Outside Magazine
Alan Dershowitz, meet Steven Donziger. On behalf of 30,000 inhabitants of Ecuador’s remote Oriente region, this New York lawyer is putting it to Big Oil. But will his multi-billion-dollar lawsuit establish a global precedent—or is he just looking for a scapegoat for one of the nastiest messes on earth?
March 2007
The Front for the Defense of the Amazon, like any progressive group whose name includes front and defense, is a no-frills outfit with ample supplies of devotion and very little clout. Its opponents are, in size and power, what elephants are to gnats. They include Chevron Corporation, the United States government, the armed forces of Ecuador, and the insatiable global demand for oil. (This is a partial list.)
The Frente, as it’s known, is based in Lago Agrio, a gritty oil town of 35,000 in northeastern Ecuador’s humid, jungly Oriente region, in a second-floor warren outfitted with furniture the Salvation Army might reject. As a gnat, the Frente measures success in humble terms René Descartes would understand: We survive, therefore we are. But something funny is happening on the way to the glorious defeats that would seem to be its destiny. The group has a fighting chance of winning a landmark environmental-damage lawsuit against Chevron, one that could cost the conglomerate an estimated $6 billion in cleanup expenses. The suit was brought by 48 Oriente inhabitants on behalf of 30,000 fellow residents of the oil-rich region—members of the Cofán, Secoya, and other tribes, as well as settlers who arrived in recent decades. The plaintiffs allege that, between 1964 and 1992, Texaco (which merged with Chevron in 2001) dumped 18 billion gallons of toxic wastewater into an area the size of Rhode Island—a brew that allegedly included 18 million gallons of oil, nearly twice the amount spilled by the Exxon Valdez in 1989.
According to the suit, Aguinda v. ChevronTexaco (the first plaintiff listed is Maria Aguinda, a Quechua Indian), the pollution has poisoned the earth, rivers, and air, causing miscarriages, birth defects, and cancer rates three times the national average. Cows and chickens have reportedly dropped dead; fish have gone belly up. Mothers and children walking on the oil-soaked dirt roads, the plaintiffs say, have to wash their feet in gasoline just to remove the gunk.
This isn’t the first time a multinational has been accused of egregious misconduct in the Third World, but it is the first time a class-action-style environmental lawsuit this large has gone so far. Originally filed in a New York federal district court in 1993, the suit went through nearly a decade of pre-trial maneuverings that came to a halt in 2002, when a federal appeals court ruled that it had to be heard in Ecuador rather than the U.S.
At first, that looked like the end. Nobody thought Ecuador would hear the case; trials this complicated had never been held there, and the government in Quito was still relatively friendly to U.S. business interests. But in Ecuador, as in many developing countries in Latin America, such governments have been replaced by a new generation of left-leaning nationalist regimes. With popular sentiment shifting, proceedings opened in Lago Agrio’s superior court in October 2003, less than six months after the suit was filed. Now, finally, resolution is in sight. The verdict—which will be decided by a single judge rather than a jury—is expected sometime next year.
On a muggy morning in October 2005 in the Frente’s ramshackle offices, one big reason for the group’s improbable success was standing in front of me. The chief American legal adviser in the case, Steven Donziger, was turning the office into a political stage by doing what he does best—plotting, joking, shouting, defaming, and, in general, behaving like Don Quixote with a Harvard law degree. At 45, Donziger is an imposing figure, with a six-foot-four physique and a face like George Clooney crossed with an Easter Island head. He was fulminating against Chevron for blocking a judicial inspection of the Guanta processing station, outside Lago Agrio, one of 122 allegedly toxic sites originally slated to be inspected in the case.
Under Ecuadorean law, the judge personally investigates evidence. In this dispute, that means making dozens of field inspections, which entail a traveling circus of lawyers, security guards, witnesses, journalists, and separate teams of experts for the judge, plaintiffs, and defendant—all jawing and sample-taking outdoors in whatever weather conditions prevail. The night before the Guanta inspection, Judge Efraín Novillo Guzmán had declared a postponement after Chevron’s representatives said they’d been warned of potential violence by locals angry about the pollution. The delay seemed like a good idea for the oil company, in part because the Frente had lured a busload of Ecuadorean journalists out to Lago Agrio, a six-hour drive from Quito over narrow mountain roads. With no inspection, there would be nothing to write about.
