[HEADER] CASE STUDIES

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[sub-hed] Case Study: Chevron and Texaco in Ecuador

The ongoing struggle by indigenous communities of the Ecuadorian Amazon to hold Chevron accountable for decades of environmental devastation and human rights abuses provides a profoundly emblematic case highlighting the need for binding international law that prevents corporate impunity and holds polluters liable. Despite numerous legal attempts spanning decades and several international jurisdictions, Chevron continues to successfully avoid being held liable for the corporation’s irreparable harm that continues to plague the Amazon.

Indigenous communities and small farmers within the Amazon began experiencing problems decades ago when Texaco (now Chevron), discovered oil in Ecuador in the mid-1960s.13 In an effort to maximize profit, the corporation knowingly disregarded environmental protections and waste regulations, dumping billions of gallons toxic wastewater into rivers- polluting groundwater, and destroying farm lands.14 15 16

The corporation’s operations and pollution over the course of two decades caused direct and irreparable harm to the health and lives of more than 30,000 people in multiple communities. In response to the abuses, those affected formed the Union of the People Affected by Texaco-Chevron Operations (UDAPT) to mount a sustained challenge to hold the corporation liable for its impacts on those communities.17 UDAPT affirms that the company disposed of nearly 650,000 barrels of crude oil and more than 16 billion gallons of wastewater in the rivers and soils of the Amazonian jungle, exacting long-term health impacts such as high rates of cancers, birth defects, miscarriages, and respiratory ailments, among other chronic health conditions.18 19 20 And according to Pablo Fajardo, a lead attorney for UDAPT, at least “2, 000 people have died from cancer due to toxins and polluted water and air."21

In 1993, UDAPT filed a lawsuit against the corporation in the United States as a key legal strategy to hold the corporation accountable for its actions, seeking environmental remediation and reparations for the damages caused. The corporation (then Texaco) requested that the legal proceedings be moved to a provincial court in Ecuador, which in 2011(after nearly two decades of litigation) ruled in favour of UDAPT and sentenced Chevron-Texaco to ultimately pay a US $9.5 billion to those affected communities. And despite enormous legal challenges and appeals by the corporation, the judgement against Chevron was upheld by the highest judicial authorities in the country. Despite the judgment retaining the status of one of the largest imposed on an oil corporation, no financial damages have been paid to the plaintiffs.22

During the UDAPT trial, Chevron also sued the country in international courts with the aim of undermining the legal proceedings and judgement in Ecuador while seeking financial compensation. In the midst of the corporation’s aggressive legal tactics, Chevron began to withdraw all its assets from Ecuador and fled the country to avoid paying for damages.

The corporation even resorted to utilizing arbitration under a bilateral investment treaty between Ecuador and the U.S. to receive favourable decisions in an attempt to avoid paying the fine levied in Ecuador.23 24 During these proceedings, the corporation argued that the Government of Ecuador should have stopped the trial of indigenous communities and peoples, known as "Lago Agrio". The corporation asserted that it had been released from its environmental remediation obligations by an agreement signed with the government in 1995. As part of its legal strategy, the corporation launched charges of corruption, bribery and fraud during the Ecuadorian trials to both successfully get the original judgement annulled and be awarded hundreds of millions of dollars in costs to be paid by the Ecuadorian government.25 26 27

As part of the ongoing legal saga, the affected communities turned to foreign courts to enforce the Ecuadorian verdict and counteract Chevron’s attempts to utilize favourable international jurisdictions to escape accountability. In Brazil, Argentina and Canada, their lawsuit was dismissed where courts have ruled that Ecuador does not have jurisdiction. As another attempt to stop impunity, the affected people unsuccessfully filed a complaint with the International Criminal Court (ICC). 28 29

Considering past attempts for accountability along with Chevron’s recent legal victory ordering Ecuador to potentially pay millions in legal costs, Pablo Fajardo states:

“So, what legal guarantee, if any, do the victims of corporate crimes have? None whatsoever. Economic power is being imposed and companies are buying impunity.”30 At every turn, the people most directly impacted by Chevron’s devastation in the Ecuadorian Amazon have been denied access to any form of justice or compensation. The Chevron case illustrates how transnational corporations can escape liability and continue to act with impunity despite grave violations of international law. Chevron’s aggressive legal tactics across several international jurisdictions, use of trade agreements, efforts to pre-empt further liability, and attempts to shield the corporation with complex corporate structures. The case reinforces the need for an international instrument that obligates corporations to respect human rights while offering communities remedy, reparation and justice.

