As has been recently reported (Vice, Courthouse News) the arbitral tribunal hearing Chevron’s baseless “denial of justice” claim against the Republic of Ecuador (through which Chevron hopes to put Ecuador “on the hook” for the environmental judgment that private Ecuadorian plaintiffs won against Chevron in Ecuador’s courts) conducted a series of “judicial site inspections” of the abandoned waste pits and other contamination at Chevron’s former oil operations sites in the Ecuadorian Amazon. The transcripts of the inspection proceedings are available here.
For someone who was intimately involved in the judicial inspections process in the original case back in 2005-2006, reading the transcripts is an experience thick with déjà vu. The same scene: roosters crowing, sudden torrential rains, heat and insects, strained jokes about trying to hold it all together in a jungle setting. The same arguments: the open pits, the hidden pits, the produced water dumping system, the bogus remediation; and from Chevron: the RAP, the RAP, the RAP (i.e., the settlement which Chevron pretends released it from taking responsibility for the majority of the contamination, except that the private claimants in the Ecuador case were not party to it and in fact it expressly stated that it did not apply to their claims).
In between now and then, the same sites — ridiculously obviously contaminated sites — have been examined again and again and again and again, by government investigators, expert teams for various parties in various litigations, various human rights delegations, and countless celebrity and other observers. How long can Chevron continue to drag the world through this charade?
After enough people visit, will we at some point reach a critical mass? As Ted Folkman at Letters Blogatory astutely writes, “there is a bit of res ipsa loquitur that works in favor of the Ecuadoran position” when a person leaves the safe confines of the United States (where Chevron has successfully tainted the story of the Ecuador case with a blizzard of false allegations of fraud and wrongdoing) and arrives to see the pits themselves in all their horrible glory. “There are, of course, experts on both sides of the case, but when you are at the pit, you can see the oil, and a layman can simply look at the topography of the site and see how the oil would likely migrate.”
In fact, with all respect to Ted, what most people see is not migration of contaminants, but toxicity, sickness, and death, especially if their visit is combined to any degree with discussions with local residents about their invariably tragic family histories. To the extent most peoples’ thoughts stray into the legal realm, they typically start with questions of criminality, recklessness, negligence, and a commensurate call for justice.
A decade ago, shortly after I left full-time work on the case, Chevron made a public promise that it would inflict “a lifetime of appellate and collateral litigation” on the plaintiff communities if they dared to continue with their case and push it through to judgment. One cannot argue that an oil company like Chevron is not wise in the ways of the world and the halls of power; it knew it could inflict just such a fate, and it has.
Chevron has laid its cards on the table. It knows what it is doing. Now it’s our turn — “our” most broadly, basically everyone in society who is not Chevron or a reflection of its bottomless self-interest. What are we doing? The world will have to change if this company is going to change course. Maybe it is changing already.