But Donziger is savvy enough to spin a sunny day into a hurricane. He worked the phones in nonstop interviews, accusing Chevron’s lawyers of everything from cowardice to genocide. When he went live with Paco Velasco—Ecuador’s most popular radio talk-show host and, like Donziger, a fountain of addictive outrage—it was a meeting of like-minded vocal cords.
“Texaco doesn’t respect the life of Ecuadoreans!” Donziger fumed in gringo-accented Spanish. “They are against the people. They are lying. People have died and people will continue dying because of the pollution!”
Donziger was on a roll and he knew it. When the interview ended, he turned to an Ecuadorean activist and said, “That was good, wasn’t it?”
In the next room, several young Ecuadoreans were making posters: TEXACO IS COWARDLY AND RACIST! TEXACO IS AFRAID! Down the hall, plans got under way for a day of protest; several dozen indigenous women, looking sullen but photogenic, would wave the posters in front of city hall. Meanwhile, Donziger was firing up the crew of journalists for a gonzo tour of the Guanta site, official inspection be damned.
I wouldn’t have thought it possible to pity a multinational oil conglomerate that has gotten its way worldwide since 1911, one that made $14 billion in profits in 2006 alone. But watching Donziger stir things up, I almost felt sorry for Chevron.
It doesn’t take long to reach the thin air of the Andes from Quito, because you are already in the thin air of the Andes. Ecuador’s capital is more than 9,000 feet above sea level, and if you drive east, toward Papallacta Pass, you enter a series of valleys whose stark grandeur makes you feel like you’re inside an Ansel Adams photograph, albeit one that features the occasional llama.
Eventually, the road descends in ill-mannered serpentines toward Sucumbíos province, its capital of Lago Agrio, and the Amazon basin. As the terrain flattens, the scenery changes and the Andean cloudforest morphs into a steamy infection of stores, cattle, farms, and people. Curving along the highway is a thick pipeline filled with crude oil. It’s used as an elevated walkway by children and adults who don’t want to get stuck in the black mud below. They walk, literally and magically, on a path of oil.
This is the Trans-Ecuadorean Pipeline System, known by its Spanish initials, SOTE. More than 300 miles long, SOTE was built in the early 1970s; in 2004 it gained a twin, the Heavy Crude Pipeline (OCP), which doubled the country’s capacity to transport oil over the Andes to the Pacific port of Esmeraldas, and from there to the United States. Ecuador now produces nearly 500,000 barrels a day. Every 24 hours, 300,000 of those are shipped to El Norte, making it Latin America’s third-largest oil supplier to the U.S., behind Mexico and Venezuela.
Feeding this aorta is a web of smaller pipelines spread over the humid flatlands. The feeder pipes aren’t buried or routed away from roads and people, as they would be in a wealthier nation. They rest on rickety pylons one or two feet high and just a few feet, or sometimes inches, from the road. If you swerve into one to avoid a pothole or lose control of your vehicle because you are drunk, you will create an oil spill. It happens all the time.
Thirty-five years ago, none of this existed. The road from Quito didn’t extend beyond the Andes, and because there was no road, the 20th century hadn’t penetrated the Oriente. It was a tangled expanse of jungle inhabited by indigenous Indians—Cofán, Huaorani, Secoya, Siona, and Quechua—numbering up to 20,000 or so at most. The territory was largely left alone until Texaco was granted the Oriente concession in 1964 and found oil in 1967.
What happened next is an old story. To extract and ship the dark product, hundreds of miles of roads were built, along with hundreds of wells, processing stations, and waste pits. A Wild West–style boomtown sprung up in the 1970s, replete with bars, prostitutes, and fistfights. Officially called Nueva Loja, the town quickly became known by its nickname, Lago Agrio—Spanish for “Sour Lake,” the name of the Texas town where Texaco was founded in the early 1900s. Settlers poured in. To prevent neighboring Colombia from snatching the sparsely populated Oriente and to relieve overpopulation elsewhere in Ecuador, the government offered free land to anyone who’d clear the thick jungle and start farming. Their numbers already decimated over the centuries by Western diseases such as smallpox, the Cofán and other tribes were pushed farther into the disappearing jungle. Today, perhaps 1,000 Cofán remain.