One promising approach is the current development of a legally binding international instrument [link to measure on binding treaty] to do just that. In 2014, Ecuador sponsored and has been supporting the process of the Binding Treaty at the United Nations, chairing the Open-ended Intergovernmental Working Group on Transnational Corporations (TNCs) and other companies with respect to human rights (OEIGWG). This process follows a resolution adopted by the UN Human Rights Council, and advances a mandate to elaborate a legally binding instrument to regulate the activities of transnational corporations and other companies in International Human Rights Law.31 Read more about this legally binding instrument and how to advance it here.

[sub-hed] Case Study: Big Tobacco Master Settlement Agreement

Recently, there’s been increasing attention to the parallels between the tactics—like spreading misinformation—of the tobacco industry and fossil fuel industry.32 33 The tobacco industry was trying to prevent public health protections, while Big Polluters are attempting to delay climate action. Now, as legal action against the fossil fuel industry gain steam, the experience of how the tobacco industry was ultimately held liable in the U.S. sheds some helpful light for those seeking to do the same with the fossil fuel industry and/or other lead climate polluting industries.

The fossil fuel industry has spent vast amounts of money over decades to influence or silence public discussion on the effects of their products, in order to weaken political will for action. This is not the first time that corporations prioritizing profits over people have caused great harm. The tobacco industry spent hundreds of millions of dollars disinforming the public about the health impacts of smoking in order to undermine tobacco control efforts. 34

In the U.S., revelations regarding the tobacco industry’s extensive campaign to deceive the public regarding the public health risks of tobacco use came to light through the release of internal industry documents. In May 1994, a whistle-blower leaked internal tobacco industry documents to the press—making headlines in major newspapers across the country. The media coverage of these documents—and the public outrage that followed—emboldened industry whistle-blowers to provide further evidence that the industry knew the harms its products caused.35

Throughout that year, there was a slow drip of damning documents, which provided fodder for a steady stream of news stories. While the executives of seven tobacco corporations tried to head off action by telling Congress they didn’t believe nicotine was addictive, days later, an internal document was released that revealed they were lying.

This prompted a sharp increase in legal action against the industry. The first class-action suit against the industry was filed, and state attorneys general began suing the industry, starting in Mississippi. Over the next eighteen months about a dozen states filed suit.

By the time of the Master Settlement Agreement (MSA) in 1998, 46 states had filed lawsuits against Big Tobacco. The MSA is the largest civil litigation settlement in U.S. history, and resulted in the settlement of the state lawsuits, tobacco corporations paying the states billions of dollars in yearly instalments, new restrictions of tobacco marketing, and the release of millions of internal industry documents that are publicly accessible.36

The impacts of these cases were enormous. As the lawsuits mounted, public opinion continued to shift. The Minnesota lawsuit went to trial and resulted in the release of millions of damning internal documents.37 These documents—which made crystal clear the industry’s tactics to mislead the public and undermine public health policy—strengthened the resolve of policymakers all over the globe to take action. Indeed, delegates of the WHO global tobacco treaty were emboldened to fight for strong corporate accountability measures in part because of the release of these documents.38

Today, this precedent-setting treaty is saving lives, having paved the way for public health protections in countries all over the world. And in the end, the Master Settlement Agreement forced the tobacco industry to pay billions of dollars in damages in perpetuity. The money served as compensation for taxpayer money that had been spent in connection with tobacco-related diseases and the loss to local economies.

The recent cascade of lawsuits and actions against the fossil fuel industry clearly shows growing momentum to hold polluting industries liable for climate change damages. And as the Master Settlement Agreement experience demonstrates, it is advantageous for public officials to advance industry investigations and seek to release internal corporate documents that provide evidence to back legal claims hold corporations liable. As the U.S. tobacco industry investigations and resulting MSA illustrate, the public disclosure and release of internal fossil fuel corporations (and other climate polluting industries) would allow for the continued monitoring and exposure of wrongdoing. Applying this lesson would also help prevent corporate abuses from happening in the first place. The compounding visibility and exposure of these actions is ultimately critical in shifting the public climate and building the political will needed to advance climate justice globally.

