# The Trial: Oil and Justice in Ecuador

An episode of [Drilled](https://invisiblenetwork.ai/podcast/1439735906), 9 Oct 2020, 23 min.

Audio: https://podtrac.com/pts/redirect.mp3/tracking.swap.fm/track/SxlTEPDY7xDg35RXkASs/pdrl.fm/3e5572/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/9a7ab5ee-ce11-48ff-a544-b3ec00ea9b1e/aad689b1-ea59-45b2-aa20-b3ec00f3854b/audio.mp3?utm_source=Podcast&in_playlist=7f82f371-6316-4ea6-a108-b3ec00ea9b2d

The fight for justice in Ecuador's Amazon moves to the courtroom, while an election changes the political landscape and a global PR war kicks into high gear. Support us on Patreon. See omnystudio.com/listener for privacy information.

## Transcript

[0:10] Speaker 1: When we left off last time, it was two thousand
[0:12] Speaker 1: and three, and the Ecuadorian plaintiffs had just agreed to
[0:16] Speaker 1: refile their case against Chevron Texico down in Ecuador. At
[0:21] Speaker 1: the center of this case were these waste pits, unlined
[0:25] Speaker 1: pits where Texico would dump toxic wastewater from oil drilling.
[0:29] Speaker 1: When the case was first filed in nineteen ninety three
[0:32] Speaker 1: in New York, Texico said it had cleaned up its
[0:35] Speaker 1: fair share and anything left was Petro Ecuador's mess. The
[0:40] Speaker 1: plaintiffs said the cleanup was no good and that Texico
[0:44] Speaker 1: had overseen all operations and should clean it all up,
[0:48] Speaker 1: that it should be based on who did what, not
[0:51] Speaker 1: who got what percentage of the profits. Ten years later,
[0:55] Speaker 1: the arguments hadn't changed, but the defendant had. Chevron's acqui
[1:00] Speaker 1: position of Texaco was complete in two thousand and one,
[1:03] Speaker 1: and it had inherited this case as part of that acquisition.
[1:06] Speaker 2: Today we're going to.
[1:07] Speaker 1: Look at what happened next as the trial got underway
[1:10] Speaker 1: in Ecuador. I want to tell you about one of
[1:29] Speaker 1: my favorite podcasts. It's called Floodlins from the Atlantic. In
[1:35] Speaker 1: this year of crisis, it's worth remembering that the country
[1:38] Speaker 1: has been through a lot of big extreme weather disasters before,
[1:43] Speaker 1: and history often repeats itself. Floodlines is about Hurricane Katrina
[1:49] Speaker 1: in New Orleans. It follows the lives of four people
[1:52] Speaker 1: who lived through the flooding and its aftermath, and it
[1:55] Speaker 1: shows how government failures and misinformation led to tragedies beyond
[2:00] Speaker 1: what the hurricane caused. Host Van Nukirk shows what we
[2:04] Speaker 1: can learn today from that disaster fifteen years ago. Listen
[2:08] Speaker 1: to Floodlines wherever you get your podcasts. A bunch of
[2:16] Speaker 1: people told us that if we wanted to understand what
[2:19] Speaker 1: the oil pollution in the Amazon really looked like, we
[2:22] Speaker 1: had to talk to Donald Moncayo. He was born and
[2:25] Speaker 1: raised right at the epicenter.
[2:31] Speaker 3: Minore Donald Moncayo, and.
[2:35] Speaker 1: He was born about two hundred meters from the second
[2:38] Speaker 1: well Texico drilled in the Amazons in nineteen sixty seven.
[3:00] Speaker 1: I'm Ammy Westervelt and this is Drilled Season five, La
[3:04] Speaker 1: Lucha Longa. This is episode three, the Trial. If you
[3:19] Speaker 1: haven't listened to episodes one and two, go back and
[3:22] Speaker 1: do that. This is one of those seasons you're going
[3:24] Speaker 1: to have to listen to the episodes in order to
[3:27] Speaker 1: keep up.
[3:29] Speaker 4: All right.
