Crimes of the New World
In 1972, crude oil began to flow from
Texaco's wells in the area around Lago Agrio "sour lake", in the Ecuadorean Amazon.
Born that same year, Pablo Fajardo is now
the lead attorney in an epic lawsuit—among
the largest environmental suits in
history—against Chevron, which acquired
Texaco in 2001. Reporting on an emotional
battle in a makeshift jungle courtroom, the
author investigates how many hundreds of
square miles of surrounding rain forest
became a toxic-waste dump.
by William Langewiesche May 2007
In a forsaken little town in the Ecuadorean
Amazon, an overgrown oil camp called Lago
Agrio, the giant Chevron Corporation has
been maneuvered into a makeshift courtroom
and is being sued to answer for conditions
in 1,700 square miles of rain forest said by
environmentalists to be one of the world's
most contaminated industrial sites. The
pollution consists of huge quantities of
crude oil and associated wastes, mixed in
with the toxic compounds used for drilling
operations—a noxious soup that for decades
was dumped into leaky pits, or directly into
the Amazonian watershed. The company that
did much of this work was Texaco—an outfit
with a swashbuckling reputation worldwide.
It signed a contract with Ecuador in 1964,
began full-scale production in 1972, and
pulled out 20 years later. In 2001, Texaco
was swallowed whole by Chevron, which by
integrating its operations nearly doubled in
size. The lawsuit against it in Lago Agrio
was filed in 2003, though the legal
antecedents go back much further. Having
dragged on for four years, the suit may
continue for half again as long. Chevron is
represented by high-priced firms of
experienced lawyers in Quito and Washington,
D.C., whose collective fees run to millions
of dollars annually. Its antagonists are
30,000 Amazonian settlers and indigenous
people, who call themselves Los Afectados—the
Affected Ones. These plaintiffs are
represented by a low-budget but serious team
of North American and Ecuadorean attorneys,
who are backed by a Philadelphia law firm
that is known for class-action securities
litigation and has gambled that this case,
though risky, can actually be won.
Chevron objects vociferously, and presents
itself as the victim here. Its attorneys
have repeatedly claimed that the company is
being extorted for "two juicy checks," one
to be divided among the plaintiffs and the
other to enrich their North American
lawyers. The North American lawyers are
indeed working on a contingency basis, but
unapologetically so, and for a percentage
significantly lower than the norm in
high-risk cases; they would like to be well
compensated for their efforts, but as much,
they say, to encourage other lawyers to
bring similar suits elsewhere in the world
as to pad their personal bank accounts. The
most active among them is a New York–based
Harvard Law School graduate named Steven
Donziger, who has invested 14 years in the
case and would certainly be more secure had
he pursued a conventional career involving
the preservation of wealth. He counterclaims
that Chevron's lawyers are the real
mercenaries here. It is a philosophical
quarrel that will never be resolved.
As for the plaintiffs themselves, under
Ecuadorean law they are not suing
individually, and personally may never see a
dime. They have sued to seek compensation
for past damages and to force Chevron to
clean up the residual mess that continues,
they believe, to taint the soil and water
today. It is unclear how a cleanup would
proceed and to what extent it could succeed,
but over decades the cost might run to $6
billion or more—making this potentially the
largest environmental lawsuit ever to be
fought. And fight is the word. The case has
become emotional for both sides, with few
signs of willingness to compromise.
Worldwide the oil industry is watching. Lago
Agrio is a forsaken little town where
something rather large is going down.
This is not, however, a U.S.-style legal
drama. The Lago Agrio court follows
Ecuadorean procedures, which minimize oral
arguments and rely heavily on submitted
documents to get at the truth. So far the
proceedings have generated close to 200,000
pages. There is no jury to sway. There is a
single presiding judge, drawn from a pool of
three on a rotating basis for a two-year
term of unusual pressure. Currently the
judge is a rotund middle-aged man, a reader
of Dostoyevsky and a convert to Islam. He
must be the only Muslim in town. He told me
it is not easy to be a judge there. Five
years ago he was ambushed and machine-gunned
while driving his car. His companion was
killed, but he himself escaped. The
attackers were hired killers, of whom Lago
Agrio has an ample supply. Colombia's
largest cocaine-production area lies just
over the border a few miles to the north,
and is peopled not only by narco-traffickers
but also by leftist guerrillas and
right-wing paramilitary groups. The police
in Lago Agrio make a show sometimes of
directing traffic. They did not investigate
the attack, the judge believes, because they
feared retribution. The judge accepted this
without complaint, as if he had learned to
believe in fate. Lago Agrio means "sour
lake." He told me that the only safe choice
there is to run away. Chevron would probably
agree. It denies that the judge is fair,
denies that the plaintiffs have legitimate
complaints, denies that their soil and water
samples are meaningful, denies that the
methods the company used to extract oil in
the past were substandard, denies that it
contaminated the forest, denies that the
forest is contaminated, denies that there is
a link between the drinking water and high
rates of cancer, leukemia, birth defects,
and skin disease, denies that unusual health
problems have been demonstrated—and, for
added measure, denies that it bears
responsibility for any environmental damage
that might after all be found to exist. If
Chevron can convince the court of the
validity of even a few of those points, it
will win the case and leave town.
Given the resources that Chevron has brought
to bear, it seemed for a while that this
indeed would happen—and for various reasons
it may yet. But over the past two years
there has been a change that,
metaphorically, looks something like an
inversion of Tiananmen Square, in which a
lone man stands resolutely in front of a
maneuvering tank, not to hold it off but to
keep it from escaping. In Lago Agrio that
lone man is a mestizo named Pablo Fajardo,
aged 34, who was born into extreme poverty
and toiled for years as a manual laborer in
the forest and oil fields, yet managed by
force of intellect to complete his secondary
education in night school, and through a
correspondence course to earn a degree in
law. He became a lawyer only three years
ago, in 2004, yet has assumed the lead in
the suit against Chevron in this, his very
first trial. Chevron is represented by
lawyers from Ecuador's ruling class, an
oligarchy whose women fondly sing "Y Viva
España" at Quito garden parties. They may
have assumed that they could run Fajardo
over. No one makes that assumption now.
In Lago Agrio the men wear hats against the
equatorial sky. The women carry umbrellas
for the shade they provide. Even the Indians
complain about the heat. On a sweltering
morning, I went to Fajardo's threadbare
quarters in a small house that serves
primarily as a file room and office, but
that has a space for sleeping, and a crude
kitchen and bathroom, usually without
running water. Fajardo was sitting at his
desk studying a document in preparation for
a scheduled argument before the judge. He
wore an open-necked short-sleeved shirt,
slacks, and street shoes. He was the only
person in Lago Agrio who was not sweating.
In this story, where so much is disputed, it
is an observable fact that Fajardo never
sweats, and furthermore that when he moves
through the jungle in his tidy-lawyer
clothes he does not get dirty or wet. I sat
across the desk from him and asked if at
first he had been intimidated by the case.
He smiled, but then turned earnest and
explained. "A team of settlers and
indigenous leaders proposed that I take
over. I wanted to think about it. I asked
them for a month, and they gave me three
days. I was worried, of course, about my
lack of experience. I had been a lawyer for
only one year. I knew the Chevron attorneys.
They had 30 years of experience, and there
were eight of them who would sometimes all
come down here together. Usually I would be
by myself. Eight of them in the Lago Agrio
court, and I alone, facing them with one
year of experience. I was afraid of making
mistakes. So I spent the three days really
thinking. I try to look at people on the
same level, eye to eye. When someone is old
or very poor, I do not feel above him. When
someone is apparently superior, I do not
feel below him. I realized that I was not
inferior to the Chevron lawyers. In fact I
had one advantage over them: I know the
problems as they really are, because I live
here. I have lived here for more than half
my life. I realized that if I took the case
all I would have to think about is how to
tell the truth." His tone was almost
apologetic. He said, "And so I am still
here." He spread his hands to indicate the
threadbare office. He smiled again, but with
serious eyes.
Chevron lawyer Adolfo Callejas and Pablo
Fajardo, behind him, during a judicial
inspection of the waste pits. Dolores R.
Ochoa/A.P. Images.
