Chevron and Ecuador: 2 books and a smear campaign

Courtesy: Rosetta Books; Crown

Two good, new books are now shedding light on the controversial environmental lawsuit filed in Lago Agrio, Ecuador, in 2003, which culminated in a $18.2 billion judgment against Chevron (CVX) in February 2011, later reduced to $9.5 billion. But Steven Donziger, the plaintiffs lead U.S. lawyer, is alleging that one of the books defames him, and appears to be leading a smear campaign against its author.

The suit stems from contamination allegedly left behind by Texaco (acquired by Chevron in 2001) when it drilled for oil in the Amazon rainforest of eastern Ecuador from 1964 to 1992. Many environmentalists and human-rights advocates regard the case as a historic victory for third-world peoples.

It’s also the case, however, in which a Manhattan federal judge concluded last March, in a 485–page, 1842-footnote ruling, that Donziger achieved the historic judgment through bribery, fraud, obstruction of justice, witness tampering, and other crimes. The jurist, U.S. District Judge Lewis Kaplan, barred any American court from enforcing the Ecuadorian judgment, and barred Donziger from personally benefiting from it, even if some non-U.S. court ever does enforce it. Donziger denies wrongdoing and has appealed. (Chevron has virtually no assets in Ecuador, so the judgment is worthless unless the plaintiffs can persuade a court to honor it in a country where Chevron does have assets.)

Paul M. Barrett’s book, The Law of the Jungle: The $19 Billion Legal Battle Over Oil in the Rain Forest and the Lawyer Who’d Stop at Nothing to Win It (Crown Publishers, 304 pages, $26), is due for release on September 23, while Michael Goldhaber’s Kindle Single ebook, Crude Awakening: Chevron in Ecuador (RosettaBooks, 27,000 words, $2.99), came out last month.

Both authors are highly experienced, well-credentialed journalists. Barrett, an assistant managing editor and senior writer for Bloomberg BusinessWeek, graduated from Harvard College and Harvard Law School, while Goldhaber, the “The Global Lawyer” columnist for The American Lawyer, has degrees from Harvard College, Columbia Journalism School, and Yale Law School. The Law of the Jungle is Barrett’s fourth book (his last one, Glock: The Rise of America’s Gun, became a New York Times bestseller), while Crude Awakening is Goldhaber’s second, after A People’s History of the European Court of Human Rights.

The books are complementary, rather than redundant, because the authors have different aspirations. Barrett has written an accessible, fast-paced read for the generalist, providing both an overview of the whole environmental dispute and vivid portrait of Donziger, the larger-than-life enigma at the center of the litigation. Goldhaber’s more specialized work is aimed at lawyers and others in the field, focusing on the detective work that enabled Chevron to unearth Donziger’s alleged crimes, on the baroque intricacy of the alleged wrongdoing, and on broad legal questions presented by global human rights litigation generally. Goldhaber is a less mellifluous writer than Barrett, so his book will be a tougher read, even for lawyers. Still, in litigation, the devil is in the details, and Goldhaber presents more of those appalling details.

Both authors attended much of Chevron’s civil racketeering trial against Donziger in Manhattan last fall, and both appear to conclude that Donziger was guilty of almost all of the wrongdoing Chevron alleged. (For a summary of the key accusations, see my companion piece, “Where’s Preet?” also being published today.) At the same time, both authors—like Judge Kaplan himself, as he acknowledged in his ruling—remain troubled about the unresolved merits of the underlying dispute, i.e., the question of whether Texaco behaved improperly in Ecuador and whether Chevron, as a consequence, still owes recompense, notwithstanding Texaco’s prior environmental settlement with the Ecuadorian government in 1998. Goldhaber even pledges to donate his book royalties to “the indigenous peoples of Ecuador,” and closes his book by calling upon Chevron, “without honoring its corrupt adversaries or their false narratives, to make a similar gesture of good will for all residents of the region.”

Barrett wrote a very sympathetic cover story about Donziger for BusinessWeek in March 2011—one that Donziger’s public relations person, Karen Hinton, was so pleased with at the time that she distributed it to all the reporters covering the case. Barrett’s views have evolved since then, however, and the portrait of Donziger here is less forgiving. The book culminates in an exceedingly telling incident that plays out between Barrett and Donziger in a bistro near Donziger’s Upper West Side apartment late last year. To preserve suspense, I won’t give that one away.

