This is the second part of a two-part series. Read the first part here.
Adani is hardly alone in taking on individual activists: a June report by the Business and Human Rights Resource Centre, a global advocacy group, recorded more than 3100 global actions against community leaders, farmers, workers, unions, journalists, civil society groups and other defenders who fought irresponsible business practices between January 2015 and May 2021.
More than 40% of those came in the form of judicial harassment, which can include criminal and civil lawsuits, arbitrary detention, abusive subpoenas and fabricated charges by governments and businesses. They can also be “strategic lawsuits against public participation” (SLAPPs) which broadly set out not necessarily to beat critics but silence or intimidate them with drawn-out, costly, and/or restrictive cases.
While definitions can vary, the Resource Centre identified 355 SLAPPs in cases that:
- Were brought or initiated by a private party (such as a company, owner of a company or employees at a company)
- Target acts of public participation related (but not limited) to human rights, social justice, and environmental protection, including public criticism or opposition campaigns. Public participation can encompass a range of activities, from peaceful protest to writing blogs — assuming the latter is in the public interest
- Came after the defender and/or organisation critiqued the claimant’s economic activities by publishing a report, posting on social media, participating in an event or interview, launching a campaign, organising a demonstration, and/or another peaceful means.
Most SLAPPs raised in the report concerned projects in four sectors — mining, agriculture and livestock, logging and lumber, and palm oil — and the highest number took place in Latin America (39%), then Asia and the Pacific (25%), Europe and Central Asia (18%), North America (9%) and Africa (8.5%). About 63% also involved criminal charges, primarily related to defamation.
These companies and their supporters see such tactics as a fair and legal way of protecting investments against extreme and even illegal protests. They also demonstrate a shift where legal intimidation is no longer being kept secret but, in the face of escalating climate and human rights activism, openly, deliberately floated.
And to some extent it is succeeding; more than 400 leading experts warned in an April 2021 open letter that governments around the world are criminalising non-violent civil disobedience from groups seeking to tackle the climate crisis. The Resource Centre now calls for legal protections to prevent SLAPPs.
How Chevron created a kangaroo court in NYC
While most cases identified by the Resource Centre were identified in the “global south”, they span every continent. For example, in 2017 the operator of the Dakota access pipeline, Energy Transfer, sought close to US$1 billion in damages from Greenpeace and related groups it accused of unlawful and fraudulent speech intended to harm the company under the Racketeer Influenced and Corrupt Organizations Act (aka 1970-era “RICO” laws, which made it easier to prosecute members of “criminal organisations” and have increasingly been used in SLAPPs against activists). When that flopped in 2019, the company took another crack that includes property-based claims related to the protest against the Dakota access pipeline in North Dakota.
One American SLAPP case not covered in the report, however, can be found in New York City, where oil giant Chevron and a conservative judge have pursued environmental lawyer Steven Donziger, who is in his second year of indefinite home detention over contempt of court charges that at absolute worst would carry a six-month prison sentence.
An account of the saga by Greenpeace co-founder Rex Weyler, who works closely with Donziger, paints a picture of a legal and political ecosystem owned by and for mining giants, while commentary by Forbes writer, conservative legal professor and Trump-supporter Michael L Krauss, shows the defendant as an unapologetic, now disbarred lawyer bribing a foreign judge.