Fajardo is amicably divorced. He has two
small children who live in a safer town,
called Sacha, where their mother, his former
wife, keeps a small grocery store. Fajardo
does not mind sleeping in his office.
Anyway, he cannot afford a house. He cannot
afford a car. He likes to drive. He is a
poor driver. In Lago Agrio he gets around on
a mountain bike, on which he lavishes great
care. From his office to the center of town
is a 10-minute ride with time for
salutations. The streets are rough, but the
bike has shocks. By preference Fajardo would
ride to the court building, but there is no
safe place there to lock the bike, and so
when he has to appear before the judge he
takes the bus. Buses are surprisingly
frequent in Lago Agrio. That morning I took
one with him. The appearance was to be in
the judge's office, on the building's upper
floor, around the stairwell from the
makeshift courtroom. While we waited in the
hallway, Chevron's lead Ecuadorean attorney
arrived, accompanied by armed bodyguards. He
is a tall, gaunt man named Adolfo Callejas,
who has served the oil company for more than
30 years. Callejas comes from a wealthy and
politically powerful family. He had flown in
that morning from Quito with another Chevron
attorney, and would fly out the next day.
Chevron would not allow him to speak to me.
He and Fajardo greeted each other stiffly,
as boxers might before a fight.
The judge ushered us into his office and sat
us in a loose circle on a sofa and chairs.
This was to be a preliminary negotiation in
preparation for the final phase of the
trial. At issue was the selection of a
technical expert who could direct a team to
survey the total extent of the pollution in
the former concession area, in order to
produce an unbiased report on the full
consequences, and to provide a
court-sanctioned estimate of the cleanup
costs. As expected, the two sides could not
agree on the choice. Fajardo proposed only
Ecuadorean experts, all of whom Callejas
rejected, apparently out of concern for
Chevron's unpopularity in the country.
Callejas proposed only foreign experts, all
of whom Fajardo rejected, apparently out of
concern for Chevron's reach. This went on
for a while. The judge eventually intervened
and announced that under Ecuadorean law he
was required to break the impasse, and that
he himself would select the expert in order
to move justice along.
Pacing has become a major point of
contention in the trial. At the core is the
sheer size of the former Texaco operation.
During its stay in the region, the company
drilled approximately 325 productive wells
and built 18 associated crude-oil-processing
facilities—creating a total of more than 340
locations where wastes were stored or
released into the watershed. After the start
of the trial, in 2003, the court invited
each side to choose from among these
locations the sites where it wanted its own
"judicial inspections" to be performed. Each
judicial inspection would involve a visit to
the site by the presiding judge along with
the opposing attorneys and their technical
teams. Once on the scene the judge would
tour around, hear arguments on relevant law
and history (complicated by the fact that
Petroecuador had been active in many of the
locations after Texaco's departure), and
order the opposing sides to take field
samples to ascertain the degree of
contamination. Altogether 122 sites were
listed, the great majority on demand of the
plaintiffs. Chevron requested 36. The
judicial inspections turned out to be
expensive and cumbersome affairs—episodes of
political theater as much as of science,
involving elaborate preparation, crowds of
participants and protesters, police,
bodyguards, soldiers, fleets of vehicles,
shade tents, catered food, and plenty of
grandstanding for television cameras.
Predictably, a sampling war broke out, with
the plaintiffs claiming to find extreme
levels of contamination, Chevron claiming to
find little, and each side impugning the
science of the other. After four years, by
early 2007, only 45 judicial inspections had
been done. Believing that the process could
continue another 10 years, that the findings
of each side were proving to be duplicative,
and that sufficient evidence had been
presented to proceed to the final phase of
the trial, Fajardo in 2006 withdrew the
request for 64 of the judicial inspections
originally sought by the plaintiffs. His
basis was a principle in civil law that the
burden of proof (and therefore decisions
about its sufficiency) lies with the
plaintiffs. The withdrawal elicited strong
protests from Chevron's attorneys, who filed
four separate motions in court to force the
plaintiffs to stick to their own original
plan. After those motions were denied,
Chevron publicly mulled over having the
judge recused, accusing him of bias and of
rushing the trial. The Associated Press
reported the comments in Spanish. In a
country as weak and uncertain as Ecuador,
significant pressure was being applied.
But when later I spoke to the judge in
private, he seemed concerned more with the
workload inside the court than with
pressures on the outside. He showed me a
document that Callejas had just submitted to
him—30 pages of legal points produced by the
Chevron lawyers, requiring a prompt
response. He sighed. He does not have a
clerk. He works eight days a week. He took
me to a file room to see the trial's
document collection. Almost 200,000 pages so
far. He did not know the number exactly, and
rounded it up to a million. Plus 30. He had
never seen anything like this before. He
said that before writing the decision a
judge would have to isolate himself in a
Tibetan monastery for two years just to get
the reading done. But first he would have to
go through the last of the judicial
inspections, collect the information from
the environmental survey, handle the
associated arguments and maneuvers, and add
those documents, too, to the reading list.
The judge certainly did not feel that he was
rushing the trial. Rather, he was trying to
keep it from completely bogging down.
Chevron, for its part, insists that delay is
not its object. The plaintiffs' lawyers are
persuaded that it is. Steven Donziger once
explained to me the cold logic of delay.
Take $6 billion as a figure, he said. Simply
by sticking the money into a savings account
Chevron could make $300 million for every
year it doesn't pay. That sum multiplied by
the four years of the trial so far would
amount to $1.2 billion, which is far more
than, say, $50 million spent on legal fees,
even if Chevron now loses the case. And what
if Chevron wins—what would the calculation
be then?
But in the judge's office on that sweltering
equatorial morning there was more than just
money at play. Fajardo insisted on the
question at hand—the choice, now the
judge's, of an expert who could be trusted
to conduct an unbiased survey. Callejas,
however, kept veering into the judicial
inspections, and, his voice rising, began
objecting to the personal insults that he
had to endure. The nature of those insults
was not evident to me, because they had not
been spoken in the room, but the emotion of
Callejas seemed real. Late in the session,
as Callejas grew more heated, a community
leader named Luis Yanza came into the
office. Yanza is a small and taciturn man,
with features that are purely Inca. He
bluntly challenged Chevron's legal tactics.
Callejas stood up and stalked out of the
room. Afterward when I mentioned the episode
to the judge, he merely shrugged, as if he
was accustomed to these emotions on both
sides of the battle. Later in Quito a law
professor explained them to me. He said that
the lawsuit is a fight not just about oil
companies in the jungle but about 500 years
of South American history.
But let's get the story straight. God
created Earth, and later created oil, but
until the 1950s he left Lago Agrio to its
natural ways. Actually, Lago Agrio did not
even exist in the 1950s. It did not have a
name. It was an uncharted wilderness along
the Aguarico River—a forest Eden roamed by
small groups of naked Indians, some of whom
believed that the only real world is the
world of dreams. They hunted with blowguns,
drank hallucinogenic brews, made love in the
jungle, and sometimes shrank enemy heads.
Dear God, these were people who deserved to
be left alone. But God by then had created
the United States. In Texas in 1902, in a
nasty little town called Sour Lake, the
Texaco oil company was born. Equally
troubling, a half-century later Oklahoma
emerged into the 1950s feeling proud of
itself. It equipped missionaries with small
airplanes and sent them winging south. Other
states did the same. The missionaries flew
south intending only to harvest souls, but
by contacting and settling the potentially
hostile tribes, they served as the advance
agents for oil. When they arrived in the
Ecuadorean jungle, they dropped tools and
trinkets into the forest clearings, landed
on the riverbanks, and soon established
permanent stations—little Oklahomas in the
Amazon. For whatever strange reason, they
wanted the Indians to put on clothes, go to
church, and stop drinking, fighting, and
fucking around. Once past the first friendly
hellos, they set up movie projectors and—for
Stone Agers who already believed in
hallucinations—showed pictures of sinners
burning in hell.
Some Indians resisted. In 1956 five
missionaries from the notorious Summer
Institute of Linguistics (SIL), of Norman,
Oklahoma, were speared and hacked to death,
and had their airplane destroyed. The
killers were warriors from a group known as
the Huaorani. Apparently they believed that
these missionaries were cannibals who had
dropped in from the sky to consume them.
