Ecuador: U.S. Law Professors Criticize Federal Judge Lewis A. Kaplan Over $18 Billion Court Judgment Against Chevron

 

Injunction Shows “Judicial Arrogance” and Violates the Constitution, Says Bert Neuborne of New York University

 

Nine U.S. law professors, including a former member of the U.S. Congress, have joined numerous international law scholars in asking a U.S. appeals court to overturn the decision of a federal judge who claims he has worldwide authority to block a group of Ecuadorian citizens from enforcing their $18 billion judgment against Chevron.

 

The U.S. professors have asked the United States Court of Appeals for the Second Circuit in New York to dissolve an unprecedented injunction issued in March by Judge Lewis A. Kaplan purporting to block the Ecuadorians from enforcing the $18 billion judgment. In anticipation of an adverse judgment in Ecuador, Chevron sold its assets in the country, which has forced the plaintiffs to seek to enforce their judgment in any of the dozens of countries where the oil giant operates.

 

As part of its strategy to obstruct enforcement, Chevron filed a completely separate lawsuit before Kaplan in February asking that he declare Ecuador's entire judicial system broken. At Chevron's request and without an evidentiary hearing, Kaplan quickly issued an injunction asserting he has jurisdiction over the Ecuadorians to block them from enforcing the judgment anywhere in the world.

 

Almost none of the Ecuadorians has ever set foot in the U.S., and most have rejected Kaplan's jurisdiction.

 

Among the U.S. law professors arguing that Judge Kaplan is acting unlawfully is Richard L. Ottinger, who served for 16 years in the U.S. Congress and is the former Dean of Pace Law School in White Plains, New York, and Pammela Quinn Saunders, a former attorney with the U.S. Department of State who teaches at Drexel University in Philadelphia.

 

The U.S. professors say Kaplan’s injunction violates the U.S. Constitution, runs afoul of international law, interferes in the domestic affairs of Ecuador, and in any event is “a futile act” in that it would be impossible to enforce given that the Ecuadorians have refused to accept Kaplan’s jurisdiction.

 

Burt Neuborne, a professor at New York University Law School and the Legal Director of the Brennan Center for Justice, filed an amicus brief (http://chevrontoxico.com/assets/docs/2011-amicus-burt-neuborne.pdf External link) with the appeals court concluding that Kaplan’s ruling “sends an unmistakable message of American judicial arrogance to the rest of the world.”

 

Neuborne, a leading authority on transnational litigation who has taught at NYU since 1972, warned that Kaplan has no authority under the U.S. Constitution to issue the injunction and that his approach will lead to “increased levels of reciprocal judicial suspicion and hostility” toward U.S. courts from other nations.

 

Eight other U.S. law professors -- part of the group that includes Ottinger and Saunders -- joined a separate amicus brief (http://chevrontoxico.com/assets/docs/2011-amicus-16-legal-experts.pdf External link) prepared by international law scholars from six nations asserting that Kaplan’s injunction “constitutes an internationally unlawful attempt to intervene in the domestic legal affairs of Ecuador.”

 

The U.S. professors described Kaplan’s injunction as a “futile act” that “is much more likely to antagonize the courts of other states” that be treated as persuasive authority as the judge claims. They also said the injunction was “breathtaking in its attempts to arrogate a world-wide and exclusive jurisdiction in this case” to a U.S. court without any legal authority to back it up.

 

Joining the American professors in signing the brief were scholars from Australia, South Africa, Italy, Spain, and Finland. See press release.

 

The Ecuador court, after an intensively litigated eight-year trial, issued a 188-page decision in February finding that Chevron deliberately dumped more than 16 billion gallons of toxic waste in the Amazon region of Ecuador when it operated hundreds of well sites from 1964 to 1992. The dumping decimated indigenous groups, increased cancer rates, and poisoned the water supply covering an area the size of Rhode Island where an estimated 200,000 people live, according to evidence before the Ecuador court.

 

The Ecuadorian plaintiffs -- who come from 80 indigenous and farmer communities -- say the damage Chevron caused to their ancestral lands dwarfs that caused to the Gulf of Mexico by BP’s spill, where the total liability is estimated at $100 billion.

 

Before the Ecuador trial judgment was entered, and with the scientific evidence pointing strongly toward its guilt, Chevron began to attack Ecuador’s court system and announced it would refuse to abide by any adverse judgment.

 

Ecuador is a U.S. ally and trading partner that has a Constitution that protects due process rights for all litigants and provides for separation of powers. From 1993 to 2006, Chevron was praising Ecuador's court system before U.S. courts to convince them to shift litigations related to the environmental contamination to the South American nation.

 

In considering Chevron's recent legal motions, Judge Kaplan caused a stir by insulting the Ecuadorian citizens from the bench. Despite the overwhelming scientific evidence against Chevron before the Ecuador court, Kaplan called the lawsuit against Chevron a “game” that was “dreamed up” by American lawyers to help solve the “balance of payments” deficit of the United States. Kaplan also questioned the very existence of the plaintiffs, using the modifier “so-called” when writing about them in his decisions.

 

The Ecuadorian citizens responded by asking the appeals court to recuse Kaplan (http://chevrontoxico.com/assets/docs/2011-petition-writ-mandamus.pdf External link) because of his “deep-seated antagonism” toward their lawsuit.

 

Ecuador’s government also filed an amicus brief (http://chevrontoxico.com/assets/docs/2011-amicus-roe.pdf External link) before the appeals court that leveled a fusillade of criticism at Kaplan for what it called his “gratuitous belittlement” of Ecuador’s legal system. That brief pointed out that Chevron and other foreign investors in recent years have won numerous monetary judgments in Ecuador’s courts against the government, undermining Chevron’s argument that those courts lack independence.

 

The other American law professors who have asked that Kaplan's injunction be dissolved include Rebecca Bratspies from CUNY Law School in New York City, an expert on international law and the environment who clerked on the United States Court of Appeals for the Eighth Circuit; Professor Naomi Roht-Arriaza, a specialist in international human rights issues in Latin America, a former clerk for the United States Court of Appeals for the Ninth Circuit, and a faculty member at Hastings College of Law; and James D. Wilets, a noted authority on constitutional and international comparative law and the Chair of the Inter-American Center for Human Rights at Nova Southeastern University in Ft. Lauderdale.

 

Other American professors signing include Cesare Romano, a specialist in transnational litigation from Loyola Law School; ; Stephen C. McCaffrey, a specialist in transnational water issues from Pacific McGeorge School of Law; and David N. Cassuto, a environmental law specialist at Pace Law School who clerked for the United States Court of Appeals for the Eleventh Circuit.

 

The New York appeals court has scheduled argument on Kaplan's injunction for September 12 in Manhattan.

 

Source: Amazon Defense Coalition



Tags: Chevron  Ecuador  oil  environment  

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