On October 27th Steven Donziger went to prison after uncovering the “Chernobyl of the Amazon”. Today, we look back at his interview in Mission’s Human Issue.
By Alexi Lubomirski.
In 2011, human rights lawyer Steven Donziger was part of a team of lawyers who won a case on behalf of an indigenous community in Ecuador’s Amazon Rainforest, whose health had been impacted by water and soil contamination at the hands of oil company Texaco between 1964 and 1992. Texaco was held liable for $9.5 billion.
Chevron, who has since acquired Texaco, contested the result by taking Donziger to court in the U.S, claiming that he and his associates coerced the presiding judge in Ecuador. A New York federal court ruled that the Ecuador judgment was “obtained by corrupt means.” A later court order demanded that Donizger hand over his laptop and other electronic devices. When he refused to do so, citing attorney-client privilege, he was charged in contempt of court on a misdemeanor charge and placed under house arrest, where he has remained for over 600 days. Donziger was also disbarred by a state appeals court in New York last year. Donziger’s jury-free trial began on 10th May 2021; the court has not yet come to a decision.
Below, in the Q&A that took place one week before Donziger’s New York court date, Donziger opens up to photographer Alexi Lubomirski about the initial trial in Ecuador, the legal complexities which he believes influenced trial results along the way, and life under house arrest.
Alexi Lubomirski: Steven, you studied law. You set out to help people and protect the environment. You won a $9.8 billion court case against Chevron on behalf of the Indigenous people of Ecuador, and for this you’ve been under house arrest for over 600 days. Can you tell us how it all started?
Steven Donziger: I’ve been a human rights lawyer for almost three decades. I graduated from law school in 1991 in the same class as President Obama. I’ve been under house arrest for nearly two years after I helped Indigenous people in Ecuador win a large pollution judgment against Chevron.
Courts found that Chevron in the Amazon rain forest deliberately and systematically dumped billions of gallons of cancer-causing oil waste onto Indigenous ancestral lands and into water-ways communities relied on for their drinking water, bathing, and fishing. It produced what I would call a mass industrial poisoning out of pure greed to increase already significant profits even higher…. The amount of suffering during this time and since is sickening to acknowledge—thousands have died of cancer.
My friend Paul Paz of Amazon Watch calls it a slow mass murder because it’s happening imperceptibly almost day by day, people are dying without medical care. In the meantime Chevron lost the legal case in a decision that was affirmed by the Ecuador Supreme Court in the country where they wanted the trial held. Instead of paying the judgment, they vowed to attack the Indigenous people and demonize me. That’s what they’ve been doing for the last 10 years. That strategy has culminated in this very bizarre situation where I am the only American on house arrest on a minor charge called a misdemeanor. A criminal contempt of court because a judge got mad [when] I tried to protect my confidential case file, my computer, my cell phone from review by Chevron. I behaved ethically the entire way. I have been attacked viciously by Chevron and its lawyers, 60 law firms, 2,000 lawyers….The sentence, my judge, my jury, my prosecutor are all on the same case, there is no real prosecutor: I am being prosecuted by a private law firm that has Chevron as a client because the regular Federal prosecutor would not prosecute me.
The reason there is dumping, if you think of the Amazon rain forest, a beautiful pristine forest, a 1,500-square-mile area… Chevron built six different oil fields, each with dozens of different well sites in the jungle. The whole operation would take the oil out of the ground, but they first have to perforate the ground to build the well: That means taking rock, oil, and heavy metals, chemicals out…from thousands of feet down to create the well hole. Normally you dispose of [that stuff] properly. In the jungle, in the Amazon, what Chevron did, operating as Texaco, they just gouged giant pits out…and dumped this cancer-causing oil waste into the [unlined] pits. Then they ran pipes down the side of the pits they knew the local Indigenous were using for their drinking water and for…fishing and bathing. They chose to poison the water supply that thousands of people relied on to sustain their lives. [Also there is] water reproduction, which basically means when you take oil out of the ground it comes up as marketable crude oil and hot water. You have to separate the water from the crude before you run it through the pipe-line to the refinery, which is on the other side of Ecuador, on the Pacific coast.
