Chevron’s pursuit of US lawyer Steven Donziger

Donziger is a US environmental and human rights lawyer. For over a decade, he battled oil giant Chevron, which cost that business billions, and ultimately won an oil pollution case on behalf of Amazonian communities whose land and homes had been devastated over a number of decades.

LSJ Online spoke to two environmental lawyers for their perspectives on this case and its broader implications for law and justice.

The roots of Donziger’s predicament go back to the 1970s, when Texaco began drilling for oil in Ecuador. The Ecuador-based Frente de Defensa de la Amazonía (FDA or Amazon Defence Collective) to seek compensation for the pollution and health effects caused by oil drilling in the Lago Agrio oil field. In 1993, following a visit to Ecuador, Donziger and other attorneys brought a class-action lawsuit in New York against Texaco (Aguinda v. Texaco, Inc.) on behalf of over 30,000 farmers and Indigenous people from the Amazon region.

Texaco was, at that time, based primarily in New York. In 2001, Chevron had bought Texaco and argued that Texaco had since cleaned up its area of operations and that its partner, Petroecuador was therefore the sole responsible party for remaining pollution. In 2002, Chevron sought that the case be tried in Ecuador instead of the US and, the US court ruled that Ecuador had jurisdiction and dismissed the case after receiving a promise from Chevron that it would accept the decision of the Ecuadorian courts.

In 2011, a provincial Ecuadorean court found Chevron guilty in 2011 and awarded the plaintiffs $18 billion in damages. The decision was affirmed by Ecuador’s highest court, the National Court of Justice, ultimately reducing the damages to $9.5 billion.

Since winning the case, costing Chevron $US9.5 billion (unpaid to date), Chevron has targeted Donziger in a campaign of expensive, baseless claims of criminal content for refusing to reveal whistleblowers and confidential documents to Chevron.

In 2012, Chevron filed a RICO (Racketeer Influenced and Corrupt Organizations Act) suit (Chevron Corp. v. Donziger) against Donziger in New York City. In 2014, the US District Judge Lewis A. Kaplan found that the ruling of the Ecuadorian court could not be enforced in the US because – as Chevron had alleged – it was procured by fraud, bribery, and racketeering activities.

Consequently, Donziger was disbarred from practising law in New York in 2018. In 2019, when Donziger refused to hand over his mobile phone and digital devices, Kaplan asked federal prosecutors to bring contempt charges, and soon after Kaplan – for the first time in US history – appointed a private team of prosecutors to pursue Donziger.

Chevron’s team consisted of hundreds of lawyers from dozens of firms. They froze Donziger’s bank accounts and put a lien on his apartment. He spent nearly 3 years in home detention in New York as a result of Chevron’s racketeering case against him (including malicious claims that Donziger bribed an Ecuadorian judge).

A dangerous bellwether

In an interview with the Center for Climate Integrity in the US in August 2022, Donziger warned that his predicament was a bellwether for other human rights and environmental lawyers and activists. He said, “I’d like to think the United States is not one of those countries that locks up its human rights lawyers or its environmental justice lawyers. My case proves that at least for now that’s not true anymore. So I think this is a bellwether for the industry, for the legal system, for our society as a whole, for all of us who do this type of advocacy work. Whether you’re a lawyer or a campaigner, or just someone working in your community, doing environmental justice work, this cannot become the new normal, and that’s what the industry wants.”

Director of Johnson Legal, Elaine Johnson is an experienced environment and climate lawyer. She says, “As the world moves away from fossil fuels as part of the energy transition, there is no doubt we are seeing more aggressive approaches by fossil fuel corporations as against environment and human rights lawyers. The claims and cases brought against Steven Donziger by Chevron (formerly Texaco) are an extreme example of what has become commonplace in many jurisdictions. It sets a terrible precedent for the safety of advocates and lawyers working on public interest environmental cases.

“The flow-on effect of this kind of litigation, known as Strategic Litigation Against Public Participation (SLAPPs), has harmful consequences for the administration of justice and a free and fair democracy more broadly. Ultimately, if lawyers don’t feel safe to represent clients, for fear of having their own lives and livelihoods destroyed, the judicial system becomes one that is only accessible to those with economic, political and financial power. That is a very dangerous place for civil society to be in, as it affects access to justice for all.”

Misuse and abuse of legal institutions

Michael Rice is an Australian lawyer based in Brussels, and the Value Chains, Trade & Investment Lead at Client Earth.

He says, “Unfortunately, we are seeing a worrying trend of corporate misuse and abuse of our legal institutions as a strategy to silence criticism and intimidate individuals and organisations from challenging their business interests. Like the Donziger case, this can involve unnecessarily aggressive legal tactics, such as pernicious legal claims and demands for outrageous adverse cost orders, to pursue activists, journalists, civil society organisations and even their donors. Even in Europe, where litigation has not traditionally been used as a weapon to target civil society, the Coalition Against SLAPPs in Europe (CASE) has documented a growing trend of retaliatory litigation against NGOs and journalists.”

On December 13, US representative Jim McGovern called on Biden to pardon Donziger. He was joined by 34 members of Congress, and 68 Nobel laureates had also called for Donziger’s release from detention. Three federal judges in the US have deemed Donziger’s prosecution unconstitutional, yet he remains in detention and facing crippling legal costs to continue to battle Chevron.

Rice says, “The willingness of large companies to misuse litigation as a weapon to attack civil society actors working in service of the public interest raises important questions about the integrity of our legal institutions and their own ability to protect the public interest in preserving the Rule of Law.”

Does Australia need anti-SLAPP laws?

Johnson says, “In Australia, we are starting to see an importation of US-style legal tactics, and this occurs across the Asia Pacific region. The big risk is that public interest advocates and lawyers will begin questioning whether they should act for public interest clients and communities, for fear of retaliation by opponents with deep pockets. Unlike many jurisdictions in the US and Europe, in Australia we don’t have legal protections built into our judicial system to identify and curb such tactics at the outset. There are some anti-SLAPP laws in ACT, but no other Australian jurisdiction has them.”

There’s a range of things the international community is doing to try to ensure protections for public interest litigants and public participation, she explains.

“Internationally, there is a lot of attention on this issue already, with the UN recently publishing a Report of the Special Rapporteur on the independence of judges and lawyers, Margaret Satterthwaite. That report includes guidance for professional bodies and judicial commissions on their role in stopping SLAPPs, and calls for anti-SLAPP laws to be implemented. The Office of the High Commissioner on Human Rights also published a briefer in April 2024 for nation states on how to respond to SLAPPs, which highlights the need for law reform. At the same time, the EU Parliament published an anti-SLAPP Directive requiring EU member states to prepare anti-SLAPP laws.”

Johnson concludes, “As lawyers, our paramount duty is to the court, to ensure the proper administration of justice. That means a duty to call out SLAPPs when we see them.”