Yesterday Amazon Watch, an environmental group that has recently been in Chevron’s crosshairs, published a six-minute video showing one of the pre-inspection site visits that Chevron personnel conducted.
The video clip shows an inspection apparently not going as planned. The plan was not to find petroleum, yet everyone seems to agree that the samples they’re taking do contain petroleum. The “gotcha” lines:
Rene: Nice job, Dave. Give you one simple task: Don’t find petroleum.
Dave: Who picked the spot, Rene? Who told them where to drill, Rene?
Rene: Oh, so it’s my fault? I’m the customer, I’m always right.
According to Chevron spokesman Morgan Crinklaw, there’s nothing amiss here. “These edited video clips demonstrate the process used to identify the perimeters of pits at oil field sites, which is standard practice in environmental testing. A variety of samples were taken inside and outside the pits to determine their borders.” Part of the plan for the preinspections was to find the border between contaminated and uncontaminated areas, which necessarily means that you want some of the samples you take to be “clean.” But Kevin Koenig, Amazon Watch’s Ecuador program director, told me that the video “speaks for itself” and that the sites shown are sites that Chevron “claimed to have remediated.” Crinklaw was not immediately able to confirm that, because it’s not entirely clear which sites are shown. He did, though, give me a statement that avoided tackling the tape in any greater detail than I’ve just suggested: “These edited clips do not indicate what site was being tested or whether the site was the responsibility of Texaco or Petroecuador, the state-owned oil company. The judgment against Chevron in Ecuador has been found by a U.S. federal court to be the product of fraud. If there was evidence to support their claims against Chevron, the plaintiffs and their lawyers would not have had to resort to bribery, extortion, ghostwriting and other corrupt means.”
I understand Chevron’s point on the purpose of the preinspections, but when I listen to the tape, that’s not the vibe I get.
Unseen speaker #1: Good news! Petroleum.
Unseen speaker #2: No! No! Check it again.
Watch the tape and see what you think, but it’s clear to me that the Chevron folks are unhappy that they’ve found petroleum in the spots they’ve tested, and it’s hard to see how that could be if they were just hunting for the boundary between the clean area and the polluted area.
Do the parties’ different interpretations of this tape remind you of any other video clip in the case? Perhaps a clip where Donziger says, in a menacing way, that he’s going to go tell the judge what time it is? To me the similarity is obvious: both this tape and the Crude outtakes involve film that can be given a nefarious interpretation. Both this tape and the outtakes took place in a context that arguably shows that what appears suspicious is in fact innocuous. I put this comparison to representatives of both sides, and neither liked it, which suggests to me that I am on the right track.
According to Koenig, Amazon Watch received the videos—fifty-one DVDs in total, with perhaps a hundred hours of footage—sometime in 2011 from an anonymous source, apparently someone working for Chevron. Amazon Watch gave them to the LAPs’ lawyers, who unsuccessfully offered some of them in evidence when cross-examining Chevron scientist Sara McMillan. (It’s not clear whether the tape published yesterday was among those the LAPs sought to use at trial). The timing of yesterday’s publication is a little curious: why are we seeing this tape for the first time now, in 2015? Koenig’s explanation was a little limp: “We got them in 2011. We didn’t open them for a while. Then the RICO case started. … We turned them over to Donziger to see if there was anything helpful on them. We had some questions about whether we could put them out or not. We spoke with our counsel,” and eventually, four years later, decided to publish. This is believable to me, though it doesn’t say much about Amazon Watch’s efficiency.
What’s the relevance of this new tape? Legally speaking, probably close to nothing. These tapes were excluded from evidence on various grounds by Judge Kaplan, and if I recall the appellate briefs correctly, neither the LAPs nor Donziger have raised the evidentiary question on appeal. (It seems to me that although Judge Kaplan did keep out much of the LAPs’ evidence and argument about the environmental situation in the Oriente, it would have been fair to use a tape such as this in cross-examining Dr. McMillan, who after all was a Chevron scientist and who was present at many inspections). In any case, even giving this tape its most nefarious interpretation, what does it show? Remember, in the end, the Ecuadoran court—at Donziger’s behest—put a stop to the preinspections in favor of a supposedly neutral inspection process headed by Cabrera. Maybe more importantly, if Chevron was trying to pull one over on the Ecuadoran court, it failed: the LAPs won the case. If the tape is good for any good legal purpose, it would seem to be for an unclean hands argument that would suffer from the problem that Chevron’s dirty tricks, if dirty tricks there were, failed and accomplished nothing.
But as pure PR, this tape is pretty good for Amazon Watch and, by extension, Donziger and the LAPs. It suggests shenanigans and makes Chevron appear to be manipulating the preinspections to produce favorable results. I don’t expect this tape to affect the outcome of either of the two proceedings coming in the next few weeks (the Second Circuit appeal or the next hearing in the arbitration), but they create an ambiance that the LAPs have to like.