Significant Victory for Ecuadorians in Oil Pollution Case Against Chevron
Indigenous and farmer communities in Ecuador scored a major victory over Chevron yesterday when an Ontario appeals court ruled they have the right to pursue enforcement of a $9.5 billion Ecuadorian court judgment against Chevron's assets in Canada.
The court also ordered Chevron's two Canadian subsidiaries to pay $100,000 in costs to the Ecuadorians.
"After all these years, the Ecuadorian plaintiffs deserve to have the recognition and enforcement of the Ecuadorian judgment heard in an appropriate jurisdiction," said the decision issued by a three-judge panel of the Court of Appeal of Ontario. "At this juncture, Ontario is that jurisdiction."
The decision was lauded by the leaders of the Ecuadorian communities and their lawyers.
"This order will allow us the opportunity to hold Chevron accountable for fleeing the scene of its environmental crimes in Ecuador after a valid judgment was entered against it," said Pablo Fajardo, the lead Ecuadorian lawyer for the villagers.
Humberto Piaguaje, a Secoya indigenous leader who is the director of the Assembly of Affected Communities, said: "This decision is momentous. It proves Chevron cannot hide behind legal technicalities to avoid justice."
Members of roughly 80 indigenous and farmer communities in Ecuador's northern Amazon region, the villagers won their judgment in 2011 after a hotly-contested eight-year trial that Chevron insisted take place in the South American nation. But Chevron has refused to pay the judgment and has stripped most of its assets from Ecuador to avoid collection, forcing the villagers to file lawsuits to satisfy the judgment in places where Chevron has assets.
The Ecuadorians have launched such proceedings in Brazil and Argentina as well as Canada.
Just last month, Ecuador's Supreme Court affirmed the finding of liability against Chevron but cut the damages amount roughly in half, to $9.5 billion. By contrast, BP's liability for the relatively smaller Gulf of Mexico spill is approaching $40 billion.
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The Canadian appellate panel took wry note of Chevron's long history of forum shopping, citing the company's earlier promise to U.S. courts to abide by any adverse judgment in Ecuador as a condition of the case being moved there in 2001. The Ontario court also took a veiled swipe at U.S. federal judge Lewis A. Kaplan for trying to issue an injunction purporting to block the Ecuador judgment. A U.S. appeals court unanimously reversed Kaplan just last year.
"The picture from the above history is an obvious one," the panel wrote. "For 20 years, Chevron has contested the legal proceedings of every court involved in this litigation—in the U.S., Ecuador and Canada. Chevron even sought, and briefly obtained, a global injunction against enforcement of the Ecuador judgment.
"In these circumstances, the Ecuadorian plaintiffs should have an opportunity to attempt to enforce the Ecuadorian judgment in a court where Chevron will have to respond on the merits," the panel ruled.
The panel ruled that jurisdiction over Chevron in Canada "properly opens the door to this hugely significant decision of Ecuador's highest court possibly being recognized and enforced in a jurisdiction, Ontario, where enforcement may be significant to the parties."
The latest decision represents a stunning reversal of fortune for the oil giant, which just finished a six-week trial in New York before Judge Kaplan where it alleged the Ecuadorian plaintiffs and their lawyers had obtained the Ecuador judgment by fraud. The Ecuadorians assert that Chevron is using the fraud allegations to distract attention from its environmental crimes and growing liability in Ecuador. Counterclaims have been filed against Chevron in the New York case.
Chevron's subsidiaries have an estimated $15 billion of assets in Canada, more than enough to pay for the entire Ecuador judgment which just last month was unanimously affirmed by Ecuador's Supreme Court. The villagers hope to use any funds collected to clean-up the billions of gallons of toxic waste Chevron was found to have dumped in their ancestral lands from 1964 to 1992, when the company operated almost 400 well sites under the Texaco brand.
The decision technically reverses a trial court decision that imposed a stay after finding that the villagers could establish jurisdiction over Chevron, but could not target the assets of Chevron because they were held by wholly-owned subsidiaries. The panel did not make a final ruling on whether the Ecuadorians could seize the assets of subsidiaries to satisfy a judgment against the parent company, saying that issue would have to be decided during the enforcement action.
