The $19-billion award of the Ecuadorian court, in 2010, against Chevron to redress massive contamination in the Amazon had all the appearances of a cause célèbre. The class action lawsuit of Aguinda vs Chevron – initiated by 76 Indigenous people and migrant farmers, on behalf of 30,000 plaintiffs – represented a new breed of litigation that aimed to hold transnational corporations accountable for environmental degradation in foreign jurisdictions.
But as author Paul Barrett chronicles in his latest book Law of the Jungle, the victory was a hollow one. On appeal, the award was reduced to $9.5-billion and even before the Ecuadorian court rendered its decision, the plaintiffs’ lawyer, Steven Donziger, was scouring the globe for a jurisdiction to enforce the judgement. Chevron, which merged with Texaco in 2000, has few assets in Ecuador that can be seized to compensate the 30,000 plaintiffs, stricken, many fatally, by cancer and other debilitating illnesses on account of Texaco’s negligent oil extraction operations in the Lago Agrio region of the Amazonian rainforest.
And while the class-action lawsuit epitomizes a David-and-Goliath battle, Law of the Jungle also has all the trappings of a suspense novel. The book opens in 2012 with Donziger on a Manhattan street being tailed by dark sedans. Barrett makes no bones about Chevron conducting the surveillance. In the next chapter, when he takes us back six years to Donziger in Quito, navigating the convoluted Ecuadorian legal system, Barrett sets the stage for Donziger’s eventual downfall, and reinforces his objective to spotlight Donziger rather than the cause that he’s championing.
Barrett then tells the story chronologically, but crosses over into creative nonfiction by interjecting excerpts from Donziger’s personal notes. Confiding in his journal that he feels overwhelmed by the politicized Ecuadorian legal system, Donziger wrote, “… in a highly charged macho culture, this has become a flat-out street brawl.” In the chapter “Publicity,” Barrett recounts how Donziger shifted the “street brawl” into the arena of public opinion by recruiting celebrities such as Sting, Bianca Jagger, Daryl Hannah and Mia Farrow to publicize the Aguinda cause. He also conscripted acclaimed filmmaker Joseph Berlinger to graphically document the ecological disaster in the Amazon. Crude debuted at Sundance and garnered widespread praise at scores of other film festivals, globally.
Barrett masterfully juxtaposes the rollercoaster dynamics of the legal proceedings – the balance of power careening back and forth from the little people to Big Oil – against the protagonist Donziger’s heroic rise and precipitous fall from grace. But Barrett doesn’t elicit much sympathy for Donziger when relating how Chevron successfully applied under the Racketeer Influenced and Corrupt Organizations Act (RICO) to bar enforcement of the Ecuadorian court’s judgement. Enacted to compensate victims of organized crime, the so-called RICO remedy, according to legal scholars, was never intended to safeguard corporate assets from seizure, even when a foreign judgement was allegedly fraudulently orchestrated. And notwithstanding a review by the US Court of Appeals for the Second Circuit in New York, the lower court’s decision has cast a chill on environmental litigation targeting corporate polluters in foreign jurisdictions and is considered to violate international law and comity, the principle that one state will honour or give effect to the laws and judicial decisions of another.
The Supreme Court of Canada recently upheld the Ontario Court of Appeal decision that denied Chevron’s bid to quash enforcement proceedings in Ontario. Despite the fact that the issue of comity was an academic one for the Supreme Court (as Chevron Canada Limited has limited assets in Ontario), the appeal is illustrative of the far-reaching significance and ramifications of the Aguinda case.
And while Aguinda vs Chevron is proving to be the most intensely litigated case in history, Barrett himself has not escaped being drawn into the fray. Prior to the book’s release, Donziger issued Barrett and Crown Publishers a letter of intent to sue for defamation, claiming the book is fraught with inaccuracies and plagiarism. Donziger has particularly decried the book’s title and subtitle for not only tarnishing his reputation, but also denigrating the Ecuadorian politico-legal system and the environmental degradation – widely referred to as a “human-rights catastrophe” – that the lawsuit has attempted to redress. Barrett also leaves readers with the
impression that only the plaintiffs “play” the corrupt Ecuadorian legal system, but Wikileaks has disclosed lobbying by the US government to sway Ecuadorian officials to dismiss the case against Chevron.
On the heels of the US Court of Appeals hearing on April 20, 2015, Humberto Piaguaje, one of the litigants, lamented that the lawsuit against Chevron has “lost its way.” Mired in technical legal analysis and media sensationalism, Aguinda vs Chevron and to some degree, Law of the Jungle (to its credit), betray the ever-deepening chasm between the people who fall victim to corporate greed, and those who champion and publicize their cause for profit and celebrity.
Law of the Jungle: The $19-Billion Legal Battle Over Oil in the Rain Forest and the Lawyer Who’d Stop at Nothing to Win by Paul M. Barrett, New York: Crown Publishers, 2014, 304 pages. Reviewed by Barbara D. Janusz
Barbara D. Janusz is a lawyer, educator and author of the novel Mirrored in the Caves. She has published environmentally themed book reviews, opinion and analysis columns, creative non-fiction stories, essays and poetry in journals, magazines, newspapers and anthologies across Canada.