In the lawsuit, four women from the Ecuadorian rainforest and five of their relatives accuse Texaco of polluting their environment while drilling for oil in the Amazon. The women allege that living with this pollution gave them breast, uterine, and thyroid cancer, lymphoma, and caused leukemia in one child. Texaco's environmental practices in Ecuador have been brought to light before a 1993 lawsuit in New York made similar accusations, and dragged through the court system for eight years. That time, Texaco's lawyers repeatedly asked the judge to move the case to Ecuador's courts and he eventually complied; the case is ongoing there.
In the San Francisco courtroom, Judge Alsup was waiting for that same request to move the case to the jurisdiction where the alleged pollution caused the problem. But it didn't come, and he wanted to know why. "Since no one on the plaintiffs' side lives in this country they live in Ecuador it's an obvious question to ask," he said. "Let me hear from 'Big Oil,'" he said. "Tell me why you didn't make that motion."
The high-powered defense team hemmed and hawed. They had a motion to dismiss the case entirely, they said, and thought that would be the fastest, easiest way to remove the objectionable case from the judge's courtroom.
"You may find out that it's not," grumbled Judge Alsup. Indeed, instead of a quick dismissal and an early lunch for the judge, he ended up demanding that both legal teams fly their experts to San Francisco to testify about arcane details of Ecuadorian law. In October, he rejected the oil company's motion to dismiss the case, and set a date for the jury trial, when San Francisco jurors will decide whether to hold Texaco and its parent company, Chevron accountable for the plight of the indigent rainforest dwellers. The plaintiffs' lawyers were able to bring suit in San Francisco because Chevron is based in San Ramon, within the jurisdiction of the federal court's Northern California district. While it might sound like a disadvantage for the oil company to be judged by liberal San Franciscans, for some reason, that's the way Chevron wants it. (A spokesman called the lawsuit "meritless," but refused to comment on the company's legal strategy.)
It's the latest legal wrangle for Texaco over the Ecuadorian drilling that took place between 1964 and 1992. Texaco no longer has any operations in the area, and claims to have spent $40 million to clean up the sites they left behind. But the locals aren't satisfied and, therefore, the lawsuits keep coming. As the company's lawyers juggle the legal strategies for three related cases, they may find that they've got fewer and fewer options; there may come a day when Chevron opens its pockets and settles big with the rainforest residents. Until that day, it's open season in the courts of San Francisco, New York, and Quito, Ecuador.
At the core of all the cases are a few undisputed facts: While Texaco pumped up oil in the Ecuadorian rainforest, it came to the surface mixed with water. The company separated out the oil, and discharged the water into rivers and streams, and stored other waste products in unlined, open pits. Rainforest activists from the San FranciscoÐbased group Amazon Watch (which is not a plaintiff in the suit) claim that 18.5 billion gallons of this "produced water" was discharged during the years Texaco operated the sites, and allege that the water was laced with toxic chemicals known to cause cancer. "To put it in perspective, the amount of toxic waste they dumped was 30 times the amount spilled in the Exxon Valdez disaster," says Simeon Tegel, a spokesman for Amazon Watch. Unsurprisingly, Chevron maintains that the wastewater was harmless, that they spent $40 million to clean up the sites they left behind, and that the Ecuadorian state petroleum company that Texaco partnered with bears any remaining responsibility.
The plaintiffs' lawyers site a couple of good reasons why Chevron might be wary of sending the present case down to Ecuador. The company may be getting nervous about an ongoing case in Quito, the remnant of the case removed from the United States in the 1990s. The judge recently put the trial on the fast track, and a ruling is expected in the next year. That lawsuit demands a massive environmental remediation effort; Amazon Watch estimates it could cost $6 billion in total. Meanwhile, in New York federal court, Chevron is locked into a lawsuit with the government of Ecuador about who should pay for the cleanup or any other legal damages awarded.
With governmental relations already frayed by the litigation in New York, the company may also be wary of the anti-American, socialist sentiment on the rise throughout South America what commentators have taken to calling the "pink tide" that has swept leftist leaders into power across the continent. "Ecuador just kicked Occidental Petroleum out, and the government is starting to make populist noises," says Terry Collingsworth, one of the plaintiffs' lawyers. "Chevron is damn nervous."
These macro forces mean little to Judge Alsup, however, as he wades through the muddy legal waters of this case that has its roots in a South American rainforest. In October, he spent a long day hearing testimony from experts flown up from Ecuador. The next day he would have to discuss how the Ecuadorian plaintiffs would be deposed, and whether they could appear for trial; there was some concern that the impoverished Indians wouldn't be able to get visas to enter the United States. It was the end of the afternoon, and the judge finally let his irritation show. "I just don't understand why a case that involves Ecuador is up here!" he burst out. "Now you want a lowly district judge in San Francisco to resolve it! It's all topsy-turvy."
The judge sighed, resigned. "But that's what I've got to do. See you tomorrow," he said, standing up. Chevron's lawyers stayed quiet.