Speaker 1: When we left off last time, it was two thousand
Speaker 1: and three, and the Ecuadorian plaintiffs had just agreed to
Speaker 1: refile their case against Chevron Texico down in Ecuador. At
Speaker 1: the center of this case were these waste pits, unlined
Speaker 1: pits where Texico would dump toxic wastewater from oil drilling.
Speaker 1: When the case was first filed in nineteen ninety three
Speaker 1: in New York, Texico said it had cleaned up its
Speaker 1: fair share and anything left was Petro Ecuador's mess. The
Speaker 1: plaintiffs said the cleanup was no good and that Texico
Speaker 1: had overseen all operations and should clean it all up,
Speaker 1: that it should be based on who did what, not
Speaker 1: who got what percentage of the profits. Ten years later,
Speaker 1: the arguments hadn't changed, but the defendant had. Chevron's acqui
Speaker 1: position of Texaco was complete in two thousand and one,
Speaker 1: and it had inherited this case as part of that acquisition.
Speaker 2: Today we're going to.
Speaker 1: Look at what happened next as the trial got underway
Speaker 1: in Ecuador. I want to tell you about one of
Speaker 1: my favorite podcasts. It's called Floodlins from the Atlantic. In
Speaker 1: this year of crisis, it's worth remembering that the country
Speaker 1: has been through a lot of big extreme weather disasters before,
Speaker 1: and history often repeats itself. Floodlines is about Hurricane Katrina
Speaker 1: in New Orleans. It follows the lives of four people
Speaker 1: who lived through the flooding and its aftermath, and it
Speaker 1: shows how government failures and misinformation led to tragedies beyond
Speaker 1: what the hurricane caused. Host Van Nukirk shows what we
Speaker 1: can learn today from that disaster fifteen years ago. Listen
Speaker 1: to Floodlines wherever you get your podcasts. A bunch of
Speaker 1: people told us that if we wanted to understand what
Speaker 1: the oil pollution in the Amazon really looked like, we
Speaker 1: had to talk to Donald Moncayo. He was born and
Speaker 1: raised right at the epicenter.
Speaker 3: Minore Donald Moncayo, and.
Speaker 1: He was born about two hundred meters from the second
Speaker 1: well Texico drilled in the Amazons in nineteen sixty seven.
Speaker 1: I'm Ammy Westervelt and this is Drilled Season five, La
Speaker 1: Lucha Longa. This is episode three, the Trial. If you
Speaker 1: haven't listened to episodes one and two, go back and
Speaker 1: do that. This is one of those seasons you're going
Speaker 1: to have to listen to the episodes in order to
Speaker 1: keep up.
Speaker 4: All right.
Speaker 1: American attorney Stephen Donziger would partner up with Ecuadorian attorneys
Speaker 1: who would file the case in the courts there. When
Speaker 1: the case started kicking off in Ecuador in two thousand
Speaker 1: and three, Donald Moncayo was the guy who would lead
Speaker 1: court officials and any visiting press on what the plaintiffs
Speaker 1: called the quote unquote toxic tour, showing them abandoned waste
Speaker 1: pits and pools of oil. People who took that tour
Speaker 1: would have heard him say something like this.
Speaker 3: Thing too toxico dosuecos cannot be memento.
Speaker 1: In short, all the toxic waste was released into these
Speaker 1: unlined pits. Also, they put in a curved tube so
Speaker 1: that the pit would not overflow and the oil would
Speaker 1: settle on either side. They called these tubes.
Speaker 3: Goose necks yelci and porss estavan dirihidos asia rios law.
Speaker 1: And one of these goose necks were directed towards rivers, lagoons,
Speaker 1: or streams, so all that toxic waste are pumping out
Speaker 1: would disappear into the lagoons, rivers, or streams.
Speaker 3: No sotros in la the loriosqui, so those of us
Speaker 3: who were at the lower part of the river.
Speaker 1: We had no drinkable water, and still today there's no
Speaker 1: drinkable water in the countryside. When Stephen Donzeger had first
Speaker 1: gone to Ecuador in nineteen ninety three to help with
Speaker 1: research for this case, he saw a lot of the
Speaker 1: things that Mancayo talks about, and it was.
