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HomeMy WebLinkAboutMINUTES - 12092003 - D4 DA THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on December 9, 2003 by the following vote: AYES: Supervisors Gioia, Uilkema, Greenberg, Glover and DeSaulnier NOES: None ABSENT: None ABSTAIN: None The Contra Costa Central Labor Council and San Ramon CARES presented a video and oral report to the Board of Supevisors regarding the ecological effects of the Chervon Texaco Operation in Ecuador. Supervisor DeSaulnier moved to accept the presentation and noted he would continue to work with Contra Costa Central Labor Council and San Ramon CARES and return to the Board in the future with an update. I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. Attested: December 9,2003 John Sweeten,Clerk of the Board of Supervisors and County Administrator i e / By. Deputy Clerk DA VIDEO PRESENTATION Report and presentation from the Contra Costa Central Labor Council and San Ramon CARES on ecological effects of the Chevron Texaco Operation in Ecuador. r w: RespondingTo Chevron Texaco's Claims ChevronTexaco claims that it strives to adhere to responsible corporate citizenship, known as the "ChevronTexaco Way".-the company pledges "to conduct business in a socially responsible and ethical manner... support universal human rights...protect the environment, and the communities where we work... [and]learn from and respect cultures in which we work." But in the Ecuadorian Amazon, Chevron Texaco's inherited an environmental disaster caused by one of its predecessor companies, Texaco, that raises questions today about the company's commitment to respect the environment and the communities where it operates. ChevronTexaco's assertions about this disaster, and the current legal case pending in Ecuador, are below. Responses follow each assertion. 1. ChevronTexaco: The U.S. court sent the case to Ecuador because it had no merit. Fact: The U.S. court never ruled on the merits. It removed" the case to Ecuador because it thought that country would be a more convenient setting for a trial. While this was not the first preference of the plaintiffs, it still represents an extraordinary opportunity to seek justice. Never before has a U.S. oil company been forced by a U.S. court to submit to the judgment of an Ecuadorian court. 2. ChevronTexaco: Texaco's operations in Ecuador complied with Ecuadorian Law. Fact: Ecuador had no environmental laws as the time and Texaco took advantage to do what it never would have done in the U.S. or anywhere else in the world—systematically dump billions of gallons of toxic wastewater to save money. When Texaco first entered Ecuador in the late 1960s, the leaders of Ecuador depended on Texaco to install modem technology consistent with industry standards. By not doing so, the company knowingly engaged in reckless and negligent practices. 3. ChevronTexaco: Texaco treated the toxic wastewater in Ecuador before it was dumped. Fact: ChevronTexaco has yet to produce a single document corroborating its claim that Texaco treated the toxic wastewater before dumping it into rivers, streams, and estuaries. This claim flies in the face of all documentary evidence in this case, and contradicts statements made by the company's own employees. The toxic residue left behind by the dumping of toxins is still visible today. 4. ChevronTexaco: Texaco was a minority partner in a consortium. Fact: While Texaco held a one-third partnership interest in a consortium with Gulf and Ecuador's national oil company, it designed, constructed, and operated each of the more than 350 wells on behalf of the consortium. Its U.S.-based executives made the crucial decision to dump the toxic wastewater—leading to excess profits estimated at$4.5 billion. Texaco, and now ChevronTexaco, is therefore ultimately responsible for the damage caused by this decision. 5. ChevronTexaco: Texaco's drilling practices complied with customary industry standards. Fact: Since at least the early 1950s—a full two decades before Texaco built its first well in Ecuador— the oil industry standard for disposal of the toxic wastewater that is a byproduct of drilling was to re- inject it into the ground. As early as 1919, Texas had a statute prohibiting the discharge of toxic wastewater. ChevronTexaco has been unable to cite one instance anywhere in the world other than Ecuador where Texaco or Chevron dumped untreated toxic wastewater. 2 6. ChevronTexaco: The dumping of toxic wastewater in Ecuador is not unusual. In California, wastewater is used to irrigate farmland. Fact: If ChevronTexaco irrigated farmland in California with the same toxic wastewater that it dumped in the Ecuadorian Amazon, its executives would be severely fined or jailed. The toxic wastewater dumped in Ecuador has destroyed wide areas of farmland, lowered production of foodstuffs, and killed a wide variety of farm animals—not to mention the physical health problems it has caused in the population. Any wastewater used to irrigate farmland in California would first be treated to remove it of carcinogens. This treatment was not done in Ecuador. 7. ChevronTexaco: Texaco cleaned up any environmental damage it caused. Fact: ChevronTexaco's assertion is belied by the visible evidence, health studies, and testimonies from residents. In 1995, Texaco agreed to pay$40 million as compensation to the government of Ecuador for ecological damage. This"agreement' is considered a sham: it was negotiated without the participation of the residents of the region, and did not address their core claims of individual compensation, medical monitoring, or clean-up—the combined cost of which is estimated to exceed $1 billion. In addition,there never has been a public accounting of how this modest sum was spent. As a result of the agreement, bulldozers covered a handful of the toxic waste pits with dirt without first cleaning out of their toxins—a process akin to treating cancer with makeup. Moreover, the money did not provide medical care for the victims, nor did it provide clean drinking water. 8. ChevronTexaco: There is no credible scientific evidence that Texaco's discharge of wastewater caused health problems. Fact: Several studies document the link between the dumping of wastewater by Texaco and serious health consequences, including cancers. In the community of San Carlos, located close to 30 of ChevronTexaco's wells, researchers reported a rate of cancer 130% higher than the norm. In another small community, researchers found four young women with uterine cancer—an astonishingly high rate. Although the cohorts in these studies was small, they represent a microcosm of what anecdotal evidence suggests is happening in dozens of villages around the region. 9. ChevronTexaco: Them is no law that the plaintiffs can use to win damages. Fact: The laws applicable to Texaco's actions in Ecuador are rooted in tort and contract law. These laws require any company to take all reasonable and prudent steps not to harm others. Whether ChevronTexaco's actions in Ecuador were"reasonable" and "prudenf in light of all the facts is a question that ultimately will be decided by the court. Ecuador also has several provisions in its legal -code and Constitution that offer protection to those damaged by environmental contamination. 10. ChevronTexaco: The Ecuadorian government certified the cleanup as acceptable. Fact: Actually, some corrupt.individuals in an earlier government claimed Texaco's"clean-up"was satisfactory even though it did not address any of the underlying issues, such as the remediation of the waste pits and medical monitoring of the thousands of people exposed to an increased risk of cancer. In fact, not a penny was paid under this supposed "clean-up,to any individual damaged by Texaco's dumping of the toxic wastewater. The Ecuadorian citizens who are now suing ChevronTexaco have not released it from any of their claims. After ten years, these claims are now being heard by an Ecuadorian court. Revised July 7, 2003 Existing Studies of Texaco's Ecuador ClKratiloris Since 1990,when the disaster in Ecuador's Amazon region finally began to be recognized, several studies of Texaco's operations have described Texaco's practices and the resulting impacts on the environment and human health. Amazon Crude (1991) Judith Kimerling and FCUNAE In the first study to receive wide public attention in both Ecuador and the United States, environmental lawyer Judith Kimerling documented the extent of the oil contamination in the Ecuadorian Amazon region. Kimerling reported that Texaco operations in the Amazon region had resulted in the deforestation of at least I million hectares,the spilling of 16.8 million gallons of crude oil,the burning of 235.6 billion cubic feet of natural gas as waste,and the purposeful dumping of 19 billion gallons of untreated toxic waste directly into the environment Working with the Federaci6n de Comunas Union Nativa de la Amazonia Ecuatoriana(FCUNAE), Kimerling also documented the complaints of local indigenous peoples who claimed to be affected by this pollution. Amazon Crude recorded the disappearance of fish from the rivers in the region and the wild animals from the remaining forests. Culturas Bafladas en Petro'leo(1993) Uni6n de Promotores Populares de Salud de la Amazonia Ecuatoriana(UPPSAE) Community health workers from the Amazon region organized themselves and found funding from the Spanish NGO Medicus Mundi to complete Cultura Barladas en Petr6leo. The study encompassed some 10 different rural communities in the Sucumblos province, 500 of which were located within the Cuyabeno Wildlife Reserve. UPPSAE researchers found considerably higher rates of anemia, kidney problems,tuberculosis, and skin diseases in contaminated communities than in uncontaminated communities in the same region. They also noted a 50% higher rate of spontaneous abortions for women who drank water within 200 meters of oil facilities compared to those whose water came from further away. The mortality rate among children in the study was found to be three times higher than the national rate. The study also found the general mortality rate in communities with contamination to be twice the mortality rate of the communities without contamination. Environmental Assessment of the Petroecuador-Texaco Consortium Oil Fields (1993) HBT Agra Ltd. Bowing to public pressure, in 1992, the Texaco-Petroecuador consortium agreed to conduct an environmental assessment of their pre-1990's operations. The audit, conducted by the Canadian firm HBT Agra Ltd.,confirmed that during the period 1973 to 1990, spills were recorded at 93 well sites and 10 production stations. In 18 water samples taken during the audit 12 exceeded the recommended discharge quality criteria for chlorides, 16 exceeded the recommended discharge quality criteria for sulfides, and they all exceeded the recommended discharge quality criteria for suspended solids. After reviewing the pertinent laws and regulations, the study concluded that "oil field operations prior to 1990 were potentially not in compliance with Ecuadorian law and regulations.' Rights Violations in the Ecuadorian Amazon: The Human C-d-risequences of Oil Development(1994) Center for Economic and Social Rights(CESR) Scientists from the Harvard School of Public Health researched this landmark study that links the concept of human rights to a requisite healthful environment. The scientists found that wastewater samples from former Texaco facilities contained extremely high levels of toxic compounds(polycyclic aromatic hydrocarbons(PAHs)and volatile organic compounds(VOCs)). They also found that drinking, bathing and fishing water samples contained levels of PAHs 10 to 1,000 times greater than the U.S. Environmental Protection Agency's safety guidelines. Exposure to certain PAHs and VOCs greatly increases a person's cancer risk. A"fingerprinting" analysis linked the PAH contaminant patterns with nearby oil facilities. As medical examinations of residents found cases of dermatitis"apparently related to oil contamination,"CESR authors concluded that Texaco had a potential civil liability for the pollution and pollution-related diseases and that the Ecuadorian governments oil development policies had violated its citizens' human rights to health and healthful environment The scientific results of this study were also presented in the document entitled Report on a Rapid Assessment of Oil Pollution and Environmental Health in the Oriente Region of Ecuador(LeMontagne,et al:n/d). Marea Negra en la Amazonia: Conflictos,socio amblentales vinculados a la actividad petrolera en el Ecuador(1996) Coordinadora,Anamarla Varea - This 400-page book includes a variety of case studies of burgeoning socio-environmental conflicts in the Ecuadorian Amazon. The case study of the