On paper at least, Ecuador’s government was the controlling authority in this enterprise. Texaco entered a joint-venture accord with a newly created state company called CEPE (now known as Petroecuador) to co-manage the extraction. But the Ecuadoreans had little expertise in oil drilling. When crude began to flow, the country’s oil industry, steered by Texaco, all but regulated itself.
Texaco took out 1.5 billion barrels over a 20-year span, bringing the company profits that nobody seems to agree on. The San Francisco–based environmental group Amazon Watch, which works with the Frente to publicize the damage in the Oriente, claims Texaco netted more than $30 billion in profits. Chevron insists that the joint venture grossed $25 billion but that only $490 million went to the American company after royalties and taxes. Whatever the numbers, Ecuador’s national government embarked on an unchecked spending spree that far exceeded its revenues. By the end of the 1990s, the country was saddled with $16 billion in debt; about 70 percent of Ecuadorean children still live below the poverty line, according to UNICEF.
The long regulatory leash didn’t work out so well. To industry critics, Ecuador is Exhibit A of what happens when an oil company operates unfettered in a remote corner of the world. During oil extraction, water is often pumped deep into underground reservoirs to force out the crude, and when it comes up, so does “formation water”—a cocktail of leftover oil, metals, and water that can include benzene, chromium-6, and mercury. The plaintiffs charge that, instead of reinjecting this wastewater deep underground or removing the contaminants—standard practices now, and often done back then as well—Texaco dumped it into tributaries of the Amazon and hundreds of unlined pits. Without naming specific sources, the suit alleges that “close to 83 percent of the population has suffered diseases attributable to contamination … the more affected population is that of children under 14 years of age.”
To buttress the suit’s accusations, Donziger and others point to a number of studies, beginning with Amazon Crude, a 1991 environmental overview compiled by City University of New York law professor Judith Kimerling and published by the Natural Resources Defense Council; and the 1999 “Yana Curi” (“Black Gold”) report, conducted by two Spanish medical researchers in cooperation with the Department of Tropical Medicine and Hygiene at the University of London. That study focused on the town of San Carlos, a hub of Oriente drilling activity, finding 2.3 times more cancers in men than the average in Quito, along with lymphoma rates in women that were 6.7 times higher than those in Quito. But San Carlos has a population of only 1,000, according to the study; that’s just a small sample of the Oriente’s 300,000 estimated residents.
Though there’s a shortage of hard data, journalists regularly emerge from the Oriente with horror stories about sick people and livestock, and about polluted land, swamps, and rivers. In 2003, the Frente hired an American engineering consultant named David Russell to study the potential cost of a thorough cleanup. His Georgia-based firm, Global Environmental Operations, estimated a final price tag of $6 billion, a figure that Chevron disputes. Company spokesman Chris Gidez—a public-relations expert at Hill & Knowlton—calls this number “a wild claim.” Even Donziger is speculating when he says it could cost as much as $10 billion—or far less. The truth is, nobody knows for sure.
For Donziger, the more publicity the better, in both Ecuador and the U.S.; he does his best to arrange a good show. For the Guanta inspection, in addition to the Quito journalists, he’d brought in a separate busload of photo-ready Cofán Indians, all of them wearing colorful native frocks and the unhappy frowns of the dispossessed.
Our first stop was town hall, an ugly, four-story, glass-skinned structure. The judge’s chambers were on the top floor, inside a small, book-lined room never intended to be filled with lawyers, reporters, TV cameras, students, and Indians. Judge Novillo, a soft-spoken man who looks like he’s on the tired side of his fifties, reacted calmly to the invasion. The latest book by Gabriel García Márquez sat on his desk, and he got a real-life dose of magical realism when the mob barreled into his office, accusing him of postponing the inspection at the behest of a foreign company.
