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Environmental justice


Citizen Sensing: towards a right to contribute to environmental information

By Anna Berti Suman

Dr. Anna Berti Suman

On May 7, 2020, we engaged in a webinar “Citizen Sensing: towards a right to contribute to environmental information”, with more than 80 participants from all over the world. Citizen sensing, which I framed as grassroots-driven monitoring initiatives based on human senses often enhanced by sensor technologies, is increasingly entering environmental (risk) governance. Whereas the majority of studies on broader citizen science focus on the learning or participatory aspects, in the webinar we targeted the legal sides of environmental citizen sensing. The webinar – originally intended to be a workshop at the Tilburg Public Library LocHal supported by the Netherlands Network for Human Rights Research – soon became ‘virtual’ due to the Covid-19 crisis, as also went ‘digital’ my PhD defense the day after.

The webinar focused on two interrelated aspects emerged from the key findings of the PhD project “Sensing the risk. In search of the factors influencing the policy uptake of citizen sensing”:

  • Whether a legal instrument for regulating citizen sensing is needed, specifically providing for different forms of integration of the practice into institutional settings;
  • Whether such a legal instrument should include the recognition of a “right to contribute to environmental information” and a consequent obligation for competent authorities to listen to the sensing citizens and consider their evidence to take action.

I suggested that such a legal intervention could ensure that, if certain conditions are met, authorities are stimulated to (or even obliged to) use citizen-sensed data and insights for their decisions. Moreover, the recognition of a right to contribute to environmental information’ could both ‘legitimize’ citizen sensing and facilitate its policy uptake and also shield participants from adverse (legal) consequences associated with the exercise of the practice, such as strategic lawsuit against public participations.

The webinar addressed these two intertwined questions from a number of different academic and practice-based perspectives. Yet, numerous questions rest open, such as whether this right to contribute could be considered a new human right and, thus, what would be its relationship to the existing procedural human right to access environmental information under the Aarhus Convention, or how this new right could be implemented and enforced. In terms of regulating citizen sensing, avenues are still open as for what would be the preferable form, considering also the administrative level (e.g. local or national) and cross-country aspects (e.g. an EU-wide provision or per country). Future explorations should also address the question on whether this legal instrument would create just the ‘possibility’ for authorities to use citizen sensing or rather be ‘obliged’ to recur to such data, when certain conditions are met (e.g. information is inadequate from the official side). The discussion seems particularly needed both for academia and for practice as (legal) researchers are almost absent from this inquiry (with some pioneers excluded, and my forthcoming SensJus project) and that sensing citizens rarely ‘call in’ the law and rights in the discussion as they do not know how to ‘use’ them, or simply do not trust their enforcement.

In the webinar, we explored these questions from various perspectives, inviting to the (virtual) table citizens, experts and practitioners from different disciplines and standpoints. Communication scholar Yasuhito Abe, from Komazawa University, offered an historical journey into (nuclear) citizen sensing. Abe made a key argument noting: “from my fieldwork and historical studies, I am not saying that law instrument is the only resource that citizens use to make an effective argument concerning environmental policy, including decontamination in Japan, but I believe a legal instrument should be one of the key resources for citizen scientists to make a claim” [emphasis added]. Interestingly, Abe also noted that – in his fieldwork – only few citizens that he interviewed referred to the law, and nobody had a legal background among the citizen scientists he met. Even in his historical research on civic nuclear monitoring after Chernobyl, he did not find substantial evidence that citizens were concerned about a legal instrument. The law may thus be “invisible to some citizen scientists”, wisely noted Abe. To the question on whether a right to contribute to environmental information would be needed, Abe’s findings suggest that there are people who take action when necessary, regardless of the existence of a legal instrument, as they urgently need to know the levels of radiation for their health and safety after a disaster. Bringing in the issue of culture and temporality, Abe stressed that the necessity of a legal instrument and the shape thereof may change depending on the cultural and temporal context, so a ‘one fits all approach’ would not work, nor a ‘one-way communication’ between institutions and the citizens. Lastly, Abe warned us that we need to take into account how the institutionalization of citizen science and sensing under the name of law has potential chilling effects, for example missing the fact that the perception and application of the law differs very much according to culture, and – I add – that law risks to hamper innovation.

