With eyes red with fatigue, Pablo Fajardo stood in front of a room of activists in Toronto, Canada explaining the plight of the more than 30,000 indigenous peoples and farmers whose lands in the Ecuadorian Amazon are covered in toxic sludge. Fajardo was presenting evidence that the pollution stems from decades of oil extractions by Chevron-Texaco, one of the world’s largest oil companies. He and his clients are fighting a drawn-out legal battle that is part of a growing list of high-profile cases brought by indigenous communities against extractive industries, a list that includes the Dakota Access Pipeline project opposed by the Standing Rock Sioux Nation and the case of the Navajo Nation versus the Environmental Protection Agency over the contamination of the Animas River from the Gold King Mine.
Fajardo, an Ecuadorian lawyer representing the affected people, is not only worn out from the four days of hearings in Toronto in September, but from the 23-year legal battle that seems to have no end.
“This was not an accident like Exxon or BP in the Gulf of Mexico. This was on purpose,” says Fajardo, pointing to images of thick, sticky tar coating a Delaware-sized section of once-fertile farmland.
“We’ve won in the Supreme Court of Ecuador, the court that Chevron chose to be tried in. We won against their 2,000 lawyers. We won $9.5 billion in settlements. We want to see that judgement carried out.” If it is, Chevron would face the largest environmental settlement ever, towering over the $3.9 billion award against ExxonMobil for the Alaskan oil spill in 1989.
“The World’s Largest Environmental Justice Case”
Called “the world’s largest environmental justice case,” in 2011 the Supreme Court in Ecuador confirmed the existence of 880 Olympic pool-sized pits filled with solid petro waste, 1,500 kilometers of Amazonian roads covered in crude oil, 60 billion gallons of toxic waste dumped into waterways and 650 thousand barrels of crude oil spilled in the jungle and on farmland, all attributed to the United States-based company Chevron-Texaco. Fajardo and Humberto Piaguaje, a member of the Secoya tribe and representative of the Union of People Affected by Texaco’s operations (UDAPT, by its Spanish initials) have travelled to the United States, Argentina, Brazil and Canada to litigate the case and have appealed to the International Criminal Court.
However, despite the 2011 Ecuadorian Supreme Court ruling that Chevron-Texaco pay $17.2 billion USD in damages (later slashed to $9.5 billion), the transnational corporation has refused to pay. After several rulings in various courts swinging between favoring Chevron and favoring UDAPT, in 2015, the Supreme Court of Canada ruled in favor of the Ecuadorians, allowing UDAPT to pursue judgement against Chevron through its subsidiary, Chevron Canada Limited. This ruling allows UDAPT to bring the case back to Canada. Fajardo and his team hope that by going after Chevron Canada Limited, they can get the $9.5 billion from assets held by the company in Canada.
Chevron Corporation says they have no link to contamination in the Ecuadorian Amazon, and that the contamination occurred before Chevron acquired Texaco Petroleum (TexPet) in 2001.
On its website Chevron claims it is the victim of “fraud and racketeering”. The transnational corporation maintains that their subsidiary TexPet produced oil in Ecuador with the state-owned company Petroecuador from 1964 to 1992. Chevron says that in 1992 TexPet handed operations over to Petroecuador and that “Texaco already cleaned up its share” through a $40 million USD remediation of “selected production sites,” leaving any remaining cleanup to Petroecuador.
Chevron has some “wins” under their belt. In, June 2016 the U.S. Supreme Court decided to not consider Ecuador’s challenge to the $96 million arbitration award issued to Chevron by at D.C. circuit court in 2015. After the 2011 Ecuadorian Supreme Court ruling in favor of Ecuador, Chevron took the case to the Permanent Court of Arbitration (PCA), an arbitration body in The Hague, which also ruled against Ecuador, saying the $9.5 billion judgement from the Ecuadorian Supreme Court had been tainted by fraud. This past July, as part of a separate dispute between Ecuador and Chevron, the PCA ruled that Ecuador owed Chevron $112 million for a 1973 deal that called for Texaco and then Chevron to develop oil fields in exchange for selling oil to Ecuador for below-market rates. However, this blow to the Ecuadorian government, which is suffering from falling oil revenues and recent earthquakes, is separate from the UDAPT case.
The PCA also rejected UDAPT’s claim that the contamination “had deprived Ecuadorean citizens of the fundamental right to live in a non-polluted environment,” which is part of the Constitution of the Republic of Ecuador and also of the 1995 Settlement Agreement between the Ecuadorian Ministry of Energy and Mining, PetroEcuador and TexPet outlining the remediation of the contamination. In response, UDAPT challenged the PCA ruling through an international arbitration tribunal in The Hague earlier this year, arguing that the PCA didn’t have the authority to hear the case, but again, the District Court rejected Ecuador’s arguments, saying the PCA did have jurisdiction under the authority of the U.S.-Ecuador Bilateral Investment Treaty.
