Steven Donziger is back in his airy mid-century modern apartment on the Upper West Side of Manhattan, engaged over Zoom on a marketing call with a representative of the online publishing platform Substack.
Back and forth, they wrestle with a complicated question—who is Steven Donziger—and quickly realize there is no easy answer.
Donziger is a crusading lawyer who led a team that won one of the world’s largest pollution judgments against Chevron on behalf of Indigenous peoples and other residents of the Ecuadorian Amazon in 2011.
He’s also wearing an ankle bracelet, having spent the morning checking in at a Bronx halfway house for federal inmates. Connecting those dots is a fraught tale.
The $9.5 billion award he helped secure from an Ecuadorian court covered horrific pollution from oil production by Texaco (acquired by Chevron in 2001) that poisoned the rainforest with oil spills and billions of gallons of toxic wastewater.
But none of Donziger’s original 30,000 Ecuadorian clients—suffering and dying from cancers and other diseases that many believe are related to the oil contamination—have received a penny since the original lawsuit was filed in 1993. Nothing.
Here’s what happened.
Three years after the Ecuadorian court ruled on their behalf, a U.S. federal district judge in New York found in a countersuit brought by Chevron that Donziger’s team had obtained the Ecuadorian judgment through fraud, bribery and extortion.
Among other things, Donziger was accused in the countersuit of forging an expert’s signature, blackmailing a judge, facilitating the ghostwriting of a key piece of evidence and bribing other Ecuadorian judges—acts that Donziger either denies or says were not illegal in Ecuador.
He has criticized the ruling in the U.S. lawsuit, which Chevron filed under the federal Racketeer Influenced and Corrupt Organizations Act (RICO), as a “Manhattan trial judge purporting to overrule Ecuador’s Supreme Court on questions of Ecuadorian law.” Donziger was referring to one of two appellate court decisions in Ecuador that affirmed the $9.5 billion judgment.
Still, the RICO lawsuit, along with a similar decision from an international arbitration tribunal, has so far made the $9.5 billion Ecuadorian judgment unenforceable despite attempts by plaintiffs to collect damages in Canada, Argentina and Brazil, among the many countries where Chevron has assets.
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The ankle bracelet Donziger is wearing stems from Chevron’s attempts to recoup costs and legal fees in the RICO case after the company prevailed.
During the Zoom call with a female Substack representative, Donziger’s prison-issued phone rings as he and the woman game out a “tagline” for his forthcoming account with the platform. “This happens multiple times a day,” he says of the noise. “It’s crazy.”
Between 2018 and 2019, Donziger refused to turn over his computer and other electronic devices in the fight with Chevron over legal fees, and the U.S. attorney for the Southern District of New York declined to prosecute him for contempt of court, citing a lack of resources.
The judge who ruled against him in the RICO case then took the highly unusual step in 2019 of appointing a private prosecutor to pursue criminal contempt of court charges for Donziger’s failure to turn over his personal devices. In that separate contempt of court case, Donziger was placed on pretrial house arrest.
And then last fall, after three more years of litigation, a second federal judge in New York found Donziger guilty of contempt of court and sentenced him to six months in prison, of which he served about a month in a low-security federal prison in Connecticut and the rest on house arrest. On this afternoon in April, there are about two weeks left in his sentence.
Donziger tells the Substack representative that he needs to monetize his writing because he’s been disbarred. “I’m a disbarred attorney, not a discredited one—quite the opposite,” he says defiantly.
Together, they go on brainstorming about how to market his column—in other words, why should people pay to read what he has to say? It’s a question Donziger has thought a lot about on the cusp of his release.
“So I would say that there’s the Ecuador case,” Donziger says. “And then there’s like, the lawyer who is probing issues at the intersection of climate, human rights and the law. That to me is how to frame it. That’s a pretty good tagline. OK? Climate, human rights and the law.”
He’s always been gifted at selling his causes, and the wheels in his head are clearly turning. In real time, he seems to be working out who he is and who he wants to be.
“Donziger on justice,” he says finally, satisfied that he’s reached the right conclusion. “Because of the fact that I fought for justice for 28 years for the people of Ecuador against Chevron.”
In Ecuador, Plaintiffs With ‘Nothing’
Almost 3,000 miles away, in the Ecuadorian Amazon, Emergildo Criollo speeds up the Aguarico River in a long motorized canoe. The Indigenous Cofán are known as water people, and the canoe is their signature vessel. Criollo maneuvers the canoe in an eddy and hops out barefoot, walking about 100 yards through a forested area to his two-room wooden aqua-blue home, where five of his grandchildren are playing inside.