[3:31] Speaker 1: American attorney Stephen Donziger would partner up with Ecuadorian attorneys
[3:36] Speaker 1: who would file the case in the courts there. When
[3:40] Speaker 1: the case started kicking off in Ecuador in two thousand
[3:42] Speaker 1: and three, Donald Moncayo was the guy who would lead
[3:45] Speaker 1: court officials and any visiting press on what the plaintiffs
[3:49] Speaker 1: called the quote unquote toxic tour, showing them abandoned waste
[3:53] Speaker 1: pits and pools of oil. People who took that tour
[3:57] Speaker 1: would have heard him say something like this.
[4:01] Speaker 3: Thing too toxico dosuecos cannot be memento.
[4:09] Speaker 1: In short, all the toxic waste was released into these
[4:11] Speaker 1: unlined pits. Also, they put in a curved tube so
[4:15] Speaker 1: that the pit would not overflow and the oil would
[4:17] Speaker 1: settle on either side. They called these tubes.
[4:20] Speaker 3: Goose necks yelci and porss estavan dirihidos asia rios law.
[4:30] Speaker 1: And one of these goose necks were directed towards rivers, lagoons,
[4:35] Speaker 1: or streams, so all that toxic waste are pumping out
[4:38] Speaker 1: would disappear into the lagoons, rivers, or streams.
[4:44] Speaker 3: No sotros in la the loriosqui, so those of us
[4:52] Speaker 3: who were at the lower part of the river.
[4:54] Speaker 1: We had no drinkable water, and still today there's no
[4:57] Speaker 1: drinkable water in the countryside. When Stephen Donzeger had first
[5:05] Speaker 1: gone to Ecuador in nineteen ninety three to help with
[5:08] Speaker 1: research for this case, he saw a lot of the
[5:10] Speaker 1: things that Mancayo talks about, and it was.
[5:13] Speaker 5: Just almost unimaginable the degree of creation the open air
[5:18] Speaker 5: toxic waste pits that have been deliberately galged out of
[5:21] Speaker 5: the jungle.
[5:23] Speaker 1: Also in nineteen ninety three, the original case was filed
[5:26] Speaker 1: against Texico in New York. That same year, the US
[5:30] Speaker 1: signed a bilateral investment treaty with Ecuador. These treaties basically
[5:34] Speaker 1: exist to protect US companies that are doing business in
[5:38] Speaker 1: other countries and to boost American exports. One important thing
[5:43] Speaker 1: they provide is access to international arbitration, a separate system
[5:47] Speaker 1: that allows the parties to circumvent local courts. Marcos Oriana
[5:52] Speaker 1: is an expert on this system. He teaches law at
[5:55] Speaker 1: American University and is the EWAN Special Rapporteur on Toxics
[5:59] Speaker 1: and Human Rights.
[6:01] Speaker 6: The international investment arbitration can be described as a private
[6:06] Speaker 6: system of adjudication that decides on the propriety of governmental measures,
[6:12] Speaker 6: but it lacks the safeguards for accountability and transparency that
[6:18] Speaker 6: characterized constitutional democracies governed by the rule of law. If
[6:23] Speaker 6: we look back in time. In its origins, and international
[6:27] Speaker 6: investment arbitration came to replace colonial system colonial systems of
[6:33] Speaker 6: extraction of domination.
[6:36] Speaker 1: In other words, once it was companies rather than countries
[6:40] Speaker 1: that became the colonizers in the world, they needed a
[6:44] Speaker 1: new system.
[6:46] Speaker 6: When the former colonies acquired independence in the advent of decolonization,
[6:52] Speaker 6: largely after the Second World War and the advent of
[6:56] Speaker 6: the United Nations, the former imperial power needed a legal
[7:01] Speaker 6: system to protect the economic interests of their corporations, and
[7:06] Speaker 6: international investment arbitration offered such an alternative. Today, in this
[7:12] Speaker 6: current day of age, many in civil society see the
[7:16] Speaker 6: arbitration regime as yet another tool of corporate globalization. And
[7:24] Speaker 6: this is because when governments regulate in the public interest,
[7:28] Speaker 6: they become the targets of corporations that utilize the arbitration
[7:32] Speaker 6: system to challenge those acts of authority.