"The appellate decision represents a significant step forward in the two-decade battle by Ecuadorians for justice against one of the world's most profitable corporations," said Anton Tabuns, a Canadian lawyer who represents the villagers.
"We look forward to moving into the merits of recognizing the legitimate judgment from Ecuador in Canada," he said. "Chevron's two-decade history of forum shopping and obstructionism must end now."
Chevron is expected to appeal the ruling to Canada's Supreme Court, but it is unclear whether that appeal—even if accepted—will stay the enforcement proceeding. Under Canadian law, enforcement proceedings are heard by a judge and not a jury.
The trial court decision in Ecuador, which came down in 2011, was based almost entirely on Chevron's own scientific evidence documenting the company's substandard practices. In addition to dumping billions of gallons of toxic waste water into the environment, the company abandoned more than 900 open-air toxic waste pits gouged out of the jungle floor. Rates of cancer in the area where Chevron operated have skyrocketed, according to evidence before the Ecuador court.
In Canada, each party had been given three hours to make their case during oral argument in October, underscoring the significance of the matter to Canadian courts—in the U.S., appellate arguments are often limited to ten minutes.
The latest decision also underscores that the separate fraud action in New York federal court initiated by Chevron will not impact foreign enforcement actions, which take place in accordance with each country's laws where the actions are filed. In the New York case, Judge Kaplan has come under criticism for his displays of bias against the Ecuadorians.
Kaplan, who presided over the case from the bench after Chevron dropped damages claims to avoid a jury, also has no authority to block the Ecuador judgment from being enforced in other countries, according to prior decision of New York's federal appellate court.
Enforcement actions from the Ecuadorians have become a major disruptive influence on the oil giant's operations outside the U.S, which collectively account for approximately 75 percent of the oil giant's annual revenue. In Argentina, a trial court froze part of the revenue stream of a Chevron subsidiary pending a judgment recognition ruling. Though the ruling was lifted, recognition actions against the company both there and in Brazil are ongoing.
In Canada, Chevron subsidiaries can produce anywhere between $2 billion and $4 billion annually in dividends for the parent company, according to estimated by the plaintiffs.
Chevron also has been forced to hire major law firms in Venezuela and Colombia in anticipation of enforcement actions being filed in those countries, according to sources. A Chevron comptroller, Rex Mitchell, recently testified under oath in the New York case that the enforcement actions would cause "irreparable harm" to the company's global operations.
The Ontario judges who signed the order are James C. MacPherson, Eileen E. Gillese and C. William Hourigan.
Visit EcoWatch’s ENERGY page for more related news on this topic.
By Deborah Moore, Michael Simon and Darryl Knudsen
There's some good news amidst the grim global pandemic: At long last, the world's largest dam removal is finally happening.
