In 1993, thirty thousand indigenous and non-indigenous rain-forest dwellers sued the U.S. oil giant Texaco alleging decades of systemic pollution of water, land and air. Texaco subsequently merged with the oil company Chevron in 2001. The case was initially brought to court in the United States but was dismissed and relocated to an Ecuadorean court.
Acclaimed Hollywood director Joe Berlinger made a documentary about the ongoing case, which was released on September 9, 2009. The case continues to attract the interest of the environmental movement, politicians and diplomats, human rights advocates, the media, multinational corporate power brokers, and the global indigenous rights movement.
Foreign Policy Digest sat down with Mr. Berlinger to discuss the legal, humanitarian, and environmental issues underlying his new documentary “Crude”, which since its release, has received widespread praise from critics and audiences alike.
FPD: How did you first learn and become interested in this subject?
The lawyer. Well, let me just start by saying I got dragged into the film kicking and screaming. It was not a topic that initially appealed to me. Steven Donziger came to New York to tell me about this issue and ask me to make a film as he was a fan of my work. He is a very charismatic guy.
I am not an human rights activist nor an environmentalist and it seemed that so much had happened and unfolded. I tend to film events as they happen, not after the fact. It did not seem like an obvious choice to me, however, Steven was very persuasive. I also was concerned that Steven would want a more one-sided singular message. The meeting was basically me saying all the reasons I would not want to make a film and Steven basically convincing me to at least see the affected area and people.
FPD: What did you see on that first trip?
That trip really turned me around. On the first day there I was taken on the Toxi-Tour and I was horrified by what I saw. I was shocked that the oil production emasculated the landscape to the degree it had. Giant football field-sized pits leeching toxins in to the ground water. It was shocking. When raw crude comes up you need to separate it from the water and inject the water back into the drill site but this was obviously not done in this instance. The second day of the trip I felt I really needed to get rid of my rigid definition of the kind of films I make. When we pulled up on a Cofan Village and I saw people eating canned tuna because the fish in the river were dead or diseased, just that image really spoke to me. When I returned to New York, I felt like I could not look at myself in the mirror without making this film. I felt like I had to turn my camera on this situation. Even though I am not an activist, I could not look at myself if I did not help these people. I have had commercial success in the past and I felt like I could not turn my back on these people.
FPD: How cooperative were all the players in granting access for the documentary, such as Chevron, the Ecuadorean government, the lawyers and court, the activists, and the community itself?
I pride myself on being able to cover relevant issues. All of my films have that as a theme. I go places and make it happen. I was surprised by the level of access. No one seemed to bother me when I had the camera. The scene in the judge’s chambers would never happen in America. The other thing that kind of helped is that I did not announce that I was a filmmaker from the US. I just blended in the the crew. There was a lot of local NGOs and media covering the case. It is not the safest place in the region, with border disputes, FARC, drug runners, 120-degree Ecuadorean heat, in a malaria zone, and chiggers. The conditions were not cushy and the work a bit dangerous considering the locale. I was also nervous because there is a tradition of local entities and individuals working on behalf of their own interest in relation to their foreign parent company, who may take the law into their own hands and if they do not like what people are doing. I am not saying that Chevron would ever condone anything like this, but local people will protect the parent company to protect their jobs. We pretended like we were part of the NGO throng and local media.
FPD: How did you reach out to Chevron?
Once we got back to New York City, I then reached out to Kent Robertson, a Chevron media spokesperson. I feel very strongly that a film like this requires hearing all sides. I felt I needed to subvert the usual style of advocacy film in order to be successful. It is less persuasive to beat the audience over the head with your message. The audience should function as a jury and be allowed to come to their own conclusions rather than be browbeaten.
At first, Kent was extremely cold about granting access after he found out I had already been making the film for two years before calling him. I explained to him that I was in a kind of a lawless part of the world and I wanted to fly beneath the radar and that I want to do a fair and balanced piece. He was worried it was going to be hit-film against Chevron, but I explained that I had a track record of fair and balanced, unnarrated and ambiguous character studies, not hit-films against companies.
After several communications over several months, I was granted two interviews in Coral Gables (Florida). Initially, I wanted more than the two interview they granted me. I wanted to do a toxi-tour from their perspective and film a strategy meeting of their team of lawyers. I felt like the Spanish attorney stuff was a little dramatic and arcane for an American audience.
FPD: How important was it to you to find a balance within the story given the competing claims of the parties?
The balance issue for me was extremely important. I am not here to say who should win the lawsuit. I cannot tell you whether Chevron has wrapped itself in enough legal technicalities to prevent the plaintiff from prevailing. I can say that from a moral standpoint Chevron should not be victorious. Texaco operated in a substandard manner and the impact on these indigenous people has been tremendous. I was shocked.