[7:36] Speaker 1: The US Ecuador Investment Treaty went into effect in nineteen
[7:40] Speaker 1: ninety seven, so by the time this case that was
[7:42] Speaker 1: originally filed against Texaco in New York in nineteen ninety three,
[7:47] Speaker 1: was refiled against Chevron in Ecuador in two thousand and three.
[7:52] Speaker 1: The system Oriana describes was very much in effect. On
[7:56] Speaker 1: top of that, Lucio Gutierrez was president. Jets had been
[8:00] Speaker 1: elected as something of an anti corporate revolutionary, but within
[8:05] Speaker 1: the first few months of his presidency he had become
[8:07] Speaker 1: very protrayed and particularly cozy with the United States. None
[8:12] Speaker 1: of that voted well for the indigenous plaintiffs seeking compensation
[8:16] Speaker 1: for the damage that had been done in the Amazon.
[8:19] Speaker 1: In two thousand and two, the Appellate Court in New
[8:22] Speaker 1: York had ruled that the case against Texaco, which was
[8:26] Speaker 1: now Chevron Texico, should be tried in Ecuador. But the
[8:31] Speaker 1: New York court said any final ruling and financial penalty
[8:35] Speaker 1: imposed against Chevron Texico would be enforceable in the United States.
[8:41] Speaker 5: We filed and there was a hearing very first day.
[8:46] Speaker 5: You show up and both sides present their case or
[8:52] Speaker 5: their theory of the case the very first day, and
[8:55] Speaker 5: on that day I'll never forget Texico. Chevron's lawyer, local lawyer,
[9:03] Speaker 5: his name was A daffel kyehas been with the company
[9:07] Speaker 5: for years and years. Read their response to our lawsuit,
[9:13] Speaker 5: every word of it. It must have taken him hours,
[9:16] Speaker 5: you know. And that told me two things. One is,
[9:20] Speaker 5: their entire strategy was obstruction and delay, Like you don't
[9:23] Speaker 5: need to read every word of a one hundred page document,
[9:26] Speaker 5: you just could have summarized it. And number two is
[9:30] Speaker 5: a main defense was that they were denying that the
[9:35] Speaker 5: Ecuadorian courts had jurisdiction because they were chevron and even
[9:42] Speaker 5: though they had bought Texico, it was Texico that did it,
[9:45] Speaker 5: not them. So they had agreed in the US as
[9:49] Speaker 5: a condition of getting the case out of US courts
[9:53] Speaker 5: and avoiding a jury trial, they had agreed they would
[9:56] Speaker 5: accept jurisdiction in Ecuador. And the first thing they did
[9:59] Speaker 5: on the first day of the trial is to claim
[10:02] Speaker 5: the case should be dismissed because of a lack of jurisdiction.
[10:06] Speaker 5: And Holy Moses, I mean I just couldn't believe it.
[10:09] Speaker 5: I mean maybe I was naive, but like, how do
[10:13] Speaker 5: you argue one thing in one place and then you
[10:15] Speaker 5: go to that other court where you're bound by your
[10:18] Speaker 5: promise and you just try to switch it.
[10:21] Speaker 1: On the first day, the request for dismissal was denied
[10:24] Speaker 1: and the trial got underway in two thousand and three.
[10:27] Speaker 1: Trials in Ecuador work a lot differently than they do
[10:30] Speaker 1: in the US. They run according to the civil law system,
[10:34] Speaker 1: also sometimes called the Roman system, whereas the US got
[10:38] Speaker 1: its legal system called the common law system from the UK.
[10:42] Speaker 1: The key difference lies in jury trials. We call up
[10:45] Speaker 1: Alejandro Godo, an expert on Latin American law, to explain well.
[10:50] Speaker 7: One aspect of American exceptionalism, which I think is truly exceptional,
[10:55] Speaker 7: is the jury system in non criminal cases, in civil
[10:59] Speaker 7: cases in the Chevron case. Even England, which is another
[11:02] Speaker 7: country from where the United States copy the Jurish system,
[11:05] Speaker 7: abolished it in the nineteenth century and there are no
[11:08] Speaker 7: more jeurry civil cases juris civil cases in England.