Speaker 5: Just almost unimaginable the degree of creation the open air
Speaker 5: toxic waste pits that have been deliberately galged out of
Speaker 5: the jungle.
Speaker 1: Also in nineteen ninety three, the original case was filed
Speaker 1: against Texico in New York. That same year, the US
Speaker 1: signed a bilateral investment treaty with Ecuador. These treaties basically
Speaker 1: exist to protect US companies that are doing business in
Speaker 1: other countries and to boost American exports. One important thing
Speaker 1: they provide is access to international arbitration, a separate system
Speaker 1: that allows the parties to circumvent local courts. Marcos Oriana
Speaker 1: is an expert on this system. He teaches law at
Speaker 1: American University and is the EWAN Special Rapporteur on Toxics
Speaker 1: and Human Rights.
Speaker 6: The international investment arbitration can be described as a private
Speaker 6: system of adjudication that decides on the propriety of governmental measures,
Speaker 6: but it lacks the safeguards for accountability and transparency that
Speaker 6: characterized constitutional democracies governed by the rule of law. If
Speaker 6: we look back in time. In its origins, and international
Speaker 6: investment arbitration came to replace colonial system colonial systems of
Speaker 6: extraction of domination.
Speaker 1: In other words, once it was companies rather than countries
Speaker 1: that became the colonizers in the world, they needed a
Speaker 1: new system.
Speaker 6: When the former colonies acquired independence in the advent of decolonization,
Speaker 6: largely after the Second World War and the advent of
Speaker 6: the United Nations, the former imperial power needed a legal
Speaker 6: system to protect the economic interests of their corporations, and
Speaker 6: international investment arbitration offered such an alternative. Today, in this
Speaker 6: current day of age, many in civil society see the
Speaker 6: arbitration regime as yet another tool of corporate globalization. And
Speaker 6: this is because when governments regulate in the public interest,
Speaker 6: they become the targets of corporations that utilize the arbitration
Speaker 6: system to challenge those acts of authority.
Speaker 1: The US Ecuador Investment Treaty went into effect in nineteen
Speaker 1: ninety seven, so by the time this case that was
Speaker 1: originally filed against Texaco in New York in nineteen ninety three,
Speaker 1: was refiled against Chevron in Ecuador in two thousand and three.
Speaker 1: The system Oriana describes was very much in effect. On
Speaker 1: top of that, Lucio Gutierrez was president. Jets had been
Speaker 1: elected as something of an anti corporate revolutionary, but within
Speaker 1: the first few months of his presidency he had become
Speaker 1: very protrayed and particularly cozy with the United States. None
Speaker 1: of that voted well for the indigenous plaintiffs seeking compensation
Speaker 1: for the damage that had been done in the Amazon.
Speaker 1: In two thousand and two, the Appellate Court in New
Speaker 1: York had ruled that the case against Texaco, which was
Speaker 1: now Chevron Texico, should be tried in Ecuador. But the
Speaker 1: New York court said any final ruling and financial penalty
Speaker 1: imposed against Chevron Texico would be enforceable in the United States.
Speaker 5: We filed and there was a hearing very first day.
Speaker 5: You show up and both sides present their case or
Speaker 5: their theory of the case the very first day, and
Speaker 5: on that day I'll never forget Texico. Chevron's lawyer, local lawyer,
Speaker 5: his name was A daffel kyehas been with the company
Speaker 5: for years and years. Read their response to our lawsuit,
Speaker 5: every word of it. It must have taken him hours,
Speaker 5: you know. And that told me two things. One is,
Speaker 5: their entire strategy was obstruction and delay, Like you don't
Speaker 5: need to read every word of a one hundred page document,
Speaker 5: you just could have summarized it. And number two is
Speaker 5: a main defense was that they were denying that the
Speaker 5: Ecuadorian courts had jurisdiction because they were chevron and even
Speaker 5: though they had bought Texico, it was Texico that did it,
Speaker 5: not them. So they had agreed in the US as
Speaker 5: a condition of getting the case out of US courts
Speaker 5: and avoiding a jury trial, they had agreed they would
Speaker 5: accept jurisdiction in Ecuador. And the first thing they did
Speaker 5: on the first day of the trial is to claim
Speaker 5: the case should be dismissed because of a lack of jurisdiction.