He believes Texaco’s oil exploration caused the deaths of two of his children and his wife’s uterine cancer by polluting their water. Criollo became involved in the lawsuit brought by Donziger and others in 1993, when he was a young man, and went on to become one of the most visible plaintiffs. He appeared alongside Donziger in the 2009 documentary film Crude and was featured in Paul Barrett’s 2014 book about the case, Law of the Jungle.
There is a weariness to Criollo, now in his 60s, as he remembers the day he lost his second child, who accidentally swallowed oil-contaminated water while swimming. He’s told the story to many journalists over the last two decades. None of their articles and books have delivered justice for Criollo’s children. Neither have three decades of litigation, spanning at least six countries, at a cost of hundreds of millions of dollars in legal expenditures and attorney fees.
“I’ve fought for 22 years on this case, I have nothing to show for it,” he says as one of his grandsons, wearing a Spider-Man top, crawls into his lap.
In the back of Criollo’s house is a large rainwater reclamation tank, part of a project initiated by a nonprofit organization to provide communities in the area with safe drinking water now that their traditional sources of water—streams and rivers—are not safe to drink. Criollo said his community needs more reclamation tanks but lacks the money to purchase them.
“Today, everything requires money,” he says.
Criollo explains that Texaco’s oil exploration transformed the Cofán’s culture in ways that continue to draw many away from the traditional life they knew before the company arrived in the 1960s.
His family had lived upstream on the Aguarico River near the settler town of Lago Agrio, about 180 miles east of Quito, the Ecuadorian capital. In addition to the Cofán, at least four other Indigenous peoples had been living in the region’s lush jungle for hundreds of years. Their ancestral history was culturally entwined with, and dependent on, the region’s near-pristine waters and mega-rich biodiversity.
After Texaco struck oil here in the late 1960s, the company, along with American missionaries and the Ecuadorian government, carried out a policy to colonize the region and expel Indigenous peoples from their lands.
Forced onto smaller and smaller plots of land, the region’s original inhabitants watched black crude and toxic drilling waste pollute their waters, kill their animals and taint their food. This history was investigated and documented by the lawyer Judith Kimerling in her 1991 book Amazon Crude, hailed by The New York Times as the “Silent Spring of Ecuador.” Now a professor emertius at The City University of New York, Kimerling lives a few miles from Donziger in Manhattan.
In her groundbreaking book, Kimerling wrote that from 1964 to 1990, Texaco dumped 3.2 million gallons of toxic “produced” water from oil operations and flared nearly 50 million cubic feet of noxious methane gas per day while spilling 17 million gallons of crude in the rainforest.
Texaco used virtually no environmental controls or monitoring, Kimerling found, despite regulations in the United States prohibiting such conduct. Her research inspired Donziger and other lawyers to file the original 1993 lawsuit. Yet she declined to be a part of their litigation team, having doubts about the ethics of the lawyers behind the case after different Indigenous groups approached her asking how the lawyers could claim to represent them without their consent and how they could solve their problems without talking to them. She continues working with Indigenous communities trying to defend the forest from oil extraction in Ecuador to this day.
Shortly after the 1993 lawsuit was filed in U.S. federal court, Texaco began settlement negotiations with the Ecuadorian government to end any liability it had for the pollution. By 1998, with the litigation continuing, Texaco completed what it said was a $40 million cleanup. Yet independent reviewers of the corporation’s remediation report, including the Louisiana-based chemist Wilma Subra, said the cleanup was “cosmetic.” Still, Ecuador, without consulting Criollo or any of the other people affected, fully released the company from further legal liability in a series of settlement agreements. The settlement agreements did not release the claims of third parties like Criollo. Kimerling criticized the settlement agreements and how the cleanup was carried out, describing it as more like “an agreement between two polluters” to limit their liability than a serious clean up.
In August, I visited some of Texaco’s remediated drilling sites that were not subsequently operated by PetroEcuador, its local partner and eventual successor, or by other oil companies. At first glance, the sites looked unremarkably like other swaths of jungle in the area. But, where the company’s former waste pits were located, vast quantities of oil-like material had risen to the surface, commingling with soil and rainwater.
Pools of water had a sheen from oil residue, and chunks of oil-blackened soil had the viscosity of children’s Play-Doh, laced with remnants of crude and emitting the stench of burnt rubber. Subra, who has written U.S. oil industry regulations, told me that it was entirely possible that waste from Texaco’s operations could still be traveling through aquatic systems in the region along with pollution from other oil companies, contaminating plants, animals and people with heavy metals, radioactive material and other toxic materials, including dioxin and benzene.