The conversation continued with the experience of three citizen sensing communities, each of them offered a brief statement on the questions from an applied perspective. The first speaker was Jean-Paul Close, co-founder of the AiREAS civic initiative aimed to monitor air quality in the city of Eindhoven. Close brought to the fore their ‘ideological approach’ to civic monitoring which entails going beyond a basic sensing infrastructure that is government’s responsibility, to reach an integrated infrastructures where health and wellbeing are the core, and even a multidisciplinary co-creation of human core values. Close stressed that – before being a sensing citizen – he is “primarily a human being, and a single father”. From that point of view, he addressed the local government saying that he wished to live in a healthy city. “The city wanted that too” argued Close. The citizens were “standing up” and taking their own responsibility, but they also needed the government to reach this objective and vice versa. “So they brought all people together, but that made the collaboration illegal, because government could not be intermingling in certain private companies activities, so they had to change laws for this” [emphasis added], tells Close. This suggests that the legal framework, as it is, may need to be adjusted to ensure that collaboration between the citizens, governmental and private actors is viable. Close also explored the opportunity to recognize the action of sensing a right. He noted: “You are smelling, tasting, seeing etc. on a daily basis, and if you want to extend that sensing by use of technology, you have to make it your basic right to do so. Therefore laws must be adapted.”

The second experience for practice was from computer designer and innovator René van der Weerd, who shared the story of the Meet Je Stad initiative originated in Amersfoort and entailing citizens’ measurement of temperature and humidity (also described in a piece by De Moor). From Amersfoort, the initiative soon landed in Tilburg where people started meeting at the city’s public library LocHal to make their own measuring instrument. This, according to van der Weerd, stimulated their curiosity towards the understanding of the implications from the collected data, and made them feel responsible towards assessing the issue. René stressed how there is no governmental interpretation of the raw data, which suggests the importance of keeping a certain independence while striving for integration. Despite the municipality provided some funding to deploy the sensing, the network is organized in a way that preserves integrity and autonomy from political oversight.

The third insight from practice was from Giorgio Santoriello, president of the COVA Contro Association and founder of the Analyze Basilicata citizen sensing initiative, which fights oil industry-related environmental crimes in the South of Italy. Giorgio stressed the need to ensure a legal protection in contexts, such as the Basilicata region, where conducting civic monitoring can be dangerous for the sensing citizens. Especially where the private sector is powerful as the government and it almost ‘substitutes’ appointed institutions, it is important that civic actors intervene to make fellow citizens and governments aware of the real impact of the oil industry. Giorgio also timely noted that designing laws to support the sensing citizens is only a part of the intervention, as it is essential that these legal provisions are actually enforced.

The perspective of the environmental activist was represented by Davide Scotti, high school teacher and ‘rebel’ with the environmental movement Extinction Rebellion Milan. Davide told us how Extinction Rebellion (XR), as a movement that wishes to change the system, is based non-violent civil disobedience (of which citizen sensing could be regarded as a manifestation). XR, declaring the climate emergency, wants to make people aware of the problem and push them to join forces, in order to force the government in a non-violent way to take action to halt the climate crisis. Whereas it may sounds paradoxical to ask the government for recognition of a right if XR is a movement that contests the system for not protecting the common good, Davide still sees the need for governmental intervention but in a drastic new way. As a matter of fact, XR asks the government to establish citizens’ assemblies where the citizens – selected in a demographically representative ways – can directly participate in the decision-making on the ecological crisis. This approach could stimulate the ‘legitimization’ of power and of the resulting decisions. Furthermore, participating in civic assemblies could enhance people’s awareness of the climate emergency. “If everyone would be aware of how deep we are into the crisis, everyone would be measuring”, argued Davide. The experience of Davide and of XR where numerous youngsters gather to voice their claims is also quite remarkable considering that, from my empirical analysis, I often noted that young adults are a minority in citizen sensing programs.

Two environmental law views joined the discussion. The first view was offered from practicing lawyer Veronica Dini, also founder of Systasis, study center for the governance of environmental conflicts also through mediation, who recently engaged in the topic of civic assemblies and of civic monitoring programs. When environmental issues are at stake, she noted, environmental information is often the source of controversies. Often, there is either insufficient information made available or readable to the people that are affected due to resistance and cultural aspects of the competent authorities. Sometime the information is lacking altogether. This may originate environmental conflicts. To address conflicts originated from information gaps, it is crucial that information is collected and shared in a correct way, grasping all its complexity, and that people can participate in this feeding in their ‘collective intelligence’. Conscious public participation can really improve shared decisions and deflate the environmental conflict, argued Dini. But we need to ensure that the active citizens receive feedback from the administration and feel that their contribution really influences the formation and the outcome of decisions. Providing a key point for the development of a new right, Dini noted that access to information is key to a real democracy and to rebuild a climate of trust between citizens and institutions. The (not only informed but) monitoring citizen, in fact, can play a fundamental role in enriching the debate with an aware, mature and participatory citizenship. We need, however, to avoid the risk described by philosopher Baudrillard that “the inflation of information produces deflation of meaning” (or, in other words, too much information and not enough meaning).