The water has to go somewhere when you separate it. The normal process is to re-inject it into a well cavity thousands of feet underground because it has extremely harmful cancer-causing chemicals in it; instead, Chevron built enormous industrial-size pipes and ran it right out into the rivers and streams. So you were getting hit with…a thousand of these waste pits, where the pipes were running into rivers; separately you had this water of production, literally 16 billion gallons…was dumped. At the height, 4 million gallons a day were being spewed out into the rivers and streams, and the Indigenous people were not even told this was dangerous. They were not told, Hey, you can’t drink out of the rivers, we’re poisoning your rivers. And by the way, this water is clear—if you look at it and don’t smell it or taste, touch it, because it’s hot, it looks like normal water. But it’s filled with these cancer-causing toxins….They also [flared] natural gas, which created this black rain phenomenon—it basically polluted the air and it would rain with soot in it. And people were being walloped with the food they ate, the water they drank, and the air they breathed. And over time people have died. It’s continuing to this day—it’s a humanitarian catastrophe. And the world needs to pay attention.
AL: I heard that when the Indigenous people asked the company what they were dumping, they were given a textbook answer.
SD: When Chevron first came down there in the 1960s and 1970s and started to engage in these awful practices, a lot of the leaders approached the Texaco engineers—they assumed Texaco was a reputable company and would do it in the right way. And they asked, What is this black stuff you are putting out in our waterways? And the engineers did have a textbook answer. It was simple. It was, Hey, don’t worry about it, that is oil. Oil is like milk, it contains vitamins you can drink it. It’s not going to harm you, it’s actually going to help you. It’s medicinal, you can rub it on your head if you don’t feel well, you will get better.
So the level of abuse was really deep. And it continues to this day. You have to be able to draw a direct line to those kinds of abuse that are racist, they’re criminal. And that is decades ago, to what is happening to me today…they are going after the lawyer instead of respecting the people who won the court judgment and compensating them for the harm they caused.
AL: How did the court case in Ecuador come about?
SD: In the early 1990s, a group of us, Ecuadorians, American lawyers, and scientists, went to investigate what we were told was the world’s worst oil catastrophe. We traveled to the region with a delegation headed by Cristobal Bonifaz, an Ecuadorian American lawyer, and we observed and we talked to people, took chemical samples of rivers and streams. What we found was an apocalyptic nightmare. Experts call it the Amazon Chernobyl. It is by far the world’s worst oil catastrophe, and it was maddening to know it was done deliberately, it wasn’t an accident. It made us all even more furious, and it made us vow to do something. And out of that we started a legal case back in 1993 in U.S. courts. Eventually it was shifted to Ecuador at Chevron’s request…. We won the case in Ecuador, and then Chevron, always looking for an advantage and never playing fair, started to attack Ecuador’s courts to try to evade pay-ing a judgment they knew they were going to lose based on the scientific evidence.
AL: After you won this case, what did the Ecuadorian government do to hold Chevron accountable?
SD: Not much. I want to be clear about that. The Ecuadorian government needs to do more. They have a higher responsibility, this isn’t Chevron’s problem, they opened their doors to an American country who completely abused their people. Chevron is constantly lobbying the Ecuadorian government to kill off our case and to go against their own citizens. And I would con-sider this lobbying to be unethical if not illegal, as it interferes with the independent judiciary of the country. And it is inappropriate, and this is what Chevron does. They will be in court, yes, but they will then try and kill off the court case through corruption or through lobbying or through political pressure. Ecuadorian government have done some things over the years to provide healthcare and try to improve the lives of the affected people. It is not very much. I also want to make it very clear that…the ultimate responsibility, and I would argue 100% of the responsibility, to clean up is Chevron’s, because they were the exclusive operators in these oil fields, exclusively engineered them and designed them to pollute. They knew they were doing this to increase their already high profits…out of pure greed. It was done with complete disrespect to the local population.…You cannot pin it on Ecuador’s government, even though [it], given the citizens are living in a humanitarian crisis, needs to do something and do it now.
