January 24, 2022

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An Environmental Hero or Outlaw? Can It Be Each?

An Environmental Hero or Outlaw? Can It Be Both?

By any regular commonplace, this could have been the top of the case. In any case, what was left to litigate? But it surely wasn’t the top — not even shut. In 2018, after Choose Kaplan’s judgment had lastly been affirmed, the corporate introduced one other case in opposition to Mr. Donziger. Amongst different issues, it wished him to show over his pc and different digital gadgets. Choose Kaplan agreed. However Mr. Donziger refused to conform, saying it could give the oil firm “backdoor entry to confidential attorney-client communications.”

In 2019, the decide took the extraordinary measure of bringing in a personal legislation agency to prosecute Mr. Donziger for prison contempt of court docket. This case was presided over by one other district court docket decide, Loretta A. Preska, who rapidly ordered that he be positioned below home arrest and put on an digital ankle monitor. After a brief trial earlier this yr, she discovered Mr. Donziger responsible, and sentenced him to the six months he’s now serving. He was additionally disbarred.

Alongside the best way, one thing stunning has occurred: Exterior the courtroom, it was as if the ghostwritten report and the alleged bribe of the Ecuadorean decide had by no means occurred. Mr. Donziger’s victory in Ecuador was praised as legit, and he was extensively seen by progressives as an environmental hero. Sting, the musician, helped elevate cash for his protection. Greta Thunberg offered her support. Consultant Alexandria Ocasio-Cortez and a number of other of her Democratic colleagues sent a letter to Attorney General Merrick Garland, asking him to overview the case. The Harvard Regulation professor Charles Nesson rallied to his cause. Campaigns have been began to #FREEDONZIGER. A bunch of consultants from the United Nations mentioned in a report that his pretrial detention was “arbitrary” and subsequently unlawful. And on, and on. To them, this was a basic instance of a fossil gas firm utilizing its may to punish somebody courageous sufficient to face as much as it.

This phenomenon of seeing controversial figures as black or white — saint or sinner, hero or villain — is among the plagues of our polarized age. It has turn out to be practically unimaginable for individuals to acknowledge that typically their heroes can do one thing fallacious, and their foes can get one thing proper. Donald Trump is the obvious instance of this, however you see it on a regular basis in politics, and in enterprise as nicely. Are C.E.O.s rapacious greed-heads, or are they stewards of capitalism? Are oil corporations supplying the gas that the world must operate, or are they “outlaws,” because the environmental activist Invoice McKibbon calls them? Too many individuals are unwilling to carry each concepts of their heads without delay.

This failing is particularly obtrusive within the Donziger case. If he had performed by the principles in litigating the case in Ecuador, he might need come away with a judgment {that a} U.S. court docket would have upheld. Chevron would have needed to pay billions to his impoverished shoppers. To place it one other approach, through the use of the techniques he did, Mr. Donziger did his shoppers an infinite disservice. That his allies refuse to see this means their hatred of Huge Oil has blinded them to a few of Mr. Donziger’s inconvenient actions.

However then there may be Chevron. Firms are imagined to make rational danger and reward calculations. The corporate’s push to stop the Ecuadorean judgment from going into impact was rational, and exhibiting that Mr. Donziger had violated the principles was an