Also environmental law scholar Francesco Sindico, founder and developer of the Strathclyde Centre for Environmental Law and Governance, shared his experience starting from environmental monitoring and participation in Island states. For Sindico, the starting point is to wonder a number of questions such as “who needs to have the information?”; “who is the “island community?”; “to whom must the information be sent?”. Also the when, why (i.e. what to lobby for) and where to use the information are relevant as laws and rights always work in contexts. A regulation of the practice in China, Africa or in rural settings may substantially differ from Europe. If we discuss of a ‘new’ right, we need to define how do we enforce it, especially when larger fringes of society are not really interested in or do not care for the information. Lastly, also the aspect of “who is a scientist” and the mistrust in general science plays a role here. In terms of actual legal instrument to regulate citizen sensing, the guidelines that will be soon released based on a study of citizen science for environmental policy may be a benchmark and starting point in this direction as they could steer authorities, although they are non-binding. There seems to exist a trade-off in terms of how far we want to/can go with regulating citizen sensing. Non-legal avenues may be more suitable too, for example leaving completely the shaping of the practice to society. In any case, citizen sensing can never be made ‘mandatory’ because nobody can be obliged to do it. Participation should be open to everybody, but if people do not want to participate they should feel free to do so or not.

Legal and bioethicist researcher Carlo Botrugno shared his perspective from bioethics, developed at Florence University and as founder of the Research Unit on Everyday Bioethics and Ethics of Science (RUEBES). Botrugno guided us in the understanding of what citizen sensing can learn from a bioethical lens, starting from bridging the gap between biology and human values. Environmental bioethics in particular seems particularly fitting the debate for its link with public and environmental health, and also its connection with social justice. Especially an ‘everyday’ bioethics may be relevant here as it connects with daily monitoring practices that enter the lives of the sensing citizens. The transition from science to post-normal science grasped by such a lens seemed also important as it again stresses the complexity of the decision-making and the need for larger evidence bases. As science loses its credibility and validity in many people’s eyes, more citizens claims a right to become source of scientific data. In the end, all actors in society, including scientists, are “mutual and multidirectional” and they embed values in their assessments.

As last inputs, we could listen to the perspective of two sociology scholars. First, Michiel Van Oudheusden, Marie Skłodowska-Curie individual research fellow at the University of Cambridge on the relation between grassroots citizen science groups and formal institution. Van Oudheusden could bring in his (preliminary) experience on grassroots citizen science in non-EU contexts and “other democratic” countries, such as Japan and Uganda, or in China, where “people are not officially allowed to gather such data”. To the key question “is a regulating law needed for grassroots citizen sensing?”, Van Oudheusden’s answer in short, it all depends! Cultural differences (beyond time-related features mentioned by Yasuhito) have an important influence on answer. In Flanders, the Belgian civic sensing initiative CurieuzeNeuzen is a good example of an “activist movement tackling air pollution” which soon “became massive, [and] is now almost an export product in Europe.” The initiative managed to put pressure on the government (and – I add – also to the judiciary through the support of Greenpeace Belgium), but also on peer citizens as people moved to the coast because they realized that the air quality is better there. For such an initiative, in a country such as Belgium where “regulation is very much part of our culture/heritage”, “there should be some institutionalisation, perhaps not mandatory or official, but some institute that facilitates exchange in two directions, as a dialogue” [emphasis added].

The second perspective from the sociological lens was from Joke Kenens, PhD student at the KU Leuven, Centre of Sociological Research, and the Belgian Nuclear Research Centre. Kenens, throughout her PhD research, inquired the potential of grassroots-driven citizen radiation measuring organizations after Fukushima, taking into account historical and societal aspects of Japanese citizen science. Kenens stressed – again – the importance of contextual factors specific for a certain society. Indeed, in Japan, she witnessed “a general gap between citizens and governments”, where local authorities almost never refer to citizen-sensed data. Institutions do not believe in the standards used by the sensing citizens and also they are concerned that their activities are partisan (although often they are supported by scientists and even lawyers), but these data are not “wrong or right, they are just from another perspective!” At time, noted Kenens, citizen scientists’ data even end up in courts but often the ‘times’ of a court ruling are just too long for the civic desires of justice, and maybe alternative dispute resolution and environmental mediation may be more effective in offering relief to affected people.