They weren't far wrong. The killings made
big news in America at the time, and brought
forth a surge in missionary funding. In the
Amazon the killers were hunted down. A few
hostile bands fled deeper into the forest,
where they continue to resist today.
However, the bulk of the Huaorani were
enticed by the missionaries to leave their
territory and settle into communities lorded
over by the dead pilot's sister. The scene
there was twisted from the start, and over a
decade or two it grew worse. The SIL finally
shut the operation down in 1980, but too
late for anyone's good. Soon afterward the
group was expelled from Ecuador. The
Huaorani returned to their former lands,
which meanwhile had been decimated by oil
exploration and production, and many of them
became the dependents and roadside beggars
that they are now.
The pattern was similar along the Aguarico
River, where the Indians were settled and
tamed by North American missionaries,
including the SIL, shortly before Texaco's
arrival. In 1964, Texaco signed a contract
with the Ecuadorean government to explore
for and extract oil in the concession area,
in a consortium with Gulf Oil. The
consortium was purely a financial
arrangement. The actual operations on the
ground—exploration, design, construction,
production—were to be the exclusive
responsibility of Texaco. This held true
after the newly formed state oil company,
Petroecuador, bought out Gulf's stake and,
in December 1976, assumed 62.5 percent of
the consortium's shares. Even then, Texaco
remained the sole operator until a
transition began around 1990. It is not by
chance therefore that Chevron is now the
sole defendant in the Lago Agrio
trial—though it insists that it is being
unfairly singled out. In environmental
regulation, an operator may be held wholly
responsible for any pollution that may
occur—though that operator can turn around
and try to recoup some of the costs from
other stakeholders. Chevron cannot recoup
the costs from Gulf Oil, because it bought
the company in 1984; it could conceivably
turn on Petroecuador if it loses the case,
at some point in the future. Be that as it
may, when Texaco signed the contract, it was
not with a representative government, but
with an incompetent military regime in a
corrupt country so dysfunctional that in the
Amazon it existed purely as fiction—a
cartographic boast without viable airports
or roads, enclosed by unmarked boundaries
that were in dispute, where the indigenous
people were not even recognized as full
citizens. Ecuador had practically no
environmental regulations, no technical
knowledge of oil operations, no scientific
or public-health expertise, no governmental
oversight capabilities—and no clue that it
even needed such things. It needed money,
pure and simple. This changed slowly over
time, but by First World standards never
nearly enough. In 1971, on the eve of
large-scale production, Ecuador passed the
first of a series of unenforceable laws
requiring oil companies to protect the
region's "flora, fauna, and other natural
resources" and to "prevent pollution of the
water, the atmosphere, and the land." How
exactly this was supposed to be achieved was
never specified, though in practice it
involved self-regulation. One of the claims
of Chevron now is that Texaco always
complied with Ecuadorean law.
Ecuador saw the Amazon as a dumping ground—a
view which in no sense contradicted the
promise of oil. Whenever the prisons in the
rest of the country grew overcrowded,
inmates were pulled out of their cells,
trucked across the Andes, bound at the
wrists, placed in ancient boats, and shoved
off down the jungle rivers to fend for
themselves. It is not known how many died.
Some floated down the Aguarico and came to
rest around Lago Agrio several years before
Texaco arrived. They cut small clearings in
the forest, burned the felled trees, took
Indian wives, and began to farm. A few other
settlers arrived voluntarily. Starting
around 1965, Texaco showed up in an
altogether different style. It built an
airport, filled the air with helicopter
chatter, hauled in oil-field equipment and
supplies, built an air-conditioned camp to
house its personnel, and prepared to drill
the first exploratory wells. This was Lago
Agrio at birth, before the road. That road
was already pushing in from the Andes,
because the government had decided to open
the Amazon to settlers to consolidate its
claim to the region and to relieve social
and political pressures elsewhere in the
country—in other words, for reasons
independent of oil—but it was progressing by
merely a mile or two a year.
Texaco struck oil with its very first well,
just north of the camp, Lago Agrio No. 1, in
1967, and then struck again with No. 2, a
short distance away. Other strikes quickly
followed, confirming the existence of
significant fields not just around Lago
Agrio but also in a string to the south and
southeast. Pouring in more men and
equipment, Texaco capped the first wells,
continued to drill others, and fully
committed itself to the project. It was
extremely active. Over the next few years it
drilled almost every one of the wells now in
question. To connect them to the market, it
also built a major pipeline, mostly
aboveground, from a Pacific port in
Esmeraldas, across the Andes at 13,000 feet,
and down into the jungle to Lago Agrio, a
distance of 312 miles. As part of the
pipeline construction it also took over
construction of the road, and accelerated it
hard. The road reached Lago Agrio in 1970,
and was followed immediately by thousands of
impoverished settlers seeking land and jobs.
The town of Lago Agrio sprang up violently,
just west of the fenced and guarded Texaco
yards. The pipeline was completed. The oil
wells were uncapped, and on June 26, 1972,
the hot crude began to flow—up from the
reserves 5,000 feet below, through a
separation station in Lago Agrio, then
westward through the pipeline, across the
Andes, into tanks at the port in Esmeraldas,
and finally into ships bound mostly for the
refineries of California. For the next 20
years and beyond, drivers buying gas at
Texaco pumps had a direct connection to the
Amazon, and though Texaco profited
handsomely from the arrangement, the drivers
did, too, because the price of that gas was
low.
Twelve days after the oil started flowing,
in 1972, Pablo Fajardo was born to a peasant
family in the distant coastal province of
Manabi. He was one of 13 children, and the
fifth son. His parents had so many
offspring, he told me, because they didn't
have TV. Or much else, apparently. Fajardo
walked to a country school, one hour each
way. When he was six, the land dried up, and
the family moved upcoast to the province of
Esmeraldas. There he finished primary
school, and the first year of secondary,
while also working in the fields. In the
1980s, drought came to Esmeraldas as well,
and the family's fortunes continued to
decline. After word filtered back of work to
be found, the family uprooted itself once
again and in separate clusters boarded buses
and rode them east to the Amazon. Fajardo
was 14. Arriving in the region, he passed
through Lago Agrio and traveled another 50
miles east to the largest of the oil fields
and a small town called Shushufindi, which
had grown at the gates of Texaco facilities.
Then as now Shushufindi was a violent place,
with a reputation for being the roughest
town around. Recently when I was there it
suffered eight murders in a single week,
none of which were investigated. When
Fajardo arrived, in 1987, it was a grid of
dirt streets, with gunmen in the bars, and
fewer schools than brothels. A sign at the
entrance read, welcome to houston. Fajardo's
family moved into a shack on the town's
outskirts by a fetid stream. Texaco's
operation there was in full bloom. A Spanish
priest who was present at the time described
the scene to me as an oil-world hell. The
North Americans lived in a comfortable
compound, he said, and played tennis at
night, but just outside the fence people had
no electricity, and after the sun went down
they lived largely in the dark. Day after
night, the air was so thick with black smoke
from gases and waste oil being burned at
separation stations that the tropical rains
fell laced with soot. People collected the
rain anyway, often in discarded Texaco
drums, and for lack of choice they drank the
water. Like the forest roads, the town
streets were sprayed with oil from waste
pits to suppress the dust. The streets
became extremely slick in the rain. The
drivers of oil-company pickup trucks roared
through without slowing down, the Spanish
priest recalled, and they often injured and
sometimes killed pedestrians unable to get
out of the way. There was no recourse to the
police, who were criminals themselves, and
completely without power. The Ecuadorean
Army was there as well, but primarily to
protect the oil. The relationship of the
army with the oil industry continues to this
day in Lago Agrio, where for the first few
years of the trial Chevron's attorneys
stayed in a house on the local military
base. In Shushufindi in the 1980s, Texaco's
North American managers deplored the
violence, but felt they could do nothing to
stop it. They were there for one reason
only, and it did not include solving
Ecuador's social problems. They blamed the
Ecuadorean government for encouraging too
many settlers, though the pool of the poor
and unemployed provided an ample supply of
laborers who would toil for low wages and
could be replaced with ease.
