Judicial dissolution, sometimes called the corporate death penalty, is a legal procedure in which a corporation is forced to dissolve or cease to exist.
A “corporate death penalty” is the revocation of a corporation’s charter for significant harm to society. In some countries there are corporate manslaughter laws, however, almost all countries enable the revocation of a corporate charter. There have been numerous calls in the literature for a “corporate death penalty”. Most recently a study argued that industries that kill more people each year than they employ should have an industry-wide corporate death penalty. Some legal analysis has been done on the idea to revoke corporate charters for environmental violations such as for severe environmental pollution. Actual corporate death penalties in the United States are rarely used. For example, Markoff has shown that no publicly traded company failed because of a conviction that occurred between 2001 and 2010.
Companies suggested as deserving the corporate death penalty include Eli Lilly & Company, Equifax, Unocal Corporation, and Wells Fargo. “If Volkswagen or other examples in this volume were forced out of existence, this would send a message,” John Hulpke wrote in the Journal of Management Inquiry in 2017.
One argument against its use is that otherwise innocent employees and shareholders will lose money or their jobs. But author David Dayen argues in The New Republic that “the risk of a corporate death penalty should inspire active governance practices to protect their investments.”
In 1890, New York’s highest court revoked the charter of the North River Sugar Refining Corporation on the grounds that it was abusing its powers as a monopoly.
“Instead of asking why a corporation can speak as freely as a person, perhaps we should ask, “Why is money considered speech?””
Executing a corporation would be similar to declaring a chapter 7 bankruptcy, with a few additional steps to ensure that the actual people hiding behind the corporation committing these atrocities don’t profit from them. First, nationalize the corporation to ensure that all equity holders forfeit their investments. Then all worldwide assets need to be confiscated. And as a final act of deterrence, all members of the board of directors and corporate executives must have all their assets seized and be banned from employment for life. If their conduct rises to the level of a crime, the executives must also be held personally liable according to the laws of the criminal justice system. Some executives have to be jailed.
Humans receive the death penalty for the most heinous crimes. Why shouldn’t corporate legal personhood also come with the death penalty? Is it that they get to be people when they benefit but cease being people when they need to be punished? No!
IG Farben Companies: Bayer, Sanofi, BASF and Agfa
IG Farben, one of the world’s biggest chemical cartels, was not merely a passive beneficiary of the the Nazis and the Holocaust. They were active participants. The Nuremberg trial transcripts show us that the executives of IG Farben directed and controlled Hitler’s policies. In the 1930s, IG Farben was the biggest contributor to the Nazi party. It even helped form an economic plan on behalf of the Nazi party. The passage below is an example of the IG Farben executives pulling the levers behind the scene in the Nazi party.
IG Farben executives were also instrumental in convincing Von Pappen to hand over the proverbial keys to the kingdom to Hitler in 1933. Its collaboration didn’t stop there. It was one of the most loyal ideologues for the Nazi party. The Nuremberg trials exposed the infernal depths of IG Farben‘s crimes. The company itself was deemed liable for: slavery, genocide, and illegal human experimentation. Its biggest profit came from selling Zyklon-B to the Nazis, the gas used in the gas chambers, the most common death penalty apparatus used by the Nazis.
In 1945, IG Farben was dissolved for war crimes and crimes against humanity. The executives were also later tried in a different proceeding. In 1948, many of IG Farben’s executives were found guilty of war crimes. One prominent executive was Fritz Ter Meer, who was convicted for creating Auschwitz. His other crimes included: slavery, genocide, mass rape and crimes against humanity. Ter Meer only served two years in prison for his role in one of the worst atrocities known to man. In 1950, he was paroled for “good behavior.” However, the three powers in the Western zone: France, UK and the US reconstituted the IG Farben cartel into four companies: BASF, Bayer, Sanofi and Agfa. The original shareholders (who were convicted of perpetuating the Holocaust) were given ownership and all their assets back. In fact, Fritz der Meer was reinstated and he continued to serve on the Board of Directors for Bayer until his death. The descendants of the IG Farben executives are still some of the wealthiest people in Germany.