communities of San Carlos and Primavera,observed villagers living around Texaco facilities to have exceptionally depressed standards of living. The case study recorded severely deficient basic residential services, infrastructure, and social services. The study also recorded villagers'complaints about contamination of local waterways and air quality from former Texaco facilities and outbreaks of skin diseases, nausea,and generally low quality of health as well as villagers'complaints of reduced agricultural yields and economic impacts. A following case study analyzed the lack of transparency in the audit of Texaco's activities. "Yana Curl" Report(2000) Instituto de Epidemiologla y Salud Comunitaria"Manuel Amuncirrie Commissioned by the Departmento de Pastoral Social del Vicariato Apost6lico of Aguarico and completed in collaboration with the London School of Hygiene and Tropical Medicine, this study focused on the community of San Carlos, in the Orellana province near the former Texaco pumping station of Sacha Sur and 30 surrounding functioning wells. The study's analysis of water samples from rivers used by the community found the concentration of total hydrocarbons in the water to be as high as 288 times the European Community's acceptable limit for drinking water. After providing an extensive review of the published information on the known impacts of oil on the health of animals and humans,the study's authors linked this environmental contamination from oil development around the community to a high numbers of cancers in the area and a high rate of spontaneous abortions.The study found that the risk of developing cancer in the male population was 2.3 times the expected rate, and the risk of developing rare cancers such as cancer of the larynx and bile duct were 30 and 18 times the expected rate, respectively. The mortality rate from cancer was recorded to be 3.6 times expected levels in the male population, and for rare cancers was considerably higher than the expected rate,with the mortality rate from melanoma at 70 times expected level for males. The rate of spontaneous abortions in the affected population was 2.5 times the rate of spontaneous abortion in communities in the area not exposed to the contamination, or some 9.8%of all pregnancies in the affected communities. Table of Contents' Message from the Executive Director 3 Mission & Programs 4 Program Achievements S Monitoring Mega -Projects 6 Geographic Focus Map 7 Supporting Rainforest Peoples 8 Influencing Investors 10 Amazon Communications Team 11 2002 Financial Statement 12 Amazon watch Staff & Board 13 Acknowledgements 14 Volunteers, Collaborators & Allies 15 Cover Photo: The Panacocha Lagoon, pink dol- phin habitat in the Ecuadorian Amazon - 2002 Message From the Executive Director At the core of Amazon Watch's mission, are hese basic realizations: The fate of the Earth's wild places and indigenous peoples depends on the actions that we take or don't take in our life- time. The Amazon, with 40 percent of the Earth's remaining rainforests, serves a vital role in our planet's life support system. And, the forest's indigenous inhabitants the Amazon's true guardians, are engaged in critical initiatives to defend their lives, lands and cultures. Despite daunting battles, these courageous and caring people empower and inspire us each time we join together to fight for a river, a rainforest, or a community. More than ever, the indigenous peo- ples of the Amazon have come to trust and count on Amazon Watch's support. In 2002, Amazon Watch's seventh year, we worked hard to bring the voices of distant indigenous com- Munities to the doorstep of international decision - makers. We partnered with indigenous and environmental organizations in Ecuador, Peru, Colombia, Brazil, and Bolivia to protect intact forest frontiers and indigenous peoples' territories. We drew main- stream media attention to previously unreported issues such as the OCP pipeline in Ecuador and the Camisea project in the Peru. With your support, we celebrated several impor- tant milestones. Occidental Petroleum abandoned plans to drill for oil on the Uwa people's sacred lands in Colombia; while OPIC, a U.S. government agency, cancelled a $200 million loan to Enron for the Bolivia-Cuiaba pipeline. N e,,victories send a clear message to investors v1' in other oil and gas projects in pristine ewere delighted that the Ecuadorian gov- ern once again postponed auctions for new oil concessions that cover some 5 millions acres of intact rainforest and encompass the territories of our partners, the Shuar, Achuar and Zapara peo- ples. At the request of local communities, Amazon Watch delivered support direc-Oy to the front lines in form of computer.. end camera equipment, edia and communiO4#*1` - training, and f�nding. We organized investigative missions to the Amazon and accompanied delegations of affected peoples to the U.S. We publicized how the Bush administration and the U.S. energy industry are teaming up to increase oil and gas prospecting and exploitation in the Amazon, now identified as strategic to U.S. energy needs. We documented how a new wave of oil concessions and their associated network of pipelines and roads pose a serious threat to the heart of the Amazon rainforest. We delivered first hand information on emerging threats and enlisted the support of many interna- tional advocacy organizations on priority cam- paigns. Our initiatives also benefited from the par- ticipation of celebrities and inspiring activists such as Martin Sheen, Esai Morales, Julia Butterfly Hill, Cary Elwes, Joe Kane, and John Seed. I In 2002, Amazon Watch established an office in the San Francisco Bay Area and launched a new cam- paign to force ChevronTexaco to clean up the mas- sive contamination it left behind in the Ecuadorian Amazon. The following pages provide a snapshot of Amazon Watch's major achievements in the past year. The staff and board of Amazon Watch sincerely thank you, our supporters, for your encourage- ment and financial support. We invite you to con- tinue your involvement in the coming year. There is so much to be done. To protect the Amazon's endangered ecosystems and indigenous peoples, we need your ongoing support and involvement. Thank you for caring for the planet. For the Earth and Future Generations, Mission Statement mazon watch works in partnership with foresteo les in the p p Amazon o defend their rights and protect the environment. we investigate and challenge industrial projects that threatenristine Amazon on rainforests, and work to strengthen and support forest peoples' organizations. p g s. Programs Amazon Watch has four key programs: Monitoring Mega -Projects. Track, investigate, and publicize controversial mega - projects in early planning stages to catalyze local and international response. Supporting Rainforest Peoples. Mobilize direct support to affected communities and generate media and public attention to pressure key decision -makers. Influencing Investors. Pressure financial institutions and corporations to shift their investments out of projects that are destructive and into more sustainable alter- natives. f y Y� Amazon Communication Team. Provide media and " communications training and equipment to increase the capacity of our Amazonian'' partners to defend their rights. q e �L y� } r s; k w�} F �' Acl 111,'T,,io ni*toring Mega -Projects Using our extensive Latin American networks, Amazon Watch monitors controversial Latin American resource extraction and infrastructure projects that are in the early planning stages. Our priority is to iden- tify decision -makers and key decision points. Based on this research, Amazon Watch publishes timely project profiles, action alerts, news releases, and directs campaign resources to where they can have the most impact. Major Achievements in 2002: Tracking Energy Sector Trends: Amazon Watch identi- fied and analyzed the following broad trends in the energy industry in the Amazon region: • Increased oil exploration and production in Ecuador and Peru in territories of isolated and vulnerable indigenous populations and in national parks • Increased oil exports from the Andean/Amazon for con- sumption in U.S. West Coast markets. • Proposed pipelines in Rondonia and Amazonas states of the Brazilian Amazon • Plans for gas shipments in form of Liquified Natural Gas (LNG) to U.S. markets from Bolivia and Peru Pivotal Energy Companies: Amazon Watch closely fol- lowed the activities of U.S. companies: Halliburton, El Paso, Hunt Oil, Enron, Occidental Petroleum, 6L. Burlington Resources, and ChevronTexaco. Threats on the Horizon: Amazon Watch researched and tracked proposed oil and gas investments including: Bolivia's Pacific Liquid Natural Gas (LNG) project, New oil pipelines between Ecuador -Peru, Bolivia's Gasyrg and Yabog pipelines, L and Ecuador's proposed oil explo- ration concessions covering nearly five million acres. Amazon Watch also conducted the following investiga- tive missions during 2002: Assessing Impacts of Peru's Camisea Project: At the request of local groups, Amazon Watch brought together experts and conducted field missions to eval- uate the environmental and social impacts of the mas- sive Camisea fossil fuel project. We brought attention to the threats facing Machiguenga communities as well as the vulnerable and isolated populations who shun all contact with the outside world. U.S. Government's Export Import Bank (Ex-Im) is consid- ering a loan for drilling in the Indigenous Reserve. Exposed Unethical Company Conduct To Financiers: Amazon Watch documented oil compa- nies' harmful activities including Pluspetrol and Hunt Oil's practice of sending search parties to forcibly seek uncontacted indigenous groups in the area of the gas concession. Our monitoring reports were sent regularly to the Ex-Im Bank, Inter -American Development Bank (IDB), Andean Development Corporation (CAF) and Citigroup. J Ecu Colombia � 33 Per L4 0 Amazon Watch Geographic Focus N Frontier Forests in South America source: World Resources Institute ' Global Forest Watch THE FOCUS OF AMAZON WATCH'S MONITORING & ADVOCACY PROGRAMS 1. Ecuador: New oil drilling in protected areas of lowland rainforests (Yasuni, Cuyabeno, Limoncocha, Panacocha) . 2. Ecuador: OCP pipeline route through Andean montane cloud forests (Mindo Nambillo, Guayllabamba Basin Reserve). 3. Ecuador: a) Oil Exploration in Achuar / Shuar Territories in pristine Southern Amazon rainforests. b) Oil exploration concessions (9th round) in pristine southern lowland rainforests. 4. Peru: Camisea Gas field & pipelines in isolated indigenous peoples' reserves in intact Southwestern Amazon rainforest. 5. Peru: Cleanup of contamination in block 1 AB and new oil exploration and drilling in block 64, territories of Achuar People. 6. Bolivia: Bi -Oceanic Highway and new gas pipelines through Chiquitano Forest (Dry Tropical) & Pantanal Wetlands. 7. Bolivia: Pacific LNG pipeline to export gas to the U.S, and also Gasyrg and Yabog pipeline expansion proj- ects through Chaco forests. 8. Brazil: Urucu-Porto velho & Urucu-Manaus gas pipelines through isolated indigenous peoples' area in intact lowland rainforests. 9. Brazil: Belo Monte hydroelectric dam on the Xingu River to flood tropical forests and affect indigenous reserves. 10. Brazil: An industrial waterway for shipping grains is proposed for Tocantins and Araguaia Rivers. 