   Images and poster’s credit: Alice Toietta

At the end of the webinar, Alice Toietta*, designer and illustrator and ‘rebel’ from XR Milan, created drawings for each perspective (now visible in the text), providing a visualization of each view point and displaying her artwork to the audience. The result was a telling poster compiling together all the different insights. She shared her experience illustrating the webinar: “We all have different ways of remembering and understanding: through observing, hearing, writing, or repeating, we learn. Drawing is my way of making sense of complex notions: by using metaphors, I strive to simplify concepts, and make them visible. […] There are so many points of view through which one can explore the topic of citizen sensing. During the webinar, […] speakers, coming from different areas of expertise, gave us participants a peek in each of their worlds, opening our minds to many questions and sparking our curiosity even further.” This approach of visualizing complex (legal) concepts through drawing will continue within the framework of the SensJus project.

[*you can reach Alice Toietta at]

We also encouraged the audience to draw what they grasped from the discussion. A participant, for example, sent us the illustration below.

Image credit: Alice Bosma

After, we moved to a brief question and answer session, where some of the numerous questions raised could be addressed. Among the questions raised, I can mention a question about good examples on inclusion of citizen sensing. Van Oudheusden noted that it is important before considering good examples it is important to be careful to the question if striving for full inclusion is always desirable. Van Oudheusden mentioned the case of flu measurements in Belgium in the 2000’s and recently with Covid-19 where citizens described symptoms were integrated in official decision-making in a very top-down manner. The CurieuzeNeuzen initiative may be a good example of successful contribution to policy-making, however context and time are key to understand and build viable integration processes. In exploring such questions, it is relevant to understand varying “ecologies of co-creation”, and – as geographic information system scholar Muki Haklay suggests – every person may wish to be engaged in a different matter.

Another participant wondered how citizen sensing initiatives can ensure that the government takes a strong role in tackling environmental concerns without abandoning its responsibilities and transferring the responsibility to the local communities? Close from AiREAS stressed that their initiative’s approach in not about abandoning responsibilities but rather transforming them to a new format, that is, the co-creation stage underpinning the project. The issue of representativeness of the sensed data came to the fore. The civic group that gives input may be only a caring minority “which manages to wield strong influence in comparison to a silent majority”. Participation might in this sense be only apparently democratic but can revert to its opposite “if there is a cadre of ‘professional participators’ who […] dominate the discussion and gain influence.” Addressing the issue of (mis)representation of marginalised groups lacking the time or resources to conduct citizen sensing effectively (‘active’ participation, compared to ‘passive participation’ according to Close) seems a fundamental aspect when discussing a regulation of citizen sensing and a right to contribute to environmental information. As Abe stressed, in exploring the (in)equality of citizen sensing, also the issue of leadership in such initiatives should be addressed.

Also the aspect of data quality and precision in citizen sensing measurement emerged. A participant noted “I hear a number of speakers highlighting uncertainties. For instance […] René [from MeetJeStad] said ‘well the stations are not very precise, but they give an idea’. However, lawyers need more precision. A limit value is either exceeded or it is not, law is in that sense black and white. And if citizen sensing is transferred from the political to the legal arena, this tension comes up. Is it then a good idea to introduce legal rights and obligations on citizen sensing, if it cannot live up to the standards of precision?” [emphasis added]. Close addressed that question too and noted that, with their initiative, they are “not trying to legally fight the government” but “to use citizen engagement to share responsibility and […] participate, for instance by using their legal rights in [supporting] what citizens are doing”, also in terms of aligning to data quality standards. Other questions tackled the uptake of citizen sensing data by public institutions in specific areas of public policy, and the relevant data quality requirements; citizen sensing against scientific negationism; even a ‘right to sensing’ where the sensing is considered an instrument, not an objective, to reach the goal of better health and safety.

I wish to thank the engaged speakers, the fantastic illustrator, Alice Toietta, and the vibrant audience. A deep thanks also to Vicky Breemen and Mieke Sterken for the valuable notes.




A universal obligation of enforcing environmental justice? The Chevron-Texaco case as an example of the actual system’s failure

By Anna Berti Suman

In a world where the environment seems constantly put under threat by the insatiable greed of transnational corporations, the question of the appropriateness of the current legal framework for enforcing environmental justice emerges. Firms responsible for major environmental crimes often enjoy impunity due to the scarcity of legal remedies available to the victims, and the imbalance of economic resources and political power between the guilty company and the affected community. An outstanding example of the failure of the actual scenario for implementing environmental justice is the Chevron-Texaco oil contamination crime perpetrated in the Ecuadorean Amazon Rainforest. The case stands as excellent evidence that a last instance ruling in the country where the crime was committed could be insufficient to grant justice and remediation.