The IG Farben companies seemed to have continued their culture of ethnonationalism. In the 1990s, they admitted to deliberately infecting Africans with HIV and paid millions for this crime. In 2015, after it became public that Bayer tested a cancer medication on Indians, India revoked a drug patent for Bayer. Contravening Indian law, they did not make the drug available for Indians even though they had no problem experimenting on Indians during the R&D phase. Responding to the Indian Supreme Court ruling, then CEO Marijn Dekkers exclaimed, “We did not develop this medicine for Indians. We developed it for western patients who can afford it.”
Adding Monsanto’s Crimes to Bayer’s Balance Sheet
Monsanto ran the defoliation campaign using Agent Orange in Vietnam. Even today, children in Vietnam still suffer birth defects. On top of it, Monsanto tested the effects of Agent Orange on US soldiers, for which they paid compensation. They also sprayed cancer causing pesticides in Hawaii.
Chiquita – Pleading Guilty to Hiring Colombian Death Squads
In 2000, a Chiquita executive admitted to hiring Colombian paramilitaries that were classified by the US government as terrorist organizations. The Chiquita executives claimed that it was for “security purposes.” Of course, these paramilitaries didn’t protect the factories. Instead, they “subdued the land,” marching indigenous people at gunpoint on a “trail of tears.” On top of displacing thousands, these paramilitaries have killed at least 4000 people.
The most unforgivable part is that the attorney who defended Chiquita was the former U.S. Attorney General Eric Holder. During the Bush years, Eric Holder negotiated with the justice department on behalf of the Chiquita executives. All his clients pled guilty. None of them went to jail and Chiquita was fined only $25 million. Eric Holder even made a statement chastising the justice department for the proverbial slap on the wrist. He claimed, “If what you want to encourage is voluntary self-disclosure, what message does this send to other companies? Here’s a company that voluntarily self-discloses in a national security context, where the company gets treated pretty harshly,[and] then on top of that, you go after individuals who made a really painful decision.”
Nestlé – Infant Deaths, Slavery and Water Privatization
Nestlé illegally marketed their infant formula to poor women in Africa, who were forced to work long hours to make ends meet. They marketed it as a convenience, in contravention to national laws and international code. Nestle’s actions increased the infant mortality rate in Burkina Faso and Togo. Every year, nearly 25% of Togo’s infant mortality and 11% of Burkina Faso’s infant mortality are caused by baby formula.
Nestle is a huge maker of chocolate in the world and 60% of the chocolate its manufacture uses child slave labor in Africa. However, Nestle won’t monitor thitseir supply chain to make sure they don’t use child slaves. Instead, it continues violating the law and all morality brazenly and without consequence.
Like many other companies in South America, Nestle funded death squads in Colombia which murdered many union workers and activists. Finally, Nestle is using up the world’s fresh water supply for bottling and making water too expensive for people to drink.
Other honorable mentions for privatizing water:
- Bechtel not only privatized the water, but they even got rights to the rain. After Bolivia asserted its sovereignty, Bechtel tried to sue Bolivia in the World Bank Arbitration court. Thankfully after public outcry, the suit was dismissed.
Umicore is the successor company for Belgian Union Minere. As soon as Congo got its independence, it funded paramilitaries to create an ethnostate called the “Free State of Katanga.” The white nationalist paramilitaries were responsible for assassinating Patrice Lumumba, and later, these same paramilitaries assassinated the first UN secretary General Dag Hammarskjold.
To learn more about these atrocities, listen to our interview with Andreas Rocksen.
In 1964, a BBC Comedy sketch succinctly explained all the atrocities committed by this one company:
Shell Oil, through corruption, received concessions to drill in the Niger-Delta. Sometimes, when the prime drilling spot was on top of a village or town, they paid paramilitaries to displace people and murder any activists who spoke out against the colonization of their homes. Shell also intentionally polluted areas in the Niger Delta, making parts of it uninhabitable, displacing 40,000 people. In violation of local law, Shell refuses to clean up these areas that they polluted.