11. Colombia: Oil exploration in the U'wa Indigenous territory in the Cordillera Oriental Montane Forest. Page 7 i } 1 7b1*1 / 4. Supporting Rainforest Peoples 2oordinated azon Watch assists front line communities through campaigns, technical and financial support. In 2002, we closely our efforts with our partners, specifically with the Achuar, Shuar, Zapara, the U'wa, the Chiquitano, and the Machiguenga peoples. We also formed alliances with communities and environmental organizations in vulnerable areas. Our campaigns enabled indigenous and local peoples to directly confront and engage international decision -makers such as shareholders, corporate executives, government officials, and financiers. Achievements in 2002: ECUADOR Supported Local Resistance to the New Oil Pipeline in Ecuador. Amazon Watch directed funding, equipment, train- ing, and generated media coverage in support of local communities affected by the OCP pipeline. Along with groups in Germany, Australia, and Canada, we focused public attention on the financiers of the pipeline. Amazon Watch helped commission two independent studies that documented the project's failure to adhere to the minimum environmental stan- dards set by the World Bank or those of OCP's main financier, the German Bank WestLB. Shined International Spotlight on Ecuador. In July 2002, Amazon Watch accompanied the celebrated environmen- talist Julia `Butterfly' Hill to Ecuador to express solidarity for anti -OCP activists. She visited local residents who had led protests and tree sits in the Mindo cloud forest reserve. Ms. Hill's arrest during a peaceful demonstration in Quito and her subsequent deportation shone the international spotlight on the OCP project and the environmental destruction in the Amazon being perpetrated by North American oil companies. Launched Clean Up Ecuador Campaign. Amazon Watch visited Ecuador in September 2002 to strategize with local partner groups about the newly created Clean Up Ecuador campaign focused on ChevronTexaco. Corporate accounta- bility, cleanup and community reparations form the main goals of the campaign which seeks solutions to the toxic legacy the company left behind after 20 years of oil drilling in the Ecuadorian Amazon. In December 2002, Amazon Watch launched the campaign timed with the U.S. visit of indigenous and community leaders from affected communities. PERU Accompanied Communities Affected by the Camisea Project. Amazon Watch publicized the Camisea project's impacts and accompanied delegations of people affected to Washington D.C. to meet with the project's potential financiers including ExIm Bank, the IDB, and Citigroup. Decision -makers heard first hand about the project's serious impacts. Project loans to Hunt Oil and Pluspetrol were subsequently delayed and Citigroup withdrew from the project. Strengthened Communities Affected by the Camisea Project. At the request of Peruvian partner groups, in August Amazon Watch helped convene workshops for local environmental and indigenous organizations in preparing for public hearings held by the Inter -American Development Bank (IDB) on the Camisea Project. The workshop provided insight into IDB's policies and offered our Peruvian and Bolivian partner groups a space for exchanging experiences in dealing with pipeline projects. Page 8 r MENAMMMM "moon 40 4 .www 7 x"M 'A BOLIVIA Challenged Financing for New Gas Pipelines in Bolivia. Amazon Watch faciliated meetings for our Bolivian partner groups with the Inter -American Development Bank in Washington, D.C. to dissuade the bank from financ- ing new gas pipelines in Bolivia, in particular, Enron's projects. We also held meetings with OPIC and presented information on the environmental and social impacts from the Bolivia-Culaba project. COLOMBIA Publicized the U'wa People's Story. Amazon Watch continued to support the U'wa people of Colombia in their valiant efforts to defend their territories and culture from oil drilling. We translated and disseminated U'wa commu- niques and kept the U'wa story --in particular the news of Occidental Petroleum's withdrawal from the U'wa land -- in the international spotlight. We helped raise and channel funds directly to the U'wa for land recuperation and travel. Amazon Watch accompanied the U'wa on their US visits and recruited Hollywood celebrities in their support. Informed OXY's Shareholders on Company Abuses. Amazon Watch attended OXY's May 2002 Annual Shareholder Meeting and held public rallies to bring attention to the company's role in Colombia's conflicts. We questioned OXY exec- utives on the company's environmental and human rights abuses in Colombia and in northern Peru. OXY announced its withdrawal from the U 9 wa Peoples' land at their AGM. Exposed the Chain of Complicity in Violence. Amazon Watch defended human rights in Colombia by exposing the complicity between U.S. military aid, Occidental Petroleum, the Colombian military and other armed groups behind mas- sacres and abuses of indigenous peoples. In March 2002, we published a report entitled Civil Conflict and Indigenous Peoples in Colombia that examines how the location of Colombia's lucrative oil reserves beneath indigenous territories has increas- ingly put indigenous peoples directly in the crossfire of Colombia's civil war. We also organized an U'wa delegation to Washington D.C. as part of the National Mobilization on Colombia in April 2002. Workshops, rallies and action alerts served to educate U'wa supporters about the human rights crisis being perpetuated by more U.S. military aid. BRAZIL Investigated New Pipelines in the Brazilian Amazon. Amazon Watch embarked on a field mission to the communi- ties that would be affected by the proposed Urucu-Porto Velho gas pipeline to gather information and coordinate camp . aign strategies with local groups. The trip included visits to the Solimbes gas plant and the town of Coari, which is heavily affect- ed by the existing Coari-Manaus pipeline. In Porto Velho, we met with indigenous organizations who are concerned about the uncontacted indigenous groups who will be affected by the new pipeline's route. Following the trip, we presented our concerns to the project sponsors, the US -based company, El Paso Gas and Petrobras (Brazilian state-owned oil company) and warned them of the growing international opposition to the project. North American investors and energy markets are a major driving force behind the proliferation of new oil and gas mega -projects in the Amazon. Amazon Watch questions rW'ffi the economic rationale for fossil fuel exploitation that for the past 30 years has left massive contami- nation, cultural disinte- gration, violent conflict o and escalating debt throughout the Amazon. We challenge interna- tional financial institu- tions, private banks and corporations to consider the ecological and social risks of drilling in pristine or culturally sensitive rain- forests. Amazon Watch also monitors the projects and policies of international financial institutions like the World Bank and the Inter -American Development Bank. We call on these institutions to end lending to industrial projects in sensitive forests. When necessary, we intervene to block financing for harmful projects. Roberto Perez, Uwa President, Speaks at Oxy Annual Meeting Page 10 Major Achievements in 2002: Occidental Petroleum Leaves U'wa Land. After nearly ten years of resistance led by the Uwa people and backed V-, amazon Y Ctf-%Jt IL Watch and supporters around the world, in May 2002, Occidental Petroleum pulled out of the Uwa land in northeast - e r n Texaco's toxic legacy in the Ecuadorian Amazon Colombia. The Colombian Government continues to look for other investors to take over the oil concession. Amazon Watch remains vigilant in support of the Uwa people. Enron Pipeline Loan Cancelled. After 30 months of pressure by Amazon Watch and our allies, OPIC cancelled a $200 million loan to Enron for the Bolivia-Cuiaba pipeline in the Chiquitano Dry Forest. We provided detailed information about Enron's non- compliance with loan conditions. Our efforts contributed to a front-page expose" on the pipeline in the Washington Post in May 2002. Ecuador's OCP Pipeline Delayed. Activists from Mindo stage a tree -sit in Amazon Watch pro- protest of the OCP Pipeline. vided critical support to local communities opposed to Ecuador's new OCP pipeline. The campaign gen- erated significant international media attention and resulted in $300 million in cost overruns, and sever- al months' delay in the construction schedule. The project has became a lightening rod for criticism focused on the German bank, WestLB which has since committed to adopt stronger policies. Citibank Pulls out of the Camisea Fossil Fuel Project. Amazon Watch worked directly with affect- ed communities to monitor the Camisea oil and gas project in the Peruvian Amazon. Through extensive research, analysis, documentation, we coordinated an international campaign focused on the issue. Results at the end of 2002 were: a six-month delay in the approval process of the project's loan by the Inter -American Development Bank and ExIm Bank; and the announcement by Citigroup, the Camisea project's financial advisor that Citibank withdrew from the project in late 2002. Urucu Pipelines Suspended. One of two gas pipelines proposed for the Brazilian Amazon, the Coari-Manaus pipeline, was suspended indefinitely as a result of a pressure campaign led by Brazilian and international environmental organizations. The envi- ronmental license for a second pipeline, the Urucu- Porto Velho, was first approved and then suspended due to public outrage and pending further review of deficient environmental impact studie 411 Amazon Communications Team o enable our local partners to effectively reach international allies, decision -makers, and their own communities, the Amazon Communications Team (ACT) delivers cameras, computers, and 2 - way radio equipment as well as facilitates training in media, public outreach, and campaign strategies. Since the program's inception four years ago, Amazon Watch has provided more than $200,000 in equipment and funding to our partners. Achievements in 2002: Financial and Technical Support During the year, the Amazon Communications Team transferred nearly $13,500 in communications equipment (laptops, radios, cameras, field / rain gear) and $27,000 in emergency funds to our part- ner groups. We helped raise additional funds by translating and forwarding grant proposals to US - based foundations and individual donors. ACT led missions to provide assistance to partner groups. The communications training and the equipment has proven crucial and improved the internal communications of the indigenous groups. For example, Amazon Watch: • Delivered digital camera and audio-visual equip- ment for the Peruvian indigenous rights organiza- tion, Racimos de Ungurahui. • Delivered donated communications equipment (2 -way radios) and conducted trainings of local communities threatened by oil development in Ecuador. • Provided expert radio technician from Wave Bridge Communications Project who spent six weeks training Achuar and Quichua communities and activists in Mindo in equipment operation and maintenance. • Acquired funding and purchased a laptop com- puter for OPIAC, the indigenous organization of the Colombian Amazon. • Delivered equipment and financial support to indigenous and environmental groups in Ecuador affected by the OCP pipeline. • Delivered donated laptops to the leader of National Council of Rubber Tappers (CNS) in Rondonia, Brazil. Team members deliver much needed equipment and training to indigenous organizations in the Amazon. Video Productions Based on footage we gathered on our mis- sions, Amazon Watch produced and released the following videos in 2002: • Produced a seven -minute documentary on Amazon Watch's work and achievements narrated by Martin Sheen. • Produced a ten-minute video entitled "ChevronTexaco: Ecuador's Black Plague" about the toxic legacy the company left behind after 30 years of operating in the Amazon. • Disseminated select video footage (B -roll and tes- timonies) about Peru's Camisea project and dis- tributed it to project financiers (Ex-Im, IDB, CAF, Citigroup) and to the Washington Post. • Produced video entitled "Plundering the Forest: An Audit of Enron and Shell's Bolivian Pipelines" . • Produced B -roll on the OCP pipeline in Ecuador and distributed to CNN, German TV networks, and APTN. Amazon Watch Financial Report STATEMENT OF ACTIVITIES January 1 to December 31 Revenues 2002 2001 Foundation Grants $ 285,000 $ 308,000 Individual Donors $ 20,379 $ 257891 Non-profit Organizations and Business Donors $ 699095 $ 69121 Restricted Funds for Groups in the Amazon $ 30377 $ 209416 Total Income Restricted & Unrestricted $ 4049851 $ 3609428 YEAR 2002 YEAR 2002 REVENUES EXPENDITURES Organizations & Grants for Businesses 17% Amazon o/Groups Program Services 75% Individuals Fundraising 5% 7% Management 10% Funds to Foundation Grants Amazon Groups 70% 8% Expenditures 2002 2001 Program Services $ 3 50, 231 $ 210,028 Funds to Groups in the Amazon $ 36,430 $ 28,509 Management & General Expenses $ 48,661 $ 47,830 Fundraising Expense $ 34,289 $ 20,460 Total Expenditures $ 4699611 $ 306,827 Net Income $ (649761) $ 53,601 Net Assets, January 1 $ 1549570 $ 1009969 Net Assets, December 31 * $ 899809 $ 1549570 * Year end net assets include $80,981 in cash accounts and $8,828 in property and equipment. Page 12 REGULAR STAFF Atossa Soltani, Executive Director Janet Lloyd, Anthropologist, Research & Policy Analyst Kevin Koenig, Amazon Oil Campaign Coordinator Leila Salazar, Cleanup Ecuador Campaign Organizer Thomas Cavanagh, Operations Manager Greg Bernstein, Digital Media Specialist Natalie van Zelm, Website Coordinator CONTRACT & PROJECT STAFF * Member of the Amazon Communications Team Celia Alario* Lucy Braham* Anael Bonsorte, ABC Design Stephanie Boyd Erick Brownstein Robin Brandes Charlie Cardillo, Underground Ads Patricia Caffrey David Edeli Tashia Hales Derrick Hindery* Hillary Hosta Sean Karlin* Ariel Lopez* Dang Ngo* Julio Cesar Manosalva Andy Morris, Andy Morris and Company Innosanto Nagara, Design Action John Parnell, Wavebridge Communications* Jeremy Paster* Ellena Ochoa Joseph Van Geffen, Element 23 Inc. Violeta Villacorta Peter Walbridge, Underground Ads Dan Ward Shannon Wright 11''! 