USA, 2009, 100min.
The landmark case in Crude takes place in the Amazon jungle of Ecuador, pitting 30,000 indigenous and colonial rainforest dwellers against the U.S. oil giant Chevron. The plaintiffs claim that Texaco – which merged with Chevron in 2001 – spent three decades systematically contaminating one of the most biodiverse regions on Earth, poisoning the water, air and land. The plaintiffs allege that the pollution has created a “death zone” in an area the size of the Rhode Island, resulting in increased rates of cancer, leukemia, birth defects, and a multiplicity of other health ailments. They further allege that the oil operations in the region contributed to the destruction of indigenous peoples and irrevocably impacted their traditional way of life. Chevron vociferously flights the claims, charging that the case is a complete fabrication, perpetrated by “environmental con men” who are seeking to line their pockets with the company’s billions.
“They came and spilled oil, contaminated the river, and my children died.” Wherever the hurricane of industrial production has touched down in the Americas over the past 150 years the story of those living in its path has been the same. It is a simple story, a tragedy made all the more powerful by the moral clarity that it leaves in its wake: the company came, they exploited, we died.
In this case, the words of the succinct summary quoted above are those of Emergildo Criollo of the Cofán tribe of Ecuador’s Amazonian rainforest, captured on film by the documentary Crude. The starting point for this story is the legacy of allegedly carcinogenic pollution left over from decades of oil extraction in the rain forests of Ecuador (by Texaco, until it was taken over by Chevron, as well as by Petro Ecuador). Crude tells a story in which the effects on the indigenous people of the region are so awful, the behaviour of the companies involved apparently dedicated to avoiding responsibility, and the balance of power between the company and affected communities so out of whack, that director Joe Berlinger could easily have hammered the message home with a simplistic filmic ‘j’accuse’. Thankfully he does not. Instead, the film fleshes out the plot through a wealth of narratives, including the company’s own, that frames a black-and-white morality play in the messiness and inspiration of human survival in the wake of corporate-made disaster.
The central plot of the film is a legal battle in which the court has been moved to the middle of the rainforest. It must be one of those rare gifts to a documentary maker, to literally transport the court room struggle to the scene of the crime. Berlinger anchors the film in that opportunity and reels in the narratives around it. It is all here:
A vast system oil pits designed to drain rain water run-o into streams that also happen to be the life blood – and drinking water – of local communities, to an arrogant corporate environmental officer spouting evasive clap-trap about compliance with international standards. A mild mannered yet driven ex-oil worker turned campaigning lawyer (Pablo Fajardo) leading the charge against Texaco- Chevron, to corrupt former oil company lawyers claiming the state is responsible (at the end of the film, we learn he has actually been charged with corruption). The ambulance-chasing Yankee lawyer (does he have a heart? Or just an over-sized, politically-correct ego?) to Vanity Fair, the President of Ecuador, intimidated judges, well-spoken rockstars’ wives, and it goes on. Crude tells its story with devastating understatement, wrapping the central plot of corporate negligence and malfeasance in the multiple narratives of those involved. Through it all, the testimony of people affected by the pollution is used to force the grim reality back into the narrative: the pollution happened in the 1970s, the case was launched 19 years ago and childhood cancer rates are in the affected communities are high, killing many young people at the age of 18 and 19. Justice is not swift when Big Oil is your target. You may die before you ever see it.
The larger question posed by this film is: where is justice in all of this drama? The case which forms the centre of the film is as yet unresolved. As Stephen Donziger, the U.S. lawyer working with Pablo Fajardo, makes clear, just getting this case into court is “a miracle”. The odds were never in their favor. So, how is it possible that they might actually win? Crude is a text book example of asymmetrical legal warfare. Lessons include:
Build legal networks: corporate defendants will try to shift the case from one jurisdiction to another in order to both get a better hearing (read ‘get a judge they can buy’) as well as to simply delay. In fact, Crude makes clear that if you plan to take on a multinational in court you should never underestimate the extent to which delaying the case is their main strategy. If it looks like you are prepared (have networks) in more than one place, corporations will think twice before using their most important advantage: the ability to shop for multiple jurisdictions. To counter this tactic, lawyers in the U.S. and Ecuador had to build networks in between the two countries. They have used the mechanisms that work in one country to leverage the work they do at home.
Build solidarity networks: in this case organisations like the Amazon Defense Coalition, the Rainforest Foundation and others helped, primarily by creating media and political space and attention to the case outside of Ecuador. Celebrity attention can help raise the profile of the case. This attention had a direct impact on the opening up of political space and attention inside Ecuador. Do this early, because a high-pro left abroad can help preempt violence by thugs defending political interests and company interests.
Crude is a text book example of asymmetrical legal warfare
Work the media: it appears from the film that Donziger hired in a publicist who delivered a major spread in Vanity Fair, something he notes was a “paradigm shift ” for the case. He may be right about that. But Crude also shows us how Fajardo’s team takes the media battle to the home town of Chevron’s Ecuadorian lawyers, and how they make a visit to a judge into a media event. These kinds of tactics are essential for several reasons: they make the case a national issue and shine a light on those who defend the company at home. That kind of local/national media work is crucial in making the case an issue for national politicians, and preparing the way for a big international story like the Vanity Fair piece on Fajardo to be heard (and to play well) at home. The film is, of course, part of that same dynamic.
Do an end-run around corruption: the film speaks volumes by its silence on the issue of corruption in the Ecuadorian courts. Judicial corruption is certainly a problem, but it is not specific to Ecuador. Tactically, it is much wiser to assume that corruption in a specific instance can be overcome by the right dose of domestic judicial and political will. That is, after all, what the companies are paying for when they pay bribes. So, rather than buy that judicial and political will, better to create space for it to build, in part by treating the judiciary system with some respect, and in part by cultivating allies in the political class (the case gets a huge break in their favour when Ecuador gets a new president half way through the film and he eventually comes on board).
Ultimately, however, all of this hard work can be undermined by getting the facts wrong. Fajardo has no illusions about how important it is to have the truth on his side: “When I say something, they [the company’s lawyers] have to think a thousand times to come up with a lie to counter my truth … They have to think much harder than me.” This is not just about good scientific documentation of the causal link between the company, pollution and harms to people. It is also about the management of the case: where they have many lawyers and bottomless legal budgets and lots of ways to delay, Fajardo and his team have first-hand experience with the industry they are confronting and the harm they are litigating. Fajardo, a former oil worker himself, is able to counter the endless demands for delay by an appeal to the facts and the principled demand for justice.
Which points to the larger signi cance of Crude: The case (and the film) comes at a moment in legal history in which similar ‘miracle’ cases are cropping up in courts around the world with increasing frequency.1)See www.red ags.info, or http://www. business-humanrights.org/LegalPortal/ Home/Company A victory for Pablo Fajardo, his colleagues and the 30,000 people they represent, would send a signal that the legal systems of resource-dependent countries like Ecuador can deliver justice in the face of overwhelming odds. It is Crude’s ability to speak the truth about the practical obstacles to justice for corporate abuse, and to do so from a human perspective, which makes it possible to think that, maybe, justice can be found in a court of law.
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|1.||↑||See www.red ags.info, or http://www. business-humanrights.org/LegalPortal/ Home/Company|