Speaker 5: And Holy Moses, I mean I just couldn't believe it.
Speaker 5: I mean maybe I was naive, but like, how do
Speaker 5: you argue one thing in one place and then you
Speaker 5: go to that other court where you're bound by your
Speaker 5: promise and you just try to switch it.
Speaker 1: On the first day, the request for dismissal was denied
Speaker 1: and the trial got underway in two thousand and three.
Speaker 1: Trials in Ecuador work a lot differently than they do
Speaker 1: in the US. They run according to the civil law system,
Speaker 1: also sometimes called the Roman system, whereas the US got
Speaker 1: its legal system called the common law system from the UK.
Speaker 1: The key difference lies in jury trials. We call up
Speaker 1: Alejandro Godo, an expert on Latin American law, to explain well.
Speaker 7: One aspect of American exceptionalism, which I think is truly exceptional,
Speaker 7: is the jury system in non criminal cases, in civil
Speaker 7: cases in the Chevron case. Even England, which is another
Speaker 7: country from where the United States copy the Jurish system,
Speaker 7: abolished it in the nineteenth century and there are no
Speaker 7: more jeurry civil cases juris civil cases in England.
Speaker 1: The initial hearing in the Chevron trial in Ecuador only
Speaker 1: lasted six days. Both sides presented their case directly to
Speaker 1: a judge. But in Ecuador it's the judge's responsibility to
Speaker 1: figure out the truth. In legal cases, to investigate figure
Speaker 1: things out, and that can take months or years. We
Speaker 1: had Donziger walk us through that first day in court
Speaker 1: in Lago Agrille, so you.
Speaker 5: Know, I'll never forget the first day of the trial
Speaker 5: in Ecuador, just like I'll never forget my first trip,
Speaker 5: you know, in nineteen ninety three. It was the first day.
Speaker 5: The trial was in in October, but the first day
Speaker 5: was really important because the effected communities, the indigenous groups.
Speaker 5: There's five indigenous groups that were part of the lawsuit
Speaker 5: and a lot of other non indigenous Amazon community They
Speaker 5: organized to come in from all over the surrounding you know,
Speaker 5: Amazon rainforest, you know, by canoe and bus and walking,
Speaker 5: and you know, however they could get to this town
Speaker 5: where the trial was going to be held. The town's
Speaker 5: called Lago Agrio, which has so much symbolic importance because
Speaker 5: the only reason Lago Augrio exists is because that's the
Speaker 5: place Texico first found oil in nineteen sixty seven.
Speaker 1: There were very few people in the courtroom initially in
Speaker 1: the morning, which Donziger thought was strange. He thought maybe
Speaker 1: the guards had scared some of the plaintiffs off, or
Speaker 1: maybe they just weren't used to being able to go
Speaker 1: into the courtroom.
Speaker 5: It was a very kind of wild West town and
Speaker 5: that's where the trial was convening, in a building it
Speaker 5: was like a commercial building that was rented out by
Speaker 5: the local court to have a court there. People had
Speaker 5: come in from all over the Amazon and they'd organized
Speaker 5: this big march and there were pictures and signs, hostsia
Speaker 5: and everyone was dressed up in their traditional clothing. I
Speaker 5: got to the court and to the building that housed
Speaker 5: the court. The courtroom was upstairs, maybe three flights of stairs,
Speaker 5: and the first thing I saw was these arm guards.