A young activist for a free-flowing Salween River. A team of campaigners and lawyers from EarthRights International joined Indigenous Karen communities on the Salween in 2018 to celebrate the International Day of Actions for Rivers on March 14. This year, EarthRights joined communities living in the Eu-Wae-Tta internally displaced persons camp for a celebration in solidarity with those impacted by dam projects on the Salween River. EarthRights International<p>The dam removal project is a sign of the decline of the hydropower industry, whose fortunes have fallen as the <a href="https://www.bbc.com/news/science-environment-46098118" target="_blank" rel="noopener noreferrer">troubling</a> cost-benefit ratio of dams has become clear over the years. The rise of more cost-effective and sustainable energy sources (including wind and solar) has hastened this shift. This is exactly the type of progress envisioned by the <a href="https://www.yumpu.com/en/document/read/17023836/dams-and-development-a-new-framework-for-decision" target="_blank" rel="noopener noreferrer">World Commission on Dams</a> (WCD), a global multi-stakeholder body that was established by the World Bank and International Union for Conservation of Nature in 1998 to investigate the effectiveness and performance of large dams around the world. The WCD released a damning landmark <a href="https://www.un.org/press/en/2000/20001117.dam.pressconferencepm.doc.html" target="_blank" rel="noopener noreferrer">report</a> in November 2000 on the enormous financial, environmental and human costs and the dismal performance of large dams. The commission spent <a href="https://www.un.org/press/en/2000/20001117.dam.pressconferencepm.doc.html" target="_blank" rel="noopener noreferrer">two years</a> analyzing the outcome of the trillions of dollars invested in dams, reviewing dozens of case studies and testimonies from over a thousand communities and individuals, before producing the report.</p><p>But despite this progress, we cannot take hydropower's decline as inevitable. As governments around the world plan for a post-pandemic recovery, hydropower companies sense an opportunity. The industry is eager to recast itself as climate-friendly (<a href="https://www.ecowatch.com/how-green-is-hydropower-1919539525.html" target="_self">it's not</a>) and <a href="https://www.hydropower.org/covid-19" target="_blank">secure</a> precious stimulus funds to revive its dying industry — at the expense of people, the environment and a truly just, green recovery.</p>
Hydropower’s Troubling Record<p>The world's largest hydropower dam removal project on the Klamath River is a significant win for tribal communities. But while the Yurok and Karuk tribes <a href="https://www.karuk.us/images/docs/press/bring_salmon_home.php" target="_blank">suffered</a> terribly from the decline of the Klamath's fisheries, they were by no means alone in that experience. The environmental catastrophe that occurred along the Klamath River has been replicated all over the world since the global boom in hydropower construction <a href="https://www.nationalgeographic.com/environment/article/hydropower" target="_blank">began</a> early in the 20th century.</p><p>The rush to dam rivers has had huge consequences. After decades of rampant construction, only <a href="https://www.nationalgeographic.com/environment/2019/05/worlds-free-flowing-rivers-mapped-hydropower/" target="_blank">37 percent of the world's rivers remain free-flowing</a>, according to <a href="https://www.nature.com/articles/s41586-019-1111-9" target="_blank" rel="noopener noreferrer">one study</a>. River fragmentation has <a href="https://academic.oup.com/bioscience/article/70/4/330/5732594" target="_blank" rel="noopener noreferrer">decimated freshwater habitats and fish stocks</a>, threatening food security for millions of the world's most vulnerable people, and hastening the <a href="https://www.forbes.com/sites/jeffopperman/2020/10/13/freshwater-wildlife-continues-to-decline-but-new-energy-trendlines-suggest-we-can-bend-that-curve/?sh=f9d175a61ee4" target="_blank" rel="noopener noreferrer">decline of other myriad freshwater species</a>, including mammals, birds and reptiles.</p><p>The communities that experienced the most harm from dams — whether in Asia, Latin America or Africa — often lacked political power and access. But that didn't stop grassroots movements from organizing and growing to fight for their rights and livelihoods. The people affected by dams began raising their voices, sharing their experiences and forging alliances across borders. By the 1990s, the public <a href="https://tinyurl.com/y55lnlst" target="_blank" rel="noopener noreferrer">outcry</a> against large dams had grown so loud that it finally led to the establishment of the WCD.