Remarks by Judith Kimerling

By Kimerling | Proceedings of the Annual Meeting-American Society of International Law, Annual 2012 | Go to article overview

Remarks by Judith Kimerling

Kimerling, Proceedings of the Annual Meeting-American Society of International Law

I would like to begin with some comments from the field about the application of forum non conveniens by the Aguinda v. Texaco court, and then discuss one of the affected groups, the Huaorani.

I have worked in the affected region since 1989, and my research was the basis for the environmental allegations in the complaint, but I am not part of the plaintiffs' litigation team. I have written about the Aguinda litigation in New York, so I will cut to the chase: the application of the forum non conveniens doctrine to dismiss the case was colored by a series of detailed but questionable factual assumptions.

Many facts were uncontested. But others are in dispute. One key area relates to control of the operations. While not determinative by itself of the legal issues, the factual issue of where decisions were made about the practices that caused the pollution underlying the claims, and who made them, was a material element of the decision to dismiss. The proposition, advocated by Texaco and accepted by the court, that Ecuadorians controlled the relevant decisions, that employees in the United States had virtually no role in designing or directing the operations, and that environmental practices were regulated by Ecuador, is a recurring theme.

The court also distinguished Texaco from Texaco Petroleum, the subsidiary that operated in Ecuador (in a consortium with Ecuador's state oil company). That, and the portrait of the subsidiary as basically an Ecuadorian company far removed from the parent is dramatically different from the image of Texaco in Ecuador, and the impression there that the state had contracted with the U.S. company, Texaco. It is also at odds with the portrait cultivated by Texaco before it was sued, of a multinational industry leader that transferred world-class technology.

Ecuador relied on Texaco as the operator of the fields to design, procure, and operate the infrastructure that turned Ecuador into an oil exporter. In its contract with the state, Texaco agreed to train Ecuadorian workers and turn over the operations to the state oil company. Texaco's international prestige and control of field operations gave it enormous power in the oil patch, which was compounded by systemic shortcomings in the rule of law.

As for environmental law, there were boilerplate legal directives, but they were not implemented. So Texaco set its own standards, and there was virtually no environmental protection. Workers who were trained by Texaco were so unaware of the hazards of crude oil during the 1970s and 1980s that they put it on their heads to prevent balding. They sat in the sun or covered their hair with plastic caps overnight. To remove the crude, they washed their hair with diesel.

Much has been written about the impacts of the operations, so in the interest of time I will just say that pollution and other impacts have made large areas of ancestral Huaorani lands uninhabitable to them. The damage is so serious and widespread that other companies have gone to great lengths to try to distinguish their operations--"We're not like Texaco; we use international standards and best practices to protect the environment" is a common refrain.

The Aguinda court also made erroneous and unsupported findings about the history of litigation in Ecuador. The basic determination--that the case has "nothing to do with the United States"--is remarkable considering the reality of oil development.

The Huaorani have lived in Amazonia since time immemorial. Their ancestral territory includes lands with infrastructure built by Texaco, and lands that were colonized by settlers who followed Texaco into Huaorani territory.

When Texaco first struck oil (in 1967, near Huaorani lands), Ecuador's institutions had little influence in the Amazon. The Huaorani who lived in areas where Texaco wanted to operate were free and sovereign, living in voluntary isolation. The discovery of black gold made national integration of the Amazon and pacification of the Huaorani a national policy imperative.

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