11,11111 11 111 111 .-V ;;Jr'M�Z Board President: Atossa Soltani- Founder/Executive Director of Amazon Watch, Steering Council Member, Amazon Alliance Board Secretary: Heather Rosmarin-J.D., candi- date for the California bar Board Treasurer: Jeanne Trombly-Board member of Fiber Futures and Solar Living Center Andrew Beath-Founder/Executive Director of EarthWays Foundation; Founder & Board President of Social & Environmental Entrepreneurs (SEE); and author of Conscious Activism Delia Dominguez- Chairwoman of the Kitanemuk and Yokuts Tejon Indians (Elk Hills), CA Cary Elwes -Actor and human rights activist (Princess Bride, Cradle Will Rock, X -Files) Jonathan Fri eman -Executive Director of JoMiJo Foundation, Member of Threshold Foundation Daniela Meltzer -Colombian activist, President of Coptervision; Global Ecology Program Alumna Page 13 Acknowledgements We thank all of our donors including those who may have been ommitted here. Your generosity and support makes Amazon Watch's work possible. Machiguenga girl from the Peruvian Amazon 1% I Ail FOUNDATIONS AND INSTITUTIONAL Charles Stewart Mott Foundation Circle of Life Foundation Environmental Defense Environmental Media Services Foundation for Deep Ecology Free Speech TV Friends of the Earth Future Forests Global Green Grants Groundspring Institute for Policy Studies Kohn, Swift, and Graf Mental Insight Foundation The Moriah Fund, Inc. National Wildlife Federation Nirvana Candles Oxfam America Paper Allied -Industrial, Chemical and Energy Workers' Union Rainforest Action Network Rainforest Information Center - Australia Richard & Rhoda Goldman Fund Threshold Foundation ' W Alton Jones Foundation Page 14 IN,wKIND DONORS, Aeolia Organics Allen Myerson Wine Aunt Vi's Garden Big Sur Flower Essences Bodhi Bars Dagoba Organic 44 Chocolate Bars Dr. Hauschka Skin Care Gear for Good Go Solar Guayaki Sustainable Rainforest Products John and Magdalene Brandeis w LowePro, Mountain Hardware Patagonia Rainforest Action Network Spencer Wright Imports Thom Hartmann The Tropics Inc. INDIVIDUAL DONORS: Andrew Beath Michael Bell Greg Bernsterin Cary Elwes Peter Freitas Jonathan Frieman Al Gedicks Mimi Gitlin Ann Golob Kevin and Sylvia Gratt Eric Hoffh-ian Marika Holmgren Jacob & David Horwitz Carl Howe Sean Karlin Peter Laffin Mary Stuart Masterson David Matchett Daniela and Adam Meltzer Tom Mertes Jonas Minton Leslie Morava Nicholas Morgan Mary Ellen Nagle Dan Nord Woodward Payne Bonnie Raitt Genevieve Raymond Roger Richman Mailynn Alper Ritter Bruce Robertson David Rosenstein Heather Rosmarin Karen Rosmarin Nancy Rudolph John Seed Teresa Shaw John Shurtz Beth Singer Kari Smith Roxana Soltani Oliver Stone Jeanne Trombly Lynne Twist Sara Jane Villa Lobos Violeta Villacorta Patricia Wolfe Partners, Volunteers & Allies We wish to thank all the follow- ing people and their organizations for collaborating with us on our campaigns during 2002. COLLABORATORS AND VOLUNTEERS: Rebecca Belletto Antoine Bonsorte* Molly Brown Julia Butterfly Hill Murray Cooper Lela Davida Joe Dibbee Brett Doran Sharon Gelman, Artists for a New South Africa Adam Goldstein Anne Hutchinson Joe Kane Kim Kindersely, Heart Magic Laurie Kaufman Sharon Lungo Adam Meltzer* Shanti Michaels Justine Moore Souheila Mouamar Ana Maria Murillo, U'wa Defense Project John Quigley Patrick Reinsborough Eduardo Ribeiro Roxana Soltani Ashkan Soltani Sarada Tangirala Efrain Toapanta Stephanie Wohl Gonzales ORGANIZATIONAL ALLIES: Action Resource Center Amazon Alliance Amnesty International Art and Revolution Bank Information Center Circle of Life Foundation Communities for a Better EarthRights International Friends of the Earth Global Exchange Global Response Greenpeace -US and Germany Heart Magic Hesperian Foundation International Forum on Globalization International Rivers Network Institute for Policy Studies / Sustainable Energy and Economy Network The National Lawyers Guild - Los Angeles National Wildlife Federation Oxfam America Pachamarna Alliance Panachocha Foundation Project Bandaloop Project Underground Rettet de Regenwald-Germany Rainforest Action Network Rainforest Information Center -Australia The Ruckus Society Underground Advertising The U'wa Defense Project West County Toxics Coalition Witness AmAzomAN PARTNot GROUPS, Amazon Watch works in partnership with dozens of local organizations. These groups play a lead role in defining our program priorities. In 2002, Amazon Watch worked closely with the following partner organizations in the Amazon. We thank these organizations for their courage and commitment. BOLIVIA CPESC—Indigenous Peoples Organization of Santa Cruz, Bolivia CEADES—NGO supporting the indigenous organizations in Eastern Bolivia OICH—Chiquitano Indigenous Peoples' Organization CIDOB—The national indigenous organization of Bolivia BRAZIL Friends of the Earth Amazonia Pastoral Land Commission --environmental / human rights group and part of the catholic church COIAB—Indigenous Organization of the Brazilian Amazon CNS—National Council of Rubber Tappers COLOMBIA ONIC—National Indigenous Organization of Colombia U'wa Traditional Authorities—The organization of the U'wa people of northeastern Colombia OPIAC—Indigenous Peoples' Organization of the Colombian Amazon ECUADOR Accio'n Ecolo'gica—environmental organization based in Quito, Ecuador ONZAE—Zapara Indigenous Organization, Ecuadorian Amazon CDES—Center for Economic and Social Rights based in Ecuador and the -United States CONAIE—The National Indigenous Organization of Ecuador FINAE—Achuar people's indigenous organization, Ecuadorian Amazon FIPSE—Shuar people's indigenous organization, Ecuadorian Amazon Frente de la Defensa de la Amazonia—An umbrella organization of communities adversely affected by oil development in the northern Ecuadorian Amazon Fundaci6n. Pacharnama—Foundation supporting indigenous organizations in the Ecuadorian Amazon Accion por la Vida—Environmental community organization from the Mindo, region ONHAE—Organization of the Huaorani People of Ecuador, Ecuadorian Amazon Environment PERU CorpWatch AIDESEP—Peru's national organization for indigenous peoples of the Peruvian Amazon Creative Artists Agency CEDIA— environmental and social justice NGO Foundation COMARU—Machiguenga people's indigenous organization, Peruvian Amazon The Data Center FENAMAD—indigenous organization representing the indigenous peoples of Madre de Dios Earth Communications Office Racimos de Ungurahui—organization defending the rights of Peru's indigenous peoples Earthways Foundation Shinai Serjali—Support organization working on behalf of the Nahua people Environmental Defense ORACH—The Achuar people's indigenous organization Peruvian Amazon Page 15 A Now/ H E A D Q U A R T E R S 2350 CHUMASH ROAD MALIBU, CA 90265 TEL: (31 0) 456.91 58 FAX: (31 O) 456.9138 NORTHERN CALIFORNIA ONE HAIGHT STREET., SUITE B SAN FRANCISCO, CA 94102 TEL (4 15) 487-9600 FAX (41 5) 4879601 WWW.AMAZONWATCH.ORG Credits: Publication, Design & Production Atossa Soltani, Jean Anael Bonsorte, & Greg Bernstein Photo Credits: Uwa Traditional Authority, Murry Cooper, Accion Ecologica, Accion por La Vida, Amazon Communications Team: Dang Ngo, Atossa Soltani, Greg Bernstein, Kevin Koenig, Natalie van Zelm, Thomas Cavanagh Printed on 100% Recycled Paper f 1� ♦ «w ` r 4L r qk 17 �. v ` M1�• r • �y � �� r:i � rY 1 AFTER THE GOLDRUSH: TEXACO ASID THE RAINFOREST DESPUE'S DEL DORADO: TEXACO Y LA SELVA AMAZOr NICA PRODUCED BY THE PEOPLE FROM THE RAINFOREST: FRENTE DE DEFENSA DE LA AMAZONIA PUEBLO INDIGENA SIONA DEL ECUADOR LAGO AGRIO, ECUADOR PROVINCIA DE SUCUMBIOS, ECUADOR EMAIL: ADMIN@FDA ECUANFX NET, PRESIDENTE ERNESTO MANIGUAJE TEL. 06 831-930 PRESIDENTE LUIS YANZA CONFEDERACION DE NACIONALIDADES INDIGENAS DE LA AMAZONIA ECUATORIANA COMITE DE DEMANDANTES UNION BASE PUYO PROVINCIA DE PASTAZA, LAGO AGRIO, ECUADOR ECUADOR TEL: 06830-624 TELEFONO PUYO 03 885-134 PRESIDENTE MANUEL SLVA PAREDES TELEFONO QUITO 02 909 992 SECRETARY LADIO DOMINGUEZ ZAMBRANO PUEBLO INDIGENA SECOYA COMUNIDAD SAN PABLO RIO AGUARICO PROVINCIA DE SUCUMBIOS, ECUADOR EMAIL: Nico AS4444@YUPIMAIL.COM PRESIDENTE WAS PIAGUAJE PUEBLO INDIGENA COFAN DEL ECUADOR PROVINCIA DE SUCUMBIOS, ECUADOR PRESIDENTE: TORIBIO AGUINDA PUEBLO INDIGENA HUAHORANI OFICIA EN PUYO PROVINCIA DE PASTAZA, ECUADOR TEL. 03 885562 COMUNIDADES DE LA NACIONALIDAD QUE- CHUA AFECTADAS POR TEXACO PROVINCIAS DE SUCUMBIOS Y ORELLANA, ECUADOR 2 AFTER THE GOLDRUSH: TEXACO AND THE RAINFOREST L Foreword "For more than half a century Texas Railroad Commission regulations have in- cluded a statewide rule that, IfIresh water, whether above or below the surface, would be protected from pollution whether in drilling, plugging, or disposing of salt water already produced "' Kenneth E. Montague, President, Texas Mid -Continent Oil & Gas Association, Hous- ton, Texas, in testimony before the U. S. Congress, 1971 "The nature and importance of the problem [of pollution from oil -field wastes] is fully recognized by the oil producing industry and by the state regulating agen- cies." Richard C. Byrd, General Counsel, Interstate Oil Compact Commission, in testi- mony before the U. S. Congress, 1971 In 1971, the U. S. Congress was considering revisions to the Clean Water Act that would di- rectly regulate oil -field wastes. The oil industry sent its representatives to Washington to argue that state governments had long been effective in holding them to stringent standards. They described how they were careful to reinject the highly mineralized water that came up with the oil as well as the toxic "muds" put into the wells during drilling to lubricate the drill bits. In Texas, they said, they put three to four barrels of brine back into the ground for every one -barrel of oil produced. These wastes are up to seventy-five times saltier than seawater and are laden with toxic heavy metals, carcinogenic hydrocarbons, and even radio -nuclides. The industry spokesmen implied that there was no need for federal legislation because contaminating fresh water and the citizens who might drink it with such wastes would be simply unthinkable. At almost the same time as these earnest testimonies were being delivered in Washington, Texaco engineers in New York and Texas were designing the plans and operating procedures for oil wells Texaco was about to build in the Amazon region of Ecuador. Having estimated that proper disposal of oil -field wastes would cost up to a dollar a barrel, Texaco now ChevronTexaco--decided to forego the expense. The designs called for pouring wastes into unlined open pits. Pipelines would incorporate few safeguards. The resulting operations seemed all but purposely designed to guaran- tee the maximum pollution to an environment vital to the lives of tens of thousands of indigenous people. DESPUtS DEL DORADO- TEXACO Y LA SELVA AMAZ6NICA 3 Texaco could claim that it was violating no laws in Ecuador for the simple reason that there were no relevant laws in Ecuador. Still, Texaco executives may have felt some uneasiness. After all, they were well acquainted with the dangers of oil -field wastes. They had even taken out patents on technologies for separating and treating the wastes. A case might arise claiming they were violating human rights as defined under international laws. So they created a series of paper protections for themselves. The company doing the dirty work in Ecuador was an affiliate of the fourth company down a food chain of four levels of wholly-owned subsidiaries of Texaco, Inc. Safety -conscious when it came to their own vulnerabilities, executives back in New York could blame the subsidiar- ies should any untoward liabilities emerge. The history is straightforward. In 1972, following earlier explorations in 1967, Texaco, through its subsidiaries, obtained the concession for oil rights in the Amazon region of Ecuador known as the Oriente. In return, Petroecuador, Ecuador's national oil company, would receive a proportion of the first eleven dollars of any profits on each barrel of oil extracted. Over the next twenty years, until it handed control to Petroecuador, over 300 wells produced 1.5 billion barrels of crude oil for Texaco. Texaco sold the oil for an average of $28 per barrel. The company had made a good deal. History teaches some of us how to avoid repeating injustice. Unfortunately, some others only learn how to repeat it more effectively. Like their forefathers in the United States, the new frontiers- men of Texaco bribed with trinkets and fostered dependency by becoming sources of consumer goods. The companies pointed out that their roads would provide easier access to hospitals without mentioning that the wells for which the roads