“Texaco organized this!” shouted a law student from Quito who wore a bandanna around his neck in the imagined style of Che Guevara. His class was on a field trip with their professor, Alejandro Ponce Víllacis, a 38-year-old lawyer who is one of the case’s most prominent faces in Ecuador.
“This order is from state security,” Novillo replied, flashing an official-looking piece of paper.
“Let us see it,” Ponce demanded.
“I cannot show it,” Novillo said.
Howls of outrage filled the chamber. Giving ground, Novillo began reading the order, which he said had come from the local special-forces base, Rayo-24 (“Lightning-24”).
“‘Military intelligence fears there could be a hostile situation,'” he read, but Ponce cut him off.
“The people have a right to know!” he shouted.
“You are not showing it!” the law student added.
The judge flashed the letter again, a bit longer this time. Not good enough. “This is a manipulation from Texaco!” someone shouted.
“We have been hurt by the pollution,” a short Indian woman wailed.
I heard a baby cry. With all the bodies packed into the room, the humidity reached 1,000 percent. For the judge, there was no escape. He was being forced into a sort of data striptease, with information revealed piece by piece to the panting crowd. Finally, he held out the letter for everyone to read.
Donziger is not a member of the bar in Ecuador. With the judge, as in court proceedings, he let his Ecuadorean colleagues do the talking: Pablo Fajardo Mendoza, a ferocious 32-year-old who got his degree from an extension school and has emerged as the case’s lead courtroom litigator; and Professor Ponce, whose father once defended Chevron. The Frente’s legal coordinator, 44-year-old Luis Yanza, plays a key role outside the courtroom, and, like the rest of his team, he’s patient. He laughed a little too hysterically when I asked if he’d ever thought the case would last more than a decade.
After the face-off with Novillo, the buses of Indians and lawyers and students and journalists rolled up to the army base on the outskirts of Lago Agrio. We stood outside the gate in a soaking drizzle, armed with cheap umbrellas. The special-forces commander, Lieutenant Colonel Francisco Narvaez, soon emerged, wearing fatigues and a burgundy beret.
“I do not know about the existence of the letter,” he told the crowd. His statement met with disbelief; everyone had seen that the order was signed by Narvaez’s second in command.
“I am going to investigate it, and when I find the answer I will meet with you and tell you what is going on,” he said.
Donziger, Ponce, and Fajardo decided to try something new. “The Texaco staff stays here,” Donziger said to Narvaez. “There is an agreement.” This was cast as an accusation.
“There might be,” the lieutenant colonel responded uneasily.
Donziger had known for months that Chevron had built a villa at the base and agreed to give it to the military once the case ended. He hadn’t publicly opposed the deal—Chevron is not popular in Lago Agrio, and its lawyers would be safer on the base. But with a dozen soggy, news-hungry journalists recording the moment, the Frente’s lawyers suspected the time was right to accuse the military of colluding with gringos.
It turned out they were correct. The accusation made headlines, and a few weeks later the defense ministry canceled all military contracts with oil firms and ordered Chevron off the base.
Though the Oriente is clearly a disaster area, the scientific data is far from cut and dried, and Chevron denies almost every allegation that fell into its lap after its merger with Texaco.
In Quito, I interviewed Rodrigo Perez, the Chevron subsidiary’s chief legal adviser in Ecuador. Perez began working for Texaco in 1969, when he was a young man; he’s 69 now, with the comforting manner of a family doctor. The case has taken its toll. “I am tired,” Perez confessed during my 2005 visit. “I would love to go to the beach for a month or two and write.”
But the attacks have been relentless, and Perez wearily outlined Texaco’s position, as he’s done for years. Any damage caused by the company was not nearly as severe as the suit charges, he said. Even so, dumping wastewater was “common practice” in the bygone days of oil extraction, which means Texaco wasn’t doing anything out of the ordinary. “If you filter it first,” Perez said, “in 200 meters you don’t have any way of knowing the water was dumped, because those are big rivers.” Poverty and the continuing operations of state-owned Petroecuador—a notorious polluter responsible for 117 spills in the first half of 2006 alone—are the real source of pollution and disease, the company insists. And the patchwork of medical studies don’t prove higher incidences of disease that can be traced, absolutely, to Texaco’s activities.