Beyond the pollution and displacement, Criollo describes other ways in which expanding oil operations have affected the Cofán. The degraded and shrinking forest, no longer able to fully provide for the community’s food and medical needs, forced the Cofán out of self-sufficiency and into the market economy. The shift has opened a generational divide between older Cofán who want to protect the forest at all costs and younger leaders who are more open to negotiating with oil companies in exchange for payments that support Cofán families, he said.
“What I’d like for my grandchildren—there’s a possibility that we can purchase more land and reforest it,” Criollo said. “It’s hard for me to imagine my grandchildren anywhere but here in the forest. The question is, where will we get the money to buy land?” He made no mention of the uncollected $9.5 billion Ecuadorian court judgment awarded to him and thousands of other plaintiffs.
To a Bronx Halfway House
Before his strategy session with Substack on Zoom, Donziger paces around his apartment, sipping from a giant plastic cup of iced tea. He is scheduled to check in at a halfway house in the Bronx at 2 p.m., but he’s spent the past hour talking on his cellphone with one of his assistants, dictating tweets to his 196,000 Twitter followers about the outrages of his confinement.
“Both of my judges had ties to Chevron,” he says, referring to the U.S. judges who presided over the RICO and criminal contempt cases. “Re-tweet that. People forget that.”
For Donziger, social media has been a crucial tool in a war of words with Chevron over who the villain is in this long-running courtroom battle. Each side has crafted its own narrative by emphasizing different facts and using their respective megaphones, including competing websites, to push those narratives out.
Early on, Chevron pounded its legal defenses: Yes, the pollution was real, but the company had done what it was supposed to do. It had negotiated settlement and release agreements with Ecuador and conducted the required cleanup. If Donziger’s clients had injuries from pollution, it was the government of Ecuador and other oil companies they should be suing.
But once Chevron unearthed evidence of apparent misconduct by the attorney’s team, the company began to claim that it was the real victim and that Donziger, cast as a money-hungry plaintiffs’ lawyer, was engaged in a shakedown. In a flash, the dispute became all about him.
In a lengthy emailed statement about this article, Randy Mastro, an attorney representing Chevron, said that Donziger had carried out a “longstanding corrupt campaign against Chevron,” that he “is not a ‘human rights lawyer’ and that his attempt to hitch his wagon to climate change is a new invention as he tries to follow the media and the money.”
For his part, Donziger says everything he did was aimed at helping grievously harmed clients obtain some type of compensation from one of the world’s most powerful corporations—one, he contends, that has benefited from a global legal system designed to protect it.
Early on in the litigation, Donziger took out an advertisement in The New York Times warning Chevron investors that “Texaco comes with a lot of assets, and one huge liability.” He helped broker friendly media coverage of his team, like a Vanity Fair feature on the Ecuadorian lawyer Pablo Fajardo.
To help win public opinion, Donziger commissioned the documentary filmmaker Joe Berlinger to follow his team of lawyers for the making of “Crude.” That decision ultimately led to Chevron’s RICO lawsuit after the company noticed that an early version of the film included a scene in which Donziger’s team privately met with a supposedly independent court-appointed expert.
Chevron invoked that scene in persuading American judges to force Berlinger, Donziger’s team and others to turn over film outtakes and internal documents about the case. In one of the outtakes, Donziger declares: “’The only language that I believe this judge is going to understand is one of pressure, intimidation and humiliation.”
Once the RICO lawsuit was filed in 2011, Donziger shifted his attention to combating what he calls a “coordinated attempt to destroy him” by Chevron and a contingent of the federal judiciary.
He argued that the judge presiding over Chevron’s RICO lawsuit, Lewis A. Kaplan, showed a disdain for him and an affinity for Chevron throughout the proceedings. At one point Kaplan remarked that Chevron was a “company of considerable importance to our economy.” In a separate action before the RICO lawsuit, Kaplan, having reviewed some of the Crude outtakes, suggested that “Donziger’s own words raise substantial questions as to his possible criminal liability and amenability to professional discipline.”
Donziger has also worked to focus attention on Kaplan’s appointment of a private prosecutor to pursue the contempt of court charges, pointing out that the prosecutor worked for a law firm that had in the past represented Chevron. The contempt conviction was affirmed by the Second Circuit Court of Appeals in New York, and a request for Supreme Court review of the case is pending. Donziger has called the situation a “private corporate prosecution.”
A report spearheaded by a former U.S. ambassador-at-large for global criminal justice found that the contempt proceedings violated international human rights laws and that there was “a reasonable appearance of bias” on the part of Judge Kaplan in appointing the prosecutor in the case. The report concluded that the contempt proceedings violated Donziger’s fair trial rights and that his detention was arbitrary.
