The Bitter Transmogrification of a Contamination Case: The Gbemre and the Lago Agrio Cases in View.
May it be untrue, for the sake of all the Earth. But it is becoming increasingly difficult not to be persuaded to accept that corporations consider it a good thing to make profit at the cost of human lives, environmental damage and to scheme to abscond from responding to the dire consequences of their operations.
One must be persuaded as evidence abound in the gory sights of the many coal, oil and gas-infested sites across the world and in the unapologetic and hostile manner with which corporations, otherwise called ‘the polluters’, and their partners in pollution contest lawsuits demanding justice for ecological horrors. It is absurd.
Take, for example, the oily and burning situation in the Niger Delta, particularly in Iwherekhan community, Delta State, Nigeria. In the community, there are at least three fiery beasts (gas flares) belching the toxic fire on the environment and people despite a 2005 Federal High Court ruling on the “Gbemre Case”. The ruling, which was appealed by the polluter, marked the Nigerian courts’ first attempt at condemning gas flaring as a gross violation of the right to life, dignity and a healthy environment and ordered its cessation. See Gbemre v. Shell (suit no. FHC/B/CS/53/05, delivered on 14 November 2005).
Sadly, the court later granted a conditional Stay of Execution of the ruling. A Stay of Execution temporarily stops the beneficiary of a ruling/judgment from enjoying the benefits of that ruling/judgement while the appeal is being heard. One of the conditions of the Stay required both Shell Petroleum Development Company (SPDC) and the Nigerian National Petroleum Corporation (NNPC) to submit a detailed plan aimed at achieving zero gas flaring by 30 April 2007.
But the cohort did not obey the Order. The matter was further muddied by the sudden transfer of the judge, Nwokorie J., to another judicial division and the mysterious disappearance of the case file. Subsequently, SPDC was granted a further Stay of Execution with no known condition attached.
The circumstance of the above case is a testament to the fact that the Nigerian Government and multinational oil companies (MOCs), acting in concert, do not give a hoot about the ongoing environmental and public health consequences of MOCs’ operations in the Niger Delta. These partners may pursue the case up to the Supreme Court, until they have the ruling overturned. The Gbemre Case, which has already lasted over a decade, is still unfolding and the best outcome in the shortest time is prayed.
To show that these are not issues that are peculiar to the Niger Delta region, in another clime, there is yet another textbook case — one riddled with grotesque plot twists and ironies. The case is one of odious contests and sensibility-insulting denial of liability. It is the lawsuit over the ecological damage and harm to public health in the Lago Agrio region of the Ecuadorian amazon. A case of contamination—the result of nearly 30 years of oil operations spearheaded by Texaco Petroleum (Texaco), Chevron’s subsidiary, in partnership with Petroecuador, Ecuador’s state-owned oil company.
This contamination case began in November 1993 when the Lago Agrio plaintiffs (comprising small farmers and indigenous people) sued Texaco in the US District Court for the Southern District of New York. By 2018, ‘after traversing across a quarter century, three continents, and three jurisdictions’, the matter transmogrified into the breach of a bilateral investment treaty in which the Lago Agrio plaintiffs had ‘neither voice nor standing’.
This was how it happened.
In May 2001, the US District Court for the Southern District of New York directed the lawsuit to be heard in Ecuador on the grounds of forum non conveniens and international comity. Forum non conveniens allows a court which has jurisdiction over a case (or the court chosen by the suing party, in this case, the Lago Agrio plaintiff) to dismiss it (the case). The dismissal is done on the grounds that the court is not convenient for the witnesses or poses needless distress on the defendants. It is the defendants, in this case the oil companies, who petition the court for an order shifting the case to a court deemed more convenient.
By October of the same year (2001), Texaco and Chevron finalized their merger agreement — an agreement which was later sought to be used as a shield to escape liability in the case. In May 2003, the Lago Agrio plaintiffs sued Chevron in the Provincial Court of Justice of Sucumbíos. By October, the Lago Agrio Case began in the Provincial Court of Justice of Sucumbíos and, in February 2011, the court rendered an $18 billion judgment — later reduced to $9.5 billion — against Chevron for the contamination resulting from crude oil production in the region. see Aguinda c. Chevron/ indeinizacion (Case No. 2003-0002 (2011-63-1)).
