A new documentary largely successfully avoids the infinite distractions generated by Chevron’s colossal retaliatory litigation campaign and re-focuses back on what happened–and what is happening today– in Ecuador…
The decision, by inimitable senior federal district judge Bill Wilson (a semi-retired judge from Arkansas sitting by designation in the District of North Dakota) dismisses all of Energy Transfer Partners utterly bogus claims against the Dutch NGO BankTrack. The Earthrights analysis is here. The dismissal is so blindingly obvious and necessary on the merits that it can be hard to cheer for: yay for the return of a bare minimum of normalcy!
However, the decision is notable for the power of the counter-punch it packs right at the heart of ETP’s RICO theory, i.e. that a participant in a social movement protest can be drawn into the notoriously impossible tar-pit of “conspiracy” and “racketeering” under RICO merely because someone else in the protest engaged in demonstrably illegal behavior. As Earthrights notes, the judge uses an example pretty clearly geared to catch the attention of ETP’s counsel, the Kasowitz Benson firm, which is famous for representing President Trump:
Under Energy Transfer’s interpretation, President Trump, who has solicited donations to help him end illegal immigration and stated immigrants are rapist, drug dealers, and animals, would be part of a RICO enterprise with racist criminals who have violently attacked immigrants on these express grounds.
Even more interesting will be to see what kind of attorney fees award BankTrack gets. BankTrack’s press release hopes that “the ringing rejection of this case will discourage other corporations from launching these kinds of SLAPPs.” Not sure about that. ETP got a hell of a lot of press for its narrative; even though the claims were obviously baseless from the beginning, the “sophisticated” legal press couldn’t help itself but report on them seriously, even breathlessly. (“Greenpeace should be worried.”) The lawsuit invariably put a lot of pressure on BankTrack in the process, and the organization is likely to be more “restrained” after the lawsuit even though it won — that’s called “chill” in First Amendment parlance. However, if ETP has to pay up a few hundred thousand dollars to cover every penny that BankTrack spent on the case and fully pay up environmental lawyer Robin Martinez at his top billable rate, then companies might really start thinking twice about filing these suits and organizations like BankTrack might be able to adopt a genuinely “bring it on” attitude, which is the only way to truly defeat the chill the lawsuit has already inflicted.
More on this to come (hopefully elaborated in other forums and venues) but here is the decision (in Spanish) and here are the basic parameters:
- This is the fourth Ecuadorian court to uphold the environmental liability judgment against Chevron, the third layer of appeal. All Ecuadorian affirmances have been unanimous.
- The jurisdiction of the Constitutional Court (CC) allowed Chevron to challenge any aspect of the proceedings in Ecuador for lack of due process, use of improperly obtained evidence, etc. None of Chevron’s challenges were sustained.
- The decision elaborates a strong human rights-perspective on the underlying questions about the fairness of the judgment and its magnitude. I hope to describe this in more depth shortly.
- The decision was emitted well into the term of office of President Lenin Moreno, who is aggressively seeking to curry favor with the United States, so any sort of claim that the CC decision was politically influenced to Chevron’s detriment is a non-starter.
- The decision is now the most current analysis of the environmental judgment and the controversies surrounding it, made by the court with the broadest jurisdiction to consider it and the challenges to it. Again, the judgment was sustained in full and unanimously.
Here is the BHRRC page on the development. I’ll add more links and analysis as it comes up.
Since 2009, more than 20 defamation suits have been brought in France by the Bolloré group or Socfin in response to articles [about protests by rural residents and farmers who live near plantations run by these two companies in West Africa]. The targets of these actions have included France Inter, France Culture, France Info, France 2, Bastamag, Libération, Mediapart, Rue 89, Greenpeace, ReAct and Sherpa. More than 40 reporters, photographers, media lawyers, NGO representatives and media CEOs have been targeted. . . . By bringing defamation suits with such unprecedented frequency – even when they are abandoned mid-course – the Bolloré group is now retaliating in an almost automatic manner to any public reference by outsiders to its African activities.
The scandal is that French courts, like those in every other country, are happily open-for-business for these suits. Modern judicial systems have developed no meaningful defenses to this utterly outrageous, unapologetic abuse of process. (The only meaningful attempt — i.e., anti-SLAPP procedures — has repeatedly shown to provide only the most minimal protection or fail outright.)
We need better thinking on this, and we need it badly.
In the meantime, great to see civil society organizations showing up for each other and for democratic and free-expression principles.
Fascinating new OECD complaint by four Dutch NGOs against ING Bank for its financing of new coals plants and other projects extremely adverse to global greenhouse gas emissions reduction efforts. The neat thing about the complaint it how it translates the OECD’s requirement for companies to report on their “targets for improved environmental performance” (including specifically climate change) into a demand that ING both “publish its total carbon footprint (including indirect emissions as a result of INGs loans and investments)” and “publish ambitious, concrete and measurable emission reduction targets for its loans and investments.”
The complaint reflects the larger debate in BHR re direct/indirect impacts as applied to financial companies, and highlights how bank involvement can feel simultaneously more remote from impacts (because banks are not the operational actor) and more immediate, at least with respect to mitigation. Here the demand of “targets” for improved performance seems quite close to the targeted result, i.e. adjustment of ING’s portfolio, which is entirely within its control.
ING would surely dispute this and point to the complications and difficulties involved both in withdrawing from existing contractual obligations and refraining from new undertakings (competitiveness; jurisdiction-specific energy needs). The situation seems more similar than different re the choice of a retailer in whether to purchase or not from a known problematic manufacturer, yet perhaps more different than similar to other lack-of-control claims with respect to impacts, such as references to local laws, practices of the national army or police force, etc.
Anyway, the English summary of the complaint is here and as follows:
On 8 May 2017, 4 NGOs based in The Netherlands, have sent a formal complaint against ING Bank to the (Dutch) National Contact Point OECD-Guidelines (NCP). Oxfam Novib, Greenpeace, BankTrack and Milieudefensie (Friends of the Earth Netherlands) accuse ING Bank of violating the OECD Guidelines for Multinational Enterprises regarding climate change and the environment. According to research of the Fair Finance Guide (FFGI) ING invests 8 times more in fossil industries compared with INGs loans to sustainable energy companies (US$ 24.5 billion in 5 years). ING plans to finance 4 new coal power plants in for example Indonesia and the Dominican Republic. The NGOs argue that ING is violating several articles of the OECD guidelines. For example, the OECD Guidelines ask for ‘measurable objectives’ and ‘targets for improved environmental performance’. The Guidelines also ‘encourage (…) disclosure (…) greenhouse gas emissions (…) to cover direct and indirect, current and future, corporate and product emissions.’ Although ING reports about its own, direct, greenhouse gas emissions, it does not report about its indirect, product emissions. The NGOs hope that the NCP will encourage ING to fully comply with the OECD Guidelines. Procedures at NCPs usually take 6-12 months to get finalized. In their formal complaint, the NGOs request ING to publish its total carbon footprint (including indirect emissions as a result of INGs loans and investments) and publish ambitious, concrete and measurable emission reduction targets for its loans and investments. Both in 2018 at the latest.