The complex, ongoing litigation began well before the 2011 Ecuadorian Supreme Court ruling when in 1993, one year after TexPet turned operations over to PetroEcuador, 15 Ecuadorian farmers and representatives of the indigenous tribes of Secoyas, Cofanes and Kichwas brought a class action suit against Texaco-Chevron in the Southern District Court of New York. The lawsuit accused the petrol giant of widespread contamination that affected the health of local populations; of using outdated technologies that caused that contamination; for putting their waste storage pits close as possible to natural waterways planning for run-off; and for leaving toxic waste in rural areas between 1964 and 1990. The Union of People Affected by Texaco’s operations says health effects such as childhood leukemia, spontaneous miscarriage, skin diseases, and other maladies are higher in their region and are linked to petrochemical contamination of air and water, which prompted more people to join the union. UDAPT how represents 30,000 affected people.
“We felt rich, but the people who came to our Amazon were poor. Poor in thoughts, poor economically because they came to take away all of our riches,” said Piaguaje in an interview with the Americas Program. Piaguage pointed out that since the beginning of oil exploration in the region in the 1960’s two entire tribes have disappeared and all the water in the region is now polluted with petrochemical waste, including floating crude oil that traps birds, fish, and larger animals who try to drink or wade in the water.
“Now we are poor. We don’t even have fish in the river or animals in the forest. We want justice, not money. We want to repair the damage, ” Piaguaje concluded.
The Paper Trail
In 2002, the case was heard in the Superior Court of Nueva Loja in Ecuador. In 2011, the first verdict was issued against Chevron, sentencing the transnational corporation to pay $9.5 billion in damages. Chevron appealed to the National Court of Justice (the Supreme Court of Ecuador), citing that the case was fraught with “fraud, extortion and other misconduct” but in 2013 the court unanimously ratified the sentence and Chevron’s obligation to pay the fine.
Chevron appealed again, alleging that the judges in Ecuador were incompetent to hear the case. According to Fajardo, during the 23 years of litigation, Chevron withdrew all of its assets from Ecuador, making it impossible to collect the awarded damages. This forced UDAPT and its lawyers to take the case to countries where Chevron had assets, such as Argentina, Brazil and now Canada. The courts of Argentina and Brazil both ruled in favor of UDAPT and moved to seize Chevron’s assets in their respective countries, but then both reversed their rulings on appeal. Fajardo asserts, “Chevron put pressure on Argentina and Brazil to lift the seizure, using the countries’ economic needs against them. It was blackmail.”
We are confronting not only one of the largest corporations in the world, but one of the most corrupt. We are fighting against a system of impunity for corporations. There is no court in the world suitable to try international corporations,” said Fajardo in Toronto, where the group has now brought the case to be heard in Canadian Commercial Court. They hope that the Canadian court will recognize the foreign sentence handed down by Ecuador’s courts and seize Chevron Canada assets to pay the damages owed.
Chevron Corporation claims that Chevron Canada is separate from Chevron Corporation and isn’t linked to contamination in Ecuador. The transnational continues to maintain it is the victim of false allegations and fraud.
Cory Wanless, a Canadian lawyer and expert in corporate accountability, human rights and indigenous populations, said this case would be the world’s largest judgement in an environmental contamination case. He said it is not surprising that it has dragged on so long since corporate lawyers “define winning as not losing.”
If Chevron loses this case it would set a precedent that could force more corporations and their subsidiaries to be held responsible for contamination cleanup.
Wanless pointed out that Canada has a record of hearing foreign cases. He said the preliminary motions presented over four days in Toronto mark the beginning of another long process of hearings.
The families of those affected by cancer, the farmers whose soil has turned to sticky oil fields, and the thousands whose water has become undrinkable because of runoff from the waste oil pits located next to their rivers and other water sources have joined the ranks of the high-profile Water Protectors protesting the Dakota Access Pipeline, even if only in spirit. Although their lands are less accessible to news cameras and citizen assembly, and their plight is less prominent on Facebook, their mission is similar to that of the now famous No DAPL protesters: to protect their families, water and land and to retain their culture in the face of abuses from the transitional extractive industry.
Although Wanless is hopeful there will be justice for those affected by petrochemical and crude oil contamination in Ecuador, Chevron lawyers have said publicly “we are going to fight this thing until hell freezes over, and then we will fight on the ice.” Like the Chevron lawyers, families of UDAPT have said they’ll see their tropical homeland covered in ice before they give up the fight to protect it.
Yasmin Khan has worked as a journalist in New Mexico, Mexico and Bolivia. She now lives in Baja California Sur where she works on water supply and treatment projects in communities. She is a frequent contributor to the CIP Americas Program www.cipamericas.org, where this article originally appeared.