Fajardo became one of those laborers as soon
as he arrived. At age 14 he went to work in
a palm-oil grove, clearing jungle growth
with a machete. At night he continued with
secondary school, which took him another
seven years to complete. Life was extremely
hard. When Fajardo was 17 his parents
separated and moved away, leaving Fajardo in
charge of his younger siblings; he managed
to buy a shack in the poorest part of town,
where he set up house, adding cooking and
supervision to all his other duties. At
about the same time he began attending a
church group, not because he was religious,
but because the Spanish priest was there,
urging people to stand up for their dignity.
In essence the priest said, You are all
human beings, equal to any other, and people
should not exploit you just because they are
in positions of power. You must look at
these people on the same level, eye to eye.
Fajardo heard the message clearly. In early
1990, when he was 17, he helped to found a
local human-rights group to start standing
against the abuses. He was a modest fellow,
more earnest than angry, and therefore was
genuinely surprised when his fellow
members—most much older than he—selected him
to be their president.
At the palm-oil grove, too, people now
sought him out as a leader. Fajardo worked
there with two older brothers. The work was
grueling, unsafe, and poorly paid, with
wages, at about $50 a month, only marginally
higher than those required to stave off
starvation. The workers did not, however,
consider themselves to be slaves. When the
company did not pay them, or did not provide
them with protection from the chemicals they
were supposed to use, they turned to Fajardo
for help, and Fajardo went to the managers
to complain. He began also to ask them for
raises. The company, Fajardo says, labeled
him a subversive and accused him of being a
labor unionist. By his account, it put a spy
on him, to follow his movements. Eventually
Fajardo and his two brothers were called
into the office and summarily fired. Fajardo
was 19. Years of night school lay ahead
before he would complete his secondary
education. He had no greater expectations.
With his younger siblings to support, he
signed on as a menial laborer performing
maintenance in the oil fields. He cleaned
storage tanks and pipelines, and poured
concrete. He made more money than he had at
the palm-oil grove, but remained desperately
poor.
In 1992, when its contract expired, Texaco
pulled out of Ecuador. It handed over the
entire operation to Petroecuador, including
an infrastructure badly in need of upgrades.
In 1993 an Ecuadorean-American attorney
named Cristóbal Bonifaz filed a class-action
suit in a New York federal court on behalf
of the settlers and Indians. The complaint
was nearly the same as that filed a decade
later in Ecuador. Donziger joined the case.
At a Lago Agrio meeting attended by Fajardo,
an organization was formed to serve as the
plaintiffs' voice: the Frente de Defensa de
la Amazonía, now commonly called "the
Front." The fight was on.
The situation in Lago Agrio is not as
complex as the trial makes it out to be.
Much of the pollution today is left over
from the original drilling operations, now
long gone. Texaco drilled most of its wells
in the first few years, when Gulf was still
its financial partner. To support its
drilling rigs, it required flat terrain,
where the naturally soft soil could be
reinforced with gravel. Often it built these
pads on high ground, in clearings that it
bulldozed on the edge of short slopes which
drain into the streams and rivers. The
topsoil consists generally of organic matter
and clays, both solid and fractured. It is
typically about three feet deep and is
underlain by permeable alluvial deposits of
sand and gravel, as well as by clay
"lenses." The water table usually lies about
10 feet below the surface. There are
variations. In swamps it lies on the
surface. On the tops of hills it may lie as
much as 30 feet below. The oil lies deeper,
more than a mile down. Drilling for it is a
tough and messy job. It involves noxious
fluids, known as drilling muds, which become
wastes once they are used. The soil in the
concession area has been found to be tainted
with unusually high levels of chromium 6,
cadmium, and barium—all toxic materials
associated with the drilling and extraction
process. Drill bits also commonly
encountered small, unexpected pockets of
crude on their way to larger reserves—crude
that then came oozing up to the surface.
Crude itself contains dangerous toxins. The
resulting sludge—a combination of poisonous
muds, cuttings, and crude—was slopped into
unlined open-air earthen pits on the sides
of the jungle clearings. More crude oil was
added after the wells became productive,
during necessary testing of the finds. All
this was entirely normal. Less normal was a
policy of abandoning the pits once the
drilling was done and the wells were hooked
up to the system of small feeder lines. In
the United States at that time the wastes
contained within the pits would have been
disposed of in one of various expensive ways
after the drilling was over, but in Ecuador
they were left as is. The pits were not
fenced. At many well sites settlers who had
followed the roads lived close by. Their
livestock slipped into the pits and added
their cadavers to the ooze. The pits varied
in size. They were generally about seven
feet deep, which placed the bottoms close to
subsurface waters.
Chevron maintains that the pits were
universally self-lining because universally
the soil was made of impermeable clay. The
plaintiffs and their experts maintain that
this is far from the truth. The defendants
must also contend with the soil samples
taken even by their own experts during the
judicial inspections associated with the
trial, some of which seem to indicate that
component elements of the waste have drifted
into the nearby soil. The use of unlined
pits had long been restricted in the United
States (with variations by state) to
locations where they could not contaminate
freshwater supplies. The watery environment
of the Amazon presents the opposite chance,
and all the more so because it is inhabited
by a large population of the poor, who have
no choice but to drink from streams and
shallow wells. Texaco did consider lining
the pits. In 1980 it examined the cost of
transferring the wastes to new,
concrete-lined pits, and having come up with
a figure of $4,197,968, it decided to leave
matters as they were. In any event, and
questions of permeability aside, Texaco
built between 800 and 1,000 pits in the
concession area, according to one survey,
and it systematically poked pipes, or
"siphons," low through their sides to drain
them downslope and keep them from
overflowing in the tropical rains. Since
water is heavier than oil and sinks to the
bottom of the pits, the idea was to slip it
out in pure form from underneath the wastes.
There is ample evidence now that this did
not work. During extensive inquiries on the
ground, over several weeks, I carefully
walked the streams below dozens of the pits,
keeping clearly in mind the relevant
distinctions between pits that were used
exclusively by Texaco, pits that later were
used also by Petroecuador, pits that are
earth-covered (having officially been
cleaned up), and pits that remain full of
waste and open to the rain. With exceptions
along a few healthy-looking streams, these
distinctions did not seem to matter. The
overwhelming reality is something that
science must explain: for hundreds of yards
below pits of whatever distinction, and for
whatever reason, even 30 years after most of
the drilling was completed, rainbow patches
float gently down the stream, and the
sediments when stirred belch black gobs of
stinking waste.
There is no question that Texaco was an
unpleasant guest. In July 1972 a
confidential memo about the reporting of
spills was sent from a division office in
Coral Gables, Florida, to Texaco's acting
manager in Ecuador. It read:
a) Only major events as per Oil Spill
Response Plan instructions are to be
reported. These events are to be reported
immediately.
b) A major event is further defined as one
which attracts the attention of press and/or
regulatory authorities or in your judgment
merits reporting.
c) No reports are to be kept on a routine
basis and all previous reports are to be
removed from Field and Division offices and
destroyed.
R. C. Shields
Five years later, the Ecuadorean government
tried weakly to show its power. In an
official letter under a motto which read,
"Ecuador has been, is, and always will be an
Amazonian country," the head of Ecuador's
Federal Hydrocarbons Bureau accused Texaco
of negligence in the maintenance of pits and
oil wells around Lago Agrio. Having listed
seven sites where poor maintenance and
inadequate practices had caused or
threatened to cause major spills or
leakages, and having reminded Texaco of its
legal responsibility as the consortium's
operator, he brought out his heavy weaponry
and levied a fine of $3,650.
Oil was spilling all over the place. It was
spilling in all its forms. Texaco was
spraying it on the roads. Texaco pickups
were sliding on their own slicks and
crashing into feeder lines, which then
sprayed more. I met a settler who said that
as a boy he observed a scene in 1981 when a
large tanker truck that had been spraying
the road near his house lost control and
slipped into a ravine. It came to rest
upright by a stream. Two tow trucks arrived
to pull it out, but the tanker had just
loaded up with waste (from a neighboring
pit, to spray) and it was so heavy that it
could not be budged. Next a Texaco pickup
roared up, and a gringo jumped out acting
very aggrieved. After another attempt with
the tow trucks, he went swearing into the
ravine, and with a ruthless twist opened the
truck's valve to let the waste run out.
