remediation
Monday, April 26th 2010
Reeling from the public revelation that they submitted fraudulent expert reports to the court in Lago Agrio, the Amazon Defense Front’s lawyers are trying to change the topic of conversation. In doing so, however, they are only making things worse.
On April 20, 2010 Karen Hinton, the Front’s publicist, responded to a Washington Times editorial critical of the trial lawyers’ misconduct by stating, “contamination results submitted to the Ecuadorian court by Chevron itself show illegal levels of contamination dangerous to human health and the environment at the very pits Texaco said it cleaned.” This statement is false:
- There is overwhelming scientific evidence demonstrating that Texaco Petroleum’s remediation work was effective and complies with the applicable standards established by the government of Ecuador at the time of the remediation.
- Independent scientific analysis of every remediated site performed by technicians working for the government of Ecuador at the time of the clean-up further corroborates the effectiveness of the remediation.
- Subsequent to the remediation, Ecuadorian Prosecutors General serving two separate administrations have commissioned additional scientific analysis of Texaco Petroleum-remediated sites. In both instances, the scientific results demonstrate that Texaco’s remediation met and complied with applicable standards.
As the basis for their claims, the plaintiffs’ lawyers point to a 1,000 parts per million (ppm) total petroleum hydrocarbon (TPH) standard in Decree 1215, a regulation enacted by Ecuador’s Ministry of Environment in 2001. While Decree 1215 was intended to govern environmental aspects of hydrocarbon production, the Ecuadorian constitution prohibits the unfair and retroactive application of a 2001 standard to remediation that was completed in 1998. Moreover, the 1,000 ppm standard only applies to “patrimony national natural areas or others identified in a corresponding environmental study”—national parks or other designated protected areas. At no point in time did the remediated oil fields at issue meet this definition. Further, not even Petroecuador, Ecuador’s state-owned oil company uses this standard. Petroecuador currently remediates below 2,500 ppm TPH (1215’s agricultural land standard) with the full approval of the government of Ecuador.
In trying to shift public attention away from their own misconduct, the Front and its lawyers are attempting to conceal the truth, only reinforcing their reputation as a one-stop-shop for misinformation. Indeed, instead of explaining why the Front’s lawyers submitted fabricated evidence to the court in Lago Agrio, Ms. Hinton instead questions why the plaintiffs’ former expert, Dr. Charles Calmbacher, who until his recent deposition was unaware that the plaintiffs lawyers had filed fabricated expert reports in his name, “wait[ed] six years to speak up.” Facts are stubborn things, and it is time for the contingency-fee lawyers behind the Front to end their game of misdirection, and answer for their misconduct in Lago Agrio.
Friday, February 12th 2010
Earlier in the week it was revealed that the author of a report recommending Chevron pay $27 billion in damages has a conflict of interest that he illegally hid from the court. As it turns out, Richard Cabrera, the report’s author, is the majority owner of an oil field remediation company in Ecuador that stands to gain financially from a judgment against Chevron.
Cabrera has suggested a wholly illegitimate and unsubstantiated damage recommendation against Chevron in excess of $27 billion. Cabrera was not only paid solely by the plaintiffs, but he openly relied on them to staff his effort while seeking to obstruct Chevron’s representatives from even observing his work. In fact, major portions of his submissions to the court are cribbed from the plaintiffs’ own submissions, if not written by them directly. His work product is devoid of scientific content, lacks even the most basic evidentiary support, and assesses monetary relief for alleged environmental damage and health claims he has never even bothered to investigate, inspect, or verify.
In addition to those outlined above, below is a list of other Cabrera Report flaws:
Lack of Causation
Cabrera completely ignored his court-ordered mandate to determine causation and chronology of environmental conditions. Instead, he just arbitrarily assigned liability to Texaco for every instance of alleged environmental impact in the former concession areas. By ignoring chronology and causation, Cabrera even makes Texaco liable for environmental impact caused solely by Petroecuador in the last 20 years.
Failure to Inspect and Falsifying “Evidence”
Cabrera ignored court orders that he must inspect every site, visiting only 48 of 316 wells and one of 19 production stations. Instead, Cabrera reviewed aerial photos to identify pits and used those photos incompetently and dishonestly. For example, Cabrera submitted certain aerial photos with his report and declared that various items in the photos — like trees, tanks and shadows — were pits. He also submitted photos of pits constructed by Petroecuador after 1990, backdated the photos to the 1970s and declared that the pits were constructed earlier by Texaco Petroleum. Cabrera, therefore, fraudulently overstated the number of pits.