They are also responsible for killing entire fisheries, which further threatens an already food-insecure population.
Check out our interview with Greg Palast to understand how Katrina was a manmade disaster created by the oil companies.
Nearly 9000 miles around the US gulf coast is a “dead-zone.” This means that it cannot support marine life. Tyson, which has food production factories in many locations along this coast, is deemed the #1 culprit in creating their dead zone
It also abuses its labor force. Tyson regularly smuggles undocumented immigrants across the border. However, if these trafficked individuals tried to form a union, Tyson has no problem siccing ICE on their trafficked labor force. Last year, Tyson sicced ICE on employees who demanded a decent wage. While ICE arrested the parents, children were left alone and crying.
Amidst the covid crisis, Tyson employees in California have compared their conditions to modern slavery.
Purdue Pharmaceuticals had a shamleless predatory scheme to market addictive opioids to doctors. It also employed a quasi-legal bonus scheme to bribe doctors, pharmacies and healthcare workers to further the atrocity. The NIH explains all their predatory behavior:
From 1996 to 2001, Purdue conducted more than 40 national pain-management and speaker-training conferences at resorts in Florida, Arizona, and California. More than 5000 physicians, pharmacists, and nurses attended these all-expenses-paid symposia, where they were recruited and trained for Purdue’s national speaker bureau…
One of the cornerstones of Purdue’s marketing plan was the use of sophisticated marketing data to influence physicians’ prescribing. Drug companies compile prescriber profiles on individual physicians—detailing the prescribing patterns of physicians nationwide—in an effort to influence doctors’ prescribing habits. Through these profiles, a drug company can identify the highest and lowest prescribers of particular drugs in a single zip code, county, state, or the entire country.
A lucrative bonus system encouraged sales representatives to increase sales of OxyContin in their territories, resulting in a large number of visits to physicians with high rates of opioid prescriptions, as well as a multifaceted information campaign aimed at them. In 2001, in addition to the average sales representative’s annual salary of $55 000, annual bonuses averaged $71 500, with a range of $15 000 to nearly $240 000. Purdue paid $40 million in sales incentive bonuses to its sales representatives that year.”
Obviously, there are many more corporations that probably deserve the death penalty! If there is a candidate you’d like to nominate, please comment and I will see if I can add it to the list
Yes, the Iraq War was a war for oil, and it was a war with winners: Big Oil.
It has been 10 years since Operation Iraqi Freedom’s bombs first landed in Baghdad. And while most of the U.S.-led coalition forces have long since gone, Western oil companies are only getting started.
Before the 2003 invasion, Iraq’s domestic oil industry was fully nationalized and closed to Western oil companies. A decade of war later, it is largely privatized and utterly dominated by foreign firms.Advertisement
From ExxonMobil and Chevron to BP and Shell, the West’s largest oil companies have set up shop in Iraq. So have a slew of American oil service companies, including Halliburton, the Texas-based firm Dick Cheney ran before becoming George W. Bush’s running mate in 2000.
The war is the one and only reason for this long sought and newly acquired access.
Oil was not the only goal of the Iraq War, but it was certainly the central one, as top U.S. military and political figures have attested to in the years following the invasion.
“Of course it’s about oil; we can’t really deny that,” said Gen. John Abizaid, former head of U.S. Central Command and Military Operations in Iraq, in 2007. Former Federal Reserve Chairman Alan Greenspan agreed, writing in his memoir, “I am saddened that it is politically inconvenient to acknowledge what everyone knows: the Iraq war is largely about oil.” Then-Sen. and now Defense Secretary Chuck Hagel said the same in 2007: “People say we’re not fighting for oil. Of course we are.”
For the first time in about 30 years, Western oil companies are exploring for and producing oil in Iraq from some of the world’s largest oil fields and reaping enormous profit. And while the U.S. has also maintained a fairly consistent level of Iraq oil imports since the invasion, the benefits are not finding their way through Iraq’s economy or society.
These outcomes were by design, the result of a decade of U.S. government and oil company pressure. In 1998, Kenneth Derr, then CEO of Chevron, said, “Iraq possesses huge reserves of oil and gas-reserves I’d love Chevron to have access to.” Today it does.