Donziger has amassed a following of supporters including Bianca Jagger, Sting and Pink Floyd’s Roger Waters. Other celebrities drop by his apartment to show their support.
U.S. Rep. Alexandra Ocasio-Cortez and other members of Congress have written to President Joe Biden requesting a pardon for Donziger. The Guardian newspaper in London asked Donziger to write a regular column. He receives donations from people around the world to cover his living expenses and personal legal fees, and another panel of international jurists has condemned Donziger’s nearly three-year detention. (In addition to his six-month contempt sentence, Donziger spent nearly two and a half years in pretrial detention on house arrest because of delays linked to the Covid pandemic and continuance requests by his legal team.)
As Donziger walks into the Bronx halfway house, there is a slight swagger to his step. He insists that he is winning: “Hugely successful,” he says. In and out of the brownstone within 30 minutes, he walks the quarter-mile to 188 Cuchifritos, his favorite local Peruvian chicken joint. He knows he is expected to go straight home to Manhattan after his mandatory check-ins, but, he reasons, it’s just a quick visit.
Standing at the counter, Donzgier leans towards the waitress and, in Spanish, orders a half roast chicken, rice and beans, then, towering over everyone else in the restaurant at 6 foot 4, watches her prepare his order.
“Eso es un poco pequeño, no? [That’s a little small?]” he asks her with a serious face, pointing to the piece of chicken on the plate.
The waitress substitutes a larger piece for the chicken and Donziger makes his way to the nearest table, where he rips into his meal, sucking the meat off the bones before discarding what’s left in a pile on his plate.
When he finishes, he pops into a small store next door that sells fresh seafood, marveling at how much less expensive fish is in the Bronx than on the Upper West Side. He leaves without buying anything and starts walking toward the subway station, stopping to give a few dollars to a man who approaches him asking for money.
Rebel at Harvard Law
The son of a businessman and a schoolteacher, Donzgier grew up in a well-to-do suburb of Jacksonville, Florida. Early on, his mother nurtured a sense of social responsibility in her son, taking him to his first rally, at a Winn-Dixie grocery store on behalf of farmworkers.
His parents divorced when he was 15, and Donziger became particularly close to his maternal grandfather, Aaron E. Koota, a former justice of the New York State Supreme Court and a Brooklyn district attorney known as a “tough crime fighter” with a fondness for media attention.
Donziger’s interest in Latin America began with a solo trip to Mexico during a summer break in college. He spent about a month hitchhiking around the country, working odd jobs and learning Spanish. A Russian studies major at American University who wrote for the school newspaper, Donziger graduated wanting to become a foreign correspondent.
At 23, he took off for Estelí, Nicaragua, to cover the war between the country’s leftist Sandinista government and the right-wing Contras backed by Ronald Reagan’s administration. Donziger said the experience, particularly the U.S. role in the war, opened his eyes to the way “government authorities and other forms of entrenched power” can abuse the law and people to get what they want.
At 28, he moved back to the United States with plans to apply to law school. He worked briefly in Atlanta with a legal aid society advocating on behalf of the Cubans incarcerated in the U.S. who had come to America en masse in the 1980 Mariel boatlift.
Then he was off to Harvard Law School, where he jostled on the basketball court with a fellow student named Barack Obama and helped organize a 1991 trip to Iraq with a small group of classmates to document civilian casualties during the Persian Gulf War.
Donziger led the law-student contingent and acted as its spokesman. For the first time, he had begun to merge his two interests, law and the media. That approach would persist as a signature tactic throughout his career.
After his 1991 graduation from Harvard, Donziger worked briefly as a public defender in Washington representing juvenile defendants before joining up with one of his former classmates, John Bonifaz, and his father, Cristobol Bonifaz, to file the 1993 lawsuit against Texaco in U.S. federal court in New York.
In 2002, Texaco succeeded in having the lawsuit dismissed on the ground that Ecuador was a more appropriate forum for the litigation to take place—a key turning point in the saga and an outcome lambasted by critics for, among other things, overlooking the fact that the important decisions about Texaco’s operations in Ecuador had been made from its headquarters in White Plains, New York.
Donzgier, who had been a junior member of the legal team representing the Ecuadorian plaintiffs in New York, worked with a new team of lawyers to refile the lawsuit against Chevron in Lago Agrio the next year. Eventually he would ascend to the leadership of the team that won the $9.5 billion judgment against Chevron in 2011.