Arbitrary Determination of Remediation Scope
With no justification, Cabrera arbitrarily concluded that 80 percent of well pits and 100 percent of production station pits need to be remediated, regardless of past or current remediation efforts. Cabrera then further fabricated and overstated the magnitude of remediation required for each pit, arbitrarily assuming that each pit needs to be remediated to a depth of four meters (13.12 ft) and that an additional area around each pit equal to 50 percent of the pit surface area also needs to be remediated.
Gross Overstatement of Remediation Cost
Cabrera grossly overstated the cost to remediate pits. Though Petroecuador has been remediating pits to Ecuador standards for approximately $85,000 per pit, Cabrera recommends remediation costs of $2.743 billion — over 150 times the Petroecuador budget of $18 million for this work.
For more information on other elements contained within Cabrera’s $27 billion damage report, please use the following hyperlinks.
It is clear the Ecuadoran court handling the lawsuit against Chevron has abandoned the due process guarantees mandated by Ecuadorian law, eliminated the plaintiffs’ burden of proof, and substituted in its place the work of Richard Cabrera. Chevron has consistently argued that it is not getting a fair trial in Ecuador. Evidence presented to the court shows Texaco Petroleum’s remediation was thorough and complete. The Amazon Defense Front has teamed up with the government of Ecuador to try to shift the liability of Petroecuador to Chevron by pressuring the company into an unjust settlement using a biased and improperly influenced court and a partisan and unqualified “independent” analyst.
Thursday, February 11th 2010
New revelation of a conflict of interest for the author of a report recommending that Chevron pay $27 billion in damages in the long-running trial in Ecuador has prompted a deliberately misleading response from the Amazon Defense Front, which is the named financial beneficiary of any judgment in the case.
Cabrera has a previously undisclosed majority ownership interest in a company registered to do business with Petroecuador. Petroecuador is the state owned oil company, chief polluter in the region, and beneficiary of Cabrera’s “findings.” This evidence raises additional, serious questions about Cabrera’s independence and completely undermines the integrity of his report.
Seeing its potential payday at risk, the Amazon Defense Front scrambled to respond via press release. While attempting to sidestep the issue, the Amazon Defense Front does not deny that Cabrera improperly failed to disclose his conflict of interest at the time of his appointment or thereafter. Nor does the Amazon Defense Front deny that had Cabrera’s ownership interest been properly disclosed, it would have been disqualifying. Below is a response to four of the many misleading and inaccurate statements from the Amazon Defense Front press release:
“Cabrera disclosed to the court that he owned a clean-up company before his appointment as Special Master. This fact was properly cited by the court as one of the reasons he was qualified to do the damages assessment.”
This is a yet another of the Amazon Defense Front’s blatant attempts to mislead the public.
Exhibit 4 from the filing contains everything that Cabrera has disclosed. Nowhere does Cabrera disclose the fact that he was a co-founder, general manager, majority stockholder, and legal representative of CAMPET at the time of his appointment as an “independent” technician or during his work for the court. CAMPET is a soil remediation company and preapproved contractor to Petroecuador. Cabrera affirmatively swore to the court that he had no conflicts of interest. This has shown to be untrue by virtue of his financial interests in CAMPET.
The Amazon Defense Front’s statement is intended to misrepresent Cabrera’s disclosure about working for a different remediation company, CONGEMINPA, prior to his appointment. Cabrera disclosed that his work with CONGEMINPA ended in 2003, and Cabrera had also sold all of his stock in GONGEMINMPA in 2003, years before his 2007 appointment in this case. This past connection to a remediation company did not present a conflict of interest at the time of his appointment. The Amazon Defense Front’s statement is meant to create the false impression that Cabrera disclosed his interest in CAMPET, the company he continued to own, manage, and legally represent during his entire tenure as a supposedly “independent” expert in the case. But he did not make any such disclosure. In fact, German Yanez, the judge who appointed Cabrera, told Dow Jones Newswires Feb. 9 he didn’t know about CAMPET or whether the company’s registration as a bid contractor for Petroecuador constituted any conflict of interest.
“All I know is what I saw in his curriculum (vitae),” said Yanez. “If there’s missing information, I don’t know why.”
“Chevron thought so highly of Cabrera’s qualifications that it accepted him as a court-appointed expert in an earlier part of the case and paid his fees as required by court rules.”