Lightened, the truck was recovered.
Twenty-six years later, the settler led me
down into the ravine and showed me the waste
just below the grasses and in the sediment
of the stream. He knew that Chevron often
states that the problem with the water now
is that it has been tainted by the settlers'
latrines. But excrement is a fertilizer too,
and there was evidence here that the forest,
rather than thriving on the nutrients, had
sickened. A cluster of stunted cacao trees
grew along the stream. The settler said he
would make chocolate of the beans and send
it to Chevron's headquarters if he could be
sure that the people there would eat it for
Christmas. Or he would boil and bottle the
water and send it to them to drink.
The Trans-Ecuadorean pipeline snakes more
than 300 miles from Lago Agrio to the
Pacific coast. Over two decades it spilled
more oil than the Exxon Valdez. Cyril Le
Tourneur D'ison/Gamma. Enlarge this photo.
But on the scale of Ecuador's contamination
the pollution he showed me wasn't that much.
Certainly the record of the 312-mile Trans-Ecuadorean
pipeline is more impressive. Over the 17
years that Texaco operated this conduit to
the sea, until Petroecuador assumed control,
in 1989, the pipeline suffered 27 major
breaks and spilled nearly 17 million gallons
of oil, much of which was not cleaned up.
The volume of the spills has been widely
reported. For comparison, the grounding of
the Exxon Valdez spilled 11 million gallons.
More to the point, over the first
quarter-century of its life, from 1977
through 2002, the 800-mile Alaskan pipeline
spilled only 1,675,000 gallons—almost all of
which was cleaned up. Fajardo is convinced
that the industry knew how to handle itself
better than Texaco handled itself in the
Amazon. At the core of his argument in court
is an assertion—vigorously disputed by
Chevron—that contamination that exists today
results from choices Texaco made to maximize
its profits by setting up an operation in
disregard of the environmental standards
that it maintained at the same time in the
United States.
The oozing pits at the oil-well sites would
seem to be a case in point. The
contamination they contain is easy to
identify, and at each site was introduced
primarily during the initial drilling,
though added to (with acids among other
materials) during the maintenance of wells.
Thousands of earthen pits were dug in the
United States at the time, but under strict
licensing intended to ensure, site by site,
that subsurface or surface waters were not
even remotely threatened. More insidious in
the Amazon were the choices made and
sustained during the subsequent decades of
production. As always, the oil emerged from
wells mixed with undesirable water and
natural gas. This mixture was piped to local
separation stations, where it flowed into a
series of tanks in which, specialists
estimate, more than 95 percent of the
desirable crude was extracted. The extracted
crude was pumped off to the Trans-Ecuadorean
pipeline for the trip across the Andes. The
mixture that remained behind consisted of
natural gas, residual crude, and a large
volume of "produced water," which, depending
on the wells, was variably laced with heavy
metals, salts, and carcinogenic petroleum
compounds in solution.
The waste gas was piped to the edge of the
stations, where it was burned as it expanded
into the air. In the United States,
regulations required such flares to be
vertical and so thoroughly oxygenated that
they produced practically no smoke. In the
Amazon, however, Texaco turned some of its
flares horizontally, directing the flames
into produced-water pits, to burn off the
petroleum floating on top. Some oil escaped
the fire, and made it to the streams; much
of it, however, ignited, and produced
billows of thick black smoke that drifted in
the winds and rained particles across the
forests, waters, and towns. Over the years
since Petroecuador inherited the operation,
that practice has nearly stopped. The waste
oil is disposed of in other ways, and almost
all flares are directed vertically, though
they still smoke unnecessarily. Petroecuador
is no shining example of an oil company. To
its credit, however, it has worked hard to
reform local practices, if not to meet the
standards of the 21st century then at least
to meet those of the 1970s.
Which returns us to the produced water. The
problem is that very often—though not
always—it is poisonous. The variations
depend on the geologic formations deep below
the earth's surface where the oil is found.
In the United States and most other
countries, the methods that were used to
handle it in the 1970s were the same as
those used now: the water was tested when it
first emerged, and if it was found to be
unsafe to release into the local environment
it was re-injected back down into the depths
where it would not taint drinking-water
supplies. The re-injection was done through
oil wells that had gone dry, or through new
wells drilled for that sole purpose. By the
1970s, standards had grown so tight in the
North American oil-producing industry that
re-injection was the norm—all the more so
because it offered a safe way to dispose of
other dangerous wastes left over from the
production of oil. But re-injection is
expensive, and in some places, such as
Chevron's oil fields in the San Joaquin
Valley of California, the produced water was
deemed to be fresh enough to release into
the local streams in limited quantities. The
decision was carefully supervised by
regulatory authorities, who continued to
monitor the produced waters as they were
released, because the water emerging from
any given well can vary over time. The main
concern was salinity. Saltiness was defined
by the concentrations of total dissolved
solids (T.D.S.) and chloride, both measured
in parts per million. The decision to
release the produced water was based not
only on its composition but also on the
nature of the environment into which it
would flow. In an uninhabited and salty
desert, for instance, the standards were
more relaxed than in a delicate eco-system
close to freshwater sources. Chevron's San
Joaquin oil fields stood in an agricultural
area, which is something in between. Most
drinking water there came from distant
mountain snows, as did the water that
irrigates plants. For Chevron's surface
releases in this area the acceptable limits
were set by the state of California in 1960,
with a T.D.S. at 1,000 and chloride as high
as 200.
Texaco did not re-inject its produced waters
in the Amazon operation, though Petroecuador
does at every station today. No evidence has
appeared at the trial that Texaco during its
20 years of production even tested the
waters. The produced water flowed from the
separation tanks into the pits (sometimes in
series), where the surface crude was either
burned or vacuumed up. The remaining
produced water was piped directly into the
forest, often into small streams, where it
accounted for a large part of the subsequent
flow. Barrels of unused chemicals were
disposed of similarly, by being poured into
the pits to join the releases. In 1990,
Texaco's Coral Gables office sent in three
consultants for nine days to make an
environmental assessment of the entire
region, including portions of the pipeline,
which had been turned over to Petroecuador.
They reported back that the environmental
impacts were primarily aesthetic, that
"petroleum operations are responsible for
only a relatively small part of the total
deforestation," and that "cleaning up of
spilled oil is not a top priority operation
in Petroecuador." They also tasted the
produced water and reported that it didn't
taste too salty. Texaco was heading for the
door. Just after its departure a complete
assessment was performed by a Canadian
company. Didn't taste too salty? Among the
separation stations, the produced water had
an average T.D.S. of 30,500 (30 times
California's limit) and a chloride level of
17,568 (88 times California's limit). At a
station called Atacapi, the numbers were
T.D.S. 147,000 and chloride 88,000
(respectively, 147 and 440 times
California's limit, and more than 4 times as
salty as seawater). Though the salty water
was mixed with fresh water downstream, for
significant distances in some places
freshwater eco-systems were damaged or
destroyed. Later, Petroecuador ran its own
studies and found dangerously elevated
levels of other hazardous substances,
including petroleum hydrocarbons. No wonder
it went to re-injection.
Over the 20 years of its operation Texaco
poured at least 12 billion gallons of this
juice into the Amazon. Fajardo says he first
realized that perhaps there was a problem
when he was about 14. He probably would have
realized it sooner, but he had to move to
Shushufindi first. He said, "When we moved
here to the house where we lived, I saw that
the water in a little stream nearby was very
dirty, and there were no fish anymore,
though people said there had been before.
Another stream nearby was covered in oil. So
we had nowhere to bathe. After we moved to
the center of Shushufindi, to the house that
I bought, things became even more difficult,
because the water was very dirty. We had a
water well, but its water tasted like acid.
We had to wait for rainwater. But the rain
would fall with black particles. My house
was about 500 meters from the central
separation station. There were some burners
that burned permanently with very black
smoke, and when it rained, oil fell mixed
with the water. I thought this was very
unfair, but I still did not know it could
poison us.
