Commentary: Legal Wrangling Won't Restore The Rain Forest

In 1964, Texaco Inc. joined Ecuador to develop an oil field in a sparsely populated region called the Oriente, in the Amazon. Texaco pumped 1.2 billion barrels of oil out of the Oriente before pulling out of Ecuador in 1992.

A year later, attorneys filed a U.S. class action on behalf of indigenous tribes and others in the Oriente. The attorneys claimed Texaco had left behind stinking pools of petroleum and toxic wastewater, ruining their land and threatening their health. The suit claims Texaco engaged in harmful practices it wouldn't have dared to use in the U.S.

"The rain forest stopped being able to sustain tribes that had been there for centuries," says Steven R. Donziger of New York City, one of the attorneys who filed the suit. Donziger and his colleagues see the lawsuit as a step toward better policing of American multinational corporations, ensuring that they do not take advantage of weak governments or legal systems abroad. Critics of such lawsuits contend that they would clog American courts with business that ought to be handled in the countries where the alleged offenses occurred. In this case, for example, the Ecuadoran government surely should share the blame for any damage that might have been done.

FOOT-DRAGGING. Texaco spokesman Chris Gidez says the company's operations in the Oriente "used internationally accepted practices and complied with all Ecuadoran government laws." He says the company also agreed to clean up 250 sites, at a cost of $40 million, and the Ecuadoran government released it from further obligations.

The questions at the heart of the suit are simple: Did Texaco leave a mess behind? And if so, should it be forced to pay for the environmental and health damage it has caused? The sixth anniversary of the lawsuit is coming up in November, and the parties are probably years away from settling those questions. They're still battling over where the trial should be held. And the losers in this sadly familiar tale of legal foot-dragging are, of course, the nearly powerless residents of the Oriente.

Both sides in the dispute are contributing to the delays. Texaco has repeatedly moved to have the case dismissed from U.S. courts, arguing that Ecuador is the place to settle the matter. Donziger and his colleagues say Texaco has moved to have the case dismissed six times. Only once was the motion accepted, and that decision was reversed on appeal. The sixth motion to dismiss is pending. "We've said we're ready to stand trial in Ecuador," says Gidez.

The only problem, say the plaintiffs, is that making their case in Ecuador would be virtually impossible. "If we sued in Ecuador, we couldn't compel the Texaco witnesses to appear, couldn't get their records, and couldn't collect on a judgment," says Joseph C. Kohn, a lead attorney on the suit. Ecuador bars class actions, and as many as 30,000 individual suits could go to a single provincial court judge, Donziger says.

While Texaco has been churning out motions to dismiss, the plaintiffs' attorneys also have done their part to complicate the case. Instead of focusing solely on the environmental damage done and the remediation needed, they've added two additional factors. First, they're blaming Texaco for what they say are high cancer rates in the Oriente. "This is a potential medical disaster," says Kohn. Maybe so, but demonstrating that will be next to impossible in a remote area with little access to health care.

Second, the plaintiffs are now charging that Texaco's actions in Ecuador are an example of environmental racism. They are vowing to launch an advertising campaign in the U.S. that will say Texaco "is an example of a company that does not care as much about people of color as it needs to," says Donziger. Both claims shift the focus away from the central issues: whether Texaco is responsible for polluting the Oriente and whether it should clean up the mess. Both sides ought to end their legal posturing and get on with the case. The seemingly endless maneuvering serves no one.