Did Chevron lobby the State Department regarding the contents of the Ecuador Human Rights Report during the Lago Agrio litigation? Yes. Did the lobbying have an appreciable effect on the content of the report as it relates to Ecuador’s judicial system? Maybe.
These are the big-picture conclusions we can draw from the first group of documents the State Department has produced to me in response to my August 2011 Freedom of Information Act request. The FOIA issue is summarized here; and you can find copies of all the documents the government has produced so far, as well as the papers in the docket in the action I filed against the State Department, here. I can also give an opinion with which readers may or may not agree: it’s a problem for parties to try to influence the content of a country’s human rights report and then to cite that report when seeking either to obtain recognition and enforcement of a judgment or to persuade a court to refuse recognition and enforcement, particularly if it does not disclose the fact of the lobbying. I don’t see good evidence that Chevron’s lobbying here led to an unfair outcome, because it seems not to have affected the key language of the report. But the point goes further than this case and suggests that courts should be cautious in relying on assertions in Human Rights Reports about foreign judiciaries.
Motivation for the FOIA Request
Here is what we have known for a while:
- Chevron claims, in various forums, that Ecuador’s courts were systematically inadequate, that is, that they did not meet the standards of impartiality and due process necessary to make their judgment in the Lago Agrio case worthy of recognition and enforcement outside of Ecuador.
- Chevron has cited the State Department’s Human Rights Report on Ecuador, which contains a discussion of the Ecuadoran judiciary, in its arguments.
- Chevron has lobbied the US government to take actions aimed at helping it in its dispute with Ecuador and the Lago Agrio plaintiffs, in particular, lobbying the US Trade Representative to refuse to renew Ecuador’s trade preferences under the Andean Trade Preference Act. Chevron and the Lago Agrio plaintiffs have also lobbied at the state level.
When I put these facts together, I am left with the question whether Chevron has also lobbied the State Department about the content of the Ecuador Human Rights Report. In August 2011, I made a request to the State Department under the Freedom of Information Act aimed at answering that question and, more broadly, in trying to figure out what sort of lobbying went on behind the scenes to mold the Human Rights Reports’ descriptions of foreign countries’ judiciaries. This question is particularly important in light of the highly visible challenges to foreign judiciaries in the Lago Agrio case and in other cases.
The FOIA Litigation
The State Department is busy with matters of war and peace and lots of other important jobs, and it did not respond to my request for about a year and a half. So in March 2013 I filed a lawsuit seeking the records responsive to my request. There have been some additional delays—and thanks to John Boehner and the radical rump of the Republican Party, there will be some more delays (responding to Freedom of Information Act requests is, apparently, a “non-essential” government function). But the good news is that I have now received the first batch of documents, along with an explanation of the redactions the government has made.
Bill Irwin is a Chevron lobbyist. In Chevron’s lobbying report for the fourth quarter of 2009, he is identified as a lobbyist on “Ecuador rule of law and trade issues” with the Departments of State, Commerce, Energy, and the Treasury, the National Security Council, the Senate, the House of Representatives, and the US Trade Representative. According to an email he wrote to Liliana Caparo Ariza, a State Department representative who apparently worked on human rights reports, he and a colleague met with Ms. Caparo Ariza on December 8, 2009. After the meeting, Mr. Irwin provided Ms. Caparo Aria with information about two environmental audits done in Ecuador in 1992, one by Furgo-McClelland and one by HBT Agra. (I believe these audits were offered as evidence in the Lago Agrio case). He also provided information about the ownership in the oil consortium that had conducted activities in Ecuador. Mr. Irwin’s email itself does not make the precise subject of the meeting clear. Several State Department personnel traded emails about the meeting in the day that followed, but the government has redacted the contents of those emails. However, the subject line of a December 9, 2009 email is: “RE: Chevron meeting—how the 2009 HRR now looks.” And so I infer that the purpose of the meeting was to discuss the contents of the 2009 Ecuador Human Rights Report. I have asked Chevron twice for comment on what happened at the meeting, but the company has not responded. If it does respond, I’ll provide an update.
The government’s redactions are tantalizing. According to the government, it redacted the intra-agency emails for the following reasons:
This document is an intra-agency e-mail exchange, consisting of an initial (released) message from a private sector entity and six messages among Department attorneys and other Department employees. The excised material, including a draft text for a report intended for eventual public dissemination, consists of exchanges between Department attorneys and other Department employees regarding suggested revisions to that text and pertaining to other issues related to the concerns of the private sector entity. Release of the withheld information could reasonably be expected to chill the frank deliberations that occur when Department officials are crafting text intended for eventual publication and formulating a strategy for an official response to a sensitive matter. In addition, the withheld information contains confidential communications between agency attorneys and their clients sent for the purpose of securing legal advice in order to respond to the private entity. For these reasons, this information is protected by the deliberative process and attorney client privileges and is exempt from disclosure under Exemption 5, 5 U.S.C. § 552(b)(5).