A Sacrifice Zone
Silvia Yanez spent the first years of her young marriage traveling 17 hours by foot and bus every eight days from the Ecuadorian town of Coca to Quito to receive treatment for Non-Hodgkin’s lymphoma. She, too, became one of the 30,000 individuals Donziger represented in the litigation against Texaco and Chevron.
Dressed in black and pink yoga pants, with matching bright pink toenails, Yanez, now 34, tells her story while sitting on a sofa in her living room. Around her, six small dogs and a new kitten vie for her attention.
Newly pregnant when she was diagnosed in 2006, Yanez was faced with a decision: keep the baby and delay treatment for eight months, or terminate the pregnancy and receive chemotherapy that would effectively end her ability to have children. Too ill to decide for herself, she left the decision to her family, which chose the latter option in the belief that it was unlikely that either Yanez or the baby would survive if she tried to carry the child to term. The family scraped together funding for her chemo treatments by selling portions of their land and other possessions to save her life.
Yanez’s voice catches when she shares that she can no longer have children because of the chemotherapy. Her eyes well up as she looks down at the brown shag rug beneath her feet. Around the living room are five large stuffed animals and a collection of small figurines, including a tiny childlike angel with its hands clasped in prayer.
Yanez’s story is not unique to Orellana and Sucumbíos Provinces in the Ecuadorian Amazon region. Despite having cancer rates higher than Ecuador as a whole, the area has no oncology center. Women make up the majority of cases, about 72 percen0, which researchers link to their washing clothing and other household goods in contaminated river water.
The two major cities here, Coca and Lago Agrio, have an abundance of infrastructure created by and for the oil industry. Instead of sidewalks, pipelines line the roads in most places. At nighttime, the orange-yellow glow of more than 400 gas flares lights up the sky. The best-paying jobs in town are with PetroEcuador—both Yanez’s husband and mother, who is in remission from uterine cancer, work for the state-run oil company.
The area is emblematic of the term “sacrifice zone,” used by environmental and health advocates to describe parts of the world sacrificed to pollution so that people elsewhere can benefit from oil, mineral or other types of production.
Now in remission, Yanez works for the Union of People Affected by Texaco, or UDAPT, a nonprofit organization that represents people affected by oil contamination in the area. Yanez helps sick people make medical appointments, arranges transportation for them, counsels patients on day-to-day tasks and registers those with documented cancer cases as part of an ongoing research study carried out with the Swiss nongovernmental organization Centrale Sanitaire Suisse Romande and the Ecuadorian health organization Clínica Ambiental. The study began in 2018 after years of unanswered requests for such an accounting by the government.
With few doctors, a dispersed population and a high number of rural poor, simply counting the number of sick people here has its challenges. On a recent workday, Yanez rode nearly an hour on the back of a colleague’s motorbike to visit a prostate cancer patient in palliative care. The man, who lives alone in a modest wooden home, has been unable to afford his prescribed medication.
Yanez performs reflexology, a form of acupressure, on his feet to help alleviate his pain. She also counsels his daughter on how she could raise money to help pay for his treatments; they settled on trying to sell homemade tamales in town.
‘Buen Vivir’
About a two-hour drive northwest from Yanez’s house, in a small village called San Pablo de Kantesiya, Simon Lusitande, 70, ambles down a wooden staircase outside his home wearing the traditional clothing of the Siekopai peoples and navy blue crocs. He lowers his lean body onto a small red plastic chair beneath a corrugated tin roof.
Lusitande was also one of Donziger’s clients. Behind his home, the Aguarico River audibly gushes through an area of dense rainforest that has belonged to Lusitande’s ancestors for centuries. From generation to generation, the Siekopai have passed down knowledge, both sacred and pragmatic, about the rainforest through lines of shamans, including Lusitande.
He understands the healing powers of hundreds of different types of plants, as well as the rhythms of the forest. Those teachings long sustained a life of what he described as “buen vivir,” which roughly translates into good living in balance with nature.
The Siekopai’s descriptions of buen vivir are backed up by anthropological studies showing that before Texaco’s arrival in the region in the 1960s, the Indigenous peoples here had access to plentiful amounts of food and more leisure time than most in the modern Western world.
Lusitande, who has childhood memories of that life, said that after Texaco began operating in and around the Siekopai’s traditional territory, the locals began contracting illnesses that their traditional medicine couldn’t treat.
To pay for Western medicine and associated travel costs, some of the Siekopai have taken to growing palm oil trees and logging in San Pablo de Kantesiya. Like crude oil, an international thirst for palm oil, an additive to consumer products from body lotions to pizza dough, has changed things here. Just outside the village, palm oil plantations have overtaken swaths of what once was biodiverse forest belonging to the Siekopai.