It is worth noting, as Suzana Sawyer, who has provided a most critical analysis of the case in her 417-page book titled ‘The Small Matter’, recognized, that “neither disparities, nor improprieties, nor scientific truth determined the legal outcome in Ecuador. Rather, the limitations and indeterminacies of science, the compromised quality of corporate contractual arrangements, the expanded modes of legal recognition, and the sociomateriality of “facts” and their making enacted a legal reality in Ecuador that led to this unparalleled and fiercely contested ruling”.
The reality included evidence of the company’s prior knowledge of potential harm, technical expertise and capacity to prevent the harm, as well as the court’s reliance on a “new type of liability” based on the principle of ubi emolumentum, ibi onus (where a benefit is found, responsibility follows). The said principle holds, and the judge reasoned, that the absence of guilt through proof does not exonerate the custodian of things (or owner of the operation) from liability.
Thus, where Chevron alleged absence of “regulation or numerical standards” at the time of its operations as a defence to the claim, the judge found and forcefully reiterated that “the lack of regulations cannot be understood as implicit permission to defile the water, or engage in practices that have placed human health at risk”. And where Chevron insisted that poor living conditions were the cause of harm to public health, the judge held that since “other provinces with similar poverty indexes” are not confronted with the same health concerns, “it is not poverty that directly [caused] mortality, but rather a common denominator [contamination]”.
Indeed a shining example of conscientious judicial acumen, this judgement was affirmed by three other Ecuadorian courts including their supreme court. Chevron was ordered to pay $9.5 billion in punitive damages unless they apologized to the people of Ecuador within two weeks, but never did. They believed they were defending themselves against false allegations.
In February 2011, Chevron countersued the Lago Agrio plaintiffs in the US District Court for the Southern District of New York. They challenged the Ecuadorian ruling as being procured through fraudulent actions. The court ruled that the $9.5 billion Ecuadorian judgment was the product of fraud and racketeering activity. see Chevron Corp. V. Donziger (Docket Nos. 14-0826 (L) 14–0832(C). Although this ruling was later reversed, it created an ironic impression of victimization. Again, in August 2018, the Permanent Court of Arbitration in The Hague ruled in favor of Chevron in a bilateral investment treaty claim it had brought against Ecuador. (See PCA CASE NO. 2009-23).
It meant that, despite the evidence of contamination and harm to public health in Lago Agrio, Chevron was not obliged to obey the Ecuadorian judgement!
The Gbemre Case and the Lago Agrio Case, respectively, are just two out of many. The heap of victims of environmental horrors may be as high as Mt. Kilimanjaro and the length of the list of court cases demanding justice for them, as long as the Mississippi. The whole situation is a sad joke, with the polluters laughing and clinking champagne glasses in a toast to “victory” and “profits,” while the environment and people suffer. This is why, to say the least, judges and arbiters who refuse to be restrained by unjust legal parameters or scientific technicalities in contamination cases, deserve any flowers they receive. By checking the environmental racism and power imbalances often present in cases of this magnitude, they represent a ray of sunshine in the darkness caused by the twin evils: corporate impunity and governments’ irresponsibility.
In any instance, whether or not the courts of law and halls of arbitration prevail, the Court of Incontrovertible Facts and the Hallowed Hall of Good Conscience give a verdict of “Guilty” against the perpetrators of these atrocities. Every other day, the verdict is delivered: in that withered cocoyam plant; the thousands who die as a wave of cancer and other illnesses sweeps through the polluted region; the contamination-induced skin ailment that causes a doctor to recoil; the river turned black from crude oil contamination; the fish that chokes to death after drinking the poisoned river water; and the trauma that lingers like oil on water, turning once pristine beings into shadows of themselves. “Guilty and Liable”.