AL: According to a 2014 BBC article, New York judge Lewis Kaplan stated that the decision in the Lago Agrio case was obtained by corrupt means—and the defendants here may not be al-lowed to benefit in any way. Can you expand on that?
SD: Kaplan has been on a war path to destroy our work. And the work of the communities and the successful work to hold Chevron accountable. He has a history of being a pro-corporate judge. Before he became a judge, he became a tobacco industry defense lawyer, representing Philip Morris and Brown & Williamson. He took it upon himself to destroy the case. I think he’s abusing his power in doing so.
Let me be clear, this judgment in Ecuador has been affirmed by six appellate courts, including supreme courts in Ecuador and Canada. There are 29 appellate judges who are much higher than Kaplan, who is a mere trial court judge, who have ruled that this judgment is valid. Now, why does Kaplan say it’s fraud? I think he’s just wrong. Let me tell you a bit of why he concluded that. First he let Chevron bring in a witness to his court room to whom they paid $2 million and [the lawyers] coached him for 53 days. He claimed he was in a meeting with me where a bribe was offered to the trial judge, which is completely false. There is no evidence to support anything this man says. He later admitted lying repeatedly before Judge Kaplan. That’s the evidence that a fraud occurred. It has been rejected, as I said, by six other appellate courts. It’s bizarre, because Kaplan founds this without giving me a jury. I think it’s flat-out erroneous. What’s more sinister is why he’s doing it. I think he’s doing it as he sees it’s his role to protect American corporate power from being held accountable by people in other countries, particularly brown people or Black people. I think there is an element of racism to how some U.S. courts look at foreigners, or these people that come from “other” countries that are hurt by the Chevrons of the world. It almost reflects a reaction to protect, give a home-court advantage to Chevron.
In any event, His decision does not impact the decision in Ecuador that has been affirmed by the Supreme Court, which is enforceable in Canada and any other country around the world where Chevron has assets, other than the United States.
AL: Kaplan took this complaint to the Southern District of New York, who told him he didn’t have a case. When did this occur?
SD: So that was phase one, when he claimed I committed fraud—which I reject, not true. Didn’t get a jury, if I committed fraud. That’s a crime, by the way. I should be criminally prosecuted with a jury, this shouldn’t be a civil case. The reason it was never prosecuted was be-cause the government clearly saw that there was no evidence to prosecute. But Kaplan did it anyway, and it is a civil finding against me.
Subsequent to that, Chevron got him to impose cost orders on me for millions of dollars. I don’t have that kind of money, I’m a human rights lawyer. They used those cost orders as a pretext to try and get my computer and cell phone to find out where my “money” was. “Money” they know I don’t have. Getting those devices would have enabled them to see all the confidential information, legal strategy, that is protected information in the law, and ethically I can’t give it up. That privilege is owned by the people of Ecuador, my clients. So ultimately he forced me to do that as a pretext. When I appealed that order—I couldn’t comply for obvious reasons—he charged me with criminal contempt of court. His charges were rejected again by the regular federal prosecutor in Manhattan; he instead appointed private law firm Seward & Kissel to prosecute me in the name of the people. Two important facts about this law firm: They never disclosed that Chevron was a client. I’m being prosecuted by a Chevron law firm in the name of the United States.
And secondly, the law firm is billing taxpayers—so far over $500,000 to prosecute me on a misdemeanor, the most minor type of crime…where a defense lawyer who defends a misdemeanor by law gets paid $3,400.
AL: So U.S. taxpayers are paying to prosecute you for winning a case for protecting the Amazon.
SD: It’s worse: Taxpayers are subsidizing a Chevron law firm to prosecute me in the name of them, the people. After I won a historic environmental judgment against Chevron. This is bad. This is not a rule of law situation, it’s illegal. It violates, I believe, the constitution. It violates international law. Literally thousands of lawyers around the world have written about this, they’ve signed statements about it.
Fifty-five Nobel laureates are demanding…the immediate dismissal of the case. It’s really, really scary that this is happening, that the courts, a criminal prosecution in the United States of America, is targeting a human rights lawyer who was successful.
AL: When you explain the whole case, it seems so unjust and wrong. Why do you think it’s taken so long for mainstream media to pick up this story?