Together with emissions from gas flares, the Aguarico and other rivers and streams have transported pollution from oil operations onto the Siekopai’s land, contaminating crops and other plants.
Lusitande said he has two main concerns: He wants someone to clean up the contamination from oil extraction, and he wants medical assistance for his people.
Specifically, he wants a nearby hospital where people with cancer and other diseases he attributes to the contamination can receive treatment. In 2018, Lusitande lost his wife after a multiyear battle with uterine cancer. She had to discontinue her chemotherapy treatments when the family could no longer afford the drugs and the onerous costs of travel to and from Quito.
According to data from the Swiss study, death rates from cancer in this area are higher than the average of Ecuador as a whole, in part because of the hardships associated with the costs and difficulties traveling to Quito for treatment.“It’s difficult, so difficult,” Lusitande says.
His son Nicolas joins him, wearing a soft blue long-sleeved shirt and dark blue jeans. Side by side, the father and son are the spitting image of each other, though 26 years apart in age. Nicolas placed his hand on his father’s shoulder.
“Young people say to me, ‘Abuelo (grandfather), you started this fight, but you started it a long time ago, and we haven’t seen the results,’” Lusitande says. “Where’s the money?”
“Nobody listens to us,” Nicolas says flatly. “We are at God’s mercy here.”
‘Free Donziger’
When the day of Donziger’s “Freedom Block Party” finally arrives in late April, a crowd of about 100 gathers outside his apartment building to celebrate “Steven Donziger’s Release After 993 Days of Illegal Detention,” as the event was described on social media.
Wearing a blue button-down oxford shirt that is half tucked in, a black blazer and jeans, Donziger takes to a makeshift stage under a bright blue spring sky to address the crowd and a livestream audience. “Neither myself nor my family could have done this without the support of each and every one of you, and also the support of thousands, maybe millions of people around the world,” he tells the audience.
To his right, a “Free Donziger, Chevron Lies” banner hangs along construction scaffolding. Behind the stage are Chris Smalls, the labor organizer known for rallying Amazon workers; the actress Susan Sarandon, and members of Donziger’s legal team, among others.
“It is so much bigger than me,” Donziger says. “It is so much bigger. They attacked me to try to intimidate all of us and our whole society into not taking on the industry that is literally destroying our planet,” he adds, pointing at the crowd to indicate that Chevron had attacked them, too. “That was the purpose of my detention.”
The crowd erupts into applause and cheers. Donziger is ebullient. He loves being in front of a crowd and feeling the energy. When he mentions that the federal judge who oversaw his criminal contempt case, Loretta A. Preska, is a member of the Federalist Society, a conservative legal organization, those cheers turn into loud boos. “Chevron’s a major funder of the Federalist Society,” Donziger says as the boos grow louder, and his grin widens.
He passes the microphone around to Smalls, some of his lawyers and others. When it is Sarandon’s turn to speak, the actress accuses the mainstream media of “a complete blackout” of coverage of Donziger’s case.
“Like everyone else when I heard this story, I just couldn’t believe it,” Sarandon says, with a beaming Donziger behind her right shoulder. “I kept thinking, there must be something I don’t know to explain this miscarrage of justice.”
Some lawyers who have closely tracked the litigation take a different view. Kimerling, the lawyer whose work inspired the litigation in the first place, has been critical of just about everyone involved in the dispute: Donziger, Chevron, the Ecuadorian government, the American judiciary and the international legal system—all of which she argues have in their own way failed the people affected by Texaco’s operations.
Kimerling said that Chevron produced evidence of misconduct by Donziger and his team and that has made the Ecuadorian $9.5 billion judgment vulnerable. She believes that the team claimed to represent all of the affected people without getting their consent and listening to them, and at times rebuffed efforts by affected communities who wanted to participate in decisions about their claims. “The oil frontier continues to expand, environmental conditions are worsening, people’s rights are still being violated and no one is taking responsibility,” she says.
Robert Percival, a professor of environmental law at the University of Maryland, uses the legal dispute as a cautionary tale in his courses. He has called Texaco’s Ecuador operations “reprehensible” and accuses Chevron of “scorched earth” legal tactics in its litigation. And Donziger, he says, sank his clients’ case by, among other things, inviting a film crew to document the legal team’s internal deliberations.
Still, both Percival and Kimerling say Donziger was treated unfairly by the American courts in the contempt proceedings.
As the sky overhead darkens and the street event winds down. Donziger takes the microphone back for one last word. He reminds people to support his quest for a presidential pardon and to sign up at his website, freedonziger.com.