were created would poison the environment upon which indigenous peoples are inseparably reliant. The companies justified their intrusions into territories populated by tens of thousands indig- enous inhabitants by referring to Ecuador's assertions that the oil-bearing territories were "tieffas baldi'*as"—uncultivated lands to which the government of Ecuador claimed ownership by fiat. Champions of individual property rights in the United States, Texaco engineered its way around them in Ecuador. The petroleum industry was careful to tell Congress it wouldn't think of poisoning U. S. citi- zens with produced water, but Texaco's actions in Ecuador showed no such concern for the welfare of Ecuador's indigenous peoples. In producing 1.5 billion barrels of oil, Texaco poured a minimum of half a billon barrels of toxic water into the soils and waters of the upper Amazon and spilled more than twice the amount of oil spilled by the Exxon Valdez not by accident, but by economic choice. The photos in this pamphlet cannot begin to document the scope of the disaster for which Texaco now ChevronTexaco—must be held accountable. Two years ago, in a maneuver designed more to show what we could prove than to tell Texaco anything it didn't already know, Texaco asked us to show them what sites were still contaminated after what Texaco claimed was a complete 4 AFTER THE GOLDRUSH: TEXACO AND THE RAINFOREST clean-up. We gathered photos at over three hundred sites, with accompanying affidavits from local people bearing witness, that showed easily recognizable contamination at virtually every wellhead and along every pipeline Texaco designed. Our legal strategy is outlined below. So far, the most active legal question has been one of "forum," — which country's courts should hear the case. Ultimately, of course, the question is how the thousands of people who have been harmed by Texaco can stop the poisoning, get clean water, receive appropriate medical care, and be compensated for their economic losses. In short, how they can find justice. As we have shown, Texaco's executives were willing to do to the indigenous people of the Oriente what they would not do to U. S. citizens. While this is clear evidence of racism, it may also reflect the power of U. S. citizens. The executives have to be wary of people who can take them to court, especially to courts with the power to enforce their rulings. They aren't expecting that in Ecuador and Peru. In the long term, we believe that only by exposing and holding accountable those responsible for pollution by literally making them pay for it—can we make the executives add new numbers into their calculations of catastrophe. If they can't recognize morality, perhaps they can at last be moved by a new financial reality. IL The Contract Texaco entered into a contract with the Government of Ecuador on August 16, 1971, covering oil exploration and extraction activities in Ecuador. Clause 1 of this Contract defines the contractual parties. Ecuador on the one hand, "the Govern- ment", and Texaco and Gulf on the other, "the contractors". Texaco and Gulf agreed to be "sev- erally responsible" for all the obligations deriving from the contract." (A2288 -A22891 .)(emphasis added.) Clause 2 defines the contractors' activities which included production., storage,, transport...commercialization and exportation of crude oil. (A2289.) Clause 4 defines the duration of the contract from the date of the contract August 16, 1971 to June 6,1992. (A2295.) Clause 5 defines exploitation activities to include well drilling, supply of production installa- tions, construction of gathering centers and "other operations that are accepted by the petro- DESPUEtS DEL DORADO: TEXACO Y LA SELVA AmAZ6NICA 5 leum industry as necessary and adequate..." (A2295-A-2296)(emphasis added.) Clause 29 establishes that the Government "shall receive a royalty of twelve and one half per cent of the gross production of crude oil." (A2312.) Clause 46 establishes that "the contractors shall adopt all convenient measures for the pro- tection of the flora, fauna and other natural resources..." (A2320.) Clause 52 grants CEPS (the Government's oil company now Petroecuador) the right to acquire up to 25% of the rights and actions conferred in the contract by June 6, 1977. (A2323.) Thus, when the infrastructure for oil extraction was put in place in Ecuador, and during the twenty years this infrastructure polluted the environment, Texaco remained "severally" respon- sible for the protection of the flora, fauna and natural resources of the rainforest of Ecuador. Even after Ecuador exercised its option under the contract to purchase 25%© of the concession or even to purchase Gulf's share in the late 1970s, (A119), Texaco remained "severally" (A2289) liable for the "protection of the flora, fauna and other natural resources..." until 1992. (A2320 and A2295.) The implementation and maintenance of the dumping of the produced water for twenty years was decided by Texaco and was maintained by Texaco. (Aff. Vargas Pazzos, A5482.) Texaco was reckless and criminal in permitting, turning a blind eye, and/or not making certain that the oil extraction technology implemented by its fully owned subsidiary, (AI18-AI21), was protective of the people of the rainforest or at least by the utilization of minimum standards "ac- cepted by the petroleum industry as necessary and adequate..." all over the world. (A2295 -A-2296.) III. The Alley gtions and Brief History The essence of the case has been aptly described by the United States Court of Appeals for the Second Circuit: Both complaints allege that Texaco polluted the rain forests and rivers in Ecuador and Peru during oil exploitation activities in Ecuador between 1964 and 1992. In particular, they allege that Texaco improperly dumped large quantities of toxic by-products of the drilling process into the local rivers, contrary to prevailing industry practice of pumping these sub- stances back into the emptied wells.... The named plaintiffs allege that they and their fami- lies have experienced various Physical injuries, including poisoning and the development 6 AFTER THE GOLDRUSH: TEXACO AND THE RAINFOREST of pre -cancerous growths.... The complaints sought money damages under theories of neg- ligence, public nuisance, private nuisance, strict liability, "medical monitoring," trespass, civil conspiracy, and violations actionable under the Alien Tort Act, 28 U.S.C. § 1350 (ATA"). The plaintiffs also sought "equitable relief to remedy the contamination and spoliation of their properties, water supplies and environment." Jota v. Texaco 157 F.3d 153, 155, 156 (2nd Cir. 1998.) In November 1993, Plaintiffs filed their complaint against Texaco, Inc., in the U.S. District Court for the Southern District of New York. Federal Judge Jed Rakoff, the third district court judge assigned to this action, entered judgments dismissing this case on November 13, 1996, and April 13, 1997. These judgments were vacated by the Second Circuit on April 29, 1998 in Jota, id., and the cases were remanded to the district court for further proceedings. The district court entertained another motion by defendant Texaco Inc., to dismiss this case immediately after the Second Circuit issued its Jota decision. In January of 2000, the district court opened the record for additional filings regarding corrup- tion of the judicial system of Ecuador. Plaintiffs requested Judge Rakoff to recuse himself from these cases on September 3, 2000. Judge Rakoff denied the motion, and plaintiffs asked the Second Circuit to reverse the district court's denial on a Writ of Mandamus. The Second Circuit denied plaintiffs' request under the extraordinary standards required for the Writ. The district court entered an order dismissing this case on forum non-conveniens grounds on May 31, 2001. Plaintiffs have appealed that ruling to the Second Circuit. The case is now pending again before that federal appeals court. IV Texaco's Recklessness The principal allegations of the Aguinda plaintiffs is that Texaco failed, intentionally or reck- lessly, to use reasonable industry standards of oil extraction, that it failed to pump unprocessable crude oil and toxic residues into wells as is the prudent industry practice, (Complaint at Is 5, 6 & 7, A30-31), and that this practice resulted in severe personal injuries to plaintiffs and the environment. (Complaint at is 7, 8 & 9. A31). To fully understand the nature of plaintiffs' claim, it is important to understand the oil trade. DESPUtS DEL DORADO: TEXACO Y LA SELVA AmAZ6NICA 7 Nearly all oil is found trapped in pores of a strata of rock. Generally, there is considerable water also trapped in the same layer of rock, either mixed up with the oil or lying beneath it. Although the ratio of water to oil varies widely, on the average in Texas two or three barrels of water are produced for each barrel of oil. This water is highly mineralized and usually referred to as "salt" water since it usually has a high content of sodium chloride. Disposal of produced salt water has always been a part of the total process of producing oil since the first wells were drilled more than a century ago. Today for example, this Nation's largest oil field, the East Texas field, produces some 200,000 barrels of oil per day. It also produces each day some 528,000 barrels of salt water which are injected -or disposed of -into the formation from which it came. (Testimony of Kenneth Montague, President, Texas Mid- Continent- Oil & Gas Association, Houston Texas. Hearings before the Committee of Public Works, House of Representatives, Ninety Second Congress July, August, September and November 1971. (Hereinafter, 1971 Congressional Hearings, page 1710, A5326.) "Production Waters" because of their heavy metal and salt concentrations, as well as containing 100 to 5,000 parts per million of oil, are toxic and must be disposed of as toxic by products.... 600 to 30,000 gallons of crude oil are being discharged daily into the Amazon environment in the former Texaco concession as a result of the lack of reinjection facilities. (Aff. Charles Koons at §§s 11 and 145 (A2564.) In 1976, Texaco Inc. assisted the EPA in developing guidelines for "Best Available Technology Economically Achievable" ("BATEA") for the disposal of produced water. (Final Effluent Limita- tions Guidelines, US EPA, September 1976, pg. 146, A5646.) The technology EPA recommended in 1976, with the assistance of Texaco, for the offshore and coastal subcategories was subsurface disposal of produced waters. (Id at pg 139, A5641.) These guidelines developed by the EPA, with Texaco's assistance, describe in detail the con- centrations of poisons present in produced water.2 The volume of dumped produced water per day in the Ecuadorian rainforest during Texaco's twenty-year period of extraction in the region was in excess of 140,000 barrels per day. (Aff. Koons at § 139 A2564.) Texaco's preoccupation with produced water in the 1970s was not limited to assisting the EPA in developing the Final Effluent Limitations Guidelines. The company was actively involved, at the same time, in significant research on produced water reinjection.3 There is a direct relationship between profits and the dumping of produced water. Authors of a study prepared in 1995 for the Gas Research Institute concluded that the costs of reinjection of produced water can range from a low of a thirty cents to four dollars per barrel of reinjected water of production. (A5693.) 