This is factually incorrect.
Cabrera was appointed by the court in an earlier phase of the trial, but he performed no work and at no time has Chevron paid Cabrera for anything. On the contrary, the plaintiffs paid Cabrera more than $200,000 for his subsequent work.
Chevron has repeatedly and unwaveringly questioned Cabrera’s qualifications since his original involvement in the case, has opposed his report, and has repeatedly told the court that his damages assessment is without basis, is biased, and was developed with and co-written by the plaintiffs. At no time has Chevron ever “thought highly of Cabrera’s qualifications” to be an expert in this case.
“The fact Cabrera’s company is qualified to bid on clean-up contracts offered by Ecuador’s state-owned oil company is irrelevant. That company, Petroecuador, is not a party to the case against Chevron and would have no role in any eventual cleanup.”
This is factually incorrect.
Petroecuador was the majority partner in the consortium and is responsible for every site in question. Moreover, no remediation work in the oil producing region could occur without Petroecuador’s active involvement, participation, and authorization. Simply put, nothing could happen in Petroecuador’s oil fields, including a remediation ordered by the court, without Petroecuador.
Meanwhile, the government of Ecuador has already acknowledged that it expects to participate in any prospective remediation work. At a September 2009 press conference, Ecuador’s Prosecutor General, Washington Pesantez said, “Although I don’t have the exact figures, 10 percent would go to the plaintiffs if Chevron is found guilty; 90 percent would be delivered to the State for remediation or bio-remediation activities that would serve to correct biologic and chemical mechanisms…”
In addition, “the fact Cabrera’s company is qualified to bid on clean-up contracts offered by” Petroecuador is extremely relevant: — Cabrera’s report attempts at every turn to exonerate Petroecuador for 20 years of sloppy practices. In his report Cabrera exonerates Petroecuador of the current environmental conditions in the region, grossly inflates the scope of remediation and costs of the work, and even calls on the court to award $375 million to upgrade Petroecuador’s infrastructure. Cabrera’s company’s registration to do work for Petroecuador provides the perfect incentive for Cabrera to go to such absurd lengths to lavish benefits on Petroecuador in his report, and the perfect opportunity for Petroecuador to return the favor.
“Cabrera by virtue of his role in the case would be barred from having a role in a future clean-up.”
This statement is inherently contradictory and is made without any factual support. First the Amazon Defense Front says there is no conflict at all, and then it says that Cabrera does indeed have a conflict of interest. His financial stake in remediation explains why Cabrera, on at least ten different occasions, concealed from the court his conflict of interest — a violation of Ecuador law. Accordingly, Cabrera’s report should be rejected and Cabrera’s connection to Petroecuador should be investigated.
Chevron has consistently argued that it is not getting a fair trial in Ecuador. Evidence presented to the court shows Texaco Petroleum’s remediation was thorough and complete. Amazon Defense Front has teamed up with the government of Ecuador to try to shift the liability of Petroecuador to Chevron by pressuring the company into an unjust settlement using a biased and improperly influenced court and a partisan and unqualified “independent” analyst.
Thursday, January 21st 2010
Lawyers for the Government of Ecuador Engage in Revisionist History- Myth of Jurisdiction Exposed
“In a lawsuit filed Thursday, the plaintiffs say Chevron broke a promise Texaco Inc. made in 1999 to a New York federal court to abide by the Ecuadorean legal system if the court dismissed the environmental case.” – Wall Street Journal, 10/14/10
Chevron has never operated in Ecuador, a fact that cannot be disputed. Texaco’s role in oil operations in the country ended in 1992. Since then, Ecuador’s government owned oil company, Petroecuador, has been the exclusive operator of the oil fields and has amassed a deplorable environmental record.
The claim filed against Chevron on January 14 is erroneous and subsequent media statements by the plaintiffs are incorrect and misleading. Chevron did not agree to any stipulation concerning jurisdiction in Ecuador. In fact, Chevron was not a party to the prior New York action. American trial lawyers are once again distorting the record. To clarify, the case that was brought against Texaco in New York is totally different than what has been brought against Chevron in Ecuador. The case against Chevron in Ecuador does not seek an award for the 48 named plaintiffs. Rather, it seeks to force Chevron to pay for the remaining remediation work that the government of Ecuador has never performed. Under an agreement with the government of Ecuador, Texaco spent $40 million performing its agreed-upon share of the clean-up work. Texaco obtained full and complete releases after meeting all the requirements placed upon it by the government of Ecuador. The remaining remediation work required is the exclusive responsibility of the government of Ecuador. The case against Texaco in New York was dismissed. Period. It was not moved, transferred, or refilled. A brand new and totally different case was brought against Chevron in Ecuador. There are no stipulations from the New York action that cover a different claim against a different party in Ecuador. Texaco never waived its rights to seek the enforcement of valid agreements and contracts with the government of Ecuador. Texaco has never waived its rights to resist a verdict that is the product of fraud and a broken legal system.