To get a firsthand look, I visited San Carlos and spoke with Oscar Ojeda, a doctor at the clinic there. He said the village has recorded what seems like an inordinate number of cancer cases, including leukemia, and he believes oil pollution is the cause. Throughout San Carlos, I smelled petroleum in the air, and Ojeda said he would never drink the water or swim in the rivers, as most local people continue to do. But even if a link could be proved between the village’s cancer rate and pollution, the legal and scientific question remains: Were the cancers caused by Texaco before 1992, or by Petroecuador in the years since?
Chevron has a second line of defense: In the mid-1990s, Texaco paid $40 million to remediate some sites in the Oriente; in keeping with the roughly 30-70 management split between the companies, Petro-ecuador would be responsible for remediating the others (which it hasn’t done). In return, in 1998, Ecuador’s government indemnified Texaco from further claims.
Donziger describes this cleanup as a fraud, alleging, for example, that Texaco merely poured dirt over waste pits rather than removing the waste and subsoil. In his always-turn-it-up-a-notch style, he helped persuade the Ecuadorean government to open an investigation into the remediation, adding new fire to a separate case. In a New York federal court, Chevron is seeking assurances from the Ecuadorean government, stemming from the indemnification, that Petroecuador will pay any damages awarded in Lago Agrio. That trial is scheduled to begin in March.
Though it stretches the imagination to think of Chevron as an innocent party, the company is clearly not the only possible culprit. Texaco operated most of the wells in the Oriente until 1992, but other American companies were present, such as Occidental Petroleum and Maxus Energy, though their operations were generally regarded as cleaner than Texaco’s. Pollution has not ceased since Texaco departed, thanks to the negligence of Petroecuador and a government in Quito that doesn’t fully enforce its own regulations. Furthermore, oil pollution isn’t the sole problem. Today, deforestation in the Oriente is so extensive that I could barely imagine, as I drove around, that the region was untouched rainforest only a few decades ago. Vast environmental crimes have certainly occurred, but who’s to blame? Chevron suggests looking elsewhere.
“Despite Petroecuador’s clear acknowledgement of responsibility and the substantial evidence of the company’s poor environmental record,” Chris Gidez wrote me in an e-mail, “plaintiff’s attorneys continue to solely target Chevron not because it is the proper target, but because it is the most convenient one and has the deepest pockets.”
Justice is rarely blind in Ecuador. Until recently, verdicts would never have favored the little guy with a grudge against well-connected gringos. But the nation’s newly elected president, Rafael Correa, joins Venezuela’s Hugo Chávez and other ideological soul mates in Bolivia, Nicaragua, Brazil, Argentina, Peru, and Chile. In Venezuela, Chávez has forced foreign oil companies to rewrite their joint-venture contracts, while Bolivia has just nationalized its oil-and-gas industry. In Ecuador, even before Correa was elected, the government imposed a windfall tax on foreign oil companies and terminated Occidental Petroleum’s lucrative exploration contract.
Most Ecuadoreans never visit the Oriente or Lago Agrio, which is regarded as a kind of lawless Love Canal. But frequent coverage in Quito’s newspapers has generated national interest in the case. An adviser for Chevron—who tracks public opinion in Ecuador and who asked to remain anonymous—told me that if the judge issues a verdict against the company, he’ll be treated as a hero. This adviser was exaggerating, but only somewhat, when he added that any judge ruling for Chevron would be “carried out on his back”—in a coffin.
Rabble rousing is a vintage Donziger tactic. He grew up in Jacksonville, Florida, his father a conservative businessman, his mother a teacher active in farm workers’ rights. Not surprisingly, the son combines no-nonsense efficiency with the zeal of an agitator.
After graduating from Washington, D.C.’s American University in 1983, Donziger began his adult life as a freelance journalist in Nicaragua, covering the decade-long war between the Sandinista government and the U.S.-backed contras. He returned to America in 1987 and enrolled in Harvard Law School, where he participated in sit-ins against university policies he deemed insufficiently progressive. After graduation, he worked for two years as a public defender in D.C. and edited a 1996 book of essays, The Real War on Crime, that outlined inequities in the criminal-justice system. Because there is no lost cause he will not embrace, Donziger wrote a report on voter disenfranchisement after Al Gore came up short in the 2000 election.