In 2000, Big Oil, including Exxon, Chevron, BP and Shell, spent more money to get fellow oilmen Bush and Cheney into office than they had spent on any previous election. Just over a week into Bush’s first term, their efforts paid off when the National Energy Policy Development Group, chaired by Cheney, was formed, bringing the administration and the oil companies together to plot our collective energy future. In March, the task force reviewed lists and maps outlining Iraq’s entire oil productive capacity.
Planning for a military invasion was soon under way. Bush’s first Treasury secretary, Paul O’Neill, said in 2004, “Already by February (2001), the talk was mostly about logistics. Not the why (to invade Iraq), but the how and how quickly.”
In its final report in May 2001 (PDF), the task force argued that Middle Eastern countries should be urged “to open up areas of their energy sectors to foreign investment.” This is precisely what has been achieved in Iraq.
Here’s how they did it.
The State Department Future of Iraq Project’s Oil and Energy Working Group met from February 2002 to April 2003 and agreed that Iraq “should be opened to international oil companies as quickly as possible after the war.”
The list of the group’s members was not made public, but Ibrahim Bahr al-Uloum – who was appointed Iraq’s oil minister by the U.S. occupation government in September 2003 – was part of the group, according to Greg Muttitt, a journalist and author of “Fuel on the Fire: Oil and Politics in Occupied Iraq.” Bahr al-Uloum promptly set about trying to implement the group’s objectives.
At the same time, representatives from ExxonMobil, Chevron, ConocoPhillips and Halliburton, among others, met with Cheney’s staff in January 2003 to discuss plans for Iraq’s postwar industry. For the next decade, former and current executives of western oil companies acted first as administrators of Iraq’s oil ministry and then as “advisers” to the Iraqi government.
Before the invasion, there were just two things standing in the way of Western oil companies operating in Iraq: Saddam Hussein and the nation’s legal system. The invasion dealt handily with Hussein. To address the latter problem, some both inside and outside of the Bush administration argued that it should simply change Iraq’s oil laws through the U.S.-led coalition government of Iraq, which ran the country from April 2003 to June 2004. Instead the White House waited, choosing to pressure the newly elected Iraqi government to pass new oil legislation itself.
This Iraq Hydrocarbons Law, partially drafted by the Western oil industry, would lock the nation into private foreign investment under the most corporate-friendly terms. The Bush administration pushed the Iraqi government both publicly and privately to pass the law. And in January 2007, as the ”surge” of 20,000 additional American troops was being finalized, the president set specific benchmarks for the Iraqi government, including the passage of new oil legislation to “promote investment, national unity, and reconciliation.”
But due to enormous public opposition and a recalcitrant parliament, the central Iraqi government has failed to pass the Hydrocarbons Law. Usama al-Nujeyfi, a member of the parliamentary energy committee, even quit in protest over the law, saying it would cede too much control to global companies and “ruin the country’s future.”
In 2008, with the likelihood of the law’s passage and the prospect of continued foreign military occupation dimming as elections loomed in the U.S. and Iraq, the oil companies settled on a different track.
Bypassing parliament, the firms started signing contracts that provide all of the access and most of the favorable treatment the Hydrocarbons Law would provide – and the Bush administration helped draft the model contracts.
Upon leaving office, Bush and Obama administration officials have even worked for oil companies as advisers on their Iraq endeavors. For example, former U.S. Ambassador to Iraq Zalmay Khalilzad’s company, CMX-Gryphon, “provides international oil companies and multinationals with unparalleled access, insight and knowledge on Iraq.”
The new contracts lack the security a new legal structure would grant, and Iraqi lawmakers have argued that they run contrary to existing law, which requires government control, operation and ownership of Iraq’s oil sector.
But the contracts do achieve the key goal of the Cheney energy task force: all but privatizing the Iraqi oil sector and opening it to private foreign companies.
They also provide exceptionally long contract terms and high ownership stakes and eliminate requirements that Iraq’s oil stay in Iraq, that companies invest earnings in the local economy or hire a majority of local workers.