</p><p>What the WCD found was stunning. While large dam projects had brought some economic benefits, they had also <a href="https://www.irn.org/wcd/" target="_blank" rel="noopener noreferrer">forcibly displaced an estimated 40 to 80 million people in the 20th century alone</a>. To put that number into perspective, it is more than the current population of present-day <a href="https://data.worldbank.org/indicator/SP.POP.TOTL?locations=FR" target="_blank" rel="noopener noreferrer">France</a> or the <a href="https://data.worldbank.org/indicator/SP.POP.TOTL?locations=GB" target="_blank" rel="noopener noreferrer">United Kingdom</a>. These people lost their lands and homes to dams, and often with no compensation.</p><p>Subsequent research has compounded that finding. A paper published in <a href="https://tinyurl.com/c7uznz" target="_blank" rel="noopener noreferrer">Water Alternatives</a> revealed that globally, more than <a href="https://tinyurl.com/yxw8x7ab" target="_blank" rel="noopener noreferrer">470 million people living downstream from large dams</a> have faced significant impacts to their lives and livelihoods — much of it due to disruptions in water supply, which in turn harm the complex web of life that depends on healthy, free-flowing rivers. The WCD's findings, released in 2000, <a href="https://www.irn.org/wcd/" target="_blank" rel="noopener noreferrer">identified</a> the importance of restoring rivers, compensating communities for their losses, and finding better energy alternatives to save rivers and ecosystems.</p>
Facing a New Crisis<p>Twenty years after the WCD uncovered a crisis along the world's rivers and recommended a new development path — one that advances community-driven development and protects freshwater resources — we find ourselves in the midst of another crisis. The global pandemic has hit us hard, with surging loss of life, unemployment and instability.</p><p>But as governments work to rebuild economies and create job opportunities in the coming years, we have a choice: Double down on the failed, outdated technologies that have harmed so many, or change course and use this transformative moment to rebuild our natural systems and uplift communities.</p><p>There are many reasons to fight for a green recovery. The climate is changing even <a href="https://www.nature.com/articles/d41586-018-07586-5" target="_blank" rel="noopener noreferrer">faster</a> than expected, and some dams — especially those with reservoirs in hot climates — <a href="https://tinyurl.com/w6w29t8" target="_blank" rel="noopener noreferrer">have been found to emit more greenhouse gases than a fossil fuel power plant</a>. Other estimates have put global reservoirs' human-made greenhouse gas emissions each year on par with <a href="https://www.climatecentral.org/news/greenhouse-gases-reservoirs-fuel-climate-change-20745" target="_blank" rel="noopener noreferrer">Canada's</a> total emissions.</p><p>Meanwhile, we now understand that healthy rivers and freshwater ecosystems play a <a href="https://www.environment.gov.au/system/files/resources/b55b1fe4-7d09-47af-96c4-6cbb5f106d4f/files/wetlands-role-carbon-cycle.pdf" target="_blank" rel="noopener noreferrer">critical role in regulating and storing carbon</a>. And at a time when <a href="https://www.un.org/sustainabledevelopment/blog/2019/05/nature-decline-unprecedented-report/" target="_blank" rel="noopener noreferrer">biodiversity loss is soaring</a>, anything we can do to <a href="https://academic.oup.com/bioscience/article/70/4/330/5732594" target="_blank" rel="noopener noreferrer">restore habitat is key</a>. But with <a href="https://www.researchgate.net/publication/271996520_A_Global_Boom_in_Hydropower_dam_Construction" target="_blank" rel="noopener noreferrer">more than 3,700 major dams proposed or under construction</a> in the world (primarily in the Global South, with over <a href="https://news.mongabay.com/2020/08/more-than-500-dams-planned-inside-protected-areas-study/" target="_blank" rel="noopener noreferrer">500 of these in protected areas</a>), according to a 2014 report — and the hydropower industry <a href="https://www.hydropower.org/covid-19" target="_blank" rel="noopener noreferrer">jockeying</a> for scarce stimulus dollars — we must act urgently.</p>
