An Environmental Hero or Outlaw? Can It Be Both?

Steven Donziger, who won a $9.5 billion settlement against Chevron over dumped oil, began serving a six-month sentence for contempt of court last week.

The New York Times - Joe Nocera 09/11/2021

Ten days ago, Steven Donziger began a six-month prison sentence at a minimum-security facility in Danbury, Conn.

Most of the time, when DealBook writes about someone going to prison, it is for insider trading, or securities fraud.

The Donziger affair is different. It is in some ways both a more important and more instructive case, which is why it has become the subject of such fascination for Big Oil, Wall Street, climate activists, politicians — and even among TikTokers.

Mr. Donziger was the star lawyer who spent decades suing first Texaco and then Chevron (after Chevron bought Texaco in 2001) for damaging the environment and despoiling the Amazon rainforest in Ecuador, harming the tribespeople who lived there. He was profiled in numerous publications and was the central character in a 2009 documentary, “Crude.” Almost always he was characterized as a courageous David taking on the evil Goliath.

Finally, in 2011, an Ecuadorean court ruled in favor of Mr. Donziger’s clients, and awarded them $18 billion (later reduced to $9.5 billion). Chevron had long argued that it was not responsible for any waste left behind — in part because Texaco had conducted a $40 million cleanup effort in the early 1990s, and the government of Ecuador had deemed that to be sufficient. Determined to avoid paying a judgment the company felt was unwarranted, it began digging into Mr. Donziger’s methods.

It got a court order forcing the director of the documentary, Joe Berlinger, to turn over hundreds of hours of footage from the outtakes about Mr. Donziger’s legal approach. “We have concluded that we need to do more, politically, to control the court, to pressure the court,” Mr. Donziger said in one especially damning clip. “We believe they make decisions based on who they fear the most, not based on what the laws should dictate.” It uncovered evidence that the plaintiffs had ghostwritten an expert report the court relied on. A witness said that Mr. Donziger’s team had bribed the judge. Chevron argued that the Ecuadorean judgment should not be enforced because it was obtained through illegal tactics.

So Chevron turned the tables on Mr. Donziger and brought a RICO case against him in the United States. And in 2014, Judge Lewis A. Kaplan, of the United States District Court in Manhattan, ruled in Chevron’s favor. In a scorching 485-page decision, he wrote that Mr. Donziger had foisted “fraudulent evidence on an Ecuadorean court,” and accused Mr. Donziger and “his co-conspirators” of attempting to use the court to extort money from Chevron. Therefore, he said, Chevron did not have to pay the $9.5 billion. Courts in other countries where Chevron does business came to the same conclusion. (Mr. Donziger has always denied the bribery allegation, or that he did anything wrong in handling the case.)

By any normal standard, this should have been the end of the case. After all, what was left to litigate? But it wasn’t the end — not even close. In 2018, after Judge Kaplan’s judgment had finally been affirmed, the company brought another case against Mr. Donziger. Among other things, it wanted him to turn over his computer and other electronic devices. Judge Kaplan agreed. But Mr. Donziger refused to comply, saying it would give the oil company “backdoor access to confidential attorney-client communications.”

In 2019, the judge took the extraordinary measure of bringing in a private law firm to prosecute Mr. Donziger for criminal contempt of court. This case was presided over by another district court judge, Loretta A. Preska, who quickly ordered that he be placed under house arrest and wear an electronic ankle monitor. After a short trial earlier this year, she found Mr. Donziger guilty, and sentenced him to the six months he is now serving. He was also disbarred.

Along the way, something surprising has happened: Outside the courtroom, it was as if the ghostwritten report and the alleged bribe of the Ecuadorean judge had never happened. Mr. Donziger’s victory in Ecuador was praised as legitimate, and he was widely viewed by progressives as an environmental hero. Sting, the musician, helped raise money for his defense. Greta Thunberg offered her support. Representative Alexandria Ocasio-Cortez and several of her Democratic colleagues sent a letter to Attorney General Merrick Garland, asking him to review the case. The Harvard Law professor Charles Nesson rallied to his cause. Campaigns have been started to #FREEDONZIGER. A group of experts from the United Nations said in a report that his pretrial detention was “arbitrary” and therefore illegal. And on, and on. To them, this was a classic example of a fossil fuel company using its might to punish someone brave enough to stand up to it.

This phenomenon of seeing controversial figures as black or white — saint or sinner, hero or villain — is one of the plagues of our polarized age. It has become nearly impossible for people to acknowledge that sometimes their heroes can do something wrong, and their foes can get something right. Donald Trump is the most obvious example of this, but you see it all the time in politics, and in business as well. Are C.E.O.s rapacious greed-heads, or are they stewards of capitalism? Are oil companies supplying the fuel that the world needs to function, or are they “outlaws,” as the environmental activist Bill McKibbon calls them? Too many people are unwilling to hold both ideas in their heads at once.

This failing is especially glaring in the Donziger case. If he had played by the rules in litigating the case in Ecuador, he might have come away with a judgment that a U.S. court would have upheld. Chevron would have had to pay billions to his impoverished clients. To put it another way, by using the tactics he did, Mr. Donziger did his clients an enormous disservice. That his allies refuse to see this suggests their hatred of Big Oil has blinded them to some of Mr. Donziger’s inconvenient actions.

But then there is Chevron. Companies are supposed to make rational risk and reward calculations. The company’s push to prevent the Ecuadorean judgment from going into effect was rational, and showing that Mr. Donziger had violated the rules was an appropriate way to do that. But punishing Mr. Donziger beyond that may ultimately have been a mistake. He has been turned into an environmental martyr, which is the last thing Chevron should want. He’s no longer the lawyer who broke the rules to win a case. Instead, he’s the lawyer who stood up to Big Oil.

As machination piled upon machination, and as the case became solely about Mr. Donziger, one party has been largely forgotten: the Ecuadorean tribespeople he once represented. Thirty years later, for all the money that has been spent on litigation, their circumstance is unchanged.

The original article can be found here.