[11:12] Speaker 1: The initial hearing in the Chevron trial in Ecuador only
[11:15] Speaker 1: lasted six days. Both sides presented their case directly to
[11:19] Speaker 1: a judge. But in Ecuador it's the judge's responsibility to
[11:23] Speaker 1: figure out the truth. In legal cases, to investigate figure
[11:26] Speaker 1: things out, and that can take months or years. We
[11:29] Speaker 1: had Donziger walk us through that first day in court
[11:32] Speaker 1: in Lago Agrille, so you.
[11:34] Speaker 5: Know, I'll never forget the first day of the trial
[11:37] Speaker 5: in Ecuador, just like I'll never forget my first trip,
[11:40] Speaker 5: you know, in nineteen ninety three. It was the first day.
[11:44] Speaker 5: The trial was in in October, but the first day
[11:50] Speaker 5: was really important because the effected communities, the indigenous groups.
[11:54] Speaker 5: There's five indigenous groups that were part of the lawsuit
[11:57] Speaker 5: and a lot of other non indigenous Amazon community They
[12:00] Speaker 5: organized to come in from all over the surrounding you know,
[12:04] Speaker 5: Amazon rainforest, you know, by canoe and bus and walking,
[12:10] Speaker 5: and you know, however they could get to this town
[12:14] Speaker 5: where the trial was going to be held. The town's
[12:16] Speaker 5: called Lago Agrio, which has so much symbolic importance because
[12:21] Speaker 5: the only reason Lago Augrio exists is because that's the
[12:24] Speaker 5: place Texico first found oil in nineteen sixty seven.
[12:29] Speaker 1: There were very few people in the courtroom initially in
[12:32] Speaker 1: the morning, which Donziger thought was strange. He thought maybe
[12:36] Speaker 1: the guards had scared some of the plaintiffs off, or
[12:39] Speaker 1: maybe they just weren't used to being able to go
[12:41] Speaker 1: into the courtroom.
[12:43] Speaker 5: It was a very kind of wild West town and
[12:46] Speaker 5: that's where the trial was convening, in a building it
[12:52] Speaker 5: was like a commercial building that was rented out by
[12:55] Speaker 5: the local court to have a court there. People had
[13:00] Speaker 5: come in from all over the Amazon and they'd organized
[13:03] Speaker 5: this big march and there were pictures and signs, hostsia
[13:07] Speaker 5: and everyone was dressed up in their traditional clothing. I
[13:11] Speaker 5: got to the court and to the building that housed
[13:15] Speaker 5: the court. The courtroom was upstairs, maybe three flights of stairs,
[13:19] Speaker 5: and the first thing I saw was these arm guards.
[13:21] Speaker 5: They looked like swat teams from the military that were
[13:24] Speaker 5: standing guard outside the court. And as the morning wore
[13:29] Speaker 5: on and the Chevron lawyer Ka has started reading this
[13:33] Speaker 5: really boring opposition that just started to take hours, I
[13:39] Speaker 5: was like, wait a second, you know, I can't wait
[13:41] Speaker 5: for there to be a lunch break, because I'm going
[13:44] Speaker 5: down to the street and I'm going to bring everyone
[13:45] Speaker 5: up into court and probably around I don't know, eleven
[13:52] Speaker 5: thirty in the morning, you know, late morning, when we're
[13:55] Speaker 5: soon about to break. I suddenly hear this like right
[14:00] Speaker 5: chant from the street, you know, you know, all sorts
[14:05] Speaker 5: of chants and noise, and it was like the crescendo.
[14:09] Speaker 5: It was like building into a crescendo, but you could
[14:28] Speaker 5: hear the noise rising and rising, and it made me
[14:32] Speaker 5: feel so good because I knew exactly what it was.
[14:35] Speaker 5: I know it was the people affected after decades of abuse,
[14:40] Speaker 5: were coming to assert themselves and kind of let it
[14:44] Speaker 5: all out. And by then, I mean, there had to
[14:57] Speaker 5: be hundreds, maybe a thousand, two thousand people on this
[15:01] Speaker 5: little street, this dirt street, right in front of the courthouse,
[15:04] Speaker 5: and they were standing on trucks and there were microphones.