Since 1993, Donziger has been a sole practitioner, spending much of his time on the Chevron case. He heard about it through a Harvard classmate named John Bonifaz. John’s father, Cristóbal Bonifaz, is an Amherst, Massachusetts, public-interest lawyer and native Ecuadorean whose grandfather was president of the country in the 1930s. Neither Bonifaz has shied away from grand quests—on behalf of several soldiers, military families, and U.S. congressmen, the pair sued President George W. Bush in 2003 for waging war in Iraq without a congressional declaration. But Cristóbal Bonifaz didn’t have the financing to take on an international case this big.
He enlisted the Philadelphia law firm of Kohn, Swift & Graf, which specializes in class-action suits brought under the Alien Torts Claims Act, a 1789 piracy law that was dusted off in the late 1970s as a way to sue U.S. individuals and companies for human-rights violations in foreign countries. According to a recent tally by Business Ethics magazine, 36 ATCA cases have been filed against corporations in the past 13 years, including a suit against ExxonMobil Corporation for abuses by Indonesian military forces protecting the company’s facilities there. In 2004, in one of the most prominent of these cases, Unocal—which itself has since been bought by Chevron—agreed to settle a suit in which it was accused of responsibility for human-rights abuses, including rape and murder, committed by Burmese troops guarding a pipeline project.
Aguinda v. Texaco, as the suit was then called, seemed like a ludicrous mission. In the early 1990s, multi-billion-dollar lawsuits for environmental damage in the Third World were extremely rare. But more and more, the same fiber-optic cables that allow call centers in Bangalore to oversee flower deliveries in Boston have allowed lawyers like Donziger and environmental organizations like Amazon Watch to link up with citizens’ movements in developing countries. What happens in Ecuador no longer stays in Ecuador, especially if you have access to a modem and a bullhorn. And while Donziger and the other attorneys stand to make a lot of money if they win—class-action lawyers typically take a third of any damages—Donziger says his team would likely take a much smaller percentage. He calls the case “hybrid pro bono”; when they signed on, a favorable verdict seemed unlikely, bordering on impossible.
Since 2003, Donziger has shuttled between his wife and child in New York and his work in Ecuador, where he’s on a first-name basis with the staffs of hotels that corporate visitors might recoil from. Donziger gets by on an annual stipend from Kohn, Swift & Graf and by doing part-time criminal-defense work, but his budget is limited. He won’t disclose the case’s costs, nor will Chevron, but Donziger clearly doesn’t have a blank check. Because of unpaid bills, he’s no longer welcome at Lago Agrio’s nicest hotel, where rooms go for $50 a night.
Donziger doesn’t give up easily; more than once I interrupted him mid-discourse because I didn’t have enough time or patience to hear all he wanted to say. In a one-on-one or a ten-on-one debate, he’d be a good bet to win. But even a legal mara-thoner can’t outlast a Fortune 500 corporation willing to litigate until its accusers run out of money, or appeal until oil is found on Mars. ExxonMobil, for instance, is still appealing a $4.5 billion penalty handed down in 1994 for the Valdez disaster. In December, the 9th Circuit Court of Appeals in San Francisco reduced the award by $2 billion.
Thus Donziger’s attachment to guerrilla PR. For the plaintiffs and their lawyers, victory means not just a verdict against Chevron but a payment by Chevron—and those are vastly different things. Donziger wants to keep the public pressure on, to make the company so miserable that it throws in the towel and settles.
“This case has to be won both in and out of the courtroom,” he told me. “If you had the case without the pressure, you would never get a result.”
Not all of Donziger’s allies agree. Cristóbal Bonifaz, who is now less involved in the case, laughed when I asked him about Donziger’s attention to the headlines.
“Chevron, of course, hates him,” Bonifaz said. “But my view is that you don’t win these cases on PR. If this involved a shoe being sold, you could win that on PR. But the problem with Chevron and any oil company is that they don’t give a damn. If I’m running out of gas, I’m pulling into a gas station. They sell a commodity.”