8 AFTER THE GOLDRUSH: TEXACO AND THE RAINFOREST Reinjection of the 140,000 barrels per day (Aff. Koons at § 13, A2564) of produced water, or 51.1 million of barrels per year, would have cost Texaco Inc., in lost profits, anywhere from 17 million dollars to as much as 200 million dollars per year. When the first public -outcry over Texaco's practices in Ecuador appeared in 1973 with the publication of "Ecuadorian Oil: Poisoning Profits" in the publication NOT MAN APART in July of 1973, Defendant Texaco, (not any of its subsidiaries) defended the environmental practices of the Ecuador operation in a "Fact Sheet," (Texaco's Memorandum August 13, 1973, A5671 to A5677.) V Ecuador Did Not Make the Decision to Dump the Produced Water. General Vargas Pazzos was the Administrative Manager of the National Petroleum Company, "CEPE", in 1973 and served as Minister of Natural Resources in 1976 and 1977 when oil produc- tion in Ecuador began in earnest. (Affidavit of General Rene Vargas Pazzos at § 39 A5481 to 5485.) He has testified as follows: All the technical decisions which were made for the development of the petroleum opera- tions in Ecuador were made in the United States. I know this because all the blueprints and plans for the perforation of the wells, the construction of the oil pipelines and production stations had legends on them that indicated that they originated in the United States. Id at 12, A5482. All the members of the Government of Ecuador, all the executives and employees of CEPE, and all the employees and executives of the National Bureau of Hydrocarbons assumed that the technology employed by Texaco for the exploration and extraction of petroleum in Ecuador was first rate technology that Texaco and other large petroleum companies of the world utilized in the Unites States and in other countries of the world. Id at 113, A5483. Bertha Margarita Yepez Silva, who worked for Texpet in Ecuador from 1973 to 1989, has testified as to the manner in which Texpet was managed and operated directly from the United States. (See Declaration of Ye'*pez Silva A3091 to A3096.) Galo Troya an employee of Texpet has testified that all the decisions were made in the United States. (Aff. Galo Troya A3098 to A3100.) Thomas Braha, President of Braha Oil, has testified that parent oil companies such as Texaco control the budgets of the subsidiaries and maintain control over decisions in the field. (Aff. Tho- mas Braha A3107 to A3109.) DESPUtS DEL DORADO: TEXACO Y LA SELVA AmAZ6NICA 9 VI. The Consequences of the Dumping of The Produced Water. Stephen N. Kales, MD, MPH, Anthony LaMontagne Sc.D., MA, MEd., Sarah Zaidi DSc., MSc., Lenore Azaroff BS, all whom are or were associated with Harvard Medical School in 1995, with the cooperation of Aaron Bannett MD, MBA, founder, Vice -President and Medical Director of the Bannett Institute, have issued a devastating report on the consequences of dumping the produced water into the Amazon rainforest: It is difficult to describe the degree of degradation of this once pristine environment. The rainforest is completely degraded by open tar pits with runoffs entering the watershed of the region.... The pungent acrid smell is pervasive, particularly in the vicinity of the oil ponds. The continuous runoff from the ponds and lagoons contaminate the rivers and wetlands. Aff. Aaron Bannett at 16, A5385. The information I obtained... suggested that there was a high incidence of spontaneous abor- tions, and there were illnesses that one would not expect in the rainforest such as terminal lung cancer of a forty year old non-smoking male. Id. at 17, A5385 to A5386. The indigenous people and other residents who are forced to live in close contact with the oil lagoons and the tarred roads are consistently breathing oil contaminants. They often bathe in the contaminated waters of the rivers. Id. at 110, A5386. Production Water discharges contained very high levels of volatile organic compounds (VOC) and polycyclic aromatic hydrocarbons (PAH) and are released into the surface waters used by local residents. Executive Summary From the Report by the Harvard Scientists, A5401. See also entire report A5401 to A5480. ... [r]isk estimates of excess cancers due to the chronic water consumption ranging from 12- 1000 cases per million persons were obtained for the 11 current drinking water samples. A5401. VII. Common Law Doctrine SuMorts Litz' of These Cases in The United States. A. Dismissal Under Forum-Non-Conveniens Doctrine Requires Texaco to Demonstrate Oppressiveness and Vexation of Texaco. Out of Proportion to Plaintiffs' Convenience. Article XIII of the Treaty of Peace, Friendship, Commerce and Navigation between the United States and Ecuador grants citizens of the United States and Ecuador "open and free to them the 10 AFTER THE GOLDRUSH: TEXACO AND THE RAINFOREST tribunals of justice, for their judicial recourse..." 8 Stat. 534, 539, June 13, 1839. (A5232.) [w]hen a treaty with a foreign nation accords its nationals access to our courts equivalent to that provided American citizens, identical forum-non-conveniens standards must be ap- plied to such nationals by American courts.... Because such treaty exists between the United States and Venezuela, see Treaty of Peace, Friendship, Navigation and Commerce, January 20, 1836, US-Venez. art. 13, 8 Stat. 466. 472, no discount may be imposed upon the plaintiff's choice of forum in this case solely because Proyecfin is a foreign corporation. Blanco v. Banco Industrial of Venezuela, S.A. 997 F. 2d. 974 at 981, (2d. Cir. 1993) (citations omit- ted.) Under the law of the Second Circuit, the Court must value the Aguinda plaintiffs' choice of forum as if the Aguinda plaintiffs were American citizens. Before dismissing this case under a theory that this is a not a convenient forum for the litigation, Texaco had the burden of proving that it would be subjected to oppressiveness and vexation out of proportion to plaintiffs' convenience if the case was kept in New York, as the Second Circuit made clear in Guidi, et al., v. Intercontinental Hotel Corporation et al., 224 F. 3d 142 (2nd Cir. 2000): The Supreme Court has recognized that a district court may, in the exercise of its sound discretion, dismiss a case "when an alternative forum has jurisdiction to hear the case, and when trial in the chosen forum would 'establish .... oppressiveness and vexation to a defendant ... out of all proportion to plaintiff's convenience,' or when the 'chosen forum [is] inappropriate because of considerations affecting the court's own administrative and legal problems."' ...Here, the district court did not accord such deference, or even mention Koster, in its application of the Gilbert private and public interest factors. This omission and consequent failure to grant Plaintiff's choice of an American forum significant defer- ence was unsound. Id. at 146 (citations omitted). The plaintiffs in Guidi were residents of New Jersey and Maryland. Id. at 144. The court agreed with plaintiffs that "their 'home forum' as American citizens is a United States court, such as the courts of the Southern District of New York." Id at 146. This Court in Wiwa et al., v. Royal Dutch Petroleum, et al., 226 F.3d 88 (2nd Cir. 2000), after reiterating the principles enunciated in Guidi, supra, reached the conclusion that the district court "applied an incorrect standard of law when it failed to credit the fact that two of the plaintiffs were United States residents, a consideration favoring plaintiff's choice of a U.S. forum." Id at 103. It would have been impossible for the district court to find that litigating this case in New York for defendant Texaco, Inc., would have caused Texaco "oppressiveness and vexation ... out of all DESPUtS DEL DORADO: TEXACO Y LA SELVA AmA7-bNICA 1 1 proportion to plaintiffs' convenience", Guidi at 146, given the fact that contrary to Guidi and Wiwa, where the home of the defendants were respectively Delaware (Guidi at 144) and the Netherlands, (Wiwa at 91), the home of Texaco. Inc., is New York. It is almost a perversion of the forum non conveniens doctrine to remit a plaintiff, in the name of expediency, to a forum in which, realistically, it will be unable to bring suit when the defendant would not be genuinely prejudiced by having to defend at home in the plaintiff's chosen forum. Manu International., S.A. v. Avon Products, Inc., 641 E 2d. 62, at 67 (1981). B. CorruiDtion of the Ecuadorian and Peruvian Legal Systems The district court in January of 2000, invited filings from the parties concerning corruption of the legal system in Ecuador, 142, F. Supp. 2d at 543. Plaintiffs provided the district court with affidavits, reports and other materials.4 On May 9, 2000, the district court wrote a letter to the United States Attorney in New York asking him to contact the Department of State and request clarification of statements made in the country reports to the effect that "[t]he most fundamental human rights abuse [in Ecuador] stems from shortcomings in the politicized, inefficient and corrupt legal and judicial system." (A6496.) The Department of State responded in a letter dated May 9, 2000,(A6948 to A6950) accompa- nied by voluminous reports and exhibits. (A6951 to A7238.) The US State Department stated un- equivocally that: [t]he views set forth by the Department of State in those portions of the Human Rights Reports that discuss the judicial system of a given country are not based exclusively on information from the criminal court system, and are not by design or definition limited to the criminal area; rather, they reflect conclusions drawn from the totality of the Embassy's exposure to, and analysis of, the host country's judicial system. (A6949.) Given the unequivocal findings of the country reports, the unequivocal corroboration of the Department of State findings by letter to the district court (A6948 to A6950), and the voluminous other evidence filed by plaintiffs on this issue (see footnote 4 supra), the inescapable conclusion is that the judicial system in Ecuador is corrupt and incapable of providing adequate justice to the poor indigent plaintiffs in this litigation. It should be noted here that, as part of its strenuous forum shopping efforts, Texaco tries to make the point in papers filed with the Court of Appeals that "An Ecuadorian Court awarded a municipality approximately $10 million in a lawsuit against Petroecuador..." (Dbrief at 38.) 12 AFTER THE GOLDRUSH: TEXACO AND THE RAINFOREST While noting that the award was reversed by an appellate court, Texaco fails to mention that the lawyer who filed this lawsuit has testified in reference to this lawsuit that: ... Petroecuador...disobeyed orders, as it has ignored several court orders ... the municipality has come to the conclusion that it is impossible to win an action of that sort, if Petroecuador appeals to the Superior Court located in Quito, where the political influence of the petro- leum exploitation company, which income is essential for the national economy, is a lot stronger than the fair demands of a small town in the middle of the jungle. (Aff. Luis Tobar Sanchez A6709 -A671. Texaco cannot deny the stark reality of the level of corruption in the Ecuadorian legal system. It is precisely because "it is impossible to win an action of that sort..." Id., that Texaco wants to implead Petroecuador in Ecuador and to have its responsibilities for the damages to plaintiffs liti- gated there. Texaco knows very well that such an impleader will result in complete dismissal. In Leon v. Millon Air, 251 F.3d 1305 (11th Cir. 2001), the Court of Appeals of the Eleventh Circuit reviewed a forum-non-conveniens dismissal by the district court where the plaintiffs had introduced evidence of the inadequacy of Ecuador as an alternative forum based on allegations that "the judges were out on strike and the 31 justices of the Supreme Court had been removed by Congress." Id. at 1313. Plaintiffs in Millon Air had also alleged, based on testimony filed in a related case, that the Ecuadorian courts lacked financial resources. Id. at 1314. The Court found that these allegations and testimony did not satisfy "Plaintiffs' burden of production." Id. at 1314. In contrast, Plaintiffs here have introduced not only the testimony of the State Department mentioned above but also overwhelming evidence of the rampant corruption that exists in the Ecuadorian legal system. (See Note 6 supra and the cited record at A6073 to A6757. Furthermore, the Eleventh Circuit noted, referring to Aguinda v. Texaco Inc., that: ...the Ecuadorian political situation was much more relevant in that suit than in this case, which implicates no sovereign interests and involves private parties only. Id. at note 3. C. Bhopal and The Non Existence of Class Actions in Ecuador. Texaco cites Union Carbide Corp Gas Plant Disaster in Bhopal India, 634 F. Supp. 842, 867 (S.D.N.Y 1986) aff 'd as modified, 809 F. 2d 195 (2nd Cir. 1987), for the proposition that procedural differences such as the availability of class actions do not render Ecuador an inadequate forum. Texaco intentionally overlooks fundamental differences between Bhopal and this case. 1. In Bhopal, the Government of India assured the district court that it, the Union of India "U01", represented the plaintiffs and not the counsel of record, Id. at 809 E 2nd 197. DESPUtS DEL DORADO: TEXACO Y LA SELVA AmAz6NICA 13 2. In Bhopal, the UOI representing the plaintiffs changed its position and supported the district court's dismissal on forum-non-conveniens grounds. Id. at 201. 