“We’re not going to change that, by the way, because I’m not fully free,” he says, referring to his website domain name. “We’re moving on to a new phase. It’s about going on offense and trying to make this company comply with the rule of law and pay the judgments that it owes to the people it poisoned in Ecuador.”
A Sort of Detente
On a backstreet in the town of Sushifindi in Sucumbíos Province, Pablo Fajardo sits in his ground-floor law office typing out arguments on his laptop. Behind him hangs a framed photograph of an Indigenous man standing before a large banner on which the words “Justicia” and “Chevron” are visible.
As a young man, Fajardo was part of the legal team that won the $9.5 billion judgment against Chevron, and like Donziger, he was named in the company’s RICO lawsuit. In his 497-page opinion, Judge Kaplan found that Fajardo was involved in bribing the Ecuadorian judges and ghostwriting their opinion. Fajardo maintains that the team never engaged in illegal conduct and has accused the American judicial system of “looking down its nose” at Ecuador.
He has continued to practice law out of his Sushifindi office, but after the RICO lawsuit, had a falling out with Donziger, in part over questions about the way litigation funding was spent—Donziger had raised millions of dollars to fund the lawsuits against Texaco and Chevron.
In 2017, the UDAPT organization, represented by Fajardo, accused Donziger of misappropriating some of that funding and declared him a persona non grata. Fajardo said his clients are the owners of the $9.5 billion judgment and entitled to know how the litigation funding was spent.
Donziger has denied the allegations and said he made a full accounting to his client, the Amazon Defense Front, an organization that he claims owns the $9.5 billion awarded by the court.
Donziger in turn has struck out at Fajardo, accusing him of mishandling an opportunity to collect part of the judgment in 2016.
Donzgier’s grievances encompass two additional legal disputes related to Chevron’s operations in Ecuador that most likely will result in what would, in the plaintiffs’ minds, be the ultimate injustice: Chevron, whose predecessor Texaco polluted the Ecuadorian Amazon, walking away with hundreds of millions, or even billions, of dollars, in damages paid by the Ecuadorian government. If and when this happens, it would also represent perhaps the last chance for the plaintiffs to receive at least a portion of the original $9.5 billion judgment by going after the damages paid by Ecuador—in Ecuador—to Chevron, which years ago removed all of its other assets from the country.
The damages Ecuador is soon likely to have to pay to Chevron will come under a 1993 bilateral trade agreement between the United States and Ecuador that gives U.S. investors like Chevron certain protections covering their investments in Ecuador. Among those protections is the right to “fair and equitable treatment” by the Ecuadorian government. The agreement also gives foreign investors the right to institute legal proceedings against the Ecuadorian government before an international panel of arbitrators if those protections are not honored.
Using this arbitration system on a parallel track to the RICO case it brought against Donziger and others, Chevron filed two cases against the government of Ecuador. The first, filed in 2006, related to a commercial contract dispute over the amount of oil Ecuador claimed it needed for domestic consumption, and the second, filed in 2009, related to whether the Ecuadorian government treated Chevron unfairly during the lawsuit brought by Donziger’s team.
In its first arbitration against the Ecuadorian government on grounds that Ecuador breached its commercial contract with the company, Chevron won a $96 million award in 2011 that by 2016 had, with interest, grown to $112 million.
This award, Donziger believes, gave plaintiffs like Yanez, Criollo and Lusitande a $112 million asset in the country that they could fight to claim.
Ecuador’s president at the time, Rafael Correa, went to Fajardo, who was then counsel of the Amazon Defense Front, and asked him if his clients would waive their right to collect the funds—if the money went to them and Ecuador therefore failed to pay Chevron, the government could lose access to desperately needed international funding.
Fajardo said he consulted with his clients about the request and they directed him to waive their claim on the $112 million, allowing the government to pay Chevron. Donziger, furious at the missed opportunity, claimed that Fajardo unilaterally released the embargo, giving up the chance to collect part of the $9.5 billion judgment. The Amazon Defense Front fired Fajardo over the dispute.
Chevron’s second arbitration case against Ecuador has caused even more controversy, precisely because the company may walk away from the pollution dispute with another multi-million or billion dollar payment.
In 2018, three international arbitrators ruled in Chevron’s favor and against the government of Ecuador. In a 521-page opinion, they found that the $9.5 billion judgment was “procured through fraud, bribery and corruption and was based on claims that had been already settled and released by the Republic of Ecuador years earlier.” The evidence they cited was similar to the purported misconduct that Judge Kaplan outlined in reaching his conclusion in the U.S. RICO case.