[15:08] Speaker 5: I started talking to some of the people who had traveled,
[15:13] Speaker 5: you know, from their ancestral lands to this town, and
[15:16] Speaker 5: I'm like, why aren't you guys in the courtroom come
[15:20] Speaker 5: up with you? Come up with me. And many of
[15:25] Speaker 5: them looked at me and they're like, oh, we can
[15:28] Speaker 5: go into court. I'm like, yeah, it's your country, it's
[15:34] Speaker 5: your court, it's your case. Yes you can come. When
[15:40] Speaker 5: we went back in, I marched up the stairs with
[15:42] Speaker 5: you know, who knows how many people behind me, Digenous
[15:46] Speaker 5: women who traditional clothing and all sorts of people, and
[15:50] Speaker 5: we just packed the hell out of that courtroom. And
[15:54] Speaker 5: you know, it was really an emotional day.
[15:58] Speaker 1: If Chevron had entertained ideas that this case would move
[16:02] Speaker 1: to Ecuador and be forgotten, Donziger's media savvy took care
[16:05] Speaker 1: of that. Reporters flew in from all over the world,
[16:09] Speaker 1: met with Donziger, and the Ecuadorian attorneys took the toxic
[16:12] Speaker 1: tour with Moncayo and sent reports back home. Here's a
[16:16] Speaker 1: clip from NPR's All Things Considered as the trial got
[16:19] Speaker 1: underway in October two thousand and three.
[16:22] Speaker 8: In northern Ecuador, a trial is underway against Chevron Texico.
[16:26] Speaker 1: The civil suit accuses the.
[16:27] Speaker 8: Company of contaminating the groundwater of a formerly pristine area
[16:31] Speaker 8: of the Amazon. The Ecuadorians, who.
[16:33] Speaker 1: After that initial six day trial ended the court and
[16:36] Speaker 1: both legal teams brought in various experts to conduct field
[16:40] Speaker 1: investigations to determine the extent of contamination in the areas
[16:44] Speaker 1: where the plaintiffs lived, and whether or not the cleanup
[16:48] Speaker 1: that Texico had done back in the nineties was sufficient.
[16:52] Speaker 1: The court gathered various other pieces of information, too, including
[16:56] Speaker 1: historical information on whether or not it really was common
[16:59] Speaker 1: presscice in the oil industry to dump wastewater in unlined pits.
[17:04] Speaker 1: Tim Lagonegro, the geologist and longtime oil industry worker we
[17:08] Speaker 1: heard from last time, was pretty emphatic that it was not.
[17:11] Speaker 4: You would never put wastewater in an unlined pit. Never.
[17:18] Speaker 4: Everyone knows that it's toxic water putting that into a rainforest.
[17:25] Speaker 4: They had tarps in those days, too, impermeable vinyl sheeting.
[17:32] Speaker 4: It's just normal, has been forever.
[17:34] Speaker 1: But given how long the case had been going on
[17:37] Speaker 1: by this point, and how much time had passed since
[17:39] Speaker 1: Texico had left the country, the trial dragged on and
[17:43] Speaker 1: on one year than it was two years, three years.
[17:47] Speaker 1: In December two thousand and six, more than three years
[17:51] Speaker 1: after the trial had started, in Lago Agrio, Chevron filed
[17:54] Speaker 1: a complaint against the government of Ecuador for failing to
[17:56] Speaker 1: resolve cases quickly. That complaint was in reference to a
[18:00] Speaker 1: different set of cases, complaints that Texico had brought up
[18:04] Speaker 1: back in the nineties, but the message was clear, speed
[18:07] Speaker 1: it up already, or will see you in arbitration. On
[18:10] Speaker 1: top of all of the obvious reasons Chevron may have
[18:12] Speaker 1: wanted to officially complain about the Ecuadorian court system, there
[18:17] Speaker 1: was a major change around this time in the country's leadership.
[18:22] Speaker 3: Lalo Rodos, Rafael Forrea, ALIANAI.
