The curious case of Steven Donziger: An environmental lawyer who took on big oil and ended up in jail

In 2011, Steven Donziger, an environmental and human rights lawyer, helped indigenous tribal people and peasants from Ecuador win a class action lawsuit against oil monopoly TexacoChevron, who were ordered to pay $18 billion in damages, the largest judgement ever awarded in an environmental lawsuit. 

For some people – environmentalists and activists – he should have been a hero. Instead, Donziger ended up disbarred as a lawyer, charged with criminal conspiracy, put under house arrest for over 900 days, and jailed for 45 days.

The Ecuadorian judgement obtained by Donziger was referred to as "the legal fraud of the century" by The Wall Street Journal in the year 2014. Moreover, numerous federal courts in the US have ruled in favour of Chevron's stance in the lawsuit and Donziger was accused of distortions, falsehoods, bribery and racketeering.

While initially Donziger won in Ecuador, US federal judge Lewis Kaplan deemed his practices "corrupt and dishonest". These practices involve coercion, bribery and ghostwriting independent experts' opinions. In the 485-page opinion, Judge Kaplan termed the case "extraordinary" and concluded that the was to "instil fear of a catastrophic outcome in order to increase the amount Chevron would pay to avoid the worst".

At the same time, environmental activists argue that Donziger's story expresses underlying systemic issues at the core of the US empire - the US' mistreatment of Latin America, its mistreatment of the indigenous people of the Americas, and the power of oil monopolies over the US government.

In addition, oil monopolies in the US regularly make generous donations of millions of dollars to politicians, including presidential candidates, and spend even more spare millions lobbying them day in and day out once they are in office, in a system that critics have called "legalised bribery." 

The case attracts both sides of the argument which are equally strong. While the reasoning of US corporate's overarching influence in many instances may be true, it should be noted that Chevron does not reject the fact that pollution occured. Rather the company said that they provided enough proof that it had cleaned its portion and should be absolved from any liability furthermore.

A ploy that backfired

Texaco, a multinational corporation based in the US, entered Ecuador in 1964, enticed by its lack of environmental regulations among other things, to extract one of its natural resources, oil, and sell it for its own profit. 

From then until 1990, Texaco systematically spilled more than 16 million gallons of crude oil and 18 billion gallons of toxic wastewater in the Amazon rainforest, thereby creating a massive corporation-made environmental disaster that some have dubbed "Amazon Chernobyl" or "Rainforest Chernobyl." 

As a result, the people living in the area suffered from, and continue to suffer from, high rates of cancer, skin diseases, miscarriages, and birth defects, among other medical conditions.

In 1993, affected Ecuadorians decided to seek reparations through the legal route, and in this regard began collaborating with Steven Donziger, who was then fresh out of Harvard Law School. 

The plaintiffs wanted the case tried in New York. Texaco merged with another oil monopoly, Chevron, in 2001, thereby forming an even bigger oil monopoly. In 2002, after almost ten years of legal wrangling, TexacoChevron finally succeeded in pressuring the US Court of Appeals to relocate the case to Ecuador.

Chevron hoped to take advantage of Ecuador's unique legal system, which features no jury trials and, at the time, depended heavily on oil monopolies. 

In 1995, Texaco publicly admitted that it polluted the Amazon in an Ecuadorian court, but also argued that it was only responsible for cleaning up a meagre 37% of the thousand or so toxic sludge pits it pockmarked the rainforest with, since Texaco had a 37% share in a consortium that included Ecuador's nationalised oil company. 

Texaco settled with the Ecuadorian government for about $40 million for the cleanup operation, which mostly consisted of covering up a small fraction of the toxic sludge pits with dirt.

In the US, oil monopolies began reinjecting wastewater back into wells beginning in the 1970s in order to reduce the environmental damage caused by wastewater from oil production. 

The wastewater from oil production also goes by the name of "water of formation," and is known to include carcinogenic toxins, including benzene, toluene, and arsenic. Texas made dumping water of formation illegal as far back as 1919.

A TexacoChevron lawyer once commented, "This is not about dirt in Ecuador. It is about a contract and how to interpret it."

At the time Texaco reached its agreement with the Ecuadorian government, Ecuador had no laws whatsoever dealing with the disposal of waste. 