Iraq’s oil production has increased by more than 40% in the past five years to 3 million barrels of oil a day (still below the 1979 high of 3.5 million set by Iraq’s state-owned companies), but a full 80% of this is being exported out of the country while Iraqis struggle to meet basic energy consumption needs. GDP per capita has increased significantly yet remains among the lowest in the world and well below some of Iraq’s other oil-rich neighbors. Basic services such as water and electricity remain luxuries, while 25% of the population lives in poverty.
The promise of new energy-related jobs across the country has yet to materialize. The oil and gas sectors today account directly for less than 2% of total employment, as foreign companies rely instead on imported labor.
In just the last few weeks, more than 1,000 people have protested at ExxonMobil and Russia Lukoil’s super-giant West Qurna oil field, demanding jobs and payment for private land that has been lost or damaged by oil operations. The Iraqi military was called in to respond.
Fed up with the firms, a leading coalition of Iraqi civil society groups and trade unions, including oil workers, declared on February 15 that international oil companies have “taken the place of foreign troops in compromising Iraqi sovereignty” and should “set a timetable for withdrawal.”
Closer to home, at a protest at Chevron’s Houston headquarters in 2010, former U.S. Army Military Intelligence officer Thomas Buonomo, member of Iraq Veterans Against the War, held up a sign that read, “Dear Chevron: Thank you for dishonoring our service” (PDF).
Yes, the Iraq War was a war for oil, and it was a war with losers: the Iraqi people and all those who spilled and lost blood so that Big Oil could come out ahead.
Steven Donziger, the human rights lawyer who spent nearly three decades fighting Chevron on behalf of 30,000 people in the Ecuadorian rainforest, has been sentenced to six months in federal prison for “criminal contempt.” On October 1, in a lower Manhattan federal courtroom, Judge Loretta Preska justified imposing the maximum penalty by asserting that Donziger, now 60, had not shown contrition. She said, “It seems that only the proverbial two-by-four between the eyes will instill in him any respect for the law.”
In May, Preska had found Donziger guilty after a trial without a jury. And now Donziger, along with his family and scores of supporters, had to listen to the federal judge compare him to a mule who needed to be beaten with a piece of wood before complying.
Prior to sentencing, Donziger reminded the court in a polite and at times emotional statement that he had already spent 787 days under house arrest in his New York City apartment, a confinement that had put great pressure on his wife and teenage son. He explained that the court-imposed restrictions meant that his son had a father who was “unable to travel, leave his home except under narrow exceptions with court permission 48 hours in advance, unable to even go out for dinner, unable to have a father capable of doing all the things a father can do and should do with a child, including act with spontaneity.”
But even though Donziger was facing prison, he told the court he would not back down: “I have been attacked and demonized for years by Chevron in retaliation for helping Indigenous peoples in Ecuador try to do something to save their cultures, their lives, and our planet in the face of massive oil pollution. That’s the context for why we are here today.”
In response, Preska read out a prepared 50-minute statement for her harsh sentence. “Mr. Donziger spent the last seven plus years thumbing his nose at the US judicial system,” she said. “It’s now time to pay the piper.”
Donziger will not go to prison immediately. His attorneys will challenge the criminal contempt conviction, and they will also ask a higher court to put off his prison sentence pending that appeal. But Preska will keep him under house arrest, once again calling him a “flight risk.” In the past, she has warned that he “has ties to Ecuador,” insinuating that he would abandon his family and his New York City apartment to go live in the rain forest.
You can’t understand this latest injustice without looking back at Chevron’s long campaign against Donziger, who won a landmark pollution case against the oil giant in Ecuadorian courts in 2013. Chevron was ordered to spend $9.5 billion to clean up a contaminated area the size of Rhode Island, and to pay for the health care of the 30,000 plaintiffs whose communities have seen a rising number of cancer cases. Instead of following the legal order, Chevron launched a case in New York, and in 2014, a federal judge, Lewis Kaplan, found Donziger and some of his Ecuadorian allies civilly liable for racketeering, bribery, and fraud. Then, Kaplan asked the federal prosecutor for the Southern District of New York to put Donziger on trial for “criminal contempt” connected to the original conviction. The federal prosecutor refused, so Kaplan handpicked an attorney from a private firm, Rita Glavin, to prosecute—a nearly unprecedented legal maneuver.