Speaker 5: They looked like swat teams from the military that were
Speaker 5: standing guard outside the court. And as the morning wore
Speaker 5: on and the Chevron lawyer Ka has started reading this
Speaker 5: really boring opposition that just started to take hours, I
Speaker 5: was like, wait a second, you know, I can't wait
Speaker 5: for there to be a lunch break, because I'm going
Speaker 5: down to the street and I'm going to bring everyone
Speaker 5: up into court and probably around I don't know, eleven
Speaker 5: thirty in the morning, you know, late morning, when we're
Speaker 5: soon about to break. I suddenly hear this like right
Speaker 5: chant from the street, you know, you know, all sorts
Speaker 5: of chants and noise, and it was like the crescendo.
Speaker 5: It was like building into a crescendo, but you could
Speaker 5: hear the noise rising and rising, and it made me
Speaker 5: feel so good because I knew exactly what it was.
Speaker 5: I know it was the people affected after decades of abuse,
Speaker 5: were coming to assert themselves and kind of let it
Speaker 5: all out. And by then, I mean, there had to
Speaker 5: be hundreds, maybe a thousand, two thousand people on this
Speaker 5: little street, this dirt street, right in front of the courthouse,
Speaker 5: and they were standing on trucks and there were microphones.
Speaker 5: I started talking to some of the people who had traveled,
Speaker 5: you know, from their ancestral lands to this town, and
Speaker 5: I'm like, why aren't you guys in the courtroom come
Speaker 5: up with you? Come up with me. And many of
Speaker 5: them looked at me and they're like, oh, we can
Speaker 5: go into court. I'm like, yeah, it's your country, it's
Speaker 5: your court, it's your case. Yes you can come. When
Speaker 5: we went back in, I marched up the stairs with
Speaker 5: you know, who knows how many people behind me, Digenous
Speaker 5: women who traditional clothing and all sorts of people, and
Speaker 5: we just packed the hell out of that courtroom. And
Speaker 5: you know, it was really an emotional day.
Speaker 1: If Chevron had entertained ideas that this case would move
Speaker 1: to Ecuador and be forgotten, Donziger's media savvy took care
Speaker 1: of that. Reporters flew in from all over the world,
Speaker 1: met with Donziger, and the Ecuadorian attorneys took the toxic
Speaker 1: tour with Moncayo and sent reports back home. Here's a
Speaker 1: clip from NPR's All Things Considered as the trial got
Speaker 1: underway in October two thousand and three.
Speaker 8: In northern Ecuador, a trial is underway against Chevron Texico.
Speaker 1: The civil suit accuses the.
Speaker 8: Company of contaminating the groundwater of a formerly pristine area
Speaker 8: of the Amazon. The Ecuadorians, who.
Speaker 1: After that initial six day trial ended the court and
Speaker 1: both legal teams brought in various experts to conduct field
Speaker 1: investigations to determine the extent of contamination in the areas
Speaker 1: where the plaintiffs lived, and whether or not the cleanup
Speaker 1: that Texico had done back in the nineties was sufficient.
Speaker 1: The court gathered various other pieces of information, too, including
Speaker 1: historical information on whether or not it really was common
Speaker 1: presscice in the oil industry to dump wastewater in unlined pits.
Speaker 1: Tim Lagonegro, the geologist and longtime oil industry worker we
Speaker 1: heard from last time, was pretty emphatic that it was not.
Speaker 4: You would never put wastewater in an unlined pit. Never.
Speaker 4: Everyone knows that it's toxic water putting that into a rainforest.
Speaker 4: They had tarps in those days, too, impermeable vinyl sheeting.
Speaker 4: It's just normal, has been forever.
Speaker 1: But given how long the case had been going on
Speaker 1: by this point, and how much time had passed since
Speaker 1: Texico had left the country, the trial dragged on and
Speaker 1: on one year than it was two years, three years.
Speaker 1: In December two thousand and six, more than three years
Speaker 1: after the trial had started, in Lago Agrio, Chevron filed
Speaker 1: a complaint against the government of Ecuador for failing to
Speaker 1: resolve cases quickly. That complaint was in reference to a
Speaker 1: different set of cases, complaints that Texico had brought up
Speaker 1: back in the nineties, but the message was clear, speed
Speaker 1: it up already, or will see you in arbitration. On
Speaker 1: top of all of the obvious reasons Chevron may have
Speaker 1: wanted to officially complain about the Ecuadorian court system, there
Speaker 1: was a major change around this time in the country's leadership.