The long established and relatively environmentally safe practice of reinjecting water of formation observed in the US did not legally have to be observed in Ecuador, despite the known toxicity and detrimental health effects of water of formation, a point that Texaco and TexacoChevron lawyers often cited in their legal favour. 

A leading Ecuadorian newspaper called the class action litigation against TexacoChevron "The Environmental Trial of the Century." 

The 80 communities affected by Amazon Chernobyl began getting organised in 1994, forming the Frente de Defensa de la Amazonia (known in English alternatively as the Front for the Defence of the Amazon, the Amazon Defence Front, and the Amazon Defence Coalition), led by environmental and human rights activist Luis Yanza. 

They were a major force in driving the litigation and raising awareness for the cause in Ecuador. 

TexacoChevron's plan to exploit Ecuador's corrupt and underdeveloped legal system for their own advantage was foiled by an unforeseen wild card, histor. 

In 2011, the affected Ecuadoreans and Donziger finally won their case against TexacoChevron in an Ecuadorian court. The Ecuadorian court ordered TexacoChevron to pay $18 billion in damages to the plaintiffs, which is "the largest judgement ever awarded in an environmental lawsuit" according to the New Yorker. 

TexacoChevron immediately changed its tune, claiming that the Ecuadorian legal system was too corrupt for a helpless, wealthy oil monopoly like itself to receive a fair trial there against impoverished Ecuadorian peasants and indigineous tribes people. 

TexacoChevron rejected the legitimacy of the Ecuadorian ruling and refused to pay a single cent to the plaintiffs.

Rigging the system to make an example of Donziger

In 2011, TexacoChevron sued Donziger, as well as other plaintiffs of the original lawsuit, in a US court for $60 billion in damages, "the highest personal liability in US history" according to the International Association for Democratic Lawyers. 

However, shortly before the case went to trial TexacoChevron dropped the monetary demand so that Donziger and the other accused would be denied a jury trial and the sole legal authority of the case would be wielded by the presiding judge, in accordance with US law. 

According to Greenpeace, TexacoChevron, with the help of their legal advisors, the notoriously aggressive corporate law firm Gibson Dunn, arranged for the case to be overseen by notoriously pro-corporate Judge Lewis Kaplan. 

Kaplan was formerly a corporate lawyer for Brown & Williamson Tobacco, a tobacco monopoly among whose assets are Lucky Strike and Pall Mall. 

Moreover, according to financial disclosure documents filed by Kaplan himself, he had investments in TexacoChevron through three J.P. Morgan funds during the time he presided over Donziger's case.

On Judge Kaplan's suggestion, Donziger and company were accused of extortion and criminal conspiracy against TexacoChevron on the basis of laws originally intended to target the Mafia. 

Internal emails from TexacoChevron's public relations team reveal that their public relations strategy was "to demonise Donziger." 

TexacoChevron's criminal conspiracy charge against Donziger and his co-defendants depended on the testimony of their star witness, former Ecuadorian judge Alberto Guerra. 

According to Vice News, "Guerra testified that he had struck a deal between the plaintiffs and the presiding judge, Nicolas Zambrano: Guerra would ghostwrite the verdict, Zambrano would sign it, and the two would share an alleged $500,000 in kickbacks from the plaintiffs."

TexacoChevron relocated Guerra and his family to the US and paid Guerra a monthly salary of $12,000 (on top of the tens of thousands of dollars in bribes Guerra admitted to accepting from TexacoChevron's representatives), which, according to a letter from the defence to the US Department of Justice, altogether totaled more than $2 million in assets. 

According to the Intercept, TexacoChevron coached Guerra more than 50 times before the trial. Judge Kaplan ruled in favour of TexacoChevron in 2014.

In 2015, Guerra recanted much of his testimony before an international tribunal held in Washington during a cross-examination by a lawyer representing the Republic of Ecuador. The international arbitration in question was initiated by TexacoChevron itself in 2009 by invoking the US-Ecuador Bilateral Investment Treaty, and later took the form of deciding whether the Ecuadorian government's $9.5 billion judgement against TexacoChevron in 2011 had any validity. 