Signs of Hope<img lazy-loadable="true" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yNTcxMzUyMS9vcmlnaW4ucG5nIiwiZXhwaXJlc19hdCI6MTYxOTcyNTc3OX0.EbqBVPs2kjhrY5AqnZXOb_GX-s6pw4qyJmmeISzKA6U/img.png?width=980" id="a81d0" class="rm-shortcode" data-rm-shortcode-id="87bc79d69f72e9334a78da8e0355e6ae" data-rm-shortcode-name="rebelmouse-image" data-width="1620" data-height="1068" />
Fish catch at the Siphandone on the Mekong River, prior to the completion of the Don Sahong Dam. Pai Deetes / International Rivers<p>So what would a strong, resilient and equitable recovery look like in the 21st century? Let's consider one example in Southeast Asia.</p><p>Running through six countries, the Mekong River is the world's 12th-longest river, which is home to one of the world's most biodiverse regions, and includes the world's <a href="https://www.worldwildlife.org/places/greater-mekong#" target="_blank" rel="noopener noreferrer">largest</a> inland fishery. Around <a href="https://tinyurl.com/y6jrarjo" target="_blank" rel="noopener noreferrer">80 percent of the nearly 65 million people</a> who live in the Lower Mekong River Basin depend on the river for their livelihoods, according to the Mekong River Commission. In 1994, Thailand built the Pak Mun Dam on a Mekong tributary. <a href="https://tinyurl.com/y5ekfp4h" target="_blank" rel="noopener noreferrer">Six years later</a>, the <a href="https://tinyurl.com/yxcvs6up" target="_blank" rel="noopener noreferrer">WCD studied the dam's performance</a> and submitted its conclusions and recommendations as part of its final report in 2000. According to the WCD report, the Pak Mun Dam did not deliver the peaking energy service it was designed for, and it <a href="https://tinyurl.com/y38p3jaw" target="_blank" rel="noopener noreferrer">physically blocked a critical migration route</a> for a range of fish species that migrated annually to breeding grounds upstream in the Mun River Basin. Cut off from their customary habitat, fish stocks plummeted, and so did the livelihoods of the local people.</p><p>Neighboring Laos, instead of learning from this debacle, followed in Thailand's footsteps, <a href="https://tinyurl.com/y4eaxcq2" target="_blank" rel="noopener noreferrer">constructing two dams on the river's mainstem</a>, Xayaburi Dam, commissioned in 2019, and Don Sahong Dam, commissioned in 2020. But then a sign of hope appeared. In early 2020, just as the pandemic began to spread across the world, the <a href="https://www.theguardian.com/world/2020/mar/20/cambodia-scraps-plans-for-mekong-hydropower-dams" target="_blank" rel="noopener noreferrer">Cambodian government reconsidered its plans to build more dams on the Mekong</a>. The science was indisputable: A government-commissioned report showed that further dams would <a href="https://www.theguardian.com/environment/2018/may/16/leaked-report-warns-cambodias-biggest-dam-could-literally-kill-mekong-river" target="_blank" rel="noopener noreferrer">reduce the river's wild fisheries, threaten critically endangered Irrawaddy dolphins</a> and <a href="https://agupubs.onlinelibrary.wiley.com/doi/full/10.1002/2013WR014651" target="_blank" rel="noopener noreferrer">block nutrient-rich sediment from the delta's fertile agricultural lands</a>.</p><p><a href="https://data.opendevelopmentmekong.net/dataset/4f1bb5fd-a564-4d37-878b-c288af460143/resource/5f6fe360-7a68-480d-9ba4-12d7b8b805c9/download/volume-3_solar-alternative-to-sambor-dam.pdf" target="_blank" rel="noopener noreferrer">Studies</a> show that Cambodia didn't need to seek billions of dollars in loans to build more hydropower; instead, it could pursue more cost-effective solar and wind projects that would deliver needed electricity at a fraction of the cost — and <a href="https://www.worldwildlife.org/press-releases/wwf-statement-on-cambodian-government-s-decision-to-suspend-hydropower-dam-development-on-the-mekong-river" target="_blank">without the ecological disasters to fisheries and the verdant Mekong delta</a>. And, in a stunning reversal, Cambodia listened to the science — and to the people — and <a href="https://www.theguardian.com/world/2020/mar/20/cambodia-scraps-plans-for-mekong-hydropower-dams" target="_blank">announced</a> a 10-year moratorium on mainstream dams. Cambodia is now <a href="https://www.voanews.com/east-asia-pacific/cambodia-halts-hydropower-construction-mekong-river-until-2030" target="_blank">reconsidering</a> its energy mix, recognizing that mainstream hydropower dams are too costly and undermine the economic and cultural values of its flagship river.</p>