It is important to understand that the two cases are very different. The case brought against Texaco in New York was about alleged personal injuries and alleged personal damages. The case against Chevron in Ecuador is exclusively about alleged damages to public lands. Of the 48 plaintiffs in the Ecuador case, there are no claims for personal injury or personal damages of any kind.
“In a lawsuit filed Thursday, the plaintiffs say Chevron broke a promise Texaco Inc. made in 1999 to a New York federal court to abide by the Ecuadorean legal system if the court dismissed the environmental case.” – Wall Street Journal, 1/14/10
Chevron has never operated in Ecuador, a fact that cannot be disputed. Texaco’s role in oil operations in the country ended in 1992. Since then, Ecuador’s government owned oil company, Petroecuador, has been the exclusive operator of the oil fields and has amassed a deplorable environmental record.
The claim filed against Chevron on January 14 is erroneous and subsequent media statements by the plaintiffs are incorrect and misleading. Chevron did not agree to any stipulation concerning jurisdiction in Ecuador. In fact, Chevron was not a party to the prior New York action. American trial lawyers are once again distorting the record. To clarify, the case that was brought against Texaco in New York is totally different than what has been brought against Chevron in Ecuador. The case against Chevron in Ecuador does not seek an award for the 48 named plaintiffs. Rather, it seeks to force Chevron to pay for the remaining remediation work that the government of Ecuador has never performed. Under an agreement with the government of Ecuador, Texaco spent $40 million performing its agreed-upon share of the clean-up work. Texaco obtained full and complete releases after meeting all the requirements placed upon it by the government of Ecuador. The remaining remediation work required is the exclusive responsibility of the government of Ecuador. The case against Texaco in New York was dismissed. Period. It was not moved, transferred, or refilled. A brand new and totally different case was brought against Chevron in Ecuador. There are no stipulations from the New York action that cover a different claim against a different party in Ecuador. Texaco never waived its rights to seek the enforcement of valid agreements and contracts with the government of Ecuador. Texaco has never waived its rights to resist a verdict that is the product of fraud and a broken legal system.
It is important to understand that the two cases are very different. The case brought against Texaco in New York was about alleged personal injuries and alleged personal damages. The case against Chevron in Ecuador is exclusively about alleged damages to public lands. Of the 48 plaintiffs in the Ecuador case, there are no claims for personal injury or personal damages of any kind.
Thursday, December 17th 2009
U.S. trial lawyers representing 48 Ecuadorian plaintiffs (not 30,000) are attempting to hold Chevron liable for more than $27 billion. Amazingly, this astronomical number mostly goes unquestioned. So what goes into creating a figure that is 10 times the cost to remediate the nation of Kuwait post Gulf War?
First, one must consider its origin. The $27 billion was presented by Richard Cabrera, a mining engineer with no oilfield remediation experience. Cabrera was named by the court to assess possible environmental damage in the former concession area and, if any, determine the cause and work needed to fix it. In addition to being unqualified, Cabrera ignored court instructions and improperly expanded his work scope to invent categories of damages unrelated to the issues raised by the lawsuit or with environmental remediation. Not surprisingly, his appointment was fully supported by the plaintiffs’ representatives who ultimately paid Cabrera more than $200,000 for his work. Perhaps most egregious, however, is the fact that Cabrera staffed his technical team with plaintiffs’ representatives and portions of his “independent” report were developed by organizations affiliated with the plaintiffs [click here] and [here].