Chevron clearly doesn’t appreciate Don-ziger’s accusations. “Their strategy has been focused on trying to bully the company into a settlement,” Hill & Knowlton’s Chris Gidez said.
In Quito, another Chevron spokesman visiting from the company’s San Ramon, California, headquarters was more blunt. “In some places,” Jeff Moore told me, “they call it extortion.”
Last year, the company let loose with an unusually harsh statement, describing Donziger and Amazon Watch as “increasingly desperate as their case deteriorates” and accusing them of disseminating “misleading” and “deceptive” information and engaging in “outrageous and irresponsible behavior.”
Chevron seemed to be growing more frustrated as the bad publicity piled up. At its annual shareholders meeting last April in Houston, representatives from an investment fund called Trillium Asset Management offered a resolution (which failed to pass) demanding itemized accounts of the company’s spending in the Ecuador case. The U.S. Securities and Exchange Commission has requested information as well. Meanwhile, Bonifaz has lined up nine more Ecuadorean plaintiffs—all suffering from cancer—to file a separate Oriente suit against Chevron in a San Francisco court.
This is attrition warfare: death by lawsuit. How much pain can Donziger inflict? And how much can Chevron take? Even mild-mannered Rodrigo Perez took umbrage at one of Donziger’s insinuations: that Chevron’s Ecuadorean lawyers are traitors to their nation.
“He’s not honest, and he lies,” Perez told me. “Of every five words he pronounces, three are lies. And he knows he’s lying.” Still, Perez admits that Donziger is a formidable opponent. “Has he done a good job, from the point of view of his clients? Maybe he has, because he’s a pusher and he works hard. But I don’t have any respect for him.”
Dispensing with Narvaez, the Frente’s mobile horde now reassembled at the Guanta oil-processing station, about 20 minutes outside Lago Agrio. The size of several city blocks, Guanta is set amid a wheezing jungle that should be placed on an environmental respirator.
We pulled up in a drizzle at about 11 in the morning, but Petroecuador guards wouldn’t let the group through the main gate. Because a security fence encloses only half the station, and because the guards seemed to care only about the gate, everyone simply slogged a few hundred yards through the waterlogged earth to an area that wasn’t fenced.
To our right was a pit the size of several Olympic pools, filled with an oozy mix of oil and water. Smart people placed handkerchiefs over their mouths and noses. Red and yellow flames leaped into the air from a set of elevated natural-gas flares; I stood about 50 yards away but was blasted by the heat as fumes stung my throat.
“If you don’t have a headache yet, you will soon,” Donziger warned. Ten minutes later, I did.
The pit didn’t have a liner, which meant the gunk could seep, drop by drop and second by second, into the water table below. This is the technology, or lack of it, that Texaco had used decades before; although plastic liners were employed in many parts of the world, Texaco didn’t spend the money to do it that way, and Petroecuador wasn’t modernizing, either. There was a smaller pit across a dirt road and, a few dozen yards from it, a pond-size swamp. The swamp was black, filled with oil.
“Do we need to come here and look at this and have a debate?” Donziger asked. “I mean, honestly, why are we taking samples? In the United States, the EPA would say, ‘Visible standing petroleum. You are obligated to clean it up immediately.'”
This was just one allegedly toxic site among more than 350—including as many as 1,500 pits, the Frente alleges—spread around the Oriente. So far, the samples have yielded a bonanza of data that has been interpreted in opposite ways by experts on both sides. Of the 35 site results reported to the judge so far, Amazon Watch said last September, 100 percent have revealed “shocking” levels of pollution containing “life-threatening carcinogens.” At a site called Lago 2, the group states, the plaintiffs’ experts measured total petroleum hydrocarbons at 325,000 parts per million—3,250 times the legal limit in California and 325 times the limit in Ecuador.
Chevron counters that the Frente is cooking up phony science and testing samples at a substandard lab. “Many of their reports,” Gidez wrote me, “are so scientifically unsound they would never be allowed in a U.S. court.”