The State Department also had in its files a copy of a Chevron memorandum titled “Texaco Petroleum, Ecuador and the Lawsuit Against Chevron,” which Chevron has made publicly available on the web. It’s unclear whether Chevron provided the memorandum to the Department, and if so, when. The Department was also aware of opposing views. It had in its files a copy of a letter from Sentaors Wyden, Durbin, Casey, and Leahy to the U.S. Trade Representative expressing concerns about Chevron’s “effort to petition your office concerning a lawsuit it is facing in the Ecuadorian legal system.” Again, it is unclear how the State Department came to have the letter.
The government has not (yet) produced its response to Chevron; it may be that the response is not within the scope of my request. In any case, I am going to try to obtain it.
The Effect Of The Lobbying
So did the meeting make a difference? Well, let’s compare the 2008 Ecuador HRR (published February 25, 2009, before the meeting) with the 2009 Ecuador HRR (published March 11, 2010, after the meeting). In the section on fair public trials, the differences are minor. In 2008, the report said that the media reported “extensively” on the “susceptibility of the judiciary to bribes for favorable decisions and resolution of legal cases and on judges parceling out cases to outside lawyers who wrote judicial sentences on cases before the court and sent them back to the presiding judge for signature.” In 2009, the word “extensively” was deleted. In 2008, the report stated that the Ecumenical Human Rights Commission asserted that “judges occasionally reached decisions based on media influence or political and economic pressures.” In 2009, the report made the same claim outright, instead of saying that the Commission had made the claim. These are fairly minor changes.
However, the 2009 report contains a new paragraph:
In August a multinational oil company provided government authorities with clandestinely recorded videos that it alleged exposed a bribery scheme related to a multi-billion dollar environmental lawsuit pending against it in an Ecuadorian court. The judge who had been presiding over the case, as well of some members of President Correa’s Proud and Sovereign Fatherland Movement, were shown on the recordings. The Prosecutor General’s Office opened an investigation into the allegations, while plaintiffs in the lawsuit claimed the videos were fabricated.
It is not possible, given the documents I’ve seen, to tie Chevron’s lobbying to any particular change in the report.
What Use The Parties Tried To Make Of The 2009 HRR.
Judge Kaplan has cited the 2009 Human Rights Report twice, as far as I can tell. First, in In re Application of Chevron Corp., 709 F. Supp. 2d 283 (S.D.N.Y. 2010), an early § 1782 case, he wrote:
Ecuador in recent years has seen the ascendency of a socialist government that is not as well disposed to private oil interests as its predecessor. Moreover, the State Department last year observed:
While the constitution [of Ecuador] provides for an independent judiciary, in practice the judiciary was at times susceptible to outside pressure and corruption. The media reported on the susceptibility of the judiciary to bribes for favorable decisions and resolution of legal cases and on judges parceling out cases to outside lawyers who wrote judicial sentences on cases before the court and sent them back to the presiding judge for signature. Judges occasionally reached decisions based on media influence or political and economic pressures.
Second, in Chevron Corp. v. Donziger, 768 F. Supp. 2d 581 (S.D.N.Y. 2011), he wrote:
While stated more conservatively, numerous independent commentators—quoted in Alvarez’s report—have concluded that the Ecuadorian legal system is highly politicized and has little respect for the rule of law. The World Bank’s Worldwide Governance Indicators show that Ecuador ranks in the bottom eight percent of countries with respect to the rule of law, lower than Liberia and North Korea. The State Department’s three most recent Human Rights Reports indicate that Ecuadorian judges sometimes decide cases based on substantial outside pressures, especially in cases of interest to the government.
In at least one of those two cases, Chevron itself cited the 2009 Report in its papers (in particular, on page 60 of its brief in support of its motion for a temporary restraining order). I do not believe Chevron cited the report in its § 1782 application, but it may have cited it in other documents that informed the judge’s decision.
What About The LAPs?
We’ve focused only on Chevron. What about the Lago Agrio plaintiffs? Have they also lobbied the State Department on the contents of the Human Rights Report? For reasons that are no longer clear to me more than two years later, I don’t think my FOIA request would have captured documents that would answer that question. However, I put the question to LAP spokesman Bill Hamilton, who said that the LAPs “have not lobbied the State Department on anything.”
I expect to receive more documents from the State Department after the government shutdown is over, and the additional documents may or may not shed light on the question of lobbying on Human Rights Reports generally, or the Ecuador Human Rights Report in particular. I will be taking a look at the government’s redactions and withheld documents to determine whether I have a basis to ask the government to produce more. I also welcome readers who know about the inner workings of the State Department to take a look at the documents produced to see whether we can glean anything more from the bits and pieces that the Department has not redacted.
Update: Chevron has issued the following comment: “Throughout this case we have kept a wide range of stakeholders informed on the proceedings and related background.”