3. In Bhopal, the district court found that the absence of class actions in India did not: ...deprive the plaintiffs of a remedy, in view of existing Indian legal authorization for "representative" suits under Order 1, Rule 8 of the Indian Code of Civil Procedure which will permit an Indian Court to create representative classes. Id. at 199. Here, it was Texaco's responsibility to show that Ecuador was an adequate forum for the entire class. Texaco has been unable to make such a showing because it cannot. Ecuador, unlike India, does not possess an adequate remedy for the entire class: [N]o one can bring an action in the name of another, unless he has been granted the power of representation (art. 47 CPQ and the Constitution clearly expressly forbids the exercise of this power on behalf of the people. (art. 19, num. 10 Const.) (Aff. Prof. Alberto Wray at pg. 212, A212.) In the civil process this principle has an exemption in what is called popular action, which can go forward only in cases specifically written in the law.... Among these cases, civil damage actions directed at seeking compensation for negligence or intentional acts are not included. Id., at pg. 3, 12 A213)(emphasis added)(see also Plaintiffs' Principal Brief at 39, 40.) D. Ecuador's Law 55. The Congress of Ecuador, on January 30, 1998, enacted Interpretative Law of Articles 27, 28, 29 and 30 of the Civil Code. (A5227.) This law clearly states that: ...when dealing with concurrent international competency, the claimant will be able to choose freely between filing a law suit in Ecuador or abroad, — Should the lawsuit be filed outside Ecuadorian territory, this will definitely terminate national competency as well as jurisdic- tion of Ecuadorian judges over the matter. (A5227.) The Government of Ecuador has filed an amicus brief in the Second Circuit stating unequivo- cally that "Law 55 can and will be applied to the instant lawsuit..." and that this will mean that "the plaintiffs will be unable to prosecute their suit in Ecuador." (Amicus by The Government of Ecua- dor at pg. 4.) Application of Law 55 by a court of first instance in Ecuador will certainly result in innumer- 14 AFTER THE GOLDRUSH: TEXACO AND THE RAINFOREST able time-consuming appeals which will delay this litigation for years. The Second Circuit Court of Appeals has addressed a similar condition in another case: The passage of time before the appellate court's ruling, and hence before the non-movant's reinstatement of the original suit, could, in such circumstances, be highly prejudicial... . Finally, we observe that while the conditional dismissal device can help to protect the non- moving party in circumstances where the district court remains concerned about the accu- racy of its "justifiable belief' as to a foreign forum's adequacy, the mechanism is not a substitute for the initial"justifiable belief' of adequacy. Conditions cannot transform an inadequate forum into an adequate one. Bank of Credit, Ltd., v State Bank of Pakistan, Docket Number 99-7568 (2nd Cir. November 29, 200 1.)(S lip Opinion filed with the Clerk.) This case has been in the United States' courts since 1993. There is little question that further protracted litigation in Ecuador about the applicability of Law 55 will be extremely prejudicial to the plaintiffs. Thus, as in Bank of Credit, Id., the conditional dismissal, resuming jurisdiction when Law 55 is applied, does not transform the inadequate forum which is Ecuador into an adequate one. Further evidence of the lack of a "justifiable belief', (Bank of Credit at pg. 4) that an adequate forum exists in Ecuador is the ruling of December 10, 2001, by the Court of Appeals (Superior Court of Justice) in Guayaquil. In this ruling, the court refused jurisdiction of a case cited both by I- ^ the district court in Aguinda (142 F. Supp. :) _34, 447) and by Texaco (Dbrief at 39) in support of the propositions that: a) cases filed before the enactment Law 55 do not fall within its purview; and b) Ecuador is an adequate forum regardless of Law 55. Law 55 is now a complete impediment to litigation of these cases in Ecuador, rendering the Courts of Ecuador an inadequate forum for this litigation. VIII. The Alien Tort Claims Act The Alien Tort Statute states: The district courts shall have jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. 28 U.S.C. § 1350. The issue is whether the actions of Texaco in Ecuador violated the law of nations. Texaco's position on this issue is that that the U.S. Court of Appeals for the Fifth Circuit held in 1999 that environmental torts do not violate "the law of nations" and therefore do not state a claim under the ATCA. (Dbrief at 4 and 5.) DESPUt.S DEL DORADO: TEXACO Y LA SELVA AmAz6NICA 15 The authority cited by Texaco for this wide ranging and expansive conclusion is Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 166-167 (5t' Cir. 1999.) What Beanal actually states at pages 166 and 167 is that the plaintiffs in Beanal failed to articu- late environmental torts cognizable under international law. Id. at 167. The Fifth Circuit found that Beanal failed to marshal sufficient facts to comply with the federal rules: We acknowledge that the district court exercised considerable judgment, discretion, and patience below. In light of the gravity and far ranging implications of Beanal's allegations, not only did the court give Beanal several opportunities to amend his complaint to conform with the minimum requisites as set forth in the federal rules, the court also conscientiously provided Beanal with a road -map as to how to amend his complaint to survive a motion to dismiss assuming that Beanal could marshal facts sufficient to comply with the federal rules. Nevertheless, Beanal was unable to put before the court a complaint that met mini- mum pleading requirements under the federal rules. Accordingly, we AFFIRM the district court. Id. at 169. Plaintiffs here introduced the affidavits of Professor Dinah L. Shelton (A333 to A338 and A5698 to A5702). Professor Shelton, after an extensive analysis, concluded unequivocally that: ...international law recognizes the right of people to be free from wanton environmental destruction and from attendant health risks. International law similarly recognizes the right of indigenous people to their cultural identity and survival. (A337.) The law of nations guarantees to all persons the rights to life, to health, to culture, to protection of the home and family. Gross and systematic violations of these rights by non -state, as well as state, actors are international wrongs for which liability ensues. The law of nations also prohibits conduct by state and non -state actors causing long-term or severe damage to the environment. These norms are evidenced by treaties, by repeated statements, in other international texts, by judicial and arbitral decisions, by diplomatic exchanges, and by writings of the most highly qualified publicists. There can be no doubt of their existence in contemporary international law. (A5705.)5 Texaco asserts, in response to Professor Shelton's affidavits, and the other copious sources cited by plaintiffS6 , that of these sources "none rises to the level of the 'law of nations"' (Dbrief at 74). Texaco would have the court believe that the absence of a "binding international instrument of global application" is sufficient evidence for its thinly substantiated claim (Dbrief at pg. 72, fn 35 and pg. 73). However, at the time Filartiga v. Pena-Irala 630 F. 2d 876 (2nd Cir. 1980) was decided, international law also lacked a single, clearly articulated standard regarding what constitutes an act of torture.' Instead, the court in Filartiga identified an applicable international legal standard through examination of a variety of international customary law and treaty sources. On this account, Profes- sor Osofsky observes: 16 AFTER THE GOLDRUSH: TEXACO AND THE RAINFOREST As evidence that torture violates the law of nations, Filartiga relied on the general prohibi- tions in the U.N. Charter,, numerous mentions in non-binding General Assembly resolutions and international treaties, prohibition in fifty-five national constitutions, writings of schol- ars., and a general statement by the U.S. Department of State.8 Professor Osofsky goes on to conclude that, "[t]his collection of sources does not provide a high threshold for calling an international norm part of the law of nations" and that "courts have applied this approach to other norms in addition to torture since Filartiga." Plaintiffs respectfully submit that the declarations, conventions, citations to national law and practice and scholarly writ- ings relied upon throughout their pleadings to date (see note 20 at page 46 of the plaintiffs' principal brief) constitute a comparable body of legal evidence underlying the claim that Texaco, in the Oriente region of Ecuador between 1972 and 1992, violated international law. Plaintiffs' claim is firmly within the evolving jurisprudence in the Second Circuit regarding the admissibility of ATCA causes of action." See Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000); Kadic v. Karadzic, 74 F.3d 377, (2d Cir. 1990.11 Plaintiffs' argument is grounded in the widely recognized nexus between international human rights law and international environmental law as articulated in a substantial (and growing) number of international legal instruments. 12 The United States has a strong local interest in punishing conduct in violation of international law undertaken by its own citizens. That interest is heightened in the instant case, given that the United States is either the headquarters, or a base of operations, for a sizable number of multina- tional corporations operating throughout the world. Nor is it reasonable to find undue burden on jury members in the Southern District of New York insofar as plaintiffs have sued Texaco in its home district. At the same time, it would be unreasonable to presume that retention of jurisdiction over this claim under 28 U.S.C. § 1350 would 'open the floodgates' for all manner of claims against U.S. corporations to be filed in U.S. federal court. Indeed, the requirement that the conduct in question constitute a violation of the Law of Nations is a very effective filter, as demonstrated by the mere trickle of cases that followed the Second Circuit's decision in Filartiga v. Pena-Irala. IMInternational Comitv International comity is "the recognition which one nation allows within its territory to the leg- islative, executive or judicial acts of another nation." Jota v. Texaco, 197 F. 3d. 153, at 159 (1998.)(Ci- tations omitted.) DESPUtS DEL DORADO: TEXACO Y LA SELVA AMAz6NICA 17 Upon remand, it will be appropriate for the District Court to give renewed consideration to the comity issue in light of all the then -current circumstances, including Ecuador's position with regard to the maintenance of this litigation in a United States forum. Id. at 161. The position of the Government of Ecuador in this litigation has been stated clearly by the Ministry of Foreign Relations in its communication to the Ecuadorian Congress, No. 23587, dated December 8, 1998. The Government of Ecuador maintains its invariable position of support to the indig- enous people of Ecuador, who have exercised their personal rights by suing Texaco, Inc., to indemnify themselves for damages to their property and their health. (A5686.) The Government of Ecuador is tremendously concerned about the aftermath of envi- ronmental problems which were caused by the exploitation of oil in the Amazon region of Ecuador that was conducted by the CEPS -Texaco consortium, and which caused serious damage to the environment and the social, economical and cultural life of the region's inhabitants of the region.(A5686.) Ecuadorian citizens who have suffered these effects have the legal right to bring actions for compensation to which they may be entitled on account of the damage to their property and personal health. (A5686.) Given the position of the Government of Ecuador in this matter, comity requires that the Second Circuit recognize this position and allow this case to proceed in the United States. X.AshaUa Jota v. Texaco, The Peruvian Case. On December 28, 1994, a number of individuals as well as four separate Indian groups filed Ashanga Jota et al., v. Texaco CA 9266 in the Southern District of New York. (A3426-3465.) The Complaint specifically alleges: that Texaco designed the technology for oil extraction in the Ecua- dorian region of the Amazon; that contrary to accepted practices Texaco did not make provisions for reinjection of the produced water; that produced water is highly toxic; that oil extraction in the Ecuadorian Amazon included the dumping of the production water; that the dumping was extremely profitable to Texaco; that all of the produced water entered the watershed of the region contaminat- ing the Napo river; that plaintiffs and the class have suffered damages as a result of the contamina- tion of the Napo river with petroleum by-products. (Id. at Us 35, 38, 41, 45 to 52, A3445-3448.) The Ashanga Complaint is based on the same practices under question in Aguinda v. Texaco. The same arguments as to why New York is the appropriate jurisdiction to litigate this case apply. 