Following is a breakdown of Cabrera’s fraud:
Pit remediation: Proposed damages ($2.743B)
Petroecuador has publicly acknowledged responsibility for remediation of all existing oilfield pits associated with their nearly 40 years of operations in the Oriente region of Ecuador, including all of the remaining pits in the former Petroecuador-Texaco concession. In 2005, Petroecuador initiated a $121-million remediation program, termed the “Pit Remediation Project of the Amazon District” (PEPDA), with the goal of completing the closure of all pits, spills, and other affected areas in accordance with applicable Ecuadorian regulatory standards by 2010. As of December 2007, the PEPDA program had initiated and/or completed remediation of more than 40% of the 370 open pits identified in the former concession area, with formal inspection and approval by the government regulatory agency, DINAPA (Dirección Nacional de Protección Ambiental). Under a new program, designated UMR (Unidad de Mitigación y Remediación), a successor program to PEPDA, Petroecuador remains committed to completing the remediation of all remaining pits and oil spill areas in the Oriente within the next few years.
In the Chevron case, the plaintiffs have charged that the oilfield pits in the Oriente pose a grave danger to local residents and the environment, and they have demanded that Chevron, whose subsidiary Texaco Petroleum served as a minority partner of Petroecuador nearly 20 years ago, pay the plaintiffs for the cost of remediation – regardless of the fact that these same pits have already been or will soon be remediated by Petroecuador. Indeed, the lead attorney for the plaintiffs, Pablo Fajardo, has even protested the Petroecuador cleanup program, complaining that it is “changing the lawsuit” and “hiding” evidence. In October 2007, he submitted a formal letter to the court demanding that the remediation be stopped.
Coincidentally, Cabrera’s $2.743 billion estimate for pit remediation, over 150 times the Petroecuador budget of $18 million for this work, is based upon a highly inflated unit cost (over 36 times the actual per pit cost reported by Petroecuador) as well as a highly inflated estimate of the number of pits (over 4 times the actual number of oilfield pits remaining in the former concession).
Groundwater remediation: Proposed damages ($3.236B)
Cabrera arrives at this figure with no evidence to substantiate a damage claim. He took NO samples from rivers, streams, wells or potable water sources. His handful of “groundwater samples” in the former concession area, actually come from borings taken from within pit areas and are in no way representative of what geologists or hydrologists would consider groundwater.
Healthcare system: Proposed damages ($480 MM)
While health is a serious concern in the region due to widespread fecal contamination of drinking water, the construction of a health care system is clearly not Chevron’s responsibility, nor has it ever been part of the litigation. Plaintiffs’ attorney Julio Prieto underscored this in a recent Radio Majestad interview when he said, “in the claim we have not requested any health issue in particular.”
It’s the sole responsibility of Ecuador’s government, which encouraged massive migration to the region and failed to provide the most basic sanitation services like sewage treatment.
Impacts on indigenous populations: Proposed damages ($430 MM)
Populations of all indigenous groups in the region have grown markedly throughout the period since oil was discovered in Ecuador’s Amazon. Meanwhile, deforestation and encroachment on indigenous lands by settlers was a direct result of the Ecuadorian state’s colonization policy, not oil development. When oil exploration began in the 1960’s, the population of the region was approximately 25,000 – largely native peoples and missionaries. Today, the region is among the fastest growing in Ecuador, home to more than 300,000 citizens who have converted jungle to agricultural lands at the government’s behest.
Potable water system construction: Proposed damages ($428 MM)
Numerous potable water systems exist in the region, but Cabrera failed to take samples from them. Likewise, Cabrera failed to sample rivers, streams, or wells. So, how does he know more potable water systems are needed? And how does he justify holding Chevron liable for creating a potable water system for the entire region when the main problem with drinking water is bacterial – not hydrocarbon – contamination?
Petroecuador’s infrastructure: Proposed damages ($375 MM)
Ecuador’s government and state took in approximately $25 billion over the 20-year life of the consortium. Texaco Petroleum earned $490 million, its contract expired in 1992 and it left Ecuador after successfully conducting remediation, carrying out social programs and upgrading equipment under an agreement with the state. For two decades, Petroecuador has been exclusive operator of the former consortium oilfields, earning 100 percent of an estimated $50 billion in additional revenue. So, having earned some $75 billion, shouldn’t Petroecuador maintain, replace and build out its own infrastructure?
Excess cancer deaths: Proposed damages ($9.527B)
Neither Cabrera, nor the plaintiffs’ lawyers, have ever presented to the Lago Agrio court the name of a single cancer victim, a single medical report or a single death certificate to substantiate this claim. What’s more, official cancer mortality statistics in Ecuador reveal that, not only are Cabrera’s assertions false, but the cancer rate in the oil-producing region is actually lower than in non-oil producing regions of the country. Finally, the only time a lawyer for the plaintiffs presented specific cancer claims before a court (in U.S. federal court in San Francisco), the claims were thrown out after Chevron showed them to be false. The lawyer, the originator of the Lago Agrio case, was fined $45,000 and sanctioned for the fabrications.