As Chevron’s vendetta continued, international outrage grew. Just before sentencing, the United Nations High Commissioner for Human Rights issued an opinion in Donziger’s favor, ruling that his two years of house arrest was illegal under international law and that he had been denied the right to a fair trial. A panel of five prominent jurists called that confinement “arbitrary” and said that both judges, Kaplan and Preska, had shown “a staggering lack of objectivity and impartiality.” In court, Preska briefly acknowledged the UN findings only to dismiss them.
Once again, the mainstream media is largely ignoring Chevron’s campaign of retaliation against Donziger. The New York Times, Donziger’s hometown newspaper, reported nothing in the two days after the verdict, and has barely mentioned the case for the past seven years.
Back in 1993, Donziger, fresh out of Harvard Law School, joined an ongoing fight for environmental justice. The struggle against Texaco, which was taken over by Chevron in 2001, began in the late 1980s in eastern Ecuador, where the oil company drilled and operated wells from 1972 to 1992. Texaco had disposed of its drilling wastes by methods that in some cases would have been illegal in the United States. (More details are here.) Local people began organizing against the pollution in their rivers and streams and in oil-soaked stretches of their land. The case started in the New York federal courts, but then a judge ordered it sent back to Ecuador—a move that Chevron’s lawyers welcomed at the time. So, in 2003, the legal battle re opened in the eastern oil frontier town of Lago Agrio.
The case wound its way up through three levels of the Ecuadorian courts, and in the end, after Chevron exhausted all appeals, its guilt was confirmed. Meanwhile, though, its counterattack back in New York was underway. Chevron charged that Donziger and his allies had committed bribery and fraud in Ecuador to win their case, and it used the Racketeer Influenced and Corrupt Organizations Act (RICO), which had been designed to prosecute the Mafia. Donziger and the codefendants expected they would face a jury, but at the last minute, Chevron dropped its demand for financial damages. Under RICO law, this meant the defendants lost their right to a jury, and Kaplan alone would decide the case.
Donziger’s supporters objected to Kaplan’s pro-corporate statements and hostility toward the human rights lawyer during the RICO trial. Kaplan is a career corporate lawyer turned judge, with no experience in Ecuador or anywhere else in the Global South. Yet he decided which witnesses to believe and which to disregard—and in 2014 he found Donziger and the others guilty.
Only a corporation like Chevron worth billions could have financed such a prosecution. The oil giant paid for a disgraced former judge named Alberto Guerra and his family to move to the United States. Chevron’s lawyers rehearsed Guerra’s testimony with him 53 times before he went on the witness stand, where Guerra claimed that Donziger and an Ecuadorian lawyer had offered him a $500,000 bribe and that the pair had ghostwritten the final judgment against Chevron. Donziger and his defense team estimate that Chevron has spent $2 billion on legal fees and other costs. (Chevron’s designated spokesman, James Craig, declined to give the corporation’s own figure for how much it has spent on the case. Craig also declined to say if Chevron is still paying Guerra or if he is still living in the United States.)
Chevron’s attacks against Donziger did not stop after it won the racketeering verdict. The current contempt case began when the oil corporation petitioned Kaplan for access to Donziger’s personal computer and cell phone. Donziger declined, arguing that his electronic communications would give Chevron’s lawyers “backdoor access to everything we are planning, thinking, and doing.” He said he would wait until the US Court of Appeals heard his argument, and if it required him to, then he would hand over his electronics. Preska dismissed his defense and convicted him in May—again, without a jury.
