Crude
One of the movies I watched was the
documentary Crude about an on gong case
in Ecuador against Chevron-Texaco for oil contamination. Clearly this documentary is highly polemic
and was presented and edited so as to leave complete agreement with the
Plaintiff the only possible reaction for the viewer to have. But as I watched the film I became more
sympathetic to Chevron as I began to see problems both with the overall
position and strategy and tactics of the environmentalist lawyers and specific
acts things they did to 'seek justice'. To
understand an issue you need to be able to see it from both sides. Therefore, I wish to kritik [sic] the
plaintiffs in this case.
The first thing to note is that
while plaintiff's counsel truly believed in the cause, the funding law firm,
without who's help the lawsuit would not have happened, saw the case as nothing
more than a high risk, high yield, long term investment. Environmental lawsuits, as with class action
suits in general, promise a huge profit to plaintiff's counsel and financiers if
won. Funding environmental lawsuits is
big business. Even if those directly involved
are, as many are, true believers in the cause the expected monetary gains from
victory are huge and will affect the case.
In fact, the true believers are probably a
bigger problem than the profiteers. The
profiteers are interested in a case by looking at its individual merits and
coldly calculating profit. They might be
willing to fund one case where the harms and case is clear but not pursue any
that were murkier. As a result of their
ideology and personal self image true believers want and need perpetual
lawsuits and will use winnings or settlement money from one case to finance
their next case. They become a predatory
state in the same sense of the Mongols under Genghis Khan, seeking perpetual
conflict to prevent their own collapse.
If they stop suing, their purpose and funding collapse and they will not
be able to make the difference in the world they want. A decrease in the overall number and severity
of environmental lawsuits has no necessary correlation to the number of
lawsuits and amount of damages sought.
The environmentalist activists see
themselves as noble and selfless do-gooders fighting a David and Goliath
struggle to single handedly save the planet from the brink of destruction. The corporations, however, see a band of self
righteous Robin hoods out to plunder them in the name of the little guy. For some environmentalist lawyers their only
career is suing big corporations for environmental violations who use their
plunder when they win to finance more lawsuits.
In the famous Anderson v. Cryovac environmental
contamination case the plaintiffs used a smaller defendant's settlement to
cover the legal fees of ongoing litigation against the richer defendants. The lead lawyer for the plaintiff of the
instant case joined the case right out of law school and this case is his
entire career. They estimate the case
will take another 10 years so job security is good.
What is commonly mistaken for
repugnant corporate greed in fighting these cases may be an attempt to protect
themselves other corporations from the shake down. Because the true believers are so committed
to the cause and have such distrust, hatred and determination to continue
fighting corporations the only way to keep them in check is to slow them down
and expend their resources at every opportunity.
Now before we assume that the
Plaintiffs are interested in legal process and obtaining justice from the law let
us consider how they responded when a judge ordered lab that did all of their
testing inspected. Chevron's own testing comes up clear, as one would
expect. Plaintiff's testing comes up
dirtier than sewage, as one would expect.
When Chevron got a judge to order an official inspection of the lab used
by the plaintiffs they did not react using legal proceeding. As they marched into the office of the judge
who issued the order the American lawyer explained while this would never be
done in the US, sometimes they often have to resort to pressure tactics "because
the corporations are so big and ruthless."
Their arguments to the judge were along the lines of these are bad guys,
they are trying to fool you, etc without good solid or relevant reasoning. When Chevron's council showed up to see the
brow beaten judge vacating his order they tried to protest the environmental
lawyers just shouted over him telling him was a bad guy. Because of their beliefs and world views, the
environmentalists in this case have adopted a self-justifying rational for
disregarding and circumventing legal process.
This is a pattern we see
throughout. Plaintiff's counsel spent
the vast majority of their effort on the case not pursuing the legal
proceedings but trying to gain public support to pressure the other side to
give up. This seems to be very common to
liberal cases celebre and is especially useful when dealing with celebrities,
as was done in this case. The situation
is framed in a way so that it would be morally wrong to disagree with them. Positive peer pressure to accept and negative
peer pressure to reject combined with guilt tripping the very rich and
non-intellectual has been extremely successful.
It should be noted that in 1995,
when Texaco pulled out of the region and handed it over to a state run oil
company, the Ecuadorian Government released them from all "past, present
and future" liability at the end of an extensive cleanup project. Texaco-Chevron maintains that any
contamination problems are from the state oil company after they left. Plaintiffs
argue that the cleanup was fraudulent and eventually got the Government to find
fraud and take criminal action against those involved in the cleanup.
The reason, Plaintiffs argue, is
because oil collection pits were covered over with dirt to hide it without
mitigating the damage. I used to work on
small oil wells and collecting spilled oil in pits and burying them in dirt is
the standard and EPA required practice.
While it may seem obvious, oil is naturally occurring and naturally
belongs under dirt. The contention that
it is now close the surface and can leak out where as naturally it wouldn't is
also false. Oil is everywhere, the key
is finding economically feasible deposits to extract.
Oil naturally seeps to the surface due
to the centrifugal force of the rotation of the earth. Where I was working in
Kentucky the ground below us was fractured rock. 300 feet down we would find an abscess in the
rock and pump it about an hour till the hole was dry. Overnight more oil would seep into the hole
and we would pump for an hour the next day.
Oil belongs under dirt and oil seeping towards the surface is a natural
phenomenon. This area being rich in oil
would seep oil naturally.
I guess what bothers me is that the
Plaintiffs are focused on media propaganda, not on the legal case. Pretty much everything the environmentalists
did (including the documentary) was aimed at provoking popular outrage. Chevron seemed much more interested in the
legal process and did not attempt to manipulate the legal system
improperly. I have no idea what the truth
is. We would expect Chevron to act in
the same way that they are acting now whether the claims are true or not. What gives me pause is that the
environmentalists are acting in a way that is not tied to the truth
either. If their claims were truly legitimist,
they might need to take similar action.
If they are illegitimate, they will probably still be successful because
their tactics do not need truth behind them to win.
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