RAIN FOREST IN HISTORY

By Edwin Leon


In the 1960s, Carpetbaggers were seen as insidious Northern outsiders with questionable objectives meddling in local politics, buying up plantations at fire-sale prices, taking advantage of poor Southerners and pushing their alien Northern ways on Southern politics.


Texaco came to Ecuador in 1960.Pumped out 1,500,000,000 barrels of oil.Hundreds of wells were drilled and pits were dug.Water flowed to stream and Aguarico River.


Cofán community dropped from 15,000 to a few hundredUsed river water to drink, shower, wash clothes, etcCancer and skin diseases appeared.

1.14 min


Texaco was sued in the US in 1993

US Second Circuit Court of Appeals dismissed on forum non conveniens grounds

Chevron bought Texaco in 2001 becoming the third largest company in America.

In 2003, affected population sued Chevron in Ecuador

We are still waiting for a resolution


Procedural History

First lawsuit in Texas ( August 1993) Sequihua v. Texaco: Dismissed – comity of nations

forum non conveniens.Plaintiffs decided not to appeal

Second lawsuit in New York ( Nov 1993) Accorded plaintiffs discovery Dismissed on comity of nations

forum non conveniensfailure to join two indispensable parties

Ecuador objected jurisdiction but backed up after change of presidents

8 in the last 10 years US courts are “courts of limited jurisdiction. While the power

within those limits is substantial, it does not include a general writ to right the world’s wrongs”


Motion for reconsideration ( August 12, 1997)

Plaintiffs alleged that Republic of Ecuador and PetroEcuador filed a motion to intervene.Court requested further clarificationMotion was denied for three reasons:

1.- Patently and prejudicially untimely2.- Attached limitations and conditions to its proposed waiver of sovereign immunity.3.- They have no interest warranting its intervention because of previous settlement.

The Appeal ( Oct 5, 1998)

Forum non conveniens is not appropriate at least absent commitment from Texaco to submit to the jurisdiction of EcuadorCourt should reweigh the factors relevant to Forum non conveniensCourt should reconsider the merits of the comity issue due to Ecuador’s change in positionCourt agreed with plaintiffs that district court should have allowed the legal claims.


Court’s decision (May 30, 2001)

Texaco consented to suit in Ecuador.Court dismissed the case and determined that Ecuador was adequate alternate forum.Private and public factors favored dismissalClaim under Alien Tort Claims Act did not preclude dismissal.

The second appeal ( August 16, 2002)

US Circuit Court of Appeals for the 2nd Circuit affirmed.Conditioned on Texaco’s agreement to waive defenses based on statutes of limitation for a period of one year.


Part II: The situation in Ecuador at the present time

New constitution in 2008

Number 20 and replaces the one of 1998444 articles and 30 transitory orders

Trial started in 2003

Dozens of inspections were done

Families lived as close as 30 feet from stationPit with toxic waste from 1976 still in ShushufindiGoose neck pipe systems drain waters of the pit into riversSkin diseases in 15 out of 20 children

April 1, 2008, 4,000 pagesDamage for 27 billion US dollars

Global assessment report

Texaco as carpetbaggerTexaco as carpetbaggerNovember 2008: Team of engineers, doctors and biologists submitted a report:

2,091 cases of cancer1,401 deaths from 1985 to 1998Pollution of streams and drinking water in a 1,920 square mile area

Trial in Lago Agrio has 141,000 documents


The Obama Letter

Chevron wanted to push Bush to yank special trade preferences to Ecuador.Lobbyist: “We can’t let little countries screw around with big companies like this

Steven Donziger visited Obama in 2006

Obama vetted the issue with Vermont Sen. Patrick Leahy.

In February they wrote a letter to the US Trade Representative Rob Portman urging the administration to permit the Ecuadorian peasants to have their day in court.

Texaco as carpetbaggerTexaco as carpetbaggerChevron’s request for arbitration

September 2009Permanent Court of Arbitration in The Hague

Argument: Cannot get a fair trial in EcuadorLos Angeles Times says the real issue is the devastating pollution and the affected population

Request to John Watson


New Chevron’s CEO ( Jan 1, 2010)

Amazon Watch wrote open letter which is circulating in the internetThey new of Texaco’s actions in Ecuador.

Reminder that Texaco had admitted to having deliberately released 18 billion gallons of toxic wastewater into the waterways of the Ecuadorian Amazon and to having left hundreds of abandoned unlined pits filled with crude oil and poison sludge.

Confidential memorandum: to report major events only if they attract attention of press and/or regulatory authorities

“… no reports are to be kept on a routine basis and all previous reports to be removed… and destroyed.”

Texaco as carpetbaggerTexaco as carpetbaggerMr. Watson tactics

Violated free speech rights of environmental groups

New York Times and Washington Post

To quash ad campaign sponsored by RAN in February 2010

This man can do something about it now.


Support for the affected population

March 2, 2010, Emergildo Criollo tried to deliver letter.

Lafayette, San Ramon and San Francisco

325,000 people from 150 countries signed the petition

Received by Chevron public relations executives


What is being done for the communities health?

Rainforest Foundation

Founders: Sting and wife Trudie StylerMay 20, 2007 traveled to Ecuador


Trudie visited pits covered with dirt

Met with indigenous communities

Met with sick people

Trudie, Sting, the Rainforest Foundation teamed with UNICEF and the Amazon Defense Front to provide filtered drinking water to the affected region.

Texaco as carpetbaggerTexaco as carpetbaggerLegal Analysis

Complaint Grounds

• Negligence

• Public and private nuisance

• Strict Liability

• Medical Monitoring

• Trespass

• Civil conspiracy

• Violations of the Alien Tort Claims Act

• Equitable relief


The Defense grounds

Failure to join the Republic of Ecuador and PetroEcuador

International comity

Forum non conveniens

Discretionary power to decline to exercise jurisdiction where another court may more conveniently hear the case.

Legally nonbinding practices adopted by states for reasons of courtesy


Does an alternative forum exist?

Nine years in US Courts – balance of public and private interest factors

Seven years of trial in Ecuador – no first decision yet

Three decades of pollution v. two decades of lawsuits


Political situation in Ecuador: 8 presidents in 10 years

20 constitutions.

Sucumbíos Court borders Colombia and Peru

Travel advisory

Wilson Fajardo, Ecuadorian lawyer brother was murdered

Balancing private and public interests factors

Texaco as carpetbaggerTexaco as carpetbaggerConclusion

Because of humanitarian implications in the caseProlonged situation keeps polluting rain forestChevron has no assets in EcuadorThe U S Second Circuit Court of Appeals should have given Aguinda her day in court.


CRUDE. THE REAL PRICE OF OIL. http://www.crudethemovie.com/

Message to John Watson. Chevron CEO. http://chevrontoxico.com/

texaco as carpetbagger texaco as carpetbagger: using forum non conveniens to evade liability for the...

Documents

us circuit court of

republic of ecuador

district court

adequate alternate forum

years us courts

accorded plaintiffs

comity issue

comity of nationsforum