When a California-based oil corporation claims it would be "inconvenient" to defend an environmental lawsuit in California (just 10 miles away from its headquarters) it is hard not to entertain ulterior motives... especially when the alternative is to try the case in Peru.
More than 80% of the population of Peru believes their courts are corrupt, giving it the 2nd worst score in the Americas (in 2008 Peruvian courts received a Corruption Perception Index CPI score of 3.6 out of 10). Moreover the Peruvian courts have no class action or enforcement mechanism.
But "inconvenience" was exactly the argument made by Occidental Petroleum lawyers on Wednesday when the Maynas Carijano v. Occidental Petroleum case (No. CV-07-5068) was heard before the 9th Circuit Court of Appeals.
Occidental (Oxy for short) is being sued by the indigenous Achuar people of Peru charging decades of illegal dumping of petroleum products, cadmium, lead and other toxic chemicals directly into local water supplies, dispensing with standard practices of the time. Here's a video by advocacy group Amazon Watch describing their claims:
When the Oxy case was brought before a California judge in 2007, Oxy followed in the footsteps of Chevron which was faced with a similar lawsuit at the time.
Chevron was sued by the indigenous people of Ecuador in Aguinda v. Texaco (Texaco is now owned by Chevron), and the company argued that the case should be tried in Ecuador so the courts could have access to material evidence It was an argument which Chevron won but would later come to regret.
In the jungle "material evidence" is quickly destroyed, leaving the court to rely upon memos, written correspondence and environmental assessment reports (most stored in the US) in their adjudication. In the Chevron/Texaco case the strategy backfired. The court-appointed expert recommended a $27 billion settlement paid to the Ecuadorean government (read my post on the documentary CRUDE) a recommendation which Chevron is now fighting on the basis of "court corruption."
I was in attendance at Wednesday's hearing and was impressed by the close reading made by the three judges of the case documents. One judge, while being careful not to imply any false motives, questioned how the defendant could claim "inconvenience" when the California court was located just 10 miles away from Occidental's corporate headquarters, asking "Shouldn't you be happy it's here?"
The judge went on to say, "This is highly unusual for a firm headquartered here, with lawyers here, with documents here, with witnesses here, to make this request."
The lead attorney representing the Archuar people, Marco Simons (above center) made it clear that it would be far easier to bring to the witness stand busy Oxy executives as well as former and retired Oxy employees if the case were tried here in California. In addition most of the company's documentation is stored in California, and whether or not the case is tried in Peru, the judgement would still have to return to California.
The legal team for the Achuar people have experienced a series of ups and downs in the past week. Just two days before the hearing the Achuar leader was denied a visa to come to the U.S. by the embassy in Lima. I was told by Atossa Soltani, E.D. of Amazon Watch, that after fighting to get the visa, a visa was in fact issued on Tuesday to be picked up en route to the airport, but instead it was sent out via DHL, making it impossible for the Achuar official to be present.
But the legal team was pleased with the judges' careful analysis of the case and has hopes that they will be able to try the case in California courts in the next 1-2 years. And who knows.. after the Ecuadorean Chevron/Texaco debacle, Oxy lawyers might be secretly hoping for the same thing.
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