Deforestation of stations, wells and roads: Proposed damages ($875MM-$1.697B)
Ecuador’s government required that the consortium construct roads throughout the region to facilitate the state’s colonization program. Moreover, the total footprint of actual oil operations in the former concession area amounts to roughly 6.8 square kilometers. If roads are included, the footprint grows to just over 44 square kilometers. This is an important fact to consider in a concession area of 4,429 square kilometers that produced approximately $25 billion for the Republic of Ecuador.
Unjust enrichment: Proposed damages ($8.421B)
Central Bank figures show that Texaco Petroleum earned $490 million while the Republic of Ecuador received, through taxes, royalties, internal market subsidies, dividends from Petroecuador’s majority stake and other revenue, approximately $25 billion during the 20-year consortium.
Problems with Cabrera’s work are not limited to his absurd damage recommendations. The reports themselves are filled with mathematical and scientific errors. On a number of occasions he simply fabricates evidence. He gathered much of his “evidence” with the help of the plaintiffs’ technical team. He copied into his reports whole blocks of text from the plaintiffs’ court filings to justify some of his most outlandish assertions, such as his cancer claims and the remediation estimates. He fails to mention Petroecuador’s responsibility for environmental problems in the region despite its 62.5-percent majority stake in the consortium and its status of exclusive operator in the former concession area for almost 20 years.
Cabrera also fails to acknowledge Texaco Petroleum’s $40 million remediation related to its approximate one-third stake in the consortium, or the 1998 release from future claims granted to the company by the government and Petroecuador. Finally, the court’s appointee is unconstrained by the fact that the plaintiffs are suing Chevron strictly for environmental remediation costs. “So,” you may ask, “with all of the above in mind, how could a law-abiding, fair-minded, and independent court allow such absurd damage claims stand as the basis for a verdict?” The answer is, “a law-abiding, fair-minded, and independent court couldn’t.”
Friday, October 23rd 2009
Chevron is being blamed for a situation that is the sole responsibility of the Ecuadorian government and Petroecuador.
Petroecuador, Ecuador’s state-owned oil company, was the majority partner in the consortium with Texaco Petroleum. Today, Petroecuador still owns and operates the oilfields in the former Concession area as well as other fields in the Amazon. Petroecuador took over consortium operations in 1990 and became the sole owner of the consortium fields and installations when Texaco Petroleum’s concession contract expired in 1992. Since that time, Petroecuador has developed a widely acknowledged record of operational and environmental mismanagement, due to, among other things, widespread corruption, a lack of investment in, or proper maintenance of its equipment and installations, and numerous spills.
Petroecuador’s environmental record is alarming. The company has been responsible for more than 1,400 spills between 2000 and 2008. According to media reports, Petroecuador has spilled over 4.4 million gallons of oil at oil production and storage sites and along its various pipelines.
Meanwhile, Petroecuador has significantly increased the footprint of oil operations within the former consortium fields. For instance, the company has drilled more than 400 new wells since taking over while the consortium operated 321 wells. Likewise, Petroecuador has constructed more than 270 new reserve pits in the last three years alone. All the while, the company has largely ignored its obligations to clean up its portion of the consortium operations based on the remediation agreement with Texaco Petroleum.
View a photo gallery or watch a video of Petroecuador’s environmental mismanagement.
Despite Petroecuador’s dismal environmental record, neither the Amazon Defense Coalition nor Amazon Watch has made Petroecuador a focus of their Oriente clean-up campaign, and the plaintiffs and their lawyers have never pursued any legal action against the state oil company. To the contrary, Petroecuador stands to benefit, directly and indirectly, more than any other Ecuadorian entity if the cost for widespread remediation is shifted to Chevron by:
- Forcing Chevron to pay for remediation work that is clearly the responsibility and obligation of Petroecuador, both under the Settlement and Release entered into by Texaco Petroleum, the Government of Ecuador and Petroecuador, and as the sole owner and operator of the former consortium fields for the past two decades.
- Requiring Chevron to refurbish and upgrade Petroecuador’s deteriorating infrastructure even though Texaco Petroleum transferred all of that property to Petroecuador in good operating condition almost 20 years ago and has had no say in any of Petroecuador’s operational decisions since 1992.