[sub-hed] Case study: France’s ‘duty of vigilance’ law

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[sub-hed] Case study: Indian fishermen, the World Bank, and the U.S. Supreme Court

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[sub-hed] Case studies: Primacy of the rights of nature

Ecuador, Bolivia, India, and New Zealand have all taken the initial step to formally recognize the rights of nature, though in different ways, and to more firmly concretize the primacy of the rights of nature and human rights above all else. Here’s a snapshot of what this looks like in each country:

Ecuador: In 2008, after a national referendum, Ecuador changed its constitution to reflect rights for nature. It was the first country ever to do so. Under the Ecuadorian constitution, Pachamama (Mother Earth) has rights “to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution.” Every person and every community has the right to advocate on its behalf. Pachamama here escapes direct personification. Instead, it is the bearer of rights as “nature,” as distinct from “persons, people, communities and nationalities” and “natural and judicial persons.”39
Bolivia: The Bolivian legal recognition in 2010 of “Mother Earth” is in the nature of a “collective public interest.” Rather than directly granting legal personhood to nature, Bolivia’s law instead appeals human persons of their dominance over the rest of nature. Thus, all of nature, including humans, has the “human” rights the law enumerates. This move is linked to the holistic foundation of the law—to protect nature as a system instead of as discrete forests, streams, lakes, etc.40
India: Rights of nature developments in India allows for discrete natural features to be considered for rights, against a granular legal background supportive of the protection of nature, rather than a broad protection for nature as a whole. A 2012 Indian Supreme Court case established the legitimacy of the Court’s consideration of non-anthropocentric views of the protection of nature. Animal Welfare Board of India v. A. Nagaraja allowed for the Indian constitution’s Article 21 right to life could be extended to non-human animals. In 2013, India’s Ministry of Environment and Forests declared cetaceans “non-human persons” in a bid to protect them from harm. In March 2017, an Indian court granted personhood rights to the Ganga River Basin—as environmentally beleaguered as it is environmentally important.41
New Zealand: In New Zealand, as in Ecuador and Bolivia, rights of nature became a reality due in large part to the influence of indigenous ways of seeing the relationship between human beings and the world. For a Maori tribe (iwi), sub-tribe (hapu), or extended family group (whanau), a particular river or mountain might be an ancestor (tupuna). This genealogy—or whakapapa—is crucial to Maori worldviews. Their idea of environmental personhood was quickly taken up in decisions to grant personhood to the Whanganui River and the forest Te Urewera. In 2014, the bill based on the agreement between the government and a Maori tribe regarding the personification of Te Urewera became law, bringing into being New Zealand’s first environmental legal person. The status of the Whanganui River soon followed suit.42

It is essential to note that in all four of these cases, establishing nature’s rights in these countries has not yet led to meaningful implementation that has palpably increased access to justice or advanced liability. In some cases, there are concerns that this measure, when taken in isolation and without implementation supported by additional measures in this roadmap, can give the appearance of championing justice and liability without actually doing so. Read more here [link to rights of nature measure] about how to establish the rights of nature in ways that advance accountability for polluting industries and deliver justice for people.

1 https://ecocidelaw.com/the-law/what-is-ecocide/

2 https://faculty.wharton.upenn.edu/wp-content/uploads/2019/08/Gordon-Environmental-Personhood.pdf

3 https://www.ohchr.org/en/professionalinterest/pages/remedyandreparation.aspx

4 https://documents-dds-ny.un.org/doc/UNDOC/GEN/G05/109/00/PDF/G0510900.pdf?OpenElement

http://www.derechos.org/nizkor/impu/principles.html

5 https://www.cambridge.org/core/journals/american-journal-of-international-law/ajil-unbound-by-symposium/jacqueline-peel-and-jolene-lin-transnational-climate-litigation-the-contribution-of-the-global-south

6 https://www.justiceinitiative.org/uploads/6a836982-665b-4b1b-bdcb-16022af08aa9/a2j-workshop-20170404.pdf

7 https://www.justiceinitiative.org/uploads/6a836982-665b-4b1b-bdcb-16022af08aa9/a2j-workshop-20170404.pdf

8 http://climatecasechart.com/non-us-case/complaint-against-bp-in-respect-of-violations-of-the-oecd-guidelines/

9 https://www.business-humanrights.org/sites/default/files/documents/Legal%20Briefing_Climate%20Litigation_Final_2.pdf

10 https://www.business-humanrights.org/sites/default/files/documents/Legal%20Briefing_Climate%20Litigation_Final_2.pdf

11 https://insideclimatenews.org/news/04042018/climate-change-fossil-fuel-company-lawsuits-timeline-exxon-children-california-cities-attorney-general