Despite the focus on Donziger, Barrett also provides a valuable and, for the most part, scrupulously even-handed account of the context of the underlying case. He begins, for instance, with the memories of a Cofán Indian leader, whose life was turned upside down shortly after Texaco’s helicopters first began hovering over his homeland in 1964. “Before long, a multicolored sheen appeared on the surface of the streams where the Cofán fished and bathed and gathered drinking water,” Barrett writes. “Cofán children began to suffer from unfamiliar stomach ailments that neither the shaman’s roots, nor the missionaries’ medicine, could cure.” Later, two of the leader’s children died from diseases that the man believes were caused by oil contamination.

At the same time, Barrett suggests that the Republic of Ecuador shares plenty of responsibility for everything that happened, having invited Texaco into the country; having ignored the environmental problems as they were occurring; having been the majority partner in the drilling venture from 1977 onwards; and having, when taxes are taken into account, extracted 93 percent of the profits from the joint venture during its years of operation. Ecuador’s state-owned oil company, Petroecuador, also continued drilling in the region after Texaco pulled out 22 years ago, compiling an even worse environmental record than its former joint-venture partner, Barrett suggests, and complicating efforts to separate out Texaco’s responsibility today.

While Barrett does provide a basically fair overview, my subjective opinion is that he is sometimes too uncritical in permiting Donziger, when attacking Chevron, to gin up mountains out of molehills and to level unsubstantiated accusations. This enables Barrett to conclude that “both sides were doing business of one sort or another with the devil.”

But if Barrett does sometimes give Donziger’s bare accusations too much credence, it’s unlikely he will make the same mistake again in the future, because Donziger is now dishing out unsubstantiated smears at Barrett himself in an effort to dissuade people from reading or crediting his book.

In fact, both Goldhaber and Barrett deserve commendation for ever having enlisted for the project of writing about this case. It had to have been clear from the outset that anyone who did so conscientiously—a task that would necessarily include discussing the overwhelming evidence of Donziger’s use of mendacity and intimidation to achieve his goals—would end up being tarred with baseless attacks on their integrity emanating from Donziger’s camp. (A Google search of my own name—for I, too, have been writing about this case for the past four years—usually turns up at least two of these retaliatory, search-optimized, diatribes.)

Though Donziger’s team is also taking Goldhaber to task, it is Barrett who is getting pelted with most of the mud at the moment, doubtless because Donziger’s people recognize that his book, aimed at the general reader, stands the greater chance of scoring wide impact.

The attacks on Barrett began on July 31 with an 1650-word, unsigned broadside on The Chevron Pit, a web site that has, in the past at least, been controlled by Donziger and his public relations person, Karen Hinton, according to testimony and emails that emerged during the civil racketeering litigation. Hinton says she no longer works on that site, and it’s difficult to say authoritatively who controls it now since most of its posts are signed only “Admin.” and it identifies its staff only as “the team working to hold oil giant Chevron accountable for its human rights and environmental abuses in Ecuador.” (I’m not linking here to the Chevron Pit post attacking Barrett—or those attacking me, for that matter—in part because I think they’re defamatory, but also because Google takes such links into account in determining the prominence to give such blogposts in search results. Why Google still allows its results to be so easily manipulated by malevolent, anonymous smear campaigns is a topic for another day.)

In any case, the initial Chevron Pit assault was followed by an unsigned, 1200-word “critique” that Hinton emailed to reporters on September 3.

The broadsides claim that Barrett’s book is “riddled” or “replete” with “errors,” but neither gives specific, verifiable examples. Each accuses Barrett of suffering from “conflicts of interest,” but the specifics are vapid to the point of unintelligibility. The first alleged “blatant conflict” is that Barrett wrote the book while also continuing to write for Bloomberg BusinessWeek, an arrangement that his employer and publisher both knew about and approved of, and one that is obviously both benign and routine.