Still, even substantiating media reports of Chevron’s legal work makes Adani v Pennings seem quaint in comparison. Here is what Donziger has documented:
- Chevron purchased, and inherited liability for, former oil company Texaco in 2000, which along with Ecuadorean state oil company Petroecuador dumped roughly 16 billion gallons of toxic wastewater into Amazon rivers and abandoned more than 900 carcinogenic waste pits; Indigenous groups claimed this “Amazon Chernobyl” destroyed lands, polluted waterways, and created an epidemic of cancer and birth defects
- Donziger and other lawyers represented Indigenous Ecuadorians in civil proceedings initiated in 1993, which Chevron fought for nine years to be held exclusively in Ecuador; in 2013, a court ordered Chevron to pay US$9.5 billion in compensation, which the company has simply refused to do, instead ditching the country, selling its assets and threatening victims with a “lifetime of litigation” if they tried to come after the money
- Pre-emptively but in the face of its looming loss, Chevron hired conservative “rescue squad” Gibson, Dunn & Crutcher and found a corporate-friendly judge, New York’s Lewis A Kaplan, to pursue a RICO racketeering case against Donziger and two Ecuadoreans, Secoya Indigenous leader Javier Piaguaje and farmer Hugo Camacho
- In proceedings, Weyler claims Kaplan actively helped Chevron — including supporting virtually any of its motions, banning the defence from mentioning the plaintiff or its legal firm’s history of pollution or corruption, and even suggesting Chevron use RICO as a tactic. Kaplan was chastised by an appeals court for trying to create a universal injunction prohibiting courts from enforcing the environmental judgment against Chevron two days before the Ecuadorian judgment
- Kaplan nonetheless found the ruling of the Ecuadorian courts could not be enforced in the US because it was procured by fraud, bribery and racketeering activities; later a key witness and former Ecuadorian judge — Alberto Guerra, who was removed over misconduct including bribery — admitted to lying that Donziger had offered him $300,000 in an alleged attempt to influence the Ecuadorian judgment. Donziger has since alleged Chevron paid Guerra “at least [US]$2 million and likely much more in cash and benefits … in exchange for false testimony and for maintaining his ongoing silence involving possible criminal misconduct by Chevron and its outside counsel”
- Donziger was nonetheless disbarred from practising law in New York in July 2018
- As part of his appeal of the RICO decision, Kaplan ordered Donziger to submit his computer, phones and other devices to Chevron to allow it to search for his assets, a request Donziger refused
- As his appeal was pending, Kaplan charged the lawyer with six counts of criminal contempt of court and, after these were rebuffed by a New York court, took the unprecedented step of appointing a private law firm that had previously represented Chevron — Seward & Kissel — to prosecute Donziger, and overrode convention to personally appoint a judge, Loretta Preska, who sentenced Donziger to home detention while awaiting trial. He remains there despite that crime carrying a maximum six-month legal sentence; last month, he argued the use of a private prosecutor is unconstitutional.
Last year the case saw 29 Nobel laureates condemn Chevron’s actions as “judicial harassment”, and in April 2021 six members of the Congressional Progressive Caucus demanded that the Department of Justice step in to review the case.
But like Adani and Pennings, the case illustrates some interesting media priorities, with Donziger suggesting The New York Times‘ apparent lack of interest in his case — the paper has not mentioned it since 2013 — may be down to billionaire Robert Denham sitting on both its board and Chevron’s and/or the paper’s first amendment lawyer Ted Boutrous Jr previously representing the oil giant.
Finally, it is worth highlighting that Dongizer’s lawyers claimed in 2018 that Chevron had spent more than US$2 billion to avoid payment of the initial judgment; for a company with about $240 billion in assets as of 2019, we can safely say that money has been spent on more than just ignoring its responsibility to clean up the Amazon.
This series was written by Chris Woods before they began work at Victoria’s Department of Environment, Land, Water and Planning.
This would be a shameful silence from the New York Times, if it is true. What was that about evil flourishing when good people don’t speak out?
Glad you mentioned the Donzinger case, which is another shocker on how corporations subvert the law and how the media has hardly paid attention to it.
Just another nail in the coffin of American democracy, probably the most corrupt in the world. Are we going to be second?
We are third at the moment, Johnson’s Tories are second place.
Would anyone really be concerned if a few Chevron executives, or their lawyers and judges, were mysteriously murdered?
It might teach some of the others to be a bit more circumspect about their social responsibilities….
It’s shocking to think that people could get that desperate.
You mean like when this empty nation was ‘settled’
“Groups seeking to tackle the climate crisis [need] legal protections”. One protection they can be given is to legislate carbon dioxide as a pollutant. Because the protesters are alerting the public to a crime (polluting), their actions are legally in the public interest, and the bullying is exposed as covering up a crime.