SD: I can speculate, Chevron has a lot of power. They advertise. It’s hard for the media to adopt a framework where you can explain that a U.S. Federal judge can be so abusive and abuse their power. A lot of media outlets, courageous independent ones, have covered this case and my situation: The Intercept, Esquire magazine, people, you, your wife, Giada. We have really got the word out there.
AL: How has this really affected you? They’ve frozen your accounts, taken your passport. You are under house arrest, you wear an ankle tracking device.
SD: It’s a gigantic black claw. That has been latched to my leg since August 6, 2019… The State is on my body. Why do I have an ankle bracelet? I am a lawyer in good standing….I have been practicing law for almost 30 years with not a single client complaint…. And they lock me up on a minor misdemeanor charge…no one in the United States has ever been locked up on this charge before prior to trial.
AL: What’s the sentence for this type of misdemeanor?
SD: If you have no criminal record, nothing. You would get no jail time, no confinement, you would get fined, might have to go on probation for three months. Nothing. People don’t go to jail in the United States for misdemeanors. It doesn’t happen. The plan, though, is to make it happen for me.
The charge is as a misdemeanor…because it enables them not to have a jury. They will never risk having a jury decide that Chevron did what everybody knows it did, and that Steven Donziger did not do what Chevron claims it did.
AL: What was involved in your May 10 hearing?
SD: In theory it’s a trial, but it’s not really, as there is no jury. And the judge appointed by Judge Kaplan also has financial links to Chevron, is the same judge who locked me up.…I have no chance of getting a fair trial. The entire purpose of this proceeding from Chevron’s point of view is to criminalize me. We are not going to let them do it, we have a great legal team. They are going to convict me at the end, as it’s not a real trial. But it is real in the sense that we are going to lay a record so hopefully we can get it reversed on appeal.
AL: Is it true the trial was not allowed to have any public access?
SD: Judge Loretta Preska, who’s appointed by Kaplan, is embarrassed. She was hiding this trial and hopes no one watches. She cut off Zoom access, limited the people that could be in the court. I don’t think more than 15 people can watch this trial—if it was on Zoom, I think there would be thousands….
AL: How has this affected you? You try to do everything right, protect people, protect the environment, study law…. Now you are being punished for being successful.
SD: It’s very up and down. I know so many people [who do environmental defense work] have it worse than I do. People are assassinated for doing this work all over the world every year—200 people. That said, I am suffering, as are my wife and my 14-year-old son.
I am thrilled at the support, from the Nobel laureates, even the lawyers, so many people have rallied to our cause. It makes you feel great, but it’s really startling, almost terrifying, to see the judicial system in New York keep trying to steamroll me without giving me due process of law. I believe in our system, I went to law school to operate in that system. Instead I find my-self in the clutches of some sort of machine I was never told existed.
AL: We have to remember that your case is so tied to the Indigenous people’s case. Chevron are using you as an example.
SD: True. I am being used as a foil, so people think about me and not the crimes they committed in Ecuador. Using me as a weapon to try to weaponize me as a form of intimidation, to try to discourage other human rights lawyers, human rights activists and campaigners, and de-fenders from doing this work. And this work is connected to the survival of our planet. You can-not let Chevron and Exxon and these big companies do what happened in Ecuador with impunity, or we’re never going to make it.
So shifting the cost that they tried to externalize to these vulnerable communities back onto them to this degree…is a huge historical accomplishment that needs to be recognized….It was done by teams of people around the world, led by Indigenous leaders, and world community leaders, and the Amazon, who rely on people like me and others to make it happen. I think that is what Chevron is really terrified about. The model of this international approach to solving this terrible pollution problem by holding the big polluters accountable terrifies the fossil fuel industry. That is why they are spending mass sums of money…to target me. They want to make an example out of me…to weaponize me to intimidate other people and discourage them from doing the work.
I am fine day to day, I work, I look forward to my day, even though I can’t really go anywhere. I talk to fascinating people all over the world, or people come visit. But it is stultifying on so many levels when you can’t move around and take your kid to do things. But I need support, and I’m getting support.
Images courtesy of Amazon Watch