(Photo: L. Dematteis, series 'Crude Reflections')

(Photo: L. Dematteis, series ‘Crude Reflections’)

Chevron (at the time Texaco) operated in the Ecuadorean Amazon Rainforest from 1964 to 1992. During the concession period, the firm conducted firstly exploratory drilling and subsequently full-scale production, without properly disposing of toxic byproducts (e.g. excess crude, chemicals, and produced water) of its extractive activities. Instead, the company dumped the toxic waste into badly constructed pits[1] or directly into surrounding rivers and streams. This is particularly reprehensible given that proper disposal techniques were not only available[2] and known to be cost effective, but were also already in use by the company in the United States and other countries.[3] It is estimated that Texaco, over the time it operated the sites, spilled directly into water bodies a total of 18 billion gallons of formation water, at a rate close to 10 million liters of toxic water per day, and 16,800 million gallons of crude, that is about 30 times the oil spilled in the Exxon Valdez disaster in Alaska. Due to the use of outdated techniques for oil-associated gas’s combustion, around 6,667 million cubic meters of gas were burned outdoors over the 28 years of Texaco’s operations. The overall affected area reached 450,000 hectares and the impacted population amounts to 30,000 victims (see further Chevron’s Chernobyl in the Amazon). The consequences of Chevron’s irresponsible conduct not only had impacts on water resources, soil, air, and the entire delicate ecosystem of the Ecuadorean Rainforest, but also destroyed the subsistence farming and fishing of the affected people, and deeply threatened their health and indigenous cultures.

In 1993, a group of Ecuadorian indigenous peoples and farmers living around the contaminated sites filed a class-action lawsuit against Texaco in New York, denouncing the company’s intentional use of substandard environmental practices, which have caused massive soil and water pollution. Upon the company’s request, the case was transferred to Ecuador, and the claim against Chevron re-filed by the victims before Ecuadorean courts in 2003 (Aguinda v. Chevron Texaco). In the meanwhile, Chevron acquired Texaco (2001), de facto purchasing the second firm’s legal, financial, and reputational liabilities stemming from Texaco operations in Ecuador. After nearly two decades of litigation, one of the largest court judgments for environmental damage in history was issued against the multinational. On February 14, 2011, the Ecuadorian Provincial Court of Sucumbíos released its final judgment, finding Chevron liable for $18 billion in compensatory and punitive damages. On January 3, 2012, the Ecuadorian appeals court confirmed the judgment in its entirety, and, on November 12, 2013, the Supreme Court of Ecuador upheld the lower court’s ruling, though removing the punitive damages, and assessed the compensation for the victims as amounting to $9.51 billion.[4] Subsequently, Chevron appealed the ruling to the Ecuadorean Constitutional Court, through an extraordinary recourse that is still pending before this court. Notwithstanding, the Supreme Court’s judgment, being the country’s court of last instance, is considered definitive and already internationally enforceable. Meanwhile, Chevron removed all its assets from Ecuador in order to escape enforcement actions. Consequently, the lawyers of the affected people are undertaking lawsuits in different countries to seek enforcement of the favorable outcome. Though positive developments in courts around the world make the victims persevere in their struggle, still justice is denied because of dilatory actions and misuse of legal remedies granted by Chevron’s global architecture of impunity.

Currently, the Unión de Afectados por las Operaciones Petroleras de Texaco (Union of People Affected by Texaco’s oil operations, UDAPT) is tackling Chevron’s impunity on various fronts. The organization represents the 30,000 victims of the environmental crime, who have been struggling for 23 years to obtain a proper remediation of the environmental disaster and appropriate compensation.

Apart from the national scenario (first front, Ecuador), the second arena in which UDAPT is playing regards the enforcement of the Ecuadorean judgment outside the country, such as in Argentina, Brazil and Canada. In particular, in this latter country the plaintiffs on September 4, 2015, obtained a crucial judgment by the Supreme Court of Canada in the Chevron Corp. v. Yaiguaje case.[5] The Court unanimously recognized Canadian jurisdiction over the judgment enforcement claim, confirming a second instance’s decision. However, the Canadian Supreme Court’s verdict is only a step in the process of winning the plaintiffs’ claim for compensation in Canada. As the Court warned, its recognition of the jurisdiction over Chevron Corp. and Chevron Canada is different from recognizing the foreign judgment and thus allowing it to be executed. Nevertheless, the Canadian Supreme Court’s ruling is groundbreaking and encouraging for the Ecuadorean affected people, as well as relevant for other affected communities fighting multinationals worldwide.