Toward a Green Recovery<img lazy-loadable="true" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yNTcxMzUwOS9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTY1MTMwMjk0M30.0LZCOEVzgtgjm2_7CwcbFfuZlrtUr80DiRYxqKGaKIg/img.jpg?width=980" id="87fe9" class="rm-shortcode" data-rm-shortcode-id="e6b9bfeb013516f6ad5033bb9e03c5ec" data-rm-shortcode-name="rebelmouse-image" data-width="2100" data-height="3086" />
Klamath River Rapids. Tupper Ansel Blake / U.S. Fish and Wildlife Service<p>Increasingly, governments, civil servants and the public at large are rethinking how we produce energy and are seeking to preserve and restore precious freshwater resources. Dam removals are increasing exponentially across <a href="https://www.americanrivers.org/wp-content/uploads/2020/02/DamsRemoved_1999-2019.pdf" target="_blank">North America</a> and <a href="https://damremoval.eu/wp-content/uploads/2019/03/DRE-policy-Report-2018-digitaal-010319.pdf" target="_blank">Europe</a>, and movements advancing <a href="https://www.rightsofrivers.org/" target="_blank">permanent river protection are growing across Latin America, Asia and Africa</a>.</p><p>We must use the COVID-19 crisis to accelerate the trend. Rather than relying on old destructive technologies and industry claims of newfound "<a href="https://www.hydrosustainability.org/news/2020/11/12/consultation-on-a-groundbreaking-global-sustainability-standard-for-hydropower" target="_blank">sustainable hydropower</a>," the world requires a new paradigm for an economic recovery that is rooted both in climate and economic justice as well as river stewardship. Since December 2020, hundreds of groups and individuals from more than 80 countries have joined the <a href="https://www.rivers4recovery.org/" target="_blank" rel="noopener noreferrer">Rivers4Recovery</a> call for a better way forward for rivers and natural places. This paradigm will protect our rivers as critical lifelines — supporting fisheries, biodiversity, water supply, food production, Indigenous peoples and diverse populations around the world — rather than damming and polluting them.</p><p>The promise of the Klamath dam removals is one of restoration — a move that finally recognizes the immense value of free-flowing rivers and the key role they play in <a href="https://f.hubspotusercontent20.net/hubfs/4783129/LPR/PDFs/Living_Planet_Report_Freshwater_Deepdive.pdf" target="_blank" rel="noopener noreferrer">nourishing both the world's biodiversity and hundreds of millions of people</a>. Healthy rivers — connected to watershed forests, floodplains, wetlands and deltas — are key partners in building resilience in the face of an accelerating climate crisis. But if we allow the hydropower industry to succeed in its <a href="https://www.world-energy.org/article/12361.html" target="_blank" rel="noopener noreferrer">cynical grab for stimulus funds</a>, we'll only perpetuate the 20th century's legacy of suffering and environmental degradation.</p><p>We must put our money where our values are. Twenty years ago, the WCD pointed the way forward to a model of development that takes humans, wildlife and the environment into account, and in 2020, we saw that vision flower along the Klamath River. It's time to bring that promise of healing and restoration to more of the world's rivers.</p><p><em>Deborah Moore is a former commissioner of the <a href="https://www.water-alternatives.org/index.php/alldoc/articles/vol3/v3issue2/79-a3-2-2/file" target="_blank" rel="noopener noreferrer" style="">World Commission on Dams</a>. Michael Simon was a member of the <a href="https://www.hydrosustainability.org/assessment-protocol" target="_blank" rel="noopener noreferrer" style="">Hydropower Sustainability Assessment Forum</a>. Darryl Knudsen is the executive director of <a href="https://www.internationalrivers.org" target="_blank" rel="noopener noreferrer" style="">International Rivers</a>.</em></p><p><em>This article first appeared on <a href="https://truthout.org/articles/damming-rivers-is-terrible-for-human-rights-ecosystems-and-food-security/" target="_blank" rel="noopener noreferrer">Truthout</a> and was produced in partnership with <a href="https://independentmediainstitute.org/earth-food-life/" target="_blank" rel="noopener noreferrer">Earth | Food | Life</a>, a project of the Independent Media Institute.</em></p>
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