It’s vital to recognize Chevron’s role in this legal persecution. Its attorneys show up at every Donziger legal case—even the ones that don’t directly involve the company. At the same time as Donziger was defending himself against the criminal contempt charge, he was also fighting the effort to take away his license to practice law in New York. The state bar association appointed a special officer named John Horan to preside over open hearings, and he found in Donziger’s favor. Horan, a former prosecutor, had harsh words for Chevron: “The extent of [Donziger’s] pursuit by Chevron is so extravagant, and at this point so unnecessary and punitive, [that] while not a factor in my recommendation, [it] is nonetheless background to it.”
Months later, a higher New York state court tossed out Horan’s finding and disbarred Donziger.
Putting Donziger in a federal prison for six months is more than vindictiveness. The $9.5 billion judgment against Chevron in Ecuador still stands, but the oil giant unloaded its assets there. That means the plaintiffs must collect in other countries where the corporation has holdings. Kaplan’s racketeering verdict specifically prohibited the Ecuadorians from forcing Chevron to pay the judgment in the United States. But there are promising possibilities in Canada and elsewhere. Donziger is forced to put those fights on hold while he tries to stay out of prison.
But there are signs that Chevron has gone too far, and that relentlessly pursuing a human rights lawyer is damaging its international reputation. The United Nations High Commissioner for Human Rights is only the latest sign of concern and anger. Sixty-eight Nobel Laureates have shown their solidarity; another 475 lawyers and human rights defenders have signed a letter that calls his prosecution “one of the most important corporate accountability and human rights cases of our time.” Representative Jim McGovern, a Democrat from Massachusetts, said after the prison sentence that “it’s the executives at Chevron,” not Donziger, “who should be behind bars.”
What’s more, a movement to boycott Chevron is in the early stages. Big Oil is under scrutiny because of its role in the climate crisis, and divestment campaigns on college campuses and elsewhere are starting to have an impact. Large institutional investors may also start to pay attention. CalPERS, the giant retirement investment fund for California government employees, is headquartered in Chevron’s home state, and the teachers and municipal employees who contribute to it may ask why it holds $456 million of the oil giant’s stock.
Chevron must have hoped that its long retaliation campaign would force Donziger to abandon the fight for environmental justice—but it appears its aggressive strategy is backfiring.
Steven Donziger has been under house arrest for over 580 days, awaiting trial on a misdemeanor charge. It’s all, he says, because he beat a multinational energy corporation in court.
After spending more than 700 days under house arrest, a human rights and environmental lawyer was found guilty last month of criminal contempt in a legal saga that has demonstrated the deep-rooted conflicts of interest layered throughout the judicial system when it comes to climate justice. In Steven Donziger’s conviction, the initial judge who referred him to trial, the second judge who was asked to lead the trial, and the private prosecutors who tried him all had deep ties to Chevron, the company Donziger had won a landmark multibillion-dollar ruling against.
The story began in 2011 when Donziger brought litigation against Texaco (now Chevron) in Ecuador for the harm it caused the Indigenous people in the Ecuadorian Amazon, where the fossil fuel company decided to deliberately discharge 16 billion gallons of toxic waste from its oil sites into rivers, groundwater, and farmland. A refusal from Chevron to adhere to environmental regulations—which earned the company an extra $5 billion over 20 years—led to more than 30,000 Ecuadorians being directly harmed by the oil giant’s actions, the judges in that case found. The case Donziger led made it all the way to the Ecuador Supreme Court, and successfully secured $9.5 billion in environmental damages for the Amazonian communities in a historic climate justice decision.ADVERTISEMENT
In a letter sent to the Administrative Office of the U.S. Courts at the end of last month, Sens. Ed Markey and Sheldon Whitehouse brought into question specifically the use of private prosecutors in the contempt case against Donziger. The three prosecutors that Kaplan appointed, Brian Maloney, Sareen Armani, and Rita Glavin (who is also Andrew Cuomo’s personal lawyer), were all at the time with the law firm Seward & Kissel. That firm had represented Chevron as recently as 2018. “These prosecutions,” the senators wrote, “are highly unusual and can raise concerning questions of fundamental fairness in our criminal justice system.”