"After we formed the human-rights group, in
1991, I started to visit more communities,
and I saw all the damage, how the poor
suffered—that they had no clean water, that
their animals were dying, that a lot of
people were sick. Over the next few years I
became more and more convinced that it is
everyone's duty to fight for this cause, to
have a better environment."
Apparently there were no limits to what he
would take on. In a typical week in 1994 he
labored in the oil fields, promoted workers'
rights, supported his younger siblings,
bought their food, cooked their meals,
prepared for final exams at night school,
led the human-rights group, volunteered at
the Front, worked with remote communities on
the weekends, read, thought, talked, played
soccer, charmed various women, and for all I
know took a driving lesson—though less
successfully with this than the rest. No
sooner had he graduated from secondary
school than he enrolled in correspondence
classes to become a computer technician, not
because he cared about computers—the subject
bored him—but because he could find nothing
else to study from Shushufindi. He was 22.
He didn't know it at the time, but already
he was training for the battle with Chevron.
Chevron didn't know it, either. It had no
idea. It had not even swallowed Texaco yet.
It was up in California sending faxes to
itself. It was playing golf in the San
Francisco suburbs, and rooting for the
high-school swimming team.
In 1995, Fajardo was elected president of
his neighborhood—the poorest in Shushufindi—and
he began to attend town meetings. He got a
diploma that qualified him as a computer
technician. He disregarded it. On weekends
he and about a dozen other leaders took
correspondence courses from a Quito
university on the environment and human
rights. In 1996 he founded a free night
school for adults, became its principal, and
began to teach literacy classes. That same
year he began to work with Indian
communities, married the cute and funny
Fanny Villares, who was also with the
human-rights group, moved her into his
little house, got her pregnant, and
proceeded to get fired from his oil-field
job. He was busy-busy and still just warming
up. The dismissal was no surprise, Fajardo
says, because the company had been treating
the workers roughly and slopping chemicals
around, and he had challenged it to do
otherwise.
Adding to his woes was the fact that, though
he was busy, almost nothing Fajardo did
earned him money. Believing that he had been
blacklisted by the oil companies, he went to
work full-time at the human-rights office,
making $50 a month. It was no longer enough
even for food. His poverty was nothing
noble. It anguished him and caused troubles
in his marriage. He endured it only for lack
of choice, as he had all his life.
Then the sun came out. In the spring of 1997
his daughter was born, and she was healthy
and bright. A few months later the Catholic
priests, who had been observing him for
years, found resources to provide him a
law-school scholarship. It was for books and
tuition only, for a six-year correspondence
course, but eight of Pablo's friends got
together and made a commitment of their own
to help sustain him for the period involved.
Determination drove him through the next six
years. Every day he woke at 3:30 in the
morning, had a quick bite, studied lawbooks
until 8:00, rushed to the human-rights
office, worked on cases there until midday,
rushed to the Shushufindi radio station,
went on the air from noon until 1:00 to read
the news (which he had to prepare), rushed
back to the office, worked there until
closing time, took an hour to come up with a
lesson plan for the class he had to teach,
went to the night school and taught, got
home around 11:00 to sleep for a few hours,
and did it all over again the next day. In
other words, he thrived.
Meanwhile, in U.S. federal court in New
York, the original lawsuit was dragging on.
The plaintiffs' attorneys had opted for a
U.S. court because there are more
due-process protections, including a jury—an
option not provided in Ecuador—and they knew
that the Ecuadorean courts were historically
weak and corrupt. Before the case could go
to a jury trial, however, Texaco's attorneys
diverted it into an esoteric argument over
the U.S. court's jurisdiction. That argument
would last nine years, during which time the
first U.S. judge died, Chevron acquired
Texaco, and in faraway Shushufindi, Fajardo
nearly finished law school. But that was not
all Texaco did. In 1994 it sent a high-level
attorney to Quito. In meetings with
Ecuadorean officials he offered to clean up,
or "remediate," some of the waste pits and
to offset or remedy certain other problems
in the concession area, in return for a
release from further liability. The primary
release was to be at the front end, upon
signature of the contract, and was to be
followed with a final sign-off for the
remediated pits, once the work was done.
Implicit in the approach was an admission
that the Amazon was indeed polluted, and
that Texaco bore at least some
responsibility.
But Texaco was not feeling repentant.
Judging from its subsequent actions it
intended to use the release to shut down the
proceedings in New York. Texaco did not
propose to clean up the streams and rivers
(let alone the subsurface waters), or to
pursue the question of people's health.
Primarily it offered to remediate 37.5
percent of the pits, a fraction derived from
its ownership share in the consortium with
Petroecuador. Of the hundreds of pits that
were known at the time, it proposed to
remediate 161. What did Texaco mean by
"remediate"? Certainly not to restore the
ground to its original condition. Instead,
it proposed setting a cleanup standard based
on a value for total petroleum hydrocarbons
(T.P.H.) measured in parts per million.
Ecuador currently has a soil standard of
1,000 T.P.H. Standards in 1994 varied from
state to state in the United States
according to land usage, and in Texas and
Louisiana were as high as 12,000 T.P.H. (and
even 30,000), but only under special
circumstances where ground and surface
waters could not be contaminated. For soils
polluted by petroleum products in the United
States the cleanup norm was usually 100
T.P.H. What Texaco proposed for the Amazon
was a T.P.H. level of 5,000.
The government of Ecuador agreed to all of
Texaco's terms and signed. Texaco treated
the release like a ticket out of town, and
to hell with broken hearts. It took the
release to New York and argued on the basis
of it that the lawsuit should be thrown out.
The motion was rejected by the court because
the release covered lawsuits only by the
Ecuadorean government itself, and not those
by private citizens. Eventually this spawned
another esoteric debate, still being argued
in U.S. courts.
Texaco hired a big American
engineering-and-consulting firm called
Woodward-Clyde and paid it $40 million to
handle the remediation. Most of the firms
actually doing the work were Ecuadorean,
selected from a list provided by the
government. The quality of their performance
varied. After it was done and the sites had
been covered with dirt, Woodward-Clyde took
soil samples and without exception reported
T.P.H.'s of 5,000 or less, demonstrating
that according to the contract the
remediation had been achieved. Recently I
spoke to a geochemist with extensive
experience in the field who disputes the
quality of Woodward-Clyde's methods, but who
did not suggest that their numbers were
inventions: there are many ways to sample
soil, he said, and consultants who work for
"potentially responsible parties" (P.R.P.'s,
in the language of oil and mining) have to
be experts at compliance if they expect to
survive. In any case, and for whatever
reason, in 1998 the government of Ecuador
signed off on the job. Fajardo alleges that
a fraud occurred. Chevron denies it
absolutely.
Meanwhile, in New York, the debate about
jurisdiction dragged on. In May 2001, the
federal court ruled in Texaco's favor and
dismissed the lawsuit. The plaintiffs
declared that they would appeal. September
11 came and went, and on October 9, 2001,
Chevron swallowed Texaco whole.
Did Chevron know it was swallowing trouble?
It certainly knew about the case in New
York, but that was going well and promised
to be over soon. It must have known of
Texaco's reputation for roughneck
operations, but times had changed,
environmentalism had become the middle-class
faith, and Texaco in public had been acting
admirably. It wasn't based in Texas anymore,
but in White Plains, New York. Many of its
managers lived in the pretty towns of
Westchester County, where it is possible to
imagine that some dared to openly read
Vanity Fair. Their political contributions
were loaded heavily to the right, but
publicly they supported cultural diversity,
clean rivers, reforestation, concern about
global warming, H.I.V. prevention,
anti-smoking campaigns, the opera, and
probably the ballet. There was still a hint
of cowboy in the name, but compared with its
earlier persona, Texaco was looking
practically metrosexual. Chevron must have
felt comfortable with Texaco, at least in
part because in public Chevron acted the
same. It even had a tradition of handing out
environmental awards.
And besides, there wasn't all that much
solid information about Ecuador to go on.
Texaco had not tested the produced water,
not tested the pits, not tested the soil
around the pits, not tested the rivers and
streams, not analyzed the extent and effect
of air pollution, not examined the question
of water pollution, and not conducted
epidemiological studies of people's health.