The second alleged conflict is that Barrett accepted the invitation of a U.S. House Foreign Affairs subcommittee to testify about the case last July. The calumniators speculate that Chevron arranged for the hearing to take place (which a spokesperson for Chevron denies), and then further speculate that Chevron arranged for Barrett to be called as a witness (which Chevron and Barrett both deny). A Chevron spokesman told me he was surprised—and chagrined—to discover that Barrett was testifying, since Barrett’s book suggests that Texaco behaved improperly in Ecuador, a proposition that is obviously inimical to Chevron’s core legal position. In an email Barrett tells me that he knows how the invitation came about: “A Latin American journalist I know has friends who work on the subcommittee staff. He told them about my book. When their hearing came up, they called me to ask if I would testify. That’s it.”

Next, and more seriously, the attacks accuse Barrett of bias—specifically, of having told unidentified people that he “planned to use his book to ‘take down’ Donziger.” In an email to me, Barrett says, “This is a lie. I never said this.”

Asked when, where, and to whom Barrett made these “explicit threats,” as the Pit post calls them, Hinton said that she was “not involved in writing” either the Chevron Pit post or the “critique” that she blast-emailed to reporters. She said she would forward my inquiries to Donziger.

In an emailed statement, Donziger said, first of all, that I should not be writing a review of the Barrett or Goldhaber books at all, because I, too, have a “conflict of interest,” in that he does not deem my coverage of the case to have been “balanced.” As for Barrett’s alleged “threat,” he says it was made to “a person on our legal team,” but “I am not going to provide more details at this point for various litigation-related reasons.” Donziger added that he had written a detailed letter to Barrett, his agent, and his publisher “outlining some of the defamatory statements in the book” which, he claims, “create exposure for Barrett and the publisher,” though he did not indicate which statements those were. (Matthew Martin, senior vice president and associate general counsel for Penguin Random House—Crown’s parent—said, “While we generally refrain from commenting on pending legal claims or litigation, I can tell you that Law of the Jungle was carefully and diligently researched over many years and we stand fully behind Paul Barrett’s reporting.” )

The Chevron Pit post also asserts that Barrett “never interviewed a single member of the legal team for the villagers,” and both broadsides fault Barrett for giving too little attention to the team’s key Ecuadorian leaders, Pablo Fajardo and Luis Yanza. The assertions are both inaccurate and highly misleading. As Barrett explains in the book itself, “Steve Donziger spoke to me at length for the initial [BusinessWeek] magazine profile [in March 2011] and in the months thereafter. When my attention turned to this book, however, he cut off communication and discouraged certain other people from cooperating.” In an interview with me, Barrett specifies that he had actually already booked interviews with Fajardo and Yanza, among others, and was at the Miami airport waiting for his flight to depart, when Donziger intervened and saw to it that those were cancelled.

Donziger admitted to me that he stopped speaking to Barrett—citing both qualms with Barrett’s reporting and legal advice from his attorney. He also admitted having “shared [his] thoughts” about speaking to Barrett with “members of his local team, including Fajardo and Yanza,” but said that they “decided independently to not cooperate with Barrett. . . . These sentient beings make their own decisions about their lives, including whether to conduct interviews with reporters like Barrett.”

But whatever their reasons for not talking to Barrett, there is no dispute that it was their decision—not Barrett’s. The calumniators are implying that Barrett failed to reach out to these people for their perspectives when in fact, as they well know, Barrett reached out, but the people in question refused to speak to him. That’s absurdly misleading.

Finally, the Chevron Pit blog poster asserts that he or she knows of “multiple reports” that “Chevron is quietly helping to promote” Barrett’s book. The post doesn’t link to any of those “reports,” though, and, for the reasons mentioned above, the allegation seems preposterous on its face. Barrett’s book is very sympathetic to the plight of the people Donziger represents, critical of Texaco and Chevron, and quite harsh—sometimes unduly so, in my view—toward Chevron’s counsel at Gibson, Dunn & Crutcher. It likens Gibson Dunn at one point, for instance, to “a ‘cleaner,’” that is, “an underworld specialist in the art of tidying up bloody crime scenes.”

When I asked for more specifics about the alleged “reports” that Chevron was promoting Barrett’s book, Donziger provided none, except to claim that they emanated from somewhere in Ecuador. He then repeated the calumniators’ rank speculation that Chevron engineered Barrett’s testimony before the House committee.

The mendacity and intimidation evinced in these reckless attacks on Barrett are of a piece with the conduct that Judge Kaplan found to have marred so many key aspects of Donziger’s case against Chevron in Ecuador. Again and again, Donziger has undermined a plausible legal case with needless, transparent, and despicable lies.

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