(Photo: L. Dematteis, series 'Crude Reflections')

(Photo: L. Dematteis, series ‘Crude Reflections’)

First, the Court analyzes whether and under what conditions it has jurisdiction to decide on the recognition and enforcement of the Ecuadorean judgment (Aguinda v. Chevron Texaco). The Supreme Court’s answer focuses on the limited inquiry involved in this kind of proceeding. Namely, the court is not asked to inquire into the underlying merits or create a “new” debt obligation, but rather to undertake a limited scrutiny necessary to confirm the fundamental legitimacy of the debt obligation already rendered by the foreign tribunal. Secondly, the court analyzes the existence of jurisdiction over the subsidiary, Chevron Canada, and the potential need to pierce the “corporate veil” that separates the subsidiary and parent company.

With regard to the first point of appeal, Chevron claimed the need for a real and substantial connection between the defendants or the subject of the dispute and the Court of Ontario, that is, the same jurisdictional test that would apply to the assertion of jurisdiction over a foreign corporation in a matter at first instance. The Supreme Court rejected this argument, highlighting the difference between a judgment on the merits, in which an obligation is generated, and one merely facilitating the execution of an obligation that already exists. In the second case, the only requirement for jurisdiction in the “facilitating” court is that the foreign court that issued the judgment had a real and substantial connection with the parties or the subject of the dispute (or that other traditional requirements for jurisdiction are met). A higher jurisdiction standard, the Court explained, would threaten the rights of the creditor to obtain just satisfaction of due obligations from transnational counterparties.[6]

The decision confirms the generous attitude that the courts of Canada have maintained with respect to recognizing foreign judgments. Particularly noteworthy is the Court’s discussion on the concept of “universal obligation”, which is intrinsically linked to the principles of comity and reciprocity. The Court held that “the obligation created by a foreign judgment is universal, each jurisdiction has an equal interest in the obligation resulting from the foreign judgment, and no concern about territorial overreach could emerge”. The Court asserted that the globalization of business should not lead to the detriment of individual rights but rather to their benefit. Because creditors will be forced in some instances to turn to foreign courts for redress, mutual awareness, respect, and assistance between courts is necessary to weave fairness and predictability into international economic relations.[7]

Concerning the second question involving the jurisdiction over Chevron Canada, a seventh level indirect subsidiary of Chevron Corp., the Supreme Court’s reasoning is particularly impressive. Chevron Canada argued that even if jurisdiction was established over the parent, the Canadian courts would not have jurisdiction on the subsidiary because it was not party to the Ecuadorian proceeding. The Supreme Court rejected this argument, holding that the core of the dispute in question is not the damage caused in Ecuador but rather the quantum of Chevron’s assets that may be seized. Under this perspective, it is clear that Chevron Canada itself is part to the proceeding because it holds assets in the Province of Ontario that might, depending on the decisions of the courts, be seized to satisfy the Ecuadorian judgment. In fact, Chevron Canada, which has a significant economic relationship with the parent, holds assets in Canada estimated at over $15 billion. Chevron Canada was properly served notice of the enforcement process at both its headquarters in British Columbia, and where its real business is conducted in Mississauga, Ontario. Therefore, the Court found jurisdiction under the traditional criterion of presence.

Nonetheless, the Supreme Court warned that, following the principle of independence of the subsidiary from the parent company, a judgment against Chevron Corp. will not automatically lead to seizure of assets held by Chevron Canada. It will be necessary to analyze whether the shares of Chevron Canada are substantially attributable to the Chevron Corp. in order to pierce the “corporate veil” between the two companies.[8]
In ways, the ruling appears to urge the multinational to abandon its strategy of endless delay. Should the plaintiffs prevail against the assets of Chevron Canada, it would be clear that the “veil” allegedly separating subsidiaries from the faults of their parents offers little protection, even when the parent company has no real and substantial connection with the court of the execution. A final execution judgment against Chevron would also stand out as the emblem of the fight against multinationals, proving that environmental justice can be effective across national boundaries and potentially triggering a wave of new claims.

(Photo: L. Dematteis, series 'Crude Reflections')

(Photo: L. Dematteis, series ‘Crude Reflections’)