[18:31] Speaker 1: In the run up to the election of Rafael Correa
[18:34] Speaker 1: in November two thousand and six, various business analysts and
[18:38] Speaker 1: think tanks in the US warned that if he were elected,
[18:41] Speaker 1: Ecuador would go the way of Venezuela and Bolivia, turning
[18:45] Speaker 1: against US corporate interests. Among other concerns was the fact
[18:50] Speaker 1: that Corea was staunchly against extending the bilateral investment treaty
[18:54] Speaker 1: with the US, which was set to expire at the
[18:57] Speaker 1: end of two thousand and six. Even fairly mainstream media
[19:01] Speaker 1: outlets like NPR played into the idea that Korea was
[19:04] Speaker 1: the scary second coming of Chavez. Yesterday's balloting reduced a
[19:10] Speaker 1: field of thirteen to two men, one a banana tycoon,
[19:14] Speaker 1: the other a left wing supporter of Venezuela's president Uga Chavez.
[19:17] Speaker 2: Alva and Noboa, who rested control of his family's banana
[19:21] Speaker 2: business to become one of Ecuador's wealthiest men, held a
[19:24] Speaker 2: slight lead through the night. Running a close second was
[19:27] Speaker 2: Rafael Coorea, a former economy minister who challenged the political orthodoxy,
[19:32] Speaker 2: advocating cheap credit for the poor and renegotiation of all
[19:35] Speaker 2: foreign oil contracts.
[19:37] Speaker 1: By this point, Texico had long since pulled out of Ecuador,
[19:40] Speaker 1: and Chevron wasn't doing business there either. In fact, they
[19:44] Speaker 1: never had, but still a president that was promising to
[19:48] Speaker 1: renegotiate foreign oil contracts. That's not really what you want
[19:51] Speaker 1: when you're a US oil company defending yourself in Ecuador's courts.
[20:09] Speaker 8: It would be.
[20:10] Speaker 1: Another five years before the judge and Ecuador would rule
[20:14] Speaker 1: on the case against Chevron, and a lot would happen
[20:17] Speaker 1: in the meantime. Next time on Drilled, we hear from
[20:30] Speaker 1: the other attorneys in this case.
[20:32] Speaker 2: He's talking about mobilizing to put people in front of
[20:34] Speaker 2: the courthouse, the thousand people in front of the courthouse,
[20:37] Speaker 2: to pressure and he's saying, literally, we have to pressure
[20:39] Speaker 2: the judge.
[20:40] Speaker 4: We have to make him know who's boss.
[20:48] Speaker 1: Chevron's attorneys get indicted, Accusations of fraud and bribery fly
[20:52] Speaker 1: on both sides, and an incredible international pr war kicks
[20:59] Speaker 1: into gear.
[21:00] Speaker 5: The Sequoias took us to their community hut, where we
[21:03] Speaker 5: saw the driving force behind the suit, Stephen Donzinger, a
[21:07] Speaker 5: New York lawyer, far from home. These are people who
[21:12] Speaker 5: never believed they had a right to sue an American
[21:16] Speaker 5: company in their own court system.
[21:18] Speaker 1: Yeah, but you know what Chevron says. They say that
[21:20] Speaker 1: this is being driven by a new York plaintiffs lawyer,
[21:24] Speaker 1: and they don't mean that as a compliment. Drilled is
[21:30] Speaker 1: an original production of the Critical Frequency Podcast Network. The
[21:35] Speaker 1: show was created by me Amy Westervelt. This season, my
[21:38] Speaker 1: co reporter is Karen Savage. Our editor is Julia Ritchie.
[21:42] Speaker 1: Sound design and mixing by Mark Busch, original score by
[21:47] Speaker 1: b Beeman, additional production help from Sarah Ventry. Special thanks
[21:53] Speaker 1: to Larissa Ikeda. Thanks to NPR for some of the
[21:56] Speaker 1: clips used in this episode. Our artwork for this season
[22:00] Speaker 1: was drawn by Matt Fleming. You can find corresponding stories, photos,
[22:06] Speaker 1: and documents for this season on our website at drillednews
[22:09] Speaker 1: dot com. If you are a Patreon subscriber, thank you.
[22:13] Speaker 1: Your support is helping to make this season. And as
[22:17] Speaker 1: a special thank you, if you would like to get
[22:19] Speaker 1: next week's episode early, go check your feed because it's
[22:22] Speaker 1: there now. If you're listening to this and you're not
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[22:34] Speaker 1: Thanks for that and thanks for listening, and we'll see
[22:37] Speaker 1: you next time.

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