Indeed, the apparent conflict of interest the private prosecution had is directly at odds with Supreme Court precedent. In the 1987 decision of Young v. United States ex rel. Vuitton et Fils, the Supreme Court ruled that, when it comes to private prosecutors pursuing criminal contempt cases, they “certainly should be as disinterested as a public prosecutor who undertakes such a prosecution.”ADVERTISEMENT
“Public confidence in the disinterested conduct” of the private prosecutor, the court warned, is essential to maintaining the integrity of the judicial system. That means that even the appearance of interest on the part of the private prosecutor can be considered a violation of Vuitton.
“Appearances are really functionally important for the rule of law, and for our judiciary,” said Guha Krishnamurthi, an associate professor of law at the University of Oklahoma. Krishnamurthi argues that one of the “biggest protections” of the criminal justice system is a disinterested prosecutor who can determine whether or not pursuing a case is to the benefit of the criminal justice system. The fact that a public prosecutor is accountable to the government and to the public, he says, reinforces this protection in a way that private prosecutors do not.
“I think it’s such a clear abuse that it violates the defendant’s constitutional right to due process. You can’t have someone who’s got a conflict of interest, who has personal reasons for wanting to see a person they’re prosecuting convicted,” said Louis Raveson, a professor of law at Rutgers Law School and the founder of the university’s Environmental Law Clinic. “That’s not an appropriate procedure, and, in my view, it’s not a constitutional procedure.”
“This is a perversion of justice, the whole idea that you can have a lawyer who previously worked for Chevron then prosecuting Donziger in the criminal case,” said Martin Garbus, Donziger’s attorney and a prominent veteran of human rights litigation. “It’s clear that it violates the law. … If you look at the body of law that deals with disinterest, people are disqualified for something far, far less than the involvement here.”
Raveson acknowledged that in certain instances, like police brutality cases or other times when the government is being asked to prosecute itself, private prosecutors can be truly beneficial. A private prosecutor there would likely be necessary in order to ensure disinterest and justice, as the public prosecutor works for the government. Often, though, they’re used in cases like Donziger’s, after a disinterested public prosecutor declines to pursue the charge and the judge decides to move forward anyway. “That’s all the more reason that judges need to err on the side of no possibility of a conflict,” Raveson said. Speaking of the Donziger case, he added, “It appears that a conflict is almost inevitable … and clearly that’s not by accident.”ADVERTISEMENT
When it comes to the decisions that could prevent one of the largest climate justice judgments of the past decade from taking effect, such appearances of conflict of interest are incredibly significant—and could be detrimental to future climate justice litigation.
“It’s scary going after a large corporation [and] it’s scary going after governments because they have so much power and so much influence that they can do a lot of damage to someone’s life,” Raveson said. “If the lawyers who bring [environmental justice cases like Donziger’s] are subject to biased determinations as to whether or not they should be punished … it’s going to have a deterrent effect on lawyers to bring these kinds of cases.”
Such a deterrence could have massive consequences for the climate, especially at a time when, as this week’s new report from the Intergovernmental Panel on Climate Change showed, the world is barreling further toward climate catastrophe, a crisis that is driven in no small part by fossil fuel companies like Chevron. “It’s up to the judiciary to really ensure that that kind of chilling and deterrence … doesn’t happen,” Krishnamurthi added. “And the way you do that is by having more than just the formality of the rules, [but] having a true fidelity to conflicts of interest and disqualifying where necessary.”
In Squamish, British Columbia, there’s a company that wants to stop climate change by sucking carbon dioxide out of the atmosphere. It’s called Carbon Engineering, and it uses a combination of giant fans and complex chemical processes to remove carbon dioxide from the air in a procedure known as Direct Air Capture. Direct Air Capture isn’t new, but Carbon Engineering says its technology has advanced enough for it to finally make financial sense. The company is backed by Bill Gates — but also by the oil giants Chevron, BHP, and Occidental. These partnerships will bring Carbon Engineering’s tech to market by using the captured carbon to make synthetic fuels and and help extract more oil from the ground. Will Carbon Engineering’s technology decrease the amount of CO2 in the air, or is it going to prolong our dependence on fossil fuels?