Texaco on Trial
The origins of the Texaco lawsuit date back to the spring of 1991, when Cristóbal Bonifaz, a lawyer who lives in Massachusetts but was born and raised in Ecuador, was helping his son, John, also now a lawyer on the case, move out of his college dormitory at Harvard. "John handed me this publication of Oxfam America," says Bonifaz, a handsome, silver-haired man who speaks English in short, staccato sentences with a heavy Spanish accent, "and in it was a paragraph on what Texaco had been doing in the Amazon. 'Here,' John told me, 'this is your country; why don't you go do something about it?'"
Bonifaz proceeded to make a round of phone calls to various people he knew in Ecuador, including numerous government ministers (he was well positioned to do so, being the grandson of a former Ecuadorean president, Neptalí Bonifaz, and the son of one of the country's most celebrated conservationists). "Everyone told me it's not true, it's all lies," Bonifaz recalls. But then he spoke to Manuel Pallares, the brother of his former sister-in-law, who had witnessed the impact of Texaco's oil production firsthand when he spent two years living in the Oriente with the Secoya tribe, now among the parties to the lawsuit. Bonifaz was soon aboard a plane, on his way to the Oriente.
"Once I got there, I was flabbergasted," says Bonifaz. Before becoming a lawyer, Bonifaz had spent twenty years working as a chemical engineer for Du Pont, so he knew something about the byproducts of petroleum production. "I recognized right away that what Texaco was doing--dumping the produced water straight into the environment--is not something that's done anywhere." On his second trip to the region, in 1993, Bonifaz brought along a team of scientists from Harvard who took water samples from thirty-three sites. Their tests revealed polycyclic aromatic hydrocarbons, crude oil toxins linked to cancer, at levels up to one hundred times the amount permitted in the United States.
Bonifaz was committed to bringing a case against Texaco. The question was, how? As he was well aware, Ecuador's judicial system does not even recognize the concept of a class-action lawsuit and has no history of environmental litigation whatsoever. (The system is also notoriously corrupt; a poll by George Washington University found that only 16 percent of Ecuadoreans have confidence in their judiciary, lower than in any other Latin American country except Guatemala.) It was then that Bonifaz spoke with the Philadelphia-based law firm Kohn, Swift & Graf and learned about the Alien Tort Claims Act.
Passed by Congress in 1789, the ATCA was originally designed to grant noncitizens access to US courts in cases involving a breach of international law, including treaties (the so-called "law of nations")--in part, at least, so that the United States could safeguard its global reputation by holding its own residents accountable for inflicting wrongs on aliens. For much of US history, the statute was rarely invoked, but in the late sixties Peter Weiss, a lawyer with the Center for Constitutional Rights, stumbled upon it as he was searching for grounds to bring a lawsuit against the US military officers responsible for the My Lai massacre in Vietnam. Weiss never filed the case, but a few years later he and CCR did bring a successful lawsuit on behalf of the father and sister of Joel Filártiga, who was tortured to death by a Paraguayan police official who later fled to Brooklyn.
Since the Filártiga case, more than twenty successful lawsuits have been filed under the ATCA on behalf of foreigners against human rights abusers who have ventured onto US soil. In 1986 Kohn, Swift & Graf filed a successful suit under the ATCA against the Philippine dictator Ferdinand Marcos. When Joseph Kohn reviewed the facts of the Texaco case with Cristóbal Bonifaz, he reasoned that if such suits could be brought against former police officials and dictators for international human rights violations, why not against US corporations, which, after all, enjoy the status of individuals in the US legal system? Shortly thereafter, in November 1993, they filed suit.
Other victims of corporate abuse have since done likewise. In the past two years, the Alien Tort statute has been used to file lawsuits against Unocal (for alleged use of slave labor and forced expulsion of villagers in Burma), General Motors (for alleged collusion in human rights abuses committed during World War II in Nazi Germany) and, recently, a half-dozen apparel companies, which are charged with knowingly benefiting from forced labor in the sweatshops of the island of Saipan.