Texaco in Ecuador
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INTERVIEW: STEVEN DONZIGER
US lawyer Steven Donziger was on the legal team representing the Ecuadorian plaintiffs in the Texaco case during the 1990s, and is currently serving as an adviser to the Ecuadorian legal team.
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| A farmer near an oil waste pit in Shushufindi. "This is the most significant environmental legal case in the world today," says US lawyer Steven Donziger. By: Chris Hufstader/Oxfam |
US lawyer Steven Donziger was on the legal team representing the Ecuadorian plaintiffs in the Texaco case during the 1990s, when it was being argued in US courts. Now that the trial is under way in Ecuador, he is serving as an adviser to the Ecuadorian legal team. In this interview, he talks about the current status of the case and prospects for the future.
What is the current status of the ChevronTexaco case?
The trial has been going on for several months, but there have been different phases. The first was the six-day proof period, when most of the witnesses were called and documentary evidence was submitted. What is under way now is the judicial inspection, where the judge goes out and inspects the damage. We've requested that he visit 30 of the hundreds of waste pits and talk to people who live near these pits. The defendants (the company) have asked him to visit 20.
Each visit would probably take a day, so if he only does two or three a week, it could be a few months by the time he finishes. He also he has to appoint experts to accompany him and help him understand the damages and the cost of cleaning up. It will take a few months for them to do their work, so we're probably looking at summer or early fall 2004 before the case is ripe for decision.
Do you anticipate a long appeal process?
I hope not, because people are suffering. But under Ecuadorian law there are two levels of appeal, and our Ecuadorian lawyers estimate that if the appeals play out, they could go on for another two to three years after the end of this phase of the process. The first appeal is to a court of the first instance, which is essentially all the judges in the court that's based in Lago Agrio (where the case is currently before the court). Once it gets through that stage, it then goes on to the Supreme Court, which is based in Quito.
Do you feel that the case is progressing well?
Yes, I feel cautiously optimistic. We were able to present the evidence that we have accumulated over many years. We presented the first study ever to document the existence, size and location of all 627 waste pits—no one ever knew how many Texaco had left behind. That study was funded by PetroEcuador (the state-owned petroleum company) and carried out by the Amazon Defense Front. It demonstrated for the first time that in all 207 pits that Texaco claims it remediated, there are concentrations of oil underneath the dirt used to cover over the pits. Those are groundbreaking studies, and they've been entered into evidence. They present what I think is a convincing case that something was terribly amiss here.
How serious is the damage that your team has uncovered?
We brought in an expert named Dave Russell to assess the damage. He's one of the world's leading experts on remediation of (damage caused by) oil, and his assessment is that this is the worst ongoing environmental catastrophe in the world today after Chernobyl. While all of us who are involved knew that this was a terrible problem, with dramatic health impacts on thousands of people, nobody really understood how terrible the damage actually is. It's in Ecuador, and it's a true test of whether the national court system of Ecuador can step up to the plate and provide a process that's fair, honest, transparent and can result in the delivery of compensation and cleanup to thousands of affected people.
It's going to cost a minimum of US$6.1 billion to clean up. That was [Mr. Russell's] preliminary assessment, and that's just the clean-up of the environment. It doesn't include compensation to people for personal injuries, property damage or medical care.
What is the significance of this case for the broader fields of environmental law and indigenous rights?
I think this is the most significant environmental legal case in the world today. There is no other case in which a national court system in the developing world has jurisdictional power over one of the oil giants for ecological damages of this magnitude. It's also important as a representation of the increasing power of local groups, because this trial would not be taking place if it weren't for the high-level political organization of all those affected. This level of political organization has been built up over 10 years. As lawyers from the north, we simply would not be able to carry forward a case like this without that level of organization, unity and commitment.
Has the formation of the Assembly of Delegates been important in the legal defense?
What's so astounding is the way the indigenous groups, as well as non-indigenous settlers who live in the area, have come together and formed an organization where every single affected community is represented and everybody cooperates. From a practical perspective, having a group like that is an absolute necessity for carrying forward a case with this level of complexity and with this many different groups of plaintiffs.
On a political level, it serves an extremely important function in terms of being able to communicate a common voice to the company and the Ecuadorian government. At critical points throughout this litigation, it essentially saved the day and prevented the case from being dismissed. There were times when the group was able to exert pressure on Ecuadorian government leaders and also to convince the Ecuadorian government that this case is not a threat to its economy or to foreign investment. On the contrary, it can help establish some clear rules for foreign investment that would actually make companies more comfortable.
All of these issues surround the core legal issues, and without the Assembly of Delegates, which is able to speak with a common voice and represent tens of thousands of people, it would be much more difficult to do this case.
Would a victory for the plaintiffs have more than a local impact?
If the plaintiffs succeed in winning a significant judgment against ChevronTexaco, not only will it benefit tens of thousands in Ecuador, it will also potentially benefit millions of people around the world by establishing two important precedents. One is that oil companies have to adhere to either best practices or close-to-best practices when drilling in the global South, and the other is that national court systems in developing countries are not necessarily captive to oil interests and can be used to defend the territory of countries against massive environmental damage. Those are two critically important precedents that could potentially be set through this case.
As a lawyer, what has been most significant for you about this case?
This is a big civil case that involves an environmental issue, but underneath it is essentially a justice issue. It's an honor to work for clients who are so powerful and inspirational in terms of their resilience in the face of the enormity of this problem. It's a privilege to be involved in a case like this. On the other hand, it's incredibly sad to me as a person. People are dying and the company refuses to accept responsibility, and the case just goes on and on, because our laws are set up in a way that makes it extremely difficult for people who live at the margins of power to get into a courthouse to seek justice. It took 11 years for them to come into a court and have a trial, and that's way too long. It's not fair, and I hope it never has to happen again.