Speaker 3: Lalo Rodos, Rafael Forrea, ALIANAI.
Speaker 1: In the run up to the election of Rafael Correa
Speaker 1: in November two thousand and six, various business analysts and
Speaker 1: think tanks in the US warned that if he were elected,
Speaker 1: Ecuador would go the way of Venezuela and Bolivia, turning
Speaker 1: against US corporate interests. Among other concerns was the fact
Speaker 1: that Corea was staunchly against extending the bilateral investment treaty
Speaker 1: with the US, which was set to expire at the
Speaker 1: end of two thousand and six. Even fairly mainstream media
Speaker 1: outlets like NPR played into the idea that Korea was
Speaker 1: the scary second coming of Chavez. Yesterday's balloting reduced a
Speaker 1: field of thirteen to two men, one a banana tycoon,
Speaker 1: the other a left wing supporter of Venezuela's president Uga Chavez.
Speaker 2: Alva and Noboa, who rested control of his family's banana
Speaker 2: business to become one of Ecuador's wealthiest men, held a
Speaker 2: slight lead through the night. Running a close second was
Speaker 2: Rafael Coorea, a former economy minister who challenged the political orthodoxy,
Speaker 2: advocating cheap credit for the poor and renegotiation of all
Speaker 2: foreign oil contracts.
Speaker 1: By this point, Texico had long since pulled out of Ecuador,
Speaker 1: and Chevron wasn't doing business there either. In fact, they
Speaker 1: never had, but still a president that was promising to
Speaker 1: renegotiate foreign oil contracts. That's not really what you want
Speaker 1: when you're a US oil company defending yourself in Ecuador's courts.
Speaker 8: It would be.
Speaker 1: Another five years before the judge and Ecuador would rule
Speaker 1: on the case against Chevron, and a lot would happen
Speaker 1: in the meantime. Next time on Drilled, we hear from
Speaker 1: the other attorneys in this case.
Speaker 2: He's talking about mobilizing to put people in front of
Speaker 2: the courthouse, the thousand people in front of the courthouse,
Speaker 2: to pressure and he's saying, literally, we have to pressure
Speaker 2: the judge.
Speaker 4: We have to make him know who's boss.
Speaker 1: Chevron's attorneys get indicted, Accusations of fraud and bribery fly
Speaker 1: on both sides, and an incredible international pr war kicks
Speaker 1: into gear.
Speaker 5: The Sequoias took us to their community hut, where we
Speaker 5: saw the driving force behind the suit, Stephen Donzinger, a
Speaker 5: New York lawyer, far from home. These are people who
Speaker 5: never believed they had a right to sue an American
Speaker 5: company in their own court system.
Speaker 1: Yeah, but you know what Chevron says. They say that
Speaker 1: this is being driven by a new York plaintiffs lawyer,
Speaker 1: and they don't mean that as a compliment. Drilled is
Speaker 1: an original production of the Critical Frequency Podcast Network. The
Speaker 1: show was created by me Amy Westervelt. This season, my
Speaker 1: co reporter is Karen Savage. Our editor is Julia Ritchie.
Speaker 1: Sound design and mixing by Mark Busch, original score by
Speaker 1: b Beeman, additional production help from Sarah Ventry. Special thanks
Speaker 1: to Larissa Ikeda. Thanks to NPR for some of the
Speaker 1: clips used in this episode. Our artwork for this season
Speaker 1: was drawn by Matt Fleming. You can find corresponding stories, photos,
Speaker 1: and documents for this season on our website at drillednews
Speaker 1: dot com. If you are a Patreon subscriber, thank you.
Speaker 1: Your support is helping to make this season. And as
Speaker 1: a special thank you, if you would like to get
Speaker 1: next week's episode early, go check your feed because it's
Speaker 1: there now. If you're listening to this and you're not
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Speaker 1: go ahead and sign up. It's Patreon dot com slash drilled.
Speaker 1: Thanks for that and thanks for listening, and we'll see
Speaker 1: you next time.