The importance of the Canadian decision is heightened by the fact that the possibility of obtaining recognition and enforcement of the Ecuadorean judgment in the United States (Chevron Corp.’s home state and third front for the Chevron-Texaco lawsuit) has been denied so far. Indeed, the company appealed to the RICO (Racketeering Influence and Corrupt Organizations) Act before the Second District Court of New York to prevent the enforcement of the Ecuadorean judgment on allegations of bribery, fraud, and extortion against the lawyers of the Ecuadorean victims (Chevron Corp. vs Steven Donziger). On March 7, 2011, Judge Kaplan issued a preliminary injunction banning the execution of any Ecuadorean court judgment in any country outside Ecuador.[9] It was not long before the decision was struck down: indeed, the U.S. Second Circuit on September 19, 2011, annulled Judge Kaplan’s decision, noting that the RICO law was not meant to make its courts act “as transnational arbiters to dictate to the entire world which judgments are entitled to respect” (Court opinion of January 26, 2012). Moreover, the fraud allegations were mainly based on the deposition of Chevron’s so called “star-witness”, Mr. Alberto Guerra. He is a former Ecuadorean judge of the Provincial Court of Justice of Sucumbíos who first heard the Aguinda case between May 2003 and January 2004, when the lawsuit was transferred to Ecuador from the United States. After having left this institutional position, he started receiving substantial money and other benefits from the multinational, arguably for his favorable testimony. Moreover, Guerra’s deposition was contradicted by his own affirmations before the International Arbitration Panel in Washington during Phase II of the Arbitration between Chevron Corp. and the Republic of Ecuador. His declaration, stated in the cross-examination held over two days between April and May of 2015, shows dramatically that there is no evidence to support the claims of bribery and of a ghostwritten judgment. Notwithstanding the controversial grounds of Judge Kaplan’s decision, on 8 August 2016 the competent U.S. court of appeals agreed with the lower court’s ruling that the Ecuadorian community cannot collect the $9.5 billion Ecuadorian judgment on the basis that it was obtained by corrupt means. In particular, the Court argued that the Ecuadorean plaintiffs have not sufficiently challenged the evidence presented by Chevron at first-instance before Judge Kaplan. The Court adds that the Ecuadorian courts of appeals failed to address the pending corruption charges against the plaintiffs. Lastly, it affirms that Judge Kaplan’s ruling does not interfere with the Ecuadorian sentence but prevents the plaintiffs from enforcing it in the U.S. on the grounds of personal restrictions. The lawyers for the Ecuadorian plaintiffs are examining further appeal options. However, the scarcity of economic resources to face the expenses of further legal proceedings lessens the Ecuadorean victims’ chances of appealing the decision. From this succession of legal attacks, it appears evident that the company’s strategy is to move the attention from the environmental crime to the fraud issue. This conduct is even worse if one considers the historical reality of the case, which is that Chevron itself requested the transfer of the trial from the U.S. to Ecuador. At the time, it assured the U.S. district court that it would have recognized the binding nature of any judgment issued in Ecuador and submitted itself to Ecuadorean jurisdiction.[10] However, the company seems to have “forgiven” this commitment.

The fifth scenario of the case involves the International Arbitration Chevron Corp. and Texaco petroleum Co. vs. the Republic of Ecuador,[11] initiated in 2009 by the company under the U.S.-Ecuador Bilateral Investment Treaty, at the Permanent Court of Arbitration in The Hague. In this instance, Chevron requested the arbitral panel to issue a declaration that the State of Ecuador (through Petroecuador, the oil public firm part of the Ecuadorean consortium in which Texaco operated) is exclusively liable for any judgment that may be issued in the Ecuadorean litigation.[12] The grounds of this allegation rely on the violation both of the bilateral treaty by compromising the judiciary’s independence and of the releases from liability previously granted to Texaco by the Republic of Ecuador. Firstly, it should be underlined that the allegedly violated treaty was signed on August 27, 1993, and entered into force on May 11, 1997 – five years after the termination of Texaco’s operations in Ecuador. Secondly, though Chevron could possibly claim damages from the Ecuadorean State, the arbitral panel cannot affect in any way the Aguinda ruling, because it has no jurisdiction over the Aguinda plaintiffs. If the company can still defend before the Ecuadorean government the releases from responsibility, nonetheless the company was released from government claims only, not from third-party claims like those of the Aguinda plaintiffs.[13] However, in January 2016, the international arbitration tribunal ruled in favor of Chevron over Ecuador being bound by the US-Ecuador investment agreement and by the releases of responsibility. In July 2016, Ecuador indicated that it had executed the arbitral decision and paid the $112 million compensation to Chevron.

The last battlefront for the Ecuadorean victims is the international criminal proceeding before the International Criminal Court in The Hague. In October 2014, the Ecuadorian victims filed a request of hearing with the ICC in respect of Chevron’s chief executive’s responsibility in hindering the ordered remediation of the company’s toxic legacy in the Amazon.  In March 2015, the ICC prosecutor declined to hear the case based on two arguments. First, the temporal barrier: the crime happened in the 1990s while the ICC can only hear cases occurring in 2002 or after. Secondly, the subject matter: the jurisdiction of the ICC did not cover the crime of ecocide.