The arbitrators’ ruling also said that the Lago Agrio judgment “should not be recognised or enforced by the courts of other states,” making it difficult for the people of the Ecuadorian Amazon to lay claim to assets Chevron has in other countries.
Critics of the ruling, including Fajardo, argue, among other objections, that the arbitration unfairly excluded his clients from formal participation in the proceedings even though their right to enforce the $9.5 billion judgment was affected by the outcome.
The arbitration tribunal is now assessing the damages owed to Chevron in the second award. This potentially gives UDAPT or the Amazon Defense Front—depending on which has the rights to the $9.5 billion—another opportunity to lay claim to the damages payment to Chevron.
In recent weeks, Fajardo has reached a sort of detente with Donziger, with the two agreeing not to attack each other in view of the larger goal of trying to enforce the judgment. Fajardo said he has plans in the works for a new legal effort to claim the $9.5 billion for UDAPT but offered no time frame.
Harvard Law Redux
Late one afternoon last month, Donziger dropped in virtually on a “Justice for Lawyers” seminar at Harvard Law School taught by Professor Charles Nesson, a member of the legal team that represented Donziger in his New York disbarment proceedings.
Thirty years earlier, Donziger sat in a similar classroom. On this night, appearing via Zoom, he says that if someone had told him back then where he would end up, he wouldn’t have believed it. It has been a difficult journey, he tells the class, but “it turned out better than I thought because after all this time I have a much larger platform and I think I’m getting a lot of support I never had before because people looking at the situation realize what really happened.”
Nesson has called the RICO judgment by Judge Kaplan a “constructed lie” built on what he contends is faulty evidence, such as the testimony of a controversial witness, the former Ecuadorian judge Alberto Guerra. Guerra’s testimony was a basis for Kaplan’s finding that Donziger bribed Guerra and another judge to secure the Ecuadorian ruling.
Chevron disclosed that ahead of the RICO trial, it had paid to relocate Guerra and his family to the United States and had also been giving them money each month to cover their housing and other living expenses.
In testimony before Kaplan, Guerra admitted accepting payments from Donziger’s team and working with those lawyers to ghostwrite orders for the Ecuadorian judge who issued the $9.5 billion judgment. Later he repudiated parts of his testimony, though not his account that Donziger offered him money to ghostwrite the judgment. Donziger vehemently denies offering such a bribe or participating in the ghostwriting of the judgment.
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Donate NowNesson contends that Chevron did not prove that Donziger either bribed the Ecuadorian judges or ghostwrote the judgment.
“This idea of ghost writing … if they had proved it, is a matter of a lawyer offering assistance in the form of some kind of documents that help a judge write the opinion,” Nesson told me in an interview. “There is no law against it and it does not prove that the judge was bribed.”
In the Harvard classroom, the professor’s students ask Donziger about the potential legacy of his litigation with Chevron. Donziger says he believes that more lawyers should be trained not just in the law but in how to carry out advocacy campaigns, using the media, social media and working with politicians to counter the disproportionate power corporations have over plaintiffs in some cases.
“Chevron went to the U.S. government, we went to the U.S. government,” he tells the students. “They wanted to take out paid ads to trash us; we got free media by holding press conferences. They think they’ll control the narrative; we worked with a documentary filmmaker.”
Donziger isn’t alone in touting his unconventional style. Sarah Leah Whitson, a human rights lawyer and former Harvard classmate of the embattled lawyer, praised him as brilliant and said, “If Steven wasn’t Steven with all his flaws and all of his shortcomings, which like any other human he has, we wouldn’t have had litigation against Chevron.”
Graham Erion, a former lawyer on Donziger’s team, said that once the case was moved from the U.S. to Ecuador, Donziger was forced to do battle in a context unlike any U.S. court case: “Both sides were in a constant battle,” he said, adding “I think U.S. courts, mainly Kaplan, came along and created this horrified impression of how the litigation played out in Ecuador and that’s unfair.”
Whether or not Donziger’s behavior in Ecuador was justified—what Kaplan derided as a “Robin Hood” defense—the Harvard students are intrigued by his story. One of the students asks him about his plans for the future.
He’s writing a book, Donziger tells them, and is in talks with a studio about a film that would tell his side of the story. And despite the ongoing legal issues stemming from his contempt proceedings, he says he is hopeful.
“So I’m feeling pretty good,” he says. “I’m not going to say it’s perfect because, you know, it never really is. But if you get the right perspective, and you realize what we’ve accomplished, I’m just really proud of everyone who’s worked on this.”
“I’m surprised at myself—I really didn’t ever know I would have the strength and resilience that I’ve had,” Donziger adds. “I’m just pleased with myself. You know, I’m proud of myself.”
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