See these photographs of Petroecuador’s operations in Ecuador:
Thursday, October 22nd 2009
There is no question that the people of the Oriente region of Ecuador face a series of challenges regarding health in their communities. However, they are being deceived by the trial lawyers and activists who have brought this lawsuit.
The major health concerns in the Oriente region are not the result of oil operations, but are related to a lack of water treatment infrastructure, a lack of sufficient sanitation infrastructure and inadequate access to medical care. (Read about Texaco Petroleum’s past operations and questions of health.)
Drinking water samples taken during court-ordered inspections of sites remediated by Texaco Petroleum found high levels of bacterial contamination from human or animal waste in 90 percent of the samples, indicating widespread microbial contamination of the water sources.
While the samples contained a high level of microbial contamination, results showed little evidence of contamination from oil. Court-ordered inspections found that 98 percent of surface water and 99 percent of drinking water samples meet international drinking water standards for petroleum hydrocarbons. Those few samples indicating petroleum-related impacts were from areas where Petroecuador’s poor operations had resulted in contamination.
The Government of Ecuador has not fulfilled its obligation to remediate the environmental impacts that it has caused, much less to modernize or even maintain its facilities to mitigate further impact. Nor has the government provided any sewage treatment in the region with raw sewage being discharged directly into streams and rivers used for bathing and drinking water by the local communities. As a result, many rural residents do not have access to potable water.
Wednesday, October 14th 2009
In virtually every public statement and news release, the plaintiffs’ lawyers and their activist NGO partners claim that the remediated sites that Texaco was responsible for under the 1995 Remediation Action Plan (RAP) “contain cancer-causing toxins at levels hundreds of times higher than U.S. and Ecuadorian law allows.”
Not surprisingly, the plaintiffs’ lawyers fail to mention that they are attempting to apply remediation standards that were passed in 2001, three years after Texaco Petroleum’s remediation work was completed and certified by the government of Ecuador.
For the basis of their argument the plaintiffs’ lawyers point to the 2001 standard, as outlined in Decree 1215 of the environmental regulations of Ecuador’s Ministry of Environment, which is intended to govern environmental aspects of hydrocarbon production. An important point to note is that the Ecuadorian constitution prohibits retroactive application of the 2001 law.
Nonetheless, the plaintiffs’ lawyers point to the 1,000 parts per million (ppm) total petroleum hydrocarbon (TPH) standard as outlined in Decree 1215 as the basis of their statements. Not only can this standard not be applied retroactively, the 1,000 ppm figure only applies to “patrimony national natural areas or others identified in a corresponding environmental study.” This means a national park or a designated protected area. At no point in time were remediated areas designated as national parks. Further, Petroecuador currently remediates below 2,500 ppm TPH (1215’s agricultural land standard) with the full approval of the government of Ecuador.
The remediation work that Texaco performed was and is consistent with what was required by the government of Ecuador. Texaco’s remediated sites have been conclusively shown to pose no threat to human health or the environment. Regrettably, the plaintiffs’ lawyers are engaged in an exercise to misrepresent not only the standards of the time, but the remediation standards that govern Petroecuador’s remediation work today. Further, they are inventing new remediation standards (100 ppm TPH) that no one in Ecuador is required to meet in order to mislead the public, the media, and the court to achieve personal financial gain.
Tuesday, July 21st 2009
FICTION:
“Well, our clients never released Texaco.” – Steven Donziger, 60 Minutes, May 3, 2009
FACT:
The U.S.-based trial lawyers in the lawsuit against Chevron claim their clients never signed-off on Texaco Petroleum’s remediation, giving them standing to sue the company.
Mr. Donziger fails to mention, however, that this could have never been the case, because the remediation work was conducted on State-owned lands and was reviewed and approved on behalf of the plaintiffs, and every other Ecuadorian citizen, by Ecuadorian officials. According to the law, Ecuadorian officials represent all Ecuadorian citizens. Otherwise any release would have required the individual consent of every Ecuadorian. Mr. Donziger also fails to mention that none of his 48 clients have filed claims for personal injury or property damage.
When the oil production concession between Texaco Petroleum and Petroecuador ended in 1992, Texaco Petroleum agreed to perform a $40 million remediation program to remediate sites mutually agreed to by both parties and the Government of Ecuador.
During the remediation, dozens of government inspectors, laboratory personnel, and State representatives reviewed the remediation and granted Texaco Petroleum, and all its respective principals and subsidiaries, a full and complete release from any remaining environmental liability.
