Originally posted on October 27, 2014
by Cherice Bock
Editor, Whole Terrain
In my last post, I gave a book review of Paul M. Barrett’s new book Law of the Jungle: The $19 Billion Battle Over Oil in the Rain Forest and the Lawyer Who’d Stop at Nothing to Win. I got the chance to do a Q & A with Barrett regarding this book, and its interesting implications for our upcoming journal theme, trust.
Whole Terrain: What first piqued your interest about this story involving the New York lawyer, Steven Donziger, and the fight between the Ecuadorian people and Texaco/Chevron?
Paul M. Barrett: I had followed the case from afar for a number of years, fascinated by the almost mythological nature of Donziger’s story: the evil monster oil company marauding through the Garden of Eden, afflicting the innocent residents. After the February 2011 $19 billion judgment, the case became more real, more tangible. I decided to have a closer look.
WT: One of the most striking things about this story is that big oil doesn’t end up as the (only) bad guy. Since we have an upcoming Whole Terrain volume focusing on trust and the environment, I’d like to hear your thoughts on trust and environmental law, particularly pertaining to this Ecuador vs. Chevron case. In a case such as this, working within political and market-driven systems with high levels of corruption, and standing up for those who are being treated unjustly, is it possible to litigate in an upright, trustworthy way, and actually win a case?
PB: It’s not only possible to litigate in a trustworthy manner, it’s absolutely necessary. It is done every day by honorable lawyers of all sorts, bringing all manner of claims. Criminal defense attorneys represent poor people accused of heinous offenses, some of them guilty, some innocent. Facing overwhelming odds and greater resources on the government’s side, these criminal lawyers uphold the rule of law by working within the system and forcing the prosecutors to produce credible evidence of guilt. Honorable class action lawyers go to court on behalf of groups of clients who claim they’ve been discriminated against or subjected to the side effects of industrial activity (i.e. pollution). These plaintiffs’ lawyers rely on real evidence, gathered honestly, to persuade judges and juries of the righteousness of their cause. Environmental law is especially dependent on genuine scientific evidence: that judges and juries can trust. How else can you prove that the defendant company’s waste caused harm to the plaintiffs? By faking it? Does that sound right to you? Of course not.
WT: Where do you see the effects of broken trust the most in this case, both in the physical environment and in the people involved?
PB: Texaco violated basic standards of decency by dumping toxic substances in the rain forest in the 1970s and 1980s. Broken trust. The Ecuadorian government looked the other way and failed to regulate Texaco. Then, after nationalizing its oil industry, the Ecuadorian government–via its national oil company–became every bit as bad a polluter as Texaco. When the crusading lawyer showed up, he broke the trust of his clients by corrupting the legal process in a way that made their apparent victory unenforceable. The effects of all this: After 21 years of litigation, the legal warfare hasn’t cleaned up a single barrel of waste oil or built a single medical clinic.
WT: If Donziger had acted in a completely trustworthy manner, do you think we would have heard of him? In other words, would it have been possible for him to play this out completely above-board, and still have made enough headway to threaten the likes of big oil?
PB: The point of filing a lawsuit isn’t to “threaten” the defendant –whether that’s “big oil” or any other target. The point is to address your clients’ problems; find remedies for harms they’ve suffered. The courtroom is not the right venue to act below-board. The rule of law can be a powerful tool. Corrupting that tool is every bit as bad–and every bit as bad for disadvantaged people–as spewing pollution. Without the rule of law, what hope do the disadvantaged have? How will human rights be vindicated? How will misconduct by powerful organizations–corporations, government agencies–be called to account and corrected?
WT: This case also brings up the difficulty of American companies dealing with foreign governments, who may or may not have the best interests of their people in mind. Is there an ethical imperative for corporations to act in a trustworthy way toward foreign individuals, even when their own governments are not requiring such action?
PB: Yes. Ethical conduct is good business. If Texaco had behaved properly in the 1970s and 1980s, the company’s shareholders would have saved hundreds of millions of dollars later spent on legal fees.
WT: Do you see any signs of hope or positive outcomes of this case, even though it has been so wracked with scandal? Or, do you see similar cases that are more worthy of receiving our trust as truly good causes?
PB: There are plenty of environmental lawyers operating ethically and deserving of your trust. Examine the work of the Environmental Defense Fund or that Natural Resources Defense Council. These organizations, which file lawsuits all the time, helped introduce environmentalism to the United States and continue to defend it every day. That doesn’t mean they always win. They don’t. But they fight the good fight the right way. (Note that Fred Krupp, founder and still head of the EDF, endorsed my book, as did David Yarnold, CEO of the National Audubon Society, another upstanding environmental and conservation group. These environmental activists understand that they can’t uphold the rule of law only when it’s convenient.)