By contrast, what Texaco executives did know
was that nearly a decade had gone by during
which Petroecuador had added to the mess;
that the environmental assessment of 1990,
despite its finding on the high salinity of
the produced water, had concluded in
appropriate consultative style that Texaco
had violated no regulation or contract; and,
finally, that the remediation conducted by
Woodward-Clyde seemed expensive, impressive,
and tidy.
The following summer a U.S. Court of Appeals
upheld the earlier decision on jurisdiction
in favor of Texaco and threw the plaintiffs'
case out of the United States. But there was
a catch, and it was an important one. As
part of the decision, the U.S. judge
required Chevron to accept the jurisdiction
of the Ecuadorean courts and to agree to pay
any judgment that might be imposed.
Effectively the U.S. judge had reached out
and reinforced the Ecuadorean courts, if
only for this one case. There was reason to
believe that the plaintiffs' attorneys had
exhausted their resources, and that after 10
years of struggle they would come to their
senses and quit. They did not. The
plaintiffs' attorneys flew to Quito,
recruited a prestigious Ecuadorean attorney,
hired backup, and organized the opening
moves to refile the case in Ecuador within
the statute of limitations. The papers were
filed in Lago Agrio, and on October 21,
2003, Chevron found itself where it did not
want to be: dragged back to the Amazon and a
lousy jungle town, paraded in front of
protesters on TV, and entering into an
emotional trial before a judge who was going
to insist on his jurisdiction and make this
into something about Ecuador's sovereignty.
Added to the original complaint filed in New
York was an additional allegation that the
remediation had been a fraud. The two sides
argued and maneuvered for about eight
months, and in the summer of 2004 prepared
for the first judicial inspection.
Fajardo was closely involved from the start.
For the last six months of his law
education, he had arranged to assist a
lawyer for the Front, and at the end of that
time, just as the trial began, he had been
hired by the legal team to serve as its man
on the ground in Lago Agrio, allowing the
lead attorneys to spend most of their time
at home in Quito. His salary was low by any
standard, but he did not accept a
contingency deal, in part because such an
arrangement is highly unusual in Ecuador and
would not be understood by his friends. In
January 2004 he graduated and became a
licensed lawyer. His closest brother
traveled with him to the university in Loja
for the ceremony. Under the glass that
covers his desk, he has a picture of the two
of them standing together on a street,
looking pleased. Though he was now working
in Lago Agrio during the week, he returned
each weekend to his wife and daughter in
Shushufindi, where he continued to be active
in the human-rights office, and to pursue
his myriad efforts to help the poor. Such
work in the jungle is dangerous—and
increasingly there were signs that he was at
risk. Whether this was because of his
involvement in the trial or in other,
smaller acts of resistance to power, it was
impossible to know. In January 2004 the
human-rights office was burglarized and
trashed, and Fajardo lost valuable papers,
including his law-school thesis, which had
taken him six months to research and write,
and which, had he been able to deliver it,
would have earned him the exalted title of
Doctor, as in Doctor Callejas. Instead, in
the courtroom of Lago Agrio he is referred
to as mere advocate, a smaller man, Abogado
Fajardo.
A few months later, his best friend was
killed. He was a taxi driver and one of the
eight men who had helped Fajardo
financially, to get through law school. He
was shot four times, and his car was stolen.
The police did not investigate. Sometimes
Fajardo was followed, by whom he did not
know. Fajardo tried to vary his routines. He
did his work. He pressed on. Sunday, August
8, 2004, he spent as usual in Shushufindi,
working at the human-rights office. That
night he stayed quietly at home with his
family. In the morning he rose early and
caught the six-o'clock bus for Lago Agrio
and the office of the Front. When he got
there, about two hours later, he received a
phone call informing him that his beloved
brother—the one in the photo on the desk—had
been murdered. Fajardo rode the bus back to
Shushufindi, where the family had gathered
in shock. This brother had been an
evangelical minister, and he was a decent
man, uninvolved with social issues,
uninvolved with crime.
Killing Fajardo himself would have been
risky, given his prominence in the region,
but no such protections applied to those
close to him. I said, "I am truly sorry I
have to ask you this. Do you suspect he was
killed because of you? As a threat? To
frighten you off?"
Fajardo's Spanish is very clear. He said, "I
would like to think that it was just a
regular crime. Those days were the hardest
in my life. The chief of military
intelligence in Shushufindi told one of my
brothers that I was being followed, and that
the killers had made a mistake. I don't want
to believe that. And I wouldn't if … No, I
just don't want to. But I do know that
afterward I was followed. A lot."
For safety he sent his wife and daughter to
live with his wife's parents in Sacha. He
left his house for a small rented room above
a store, next door to the room of a friend,
and began to live like a hunted man,
sleeping in a different location every
night. His watchers were not subtle; they
were thugs on motorcycles and in cars, and
they wanted their presence known. The
pressure continued well into 2005. One night
armed men came to his rented room, when he
was not there. His friend saw it all. They
waited for a while in the hallway and then
lurked outside until dawn. He later heard
that on another occasion he escaped death
only by chance, because two women happened
to be with him. For six months he stayed off
the streets and moved whenever possible by
taxi. At work he tried never to be alone. He
carried a gun. Every time he said good-bye
to someone, he thought that it might be for
the last time. Ultimately, though, he
learned to live with the risk. He became
fatalistic. He thought, Whatever God wants.
Gradually he emerged onto the streets. For a
while the pressure eased. The shock of his
brother's death did not leave him, but he
carried on as before.
He was deeply involved in the trial. In June
2005, he assumed the lead for the
plaintiffs. His wife remained in Sacha, now
also with an infant son. He sold the house
in Shushufindi. He made statements to the
press. Two years after the start of the
trial, in October 2005, a judicial
inspection just south of Lago Agrio was
canceled at the last moment when the local
military intelligence informed the judge
that the Cofán Indians, a particularly
docile group, were a threat to Chevron. The
information was unsubstantiated and has
never been shown to be even remotely true.
Fajardo believed it was calculated to delay
the inspection, because it was adjacent to
Indian land, and many reporters had come to
town to observe the show. Callejas denied
that he knew anything about it. Fajardo and
others on the legal team demanded an
investigation, and were quietly passed a
contract exposing the financial alliance
between Chevron and the local military,
embarrassing both of them badly. Soon
afterward the pressure mounted again.
Fajardo received a phone call in which an
anonymous man predicted that a cleanup would
indeed soon occur, and it would cleanse the
land of people like him. Those were no small
words along the Aguarico. Around the same
time, a leader of the Front, Luis Yanza, was
repeatedly threatened, as was his family. Up
in Quito, the law offices of an associated
attorney were burglarized—and the only
things that disappeared were computers and
backup files. The spokesperson for the legal
team, a woman named Guadalupe De Heredia,
came under a sustained assault while driving
with her daughter on a steep mountain road.
An S.U.V. with dark windows and no plates
tried repeatedly to force her over the side,
and desisted only when other vehicles
appeared on the scene. A friend of De
Heredia's was mistaken for her in front of
De Heredia's house and brutally assaulted by
men who then drove away, again in a vehicle
with dark windows and no plates. The legal
team appealed to international commissions
on human rights, including of the United
Nations, and the commissions responded with
pro forma requests that the Ecuadorean
government provide protection.
The government? Which part of it? In the
summer of 2006, a case was opened in the
office of the public prosecutor in
Shushufindi, charging Fajardo himself with
terrorism and sabotage. Others were charged
at the same time. Fajardo was said to be
their mastermind. Arrest warrants had still
not been issued several months later, when
we met, but the threat was hanging over
Fajardo's head. He seemed just to mix it in
with all the other threats.