(Photo: L. Dematteis, series 'Crude Reflections')

(Photo: L. Dematteis, series ‘Crude Reflections’)

In the interim of all these negations of justice, the victims keep fighting in the social arena, that of public awareness. Among their actions, there is the contact with Chevron shareholders for a responsible investment and a gradual divestment, the lobbying on European institutions and UN bodies, and the launching of grassroots mobilizations against corporate impunity. Those campaigns have created a global movement asking for corporate accountability. However, these activities cannot replace the execution of the due environmental justice. In consideration of the incapacity of the judicial system to address this claim, the first compelling need is that courts around the world start cooperating in making transnational businesses accountable for their environmental crimes. However, this often requires years of expensive litigation before various jurisdictions, which often cannot be feasible for low-income plaintiffs, as in the case of the Ecuadorean victims. A powerful instrument for urging companies to bear their responsibilities might be the influence that public and private investors can exercise on corporate conduct, and the power of public opinion. Nevertheless, neither shareholder activism nor massive campaigns can achieve environmental justice by themselves. A proposal worthy of attention is that of a unified court for environmental crimes, which rose from the consideration that crimes against the environment affect the whole global community. It was proposed that this role may be played by the International Criminal Court. This option is supported by the reasoning on the comparable roles of civil and criminal enforcement in achieving effective environmental justice. It could be argued that monetary penalties are not enough to fully deter environmental crimes, and therefore that multinationals’ CEOs need to feel that they could face personal criminal allegations for the environmental consequences of their decisions. Since early 2010, the international lawyer Polly Higgins has advocated for the crime of “ecocide” to be included as the fifth crime against humanity under the Rome Statute of the ICC, thus allowing the already existent court to hear environmental crimes cases. A European Citizen Initiative was recently filed with the same objective. In October 2015, at the 2nd World People’s Conference on Climate Change, the Argentinean activist and Nobel Peace Prize laureate, Adolfo Pérez Esquivel, embraced this proposal as well. The ICC approach is one example of conceiving justice in the Chevron and similar cases not in terms of various national jurisdictions, but in terms of global or universal jurisdiction. The Canadian ruling approached this notion in its discussion on a “universal obligation” of enforcement supporting the Ecuadorian judgment exequatur. Another solution could be the elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights. The Amazon Rainforest plaintiffs joined this debate, taking part in the open-ended intergovernmental working group for the elaboration of such treaty. In conclusion, the Ecuadorean example could contribute to the achievement of an integrated system for environmental civil and criminal jurisdiction where the victims would be able to directly apply and effectively find relief, without requiring arduous litigation before multiple jurisdictions. The discussion whether this integrated system for environmental justice should be based on a binding treaty or on a unified court is still open.


[1] Texaco’s pits were simply dug out of the jungle floor without any of the hydrologic study necessary to place them outside of groundwater flows, and without any of the technology – such as synthetic liners, leachate collection systems, or leachate monitoring systems – that was customary in the industry at the time.

[2] Indeed, at the time Texaco held leading patents on produced water monitoring (Patent No. 3,680389) and subsurface reinjection (Patent No. 3,817,859).

[3] Texaco’s Ecuadorian operations in the 1960s and the 1970s were in evident violation of regulations then in effect in major oil producing U.S. states. For example, in Louisiana, where Texaco operated several wells, the discharge of produced water into natural drainage channels had been outlawed since 1942. See Louisiana Department of Conservation (Minerals Division), State Wide Order Governing the Drilling for and Producing of Oil and Gas in the State of Louisiana, Order Number 29-A, May 20, 1942. In Texas, where Texaco had extensive operations, the use of open or earthen pits was outlawed in 1939. See Railroad Commission of Texas, Open Pit Storage Prohibited, Texas Statewide Order No. 20-804, July 31, 1939.

[4] Case No. 174-2012, verbal proceeding No. 174-2012, MARÍA AGUINDA SALAZAR ET AL. against CHEVRON CORPORATION, Quito, November 12, 2013.

[5] Case No. 2015 SCC 42, File No. 35682, Chevron Corp. v. Yaiguaje, September 4, 2015.

[6] Supra at 75.

[7] Supra at 51, 52 & 69.

[8] Supra at 95.

[9] Case 1:11-cv-00691-LAK-JCF, Document 1874 Filed 03/04/14, CHEVRON CORPORATION against STEVEN DONZIGER, et al., 11 Civ. 0691 (LAK).

[10] March 17, 2011 Decision by the United States Court of Appeals, Second Circuit, Republic of Ecuador v. Chevron Corporation, Texaco Petroleum Company, p. 21.

[11] PCA Case No.2009-23, Chevron Corp. and Texaco petroleum Co. vs. the Republic of Ecuador.

[12] See Chevron’s Notice of International Arbitration Against Government of Ecuador.

[13] Ruling of Presiding Judge Nicolas Zambrano Lozada, Provincial Court of Sucumbíos, 14 February 2011, pp.34, 176.



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