In addition, four different lawsuits for environmental harm that were filed in 1994 by the municipalities of la Joya de los Sachas, Shushufindi, Lago Agrio and Orellana were settled in 1996. The jurisdictions of these municipalities cover the entire area of the former concession. All four settlements were approved by Ecuadorian courts therefore putting an end to any future environmental claim on those territories under the jurisdiction of such municipalities.
Click on map for larger image:
At the time, under Ecuadorian law, only the government had the right to bring claims for environmental impacts to the state-owned land where the oil operations took place. Another problem for Mr. Donziger and his colleagues was that they could not file an American styled class action as they do not exist under the Ecuadorian law system. So, according to press reports, they lobbied Ecuador’s legislature and convinced officials to write a new law to allow collective lawsuits for damages by private citizens when environmental harm had been caused. In 1999, a year after Texaco Petroleum completed its remediation and was granted a full release by the government, the Environmental Management Act (EMA) was passed.
Still, the 1999 EMA cannot be applied retroactively to a matter already fully settled with the Government of Ecuador. Moreover, the EMA does not grant the clients of Mr. Donziger or any individual “the right” to unrestrictedly sue for environmental harm. This “right” can only be exercised to the extent that plaintiffs have sustained a direct harm (no such claim has been made or proven by any of the 48 plaintiffs). Thus, the plaintiffs are trying to improperly apply the 1999 EMA law in an attempt to extort a settlement from Chevron.
Tuesday, June 9th 2009
FICTION:
“‘Chevron’s mischaracterization of the evidence against it in Ecuador is a clear example of insensitivity to human suffering and a failure to comply with the company’s legal obligations,’ said Pablo Fajardo, the lead lawyer in Ecuador for the Amazon communities.” - Amazon Defense Coalition Press Release: 6/4/09
FACT:
There is no question that the people of the Oriente region face a series of challenges regarding the health in their communities. However, they are being deceived by the trial lawyers and activists who have brought this lawsuit.
The major health concerns in the Oriente region are not the result of oil operations, but are related to a lack of water treatment infrastructure, a lack of sufficient sanitation infrastructure and inadequate access to medical care. The people there, like those in other parts of Ecuador, are suffering from a lack of proper municipal infrastructure for essential services like clean water and sewage treatment.
The truth is that the plaintiffs have not presented any medical evidence to support their accusations regarding health impacts. Moreover, Texaco Petroleum, as designated by the Ecuadorian Ministry of Energy and Mines and overseen by Petroecuador and the government of Ecuador, fully complied with legal obligations by performing remediation activity at 133 of the 321 Consortium well sites (equal to its stake in the consortium with Petroecuador). In fact, the cleanup work was supervised by the government of Ecuador and scientifically verified by two independent laboratories. As a result of the successful remediation, Texaco Petroleum was released of any further liability in Ecuador.
Tuesday, June 2nd 2009
FICTION:
“Chevron claims it ‘remediated’ the environmental damage in the mid-1990s despite the fact a team of court experts found the remediation was at best ineffective, and at worst a fraud.” - Amazon Defense Coalition Press Release: 4/23/09
FACT:
Hundreds of government inspectors and laboratory personnel signed off on Texaco Petroleum’s remediation. The releases were signed by all pertinent Ministries of the Government, municipalities, NGOs and University personnel.
Wednesday, May 27th 2009
FICTION:
“…[N]ew proof has emerged that the oil giant never touched the majority of toxic waste pits that it certified as clean to Ecuador’s government in exchange for a legal release,” said a lawyer for the Amazon Defense Coalition. …”The release….does provide evidence of an underlying fraud that proves the remediation never really occurred, despite Chevron’s claims…” - Amazon Defense Coalition Press Release: 3/24/09
FACT:
Texaco Petroleum’s remediation program is a well-documented matter of public record, and this “evidence” of an alleged fraud is a knowing and deliberate fabrication by the plaintiffs. The Government of Ecuador and Petroecuador certified – and investigations by the Controller General’s office in Ecuador have confirmed – that Texaco Petroleum completed remediation in every one of the pits for which it was responsible, in accordance with all local and international regulations, accepted operating practices and contractual obligations.
Plaintiffs’ attorneys and the activists know – and are conveniently ignoring – that Petroecuador did not cooperate in the remediation program at the time when Texaco Petroleum carried out its commitments, and that Petroecuador did not begin a remediation program until 2005, promising to remediate all the remaining pits by 2010.
