Recent allegations of improper conduct by the judge presiding over the six-year-old Ecuadorian Amazon oilfield-pollution trial here involving Chevron could at the very least add several months to the landmark proceedings. But Chevron, alleging that secretly shot video catches the judge, Juan Evangelista Núñez, telling the two men who filmed him that the ruling will go against Chevron, is pushing for a procedural U-turn.
On Sept. 9, Chevron attorney Adolfo Callejas Ribadeneira called on the deputy judge of Lago Agrio Court, the Amazon-region tribunal where the trial is being held, to nullify all actions Núñez has taken in the case. The court’s president and the fourth judge to handle the case since it was initiated in Ecuador in May, 2003, Núñez has presided over the trial since September of last year.
At stake is a high-profile trial here in which indigenous plaintiffs charge that a Texaco subsidiary released vast amounts of oil-drilling waste in the Ecuadorian Amazon from 1972 to 1992. The Indians, who claim ongoing contamination from abandoned waste pits, want Chevron held accountable by virtue of its 2001 acquisition of Texaco. Chevron counters that Texpet met the terms of a remediation contract it signed with Ecuador in 1995, pointing out that Ecuadorian authorities in 1998 certified the work had indeed been completed and released the company from further responsibility. But plaintiffs’ attorneys argue the remediation agreement does not protect the company from third-party lawsuits.
Until recently a decision was expected by the end of this year or in early 2010. That forecast, however, is now being revised in the wake of Chevron’s allegations against Núñez.
The allegations stem from videos Chevron made public Aug. 31, saying they were shot in May and June. One video appears to capture Núñez telling those meeting with him that Chevron is guilty and he’d hand down a decision by January. He also appears to say the damage award “could be less, or could be more” than US$27 billion. That is the figure a court-appointed investigator has calculated as the total of environmental and health damages from the drilling-waste pollution, along with “unfair earnings” generated by insufficient company investment in oilfield safeguards.
One video, in which the judge is not present, shows a man, identified as Carlos Patricio García of the governing Country Alliance party, speaking about a US$3 million bribery scheme, with $1 million slated for Núñez. Chevron claims García arranged for the two men who secretly shot the video to fly to Lago Agrio for a meeting with Judge Núñez.
Speaking since to the media, Núñez has denied receiving a bribe or a proposal for one. After testifying at the office of Ecuador’s attorney general, who is investigating the matter, Núñez acknowledged he met twice with the two people said to have shot the videos—once in his Lago Agrio office and a second time in Quito. But he charges that the videos were altered, insisting he never talked about ruling against Chevron, as the company contends.
Correa weighs in
For his part, Ecuadorian President Rafael Correa this month dismissed the controversy as a trick by a “desperate” Chevron. In remarks broadcast on radio and TV Sept. 12, he denied government involvement in the alleged bribery. “We won’t fall in the trap,” he said.
The two men Judge Nuñez met with and who shot video of him were identified as Diego Borja of Ecuador and Wayne Hansen, a U.S. citizen who is reportedly an environmental consultant. Núñez says the pair arrived at his office in the company of a former lands registrar for Sucumbíos province who had asked to see him for advice and support aimed at getting his job back. (He had been removed from his post for alleged unauthorized expenditures.)
Borja and Hansen allegedly presented themselves as contractors looking to perform environmental remediation of oilfields. They reportedly recorded video of Núñez in his office and at a subsequent meeting elsewhere using miniature cameras embedded in a watch and in a pen. Chevron says Borja has worked for it as a logistics contractor, while Hansen has no relationship with the company.
“Borja and Hansen recorded their meetings without Chevron’s knowledge, and neither man was paid to provide the recordings to Chevron,” Charles James, Chevron’s executive vice president, said Aug. 31, when the videos were released. “Because of concern for Borja’s safety, Chevron has assisted him and his family with relocation expenses and other interim support. Chevron has consistently asserted that the case has involved improper complicity between the plaintiffs and executive branch and other legal irregularities. These video recordings raise additional serious questions about corruption, executive branch interference and prejudgment of the case that demand a full investigation. No judge who has participated in meetings of the type shown on these tapes could possibly deliver a legitimate decision.”
Judge’s request weighed
Núñez on Sept. 3 asked to excuse himself from the case. (At press time the deputy of the court, Judge Zambrano, rejected the request, but it nevertheless was considered unlikely Núñez would return to the case.)
When it gave the videos to Ecuadorian authorities, Chevron called for a “full investigation of this matter—focusing not only on the conduct of Judge Núñez, but also on the very serious indications of political interference in this case.” Then on Sept. 7, Chevron posted electronic correspondence on its Web site in which an aide to García, the purported governing-party operative, appears to give Borja a bank-account number in Galveston, Texas.
In his Sept. 9 request to Judge Zambrano, Chevron’s Callejas said if Núñez’s actions in the case are not nullified, the company’s “right to impartial justice and due process guaranteed by the constitution would be denied.”
Plaintiffs’ attorneys note Chevron released the videos just days before the screening in New York of “Crude,” a documentary about the plaintiffs’ legal battle, which began 16 years ago in New York with a suit against Texaco. The videos, they contend, represent a company-orchestrated bribery attempt aimed at delaying the judicial process.
Says Pablo Fajardo, lead attorney for the plaintiffs: “The individuals associated with Chevron attempted to bribe alleged Ecuadorian government officials to undermine the legal proceedings so the company won’t have to pay what the sentence dictates.” (See Q&A.)
Indigenous plaintiffs originally filed suit against Texaco in 1993 in U.S. District Court in New York, Texaco’s home turf. That court ruled the case must be tried in Ecuador. The current trial stems from a 2003 complaint plaintiffs filed in Lago Agrio against Chevron, which had acquired Texaco two years earlier.