To get a better look, I met up with 33-year-old Donald Moncayo, secretary general of the Frente. Moncayo, whose father was a settler, remembers swimming in a local river that had veins of oil running through it. As a young man, he worked briefly in the oil industry as a roughneck but soon left for the ranks of environmental activists. He lives in a wood shack without running water or electricity; when I stopped by one afternoon, a very large pig was napping by the front door.
We bounced in my rented 4×4 over the red dirt roads that crisscross the feeble jungle around Lago Agrio and trundled past rickety homesteads made of salvaged wood slats. Our first stop was a dirt field the size of a soccer pitch that had, at its center, a rusted wellhead. Moncayo said the well was shut by Texaco in the early 1990s, and he led me to a grassy pond 50 yards away that was filled with brackish water in which I could see globs of oil. Oil that leaked into the ground long ago was resurfacing or being revealed as the ground cover eroded.
“Every so often, more oil comes out, and they put more dirt on it,” Moncayo said, referring to Petroecuador.
We drove another 15 minutes, parked at the end of a road, and walked through the jungle until we reached what looked like a swamp. This was another waste pit, filled with sludge. The remarkable thing was that there was no oil facility nearby; whatever well this oil came from had been closed long ago.
“What would happen in Texas if there was a spill like that?” Moncayo asked.
I said it would be cleaned up, quickly.
“We’ve been waiting 17 years,” he replied.
The wait may end soon. The remaining inspections are expected to happen this year, giving way to a period of damage assessment in which the court will analyze the results and figure out whether the pollution is significant and can be traced to Chevron. If so, a judge will decide on the scale of cleanup. Perhaps it will be Novillo, perhaps not; the chief judge’s position rotates every two years, with Judge Gérman Yáñez now presiding.
One morning, I met Emergildo Criollo, a leader of the Cofán Indians. A short man in his late thirties, he was dressed in city clothes. We drove from Lago Agrio for a half-hour, turned onto a dirt road that led into secondary jungle, and soon reached a tributary of the Río Aguarico. Behind the village of Dureno, we boarded a canoe with an outboard motor and glided through a maze of narrow canals covered by a canopy of vines and branches low enough to smack your head. We emerged onto the Aguarico itself, a dirt-brown waterway as wide as the Mississippi. After ten minutes, we got out and walked a half-mile to Criollo’s village, an assemblage of houses built upon stilts, with roofs of thatch and tin. Its population of about 350 makes it the largest Cofán community, according to Criollo. When I asked how long the village had existed, he smiled.
“It has been here forever,” he said.
At the start of the oil era, the gringos drilled wherever they pleased; the Cofán could not make their objections known, because they didn’t speak Spanish or English. Occasionally the river turned black and fish rose to the surface, belly up. Villagers began to die of new diseases that had the symptoms of cancer, though the Cofán didn’t know what cancer was.
Criollo waved at the jungle around us. The colonists—the settlers who cleared the jungle for ranches and coffee plantations—were even worse than the oilmen, he said.
“We didn’t have borders,” he explained. “Everything belonged to everyone. But the colonists converted it to private property. We cannot fish outside the borders of our community. We have to ask permission. Everything has an owner.”
The rest is familiar history for indigenous peoples from Alaska to Australia. The village was recently connected to an electrical grid. Kids watch TV. Food comes from Lago Agrio—rice and beans and chicken. Asked whether any of the youths know how to hunt, Criollo shrugged. “Once in a while they go into the rainforest,” he said.
As the sins of the past are weighed in Judge Novillo’s chambers, another drama is unfolding a few hundred miles south, in Ecuador’s last remaining swath of untouched Amazon jungle.
When I left Criollo, I drove south, as far as the frontier town of Puyo; as in the Oriente of a generation ago, there are no roads into this vast basin, a homeland of the Shuar and Achuar tribes. Consortiums of oil companies—Argentinian, Brazilian, Chinese—are lobbying to drill here. They promise that the rainforest and the Indians who live in it will prosper, gaining money and schools and hospitals while retaining their cultural identity, drinking their pure waters, and hunting in jungles that, thanks to newer, cleaner technologies, won’t be polluted.
It escapes no one’s notice that a generation ago these same promises were made when drilling began in the Oriente.