18 AFTER THE GOLDRUSH: TEXACO AND THE RAINFOREST XI. The Appearance of Partiality The District Judge in these cases, Jed S. Rakoff, was one of twelve federal judges who partici- pated in an all -expense paid seminar organized by the Foundation for Research on Economics and the Environment (FREE) held at the Elkhorn Ranch in Big Sky, Montana from September 15-20, 1998. The seminar was entitled "Real and Alleged Environmental Crises - A Seminar for Federal Judges." At the time of his attendance at the seminar, plaintiffs' case was pending before the Second Circuit, a case that involves serious allegations of environmental harm and mismanagement against Texaco. Alfred C. DeCrane, Texaco's former chief executive officer and chairman of the board, was one of seven featured speakers at the FREE seminar.' I Mr. DeCrane served as chairman of the board for the Texaco Corporation from 1987 to 1996 and was chief executive officer at the corporation from 1993 to 1996.' 4 At the time of the seminar, Mr. DeCrane still had active professional connections to the Texaco Corporation and included in his contact information an email address maintained by the company (decraac@texaco.com J. Mr. DeCrane, a significant potential witness in the plaintiffs' ease against Texaco, led a session entitled "The Environment: Some Thoughts From the Comer Of- fice."15 At the time of the seminar, Texaco was the major corporate donor to FREE, contributing between 3-6% of total reportable contributions to the organization between 1998 and 1999.(A7270, A72729 A7274.) FREE currently receives approximately a quarter of its total funding from corpora- tions. 16 Despite his participation in a seminar hosted by an organization funded by a defendant in a pending litigation matter, with its resulting allowance for both formal and informal contact with a significant potential witness, Judge Rakoff did not disclose his attendance at the FREE seminar to the plaintiffs or their counsel. Based on these facts, plaintiffs requested Judge Rakoff to recuse himself from these cases on September 3, 2001. Judge Rakoff denied the motion, and plantiffs asked the Second Circuit to reverse the district court's denial on a Writ of Mandamus. The Second Circuit denied plaintiffs' request in a lengthy opinion. In re Aguinda, 241 F. 3d 194 (2nd Cir. 2001.) The standard of review for a writ of mandamus is a higher standard than that which applies on an appeal for review after final judgment. The district court's error in denying the plaintiffs' motion for recusal should now be reviewed for abuse of discretion. DESPUtS DEL DORADO: TEXACO Y LA SELVA AMAz6N1CA 19 XII. What You Can Do Chevron acquired Texaco in October of 2001. Shortly thereafter Texaco's lawyers notified our counsel that any possibility that the newly -created ChevronTexaco corporation would effect any clean-up of the 351 lakes of oil that Texaco left behind in Ecuador was remote, if not completely out of the question. ChevronTexaco has also refused to take responsibility for the medical damages. The number of cancers is increasing dramatically year by year in the rainforest due to the continuing contamination caused by Texaco's oil lakes and pollution. The people of the Amazon are asking their friends throughout the world to think twice before engaging in any business with ChevronTexaco. We are also asking that you register your protest with those who now carry the responsibility for the tragedy in Ecuador: David J. O'Reilly Chairman of the Board ChevronTexaco 575 Market Street San Francisco, California 94105 Tel. 415-894-7700 comment@chevrontexaco.com www.chevrontexaco.com March 8, 2002 20 AFTER THE GOLDRUSH: TEXACO AND THE RAINFOREST 1 All A numbered references are to the Joint Appendix filed by Plaintiffs and Texaco in the Aguinda and Ashanga litigation. The entire Appendix will be posted shortly at the web site maintained by plaintiffs in the litigation. www.texacorainforest.or 2 "...oil and grease 7 to 1,300 parts per million ("ppm"); organic carbon 30 to 1,580 ppm, or the equivalent of 7 to 1,300 and 30 to 1,580 barrels of oil and grease and organic carbon per million barrels of produced water plus cadmium, cyanide, mercury, etc." (Effluent Limitations Guidelines at pg. 42, A5547.) 3 Texaco obtained at least two US patents in 1971 and 1974 for improved technologies for reinjection of produced water. (A5655 -A5659 and A5660 -A5662.) In 1971, moreover, it published extensive summary of the laws governing discharges of oil in the Proceedings of the American Petroleum Institute, A5663 -A5670. 4 1999 Country Report of the US StateDepartment stating the "shortcomings in a politicized, inefficient, and corrupt legal and judicial system." A6073. Organization of American States Report stating that "human rights are weakened by "deficiencies in the administration of justice." A6126. Aff. Of Coletta A. Youngers about judicial corruption of the Peruvian legal system. A6165 to 6172. Aff. James P. Wesberry, describing the problem of official corruption in Ecuador. A6313 to 6322. Aff. of Attorney Michael Jeffrey Griffith stating that Ecuador's legal system is the most corrupt legal system I have experienced." A6323 to A6326. Excerpts from Ecuador's Attorney General's admitting that the legal system is "slow, inefficient, discrimina- tory and corrupt." A6335. Aff. Diego Araujo Sanchez stating that "the politicization, the ineffectiveness, the indolence and corruption has caused discredibility on the judges..." A6343. Aff. Ernesto Lopez Freire, former President of the Constitutional Tribunal from 1995 to 2000, stating that "[T]oday it is not possible that the indigenous people can defeat corruption..." A6361. Aff. Reed Brody Advocacy Director of Human Rights Watch stating that "'[D]espite these efforts, corruption and inefficiency have continuously pervaded Ecuador's judicial system..." A6367. Aff. Edgardo Buscaglia, senior advisor to the World Bank, stating that "corrupt practices in the Ecuadorian and Peruvian courts are pervasive." A6386. Aff. of Profes- sor of Law Manuel Ramiro Aguilar Torres stating that "regarding the case Aguinda v. Texaco ... the possibility that [Ecuador's judicial system] would respond adequately to the demands of the case is very poor." A6404. See also A6433 to A6515 and A6701 to A6757. 5 See also Ian Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW at 5 (4t' ed. 1990) on various sources of Customary International Law. 6 See also Affidavits of Soren Hvalkof, A2365-2396); Aff. Dr. Aaron Bannett (A269-286); Dr. Sara Zaidi (A287); William Fray (A300-305); Anthony Avirgan (A295-299); Elias Piyaguaje (A306-315); Chris Jocknick (A328-332); Professor Dinah Shelton (A333-358); Adriana Fabra Aguilar (A351-358); Human Rights Abuses In Ecuador (A401-433); Center for Economic and Social Rights, Report on Rights Violations in the Ecuadorian Amazon (A640-659); Decision of the International Water Tribunal (A673-692); Environmental Hooliganism in Ecuador (A574- 639); National Resources Defense Council, Amazon Crude (A 1026-1159); ILO Convention Concerning the Protection and Integration of Indigenous and other tribal and Semi -Tribal Populations in Independent Countries (A2398-2433); House Documents Slavery in Peru (A2435-2484); The Environmental Audit Judith Kimerling (A.2485-2512); Aff. Wade Davis DESPUItS DEL DORADO: TEXACO Y LA SELVA AmAz6NICA 21 (A2513-2544); Savages by Joe Kane (A2586-2590); United Nations Discrimination Against Indigenous Peoples (A.2603-2636); The Global Effects of Deforestation (A3359-3365); Tropical Deforestation Congressional Hearings (A3373-3375); Tropical Rainforests (A3366- 3372); Rainforest Action Network Medicinal Benefits of the Rainforest (A.3376-3377); Bio- logical Diversity WWF (A3378-3412); Aff. Vladimir Serrano (A3579-3593). 7 The Second Circuit decided Filartiga V. Pena-Irala 630 E2d 876 in 1980. The United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment was opened for signature at United Nations Headquarters in New York on February 4, 1985, and entered into force on June 26, 1987. 8 Hari M. Osofsky ENVIRONMENTAL HUMAN RIGHTS UNDER THE ALIEN TORT STAT- UTE: REDRESS FOR INDIGENOUS VICTIMS OF MULTINATIONAL CORPORATIONS 20 Suffolk Transnat'l L. Rev. 335 at 363. 9 Ibid. citation to Kadic v. Karadizic 70 F.2d 232 (2d Cir. 1995); Xuncax v. Gramajo 886, F. Supp. 162 (D. Mass. 1995); Ford v. Suarez -Mason 672 F. Supp. 1531 (N.D. Cal. 1987); Fernandez - Roque v. Smith Fernandez -Roque v. Smith 622 F. Supp. 887 (N.D. Ga. 1985). 10 Brief for AMICI CURIAE 97-9104(L) of Owen M. Kupferschmid Holocaust Human Rights Project and Environmental Law Society of Boston College of Law, Arthur L. Berney and H. Kent Greenfield. (A5707.) See also, Hari M. Osofsky, "Environmental Human Rights Under the Alien Tort Statute: Redress for Indigenous Victims of Multilateral Corporations" 20 Suffolk Transnat'l L. Rev. 335, 339-340, 1997. 11 See also, Alvarez-Machain v. U.S., 266 F.3d 1045, (9th Cir, 2001); Eastman Kodak Co. v. Kavlin, 978 F. Supp. 1078, S.D.Fla., 1997; Abebe41ra v. Negewo, 72 F.3d 844, (11th Cir. 1996); Jama v. United States LN.S., 22 F. Supp. 2d 353, D.N.J., 1998. 12 See Stockholm Declaration, supra note 90, Principle 1, 11 I.L.M. at 1416, 1417-18; Rio Decla- ration, supra note 90, Principle 1, 31 I.L.M. 87 ; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Nov. 14, 1988, Article 11, 28 I.L.M. 15 ; African Charter on Human and Peoples' Rights, June 27, 1981, Article 24, 21 I.L.M. 58, 63; Draft Principles on Human Rights and the Environment, U.N. Doc. E/CNA/Sub.2/1994/9 (1994); and the Hague Declaration on the Environment, Mar. 11, 1989.28 I.L.M. 1308, 1309 13 http://www.free-eco.org/agenda—seminarjudges_sepl5 14 http://www.bestfoods.conVproxy2000/proxyl.shtml 15 http://www.free-eco.org/agenda-seminarj*udges-septl5-l998.htlm 16 "About our Funding" at http://www.free-eco.org/ 22 AFTER THE GOLDRUSH: TEXACO AND THE RAINFOREST From the Andes on to the Rainforest: the cataracts of San Rafael Dumping the produced water. Dumping the produced water into man made pits. Texaco left 351 pits of oil in Ecuador DESPUtS DEL DORADO: TEXACO Y LA SELVA AMAZ6NICA 23 Crude oil that decants to the surface of the pits has high concentrations of heavy metals such as cadmium, arsenic and mercury. Dumping produced water into man made pits was common practice in Penn- sylvania in the beginning of the twentieth century. 24 AFTER THE GOLDRUSH: TEXACO AND THE RAINFOREST Dumping the produced water into unlined pits was banned in Louisiana in 1927 and in Texas in 1955. In 1971 the oil industry testified under oath at congressional hearings that the industry does not dump the water of production into the environment anywhere in the United States. Texaco agreed in 1973 to become severally re- sponsible, for its period of stay in Ecuador, for any damages to the environmnent. ChevronTexaco has never made good on that assumed responsibility. Texaco has suggested that the solution to the massive contamination is to abandon the area. People who have lived here for hundreds of years have no place to go. This is their land. DESPUtS DEL DORADO: TEXACO Y LA SELVA AmAz6NICA 25 Drs. Anthony Lamontagne and Sarah Zaidi from Harvard col- lecting water samples. They concluded from their extensive studies that the water everywhere in the region was poi- soned and not fit to drink. Dr. Stephen Kales from Harvard at an oil pit. 26 AFTER THE GOLDRUSH: TEXACO AND THE RAINFOREST Texaco conceived and carried out the practice of syphoning contaminated crude oil into tankers and then to have the tankers spread the oil on the roads. Oil on the roads was packed with the aid of bulldozers. People were then forced to walk on oil. DESPUtS DEL DORADO: TEXACO Y LA SELVA AMAZ6NICA 27 After walking on the road Maria's child has to wash the crude oil from his feet with gasoline. Maria Agunda and her family walking on the oil roads. 28 AFTER THE GOLDRUSH: TEXACO AND THE RAINFOREST Fourty percent of the hospitalizations in Coca are the result of fire burns caused from the free gasoline sup- plied to people to wash the crude oil from their bodies. The result of walking on the oily roads. DESPUItS DEL DORADO: TEXACO Y LA SELVA AMAZ6NICA 29 The rainforest has hundreds of contaminated swamps caused by overflow from the pits. Pre -cancerous growths caused by exposure to crude oil. 30 AFTER THE GOLDRUSH: TEXACO AND THE RAINFOREST The army garrison in Lago Agrio. The army is funded by fifty percent of the oil revenues col- lected by Ecuador. Texaco entered into a sham contract with Ecuador in 1995 in order to kill the lawsuit. Under this alleged contract for clean-up, Texaco bulldozed soil on top of the pits. This oil has since resurfaced. DESPUtS DEL DORADO: TEXACO Y LA SELVA AmAz6NICA 31 Texaco instituted the practice of periodically igniting the oil in the pits. Igniting the pits produces partial com- bustion, dioxins, and a phenomenon called Black Rain which poisons the rainwater.