As Vice News put it, "Guerra has now admitted that there is no evidence to corroborate allegations of a bribe or a ghostwritten judgement, and that large parts of his sworn testimony, used by Kaplan in the RICO case to block enforcement of the ruling against Chevron, were exaggerated and, in other cases, simply not true."

During TexacoChevron's suit against Donziger and his comrades, Judge Kaplan, at the behest of TexacoChevron, demanded that Donziger hand over all documents even tangentially related to the case. 

Donziger refused on the basis that handing over the documents would be a gross violation of attorney-client privilege, that is, the legal entitlement of the client to the attorney's confidentiality. 

Judge Kaplan charged Donziger with criminal contempt of court and ordered that Donziger's documents, as well as the laptop and cellphone on which many of them were stored, be forcibly seized. Kaplan also deposed or disbarred Donziger, barring him from practising law in the US.

When even the US attorney's office refused to comply with TexacoChevron's request to prosecute Donziger for criminal contempt of court, Judge Kaplan appointed a private law firm –Seward & Kissel, for which numerous oil and gas companies, including Chevron, have been clients – to represent the US government and prosecute Donziger, an unprecedented move in US legal history that set a dangerous precedent for the future by giving monopoly capital even more power over the US legal system. 

In another unusual move, Kaplan also personally selected a judge to hear Donziger's contempt case, instead of relying on the norm of random case-assignment for judges. Kaplan's choice was Judge Loretta Preska, a member of the far-right Federalist Society, which has received generous donations from Chevron, one of its major donors. 

Judge Preska followed Judge Kaplan in denying Donziger's requests to be tried by a jury of his peers.

In 2019, Donziger was put on house arrest, where he spent more than 800 days waiting for the outcome of his trial. During his house detention, Donziger kept an open house policy, meeting almost every day with celebrities, activists, and alternative media. 

Donziger lost his case and in October 2019 he began his contempt sentence at a federal prison. The court handed down a six month prison sentence, but he ended up only serving 45 days and was returned to house arrest in December 2019 due to an early release programme motivated by the coronavirus pandemic.

For the progressive and rebellious Western millennial left, Donziger has become a chic cultural icon. He finally gained his freedom from house detention on 25 April, 2022. Since his release, he has continued to advocate for environmental justice, especially for the Ecuadorians he once represented.

Is Donziger the hero?

There are multiple accusations against Donziger. The biggest one is that he has been adjudicated as a racketeer by the US District Court in 2014. According to the findings by the court, he obtained "the Ecuadorian judgement against Chevron by corrupt means".

The US District Court for the Southern District of New York found overwhelming evidence that Donziger "obtained [the Ecuadorian judgement against Chevron] by corrupt means," including a pattern of extortion, bribery, wire fraud, money laundering, witness tampering, obstruction of justice, and violations of the Travel Act and Foreign Corrupt Practices Act. 

The Court held that the corrupt Ecuadorian judgement was just one component of Donziger's unlawful pressure campaign to extort Chevron out of billions of dollars—and had he succeeded, he would have personally profited by "more than $600 million."

Two years later, in 2016, the earlier findings were conclusively upheld by a Distinguished Appellate Panel. Later, the US rendered the judgement final and unappealable. 

His fraud was also determined to have occurred by an impartial international arbitration tribunal. In 2018, the Bilateral Investment Treaty (BIT) tribunal reached the same conclusions about fraud, bribery, and corruption. The panel included an arbitrator who had been selected by Ecuador.

It found, "the circumstantial and other evidence adduced in this arbitration is overwhelming. Short of a signed confession by the miscreants...the evidence establishing 'ghostwriting' in this arbitration 'must be the most thorough documentary, video, and testimonial proof of fraud ever put before an arbitral tribunal.'"

The misconduct of Dongizer has been established by several international courts too. Everywhere Donziger tried to implement the ruling but the Ecuadorian judgement  was overturned each time. It was flatly denied in both Brazil and Argentina; and in Canada, Donziger's team dismissed their case following unfavourable decisions.

He took on big oil and was eventually punished by the state. For his climate change activism and general fury against the state, he is worshipped by some. But others see him as a fraudster who capitalised public sentiment in favour of climate change and against the big corporations.