The film opens with that Cofan song and ends with the Cofan people heading downriver to an uncertain future (Editor’s note: the Cofan people are an indigenous Ecuadorian people whose tribal members have been among those most affected by the alleged contamination). For me the film is really about 600 years of white people’s treatment of indigenous people, a truly shameful chapter of our (shared) history. On some intellectual level, we all know that American Indians used to live here and were rounded up and put on reservations and now there is a Jack In The Box where people once lived.
What multi-national corporations have done in these regions of the world is just a continuation of this colonial disregard of indigenous people. For me the trial is just an excuse for some dramatic structure. We force indigenous people in to quasi-Western lifestyles. We take away their traditional knowledge and form of subsistence but then we do not give them the economic resources and tools necessary to pursue a Western lifestyle.
FPD: What were the Cofan People’s perception of the lawsuit and the monetary remedies on the table? Did they offer any ideas of their own on what they think would be just compensation?
It is absurd the way Chevron dismisses the peoples claim intimating that the lawsuit is the work of con-men looking to line their pockets. The lawsuit does not provide for compensation for pain and suffering as there is not tradition of that in Ecuadorean law. This lawsuit is about cleaning up the region and trying to return the health of the people and the environment. No one is going to get personal millions from the lawsuit. It is about trying to repair some of the cultural genocide that has occurred.
I encountered apathy and hopelessness among the indigenous people I encountered because of the duration of the litigation but no one is questioning the integrity of the attorneys for the plaintiffs. It is just such an incredible David and Goliath story. The indigenous people are frustrated by the process with their distrust directed at Chevron. The feeling is that Chevron is flooding the court with paperwork and dragging it out as long as possible. Economically it makes sense because you can make hundreds of millions in interest off of 27 billion dollars and use that money to pay lawyers and PR rather than pay it to the plaintiffs.
FPD: What has been the perception of the indigenous community in general regarding Ecuador’s current administration of Rafael Correa?
Chevron’s strategy backfired. Chevron fought for nine years to to send the case to Ecuador. When it was finally sent to Ecuador, they thought this thing would go away, that the plaintiff would not have the will or money to file all over again. Historically, Ecuador has had a corrupt government. Chevron was not counting on the will of the plaintiffs, the local hero Pablo Fahardo, and of the ascension of the Correa Administration.
Correa was the first president to truly care about this issue and visit the region. He has been reelected, the first president to be reelected in a long while. He is very much a popular figure. They even passed constitutional rights for flora and fauna demonstrating their commitment to the environment. Correa has also been trying to keep the oil in the Yasuni National Park from being harvested. He is very progressive and populist in his governance. Chevron is now claiming the legal process has been politicized and they are not getting a fair trial. They promise a life time of litigation and they mean it.
FPD: The four most compelling arguments for absolving Chevron from liability seem to be, first, that Petro-Ecuador is worst offender, second, that no one can prove who is responsible for the existing pollution because it is impossible to date pollution, third, that there is no evidence there is a rise in cancer rates and the drinking water is safe to drink, and finally, that in 1998, Ecuador released Texaco from past present and future liability prior to Texaco’s merger with Chevron. What is your response to these arguments? Does the fact that the litigation’s fortunes have changed so markedly under the current administration indicate that the the Ecuadorian legal system is being subjugated by its political system?
My job is not to say who is right and who is wrong (from a legal standpoint). Even if Chevron has found technical reasons why they are not responsible, the practice of pumping formation water into the rivers and drinking water is immoral and Chevron has a a moral obligation to clean that up.
The theory of the plaintiffs is that Texaco was the operator and the creator of a system that was designed to pollute, leeching contaminates into the environment for decades. The operator of these flawed systems was Texaco and the lawsuit was filed in 1993 and it is complicated because the faulty system was bequeathed to Petro-Ecuador – but that is hiding behind a technicality because the theory of recovery is based on recovering from the creator and builder of the polluting system. Whoever designed and implemented the system is the person, or in this case Company, who should be found guilty. If Texaco/Chevron feels there is shared liability, then it is up to Chevron to go after Petro-Ecuador to recover.
Dating the pollution is irrelevant to the case under the above theory. With regard to the release, the release was between the government of Ecuador and Texaco/Chevron, the government of Ecuador cannot bargain on behalf of these private citizens, these thirty thousand individuals have not released Chevron. Even if the government could bargain away these people’s right to recover, the plaintiffs claim that the 40 million dollars of remediation spent by Chevron was faulty and that proper steps to clean the area were not taken therefore the release by the government is invalid. The plaintiffs allege that the remediation was fraudulent.
With regard to sampling, there are compelling test by plaintiffs and Chevron that say that the water is fine to drink or not. Plaintiff allege that Chevron samples upstream and far from the pollution sites. You can smell the water and it stinks and has oily scum on it. I saw nothing but smelly water that would not put in my body in a million years.
Matthew Lamm is the former Europe Russia Regional Editor of Foreign Policy Digest.