South of Shushufindi one day, I came by
chance upon a settler who lived in an
unusually solid house near an oil well long
inactive. He was a middle-aged man with
shoulders squared by heavy labor, and was
wary at first, because in recent years North
Americans have been rare. As we talked, he
gradually opened up. He had lived most of
his life in that house, which had been built
by his father in the 1970s, and expanded by
the generation that followed. I asked him
how things were for him now. He showed me a
plastic cistern that he had recently
acquired, and said that he hoped to fill it
with clean water, if he could find it
somewhere, maybe out in the forest. This was
his big project and hope: he would do this
for his children. He said that in the last
few years alone he had lost four family
members to cancer. He had no doubt that
pollution was the cause, though he knew
nothing about the relevant medicine or
science. I noticed that he had an outhouse
whose door was ajar, and a toilet in there
without any sort of plumbing. I did not ask
him about the water his children now drank,
but I am reasonably sure that it contained
fecal matter. He himself did not seem well,
and he moved with difficulty, as if he were
in pain. I feared that perhaps he too had
developed cancer. But when I delicately
inquired, he said that he had just been
kicked by a cow. If I were a paid consultant
reacting to the epidemiological studies, and
open to exploring alternatives to
petroleum-induced ill health, it would have
been a moment to repeat anecdotally, and a
reminder meanwhile to bear down with
questions about cancer. These dead, were
they smokers, did they drink, did they X-ray
welds on the pipelines? Did they handle
solvents, or spray for weeds? Wait! Did they
ever work in a chemical factory, live in an
industrial zone, pump gas in Quito, or
peddle goods in heavy traffic? By chance
were any of them flight attendants? Was
there a history of cancer in the family
before? If it was cervical cancer they had,
were they promiscuous? Were they obese? No?
O.K., then how well did you really know
them?
But these questions might give the wrong
idea. In fact, there is no evidence that
Chevron (or Texaco, before it) has ever
directly inquired into the health of the
residents by interviewing them or delving
into their medical records, however meager
such records are. Not during the 30 years of
operations, not during the 10 years of legal
maneuvering in New York, not during the 4
years of the trial so far. Not once. It has
conducted what it calls "health-risk
assessments" by extrapolating exclusively
from its own analysis of its own soil
samples taken during the partisan sampling
wars of the judicial inspections, and in
conclusion has issued a carefully worded
statement that "current drinking water and
soils that were previously remediated by
Texpet do not present a significant
oil-related health threat to local
residents." For clarity, the soils it refers
to as remediated are only those at the
waste-pit sites that Texaco agreed to clean
up.
Instead of funding an independent,
peer-reviewed epidemiological study in order
to seek new knowledge, Chevron has
publicized or funded critiques of the few
such studies that have actually been
conducted, in an attempt to discredit them.
The epidemiological studies are extremely
thin, but they raise the possibility that
the residents of the concession area suffer
from abnormally high rates of cancer,
childhood leukemia, miscarriages, gastritis,
skin fungi and irritations, and a host of
lesser medical problems. Admittedly the
studies are incomplete, and based on a
paucity of data, but would seem to indicate
at the very least the need for the sort of
serious inquiry that so far has not been
done. The truth is that neither Chevron nor
the plaintiffs have a solid basis for the
claims they make about the residents' health
or the legacy of Texaco. It would be
conservative to assume, however, that there
may be genuine problems, given the known
toxicity of crude oil, and some of the
associated materials and waste products, and
evidence so obvious on the ground of
widespread contamination, whether it is
Texaco's fault or not.
To get a sense for a place it is essential
to walk the ground and poke around,
unencumbered by itineraries and
expectations. The settler led me down a
short muddy trail to the waste pits from the
old oil well. There were three of them
there. One lay open to the sky in close to
its original condition—a pond of thick,
black, evil-looking liquid in which somehow
a bird had just drowned. We walked along a
dike to where liquid from an old siphon pipe
still trickled down a slope and into a small
stream below. The two other pits lay a
little farther on. They were covered with
dirt and overgrown by grasses. In places the
wastes oozed up from below and formed
asphalt patties that were hard on top and
gooey on the underside. The area was
suffering from a drought.
The settler noted that in the rains the pit
oozed more actively. He was a simple man,
without an obvious agenda. He said, "A year
ago, men from Texaco came to take samples,
and when they did, they went deep, like they
were trying to poke all the way through and
get samples from the dirt underneath. But
they came up with a lot of oil anyway."
By "Texaco" he clearly meant Chevron, which
in the region is still widely referred to by
the old name. I asked him, "What did they
say?"
"I think they were surprised. So they said
to me, 'Well, this is not our fault. Yes,
there is oil here, but it is not our fault.
This was done by Petroecuador after we
left.'
"And I said, 'No no, I lived here then. This
oil was dumped in 1982 by Texaco—I remember.
And later it was supposed to be cleaned up.
They came in here and said they cleaned it
up, but all they did was shove dirt on top.
So you see, why are you talking about
Petroecuador? It was Texaco all along.'"
With that the Chevron men, as he described
the scene, got in their truck and drove
away. The settler had no idea what they did
with the samples, or what the samples
contained.
Were Chevron to settle out of court, it
could probably get away for a lot less than
the $6 billion the plaintiffs are seeking.
And the truth is that Chevron could afford
the bill, which would be spent over a decade
or more. In 2005, a single year, Chevron
posted earnings of $193.6 billion and
cleared $14.1 billion in profit. The first
figure is more than six times the entire
gross domestic product of Ecuador. But
Chevron shows no sign of giving up.
Fajardo said, "One of the problems with
modern society is that it places more
importance on things that have a price than
on things that have a value. Breathing clean
air, for instance, or having clean water in
the rivers, or having legal rights—these are
things that don't have a price but have a
huge value. Oil does have a price, but its
value is much less. And sometimes we make
the mistake."
One morning I drove to Lago Agrio No. 2, a
well that had been drilled in 1967 and went
active a few years later when the pipelines
came in. Over the following 20 years it
produced five million barrels of crude and
made a fortune now residing in California.
Eventually it was shut down and stripped of
its machinery and pipes; it was nothing at
this point but a leveled clearing in the
forest, past a hamlet of settlers, at the
end of a dirt road. Woodward-Clyde
remediated its pits in 1996. Apparently, a
subcontractor took the waste, dumped it in
the forest, covered over the scar with 150
truckloads of red dirt, and planted 31 trees
at intervals of nine feet. A T.P.H. of 5,000
or less? You bet. Lago Agrio No. 2 passed
the test with flying colors, and the
government of Ecuador did not challenge the
results. Nine years later the circus came to
the site: during the judicial inspection, in
November 2005, the plaintiffs found
contamination off the scale. In the
remediated pit No. 1, for instance, they
measured a T.P.H. of 324,771. They also
measured levels of dangerous polycyclic
aromatic hydrocarbons (P.A.H.) more than
four times greater than present Ecuadorean
standards, and of excessive levels of
carcinogenic chromium 6, one of the
additives used in well maintenance. Chevron
found much less. When it measured for
T.P.H., it came up with a value of only
about 960, indicating that the remediation
had been performed extremely well.
I got out of my truck and went down into the
forest, chasing the roar of a chain saw. It
was an old man, cutting wood; he turned out
to be the original settler. He took me to
see what had happened to his land, and to
the pits that were said to have been
remediated. The 31 trees were stunted or
dead, and oil seeped through the dirt all
around. The old siphon pipe was there, as
filthy as ever, and now sheltering a wasps'
nest. He said, "If you go down two feet,
you'll find nothing but oil and drilling
muds." We followed a stream wasted by oil
and completely dead. That stream led to a
larger one, where the only fish that survive
are tough, scrawny things that taste of
diesel when they're fried. The settler said,
"I used to have 50 acres for grazing. But
then my livestock would emerge from the
forest all covered in oil. They didn't die,
but they wouldn't fatten up anymore, or give
milk, and they aborted too. They drank this
water. It's kind of salty, and they got
poisoned and sick. So I lost all my
livestock. When I complained to Texaco, this
gringo said, 'Go complain to your
government, not to us.'"
I said, "And did you go to the government?"
"What government? How am I supposed to go to
the government?"
I asked him about Petroecuador and
re-injection. He said, "Now finally they're
doing something. But what are they going to
do? There's just too much pollution. This
used to be a paradise. A real paradise. The
waters were clear and full of fish. We used
to see all sorts of wild animals. Birds,
parrots, and everything. It was beautiful. A
paradise. But then it was all gone. The oil
company came. And we have to admit that we
have destroyed a lot of it, too."
I said, "How far do you have to go to see
paradise now?"
"Far away."
"But if we just start walking that way, how
long would it be?"
He said, "Very long," and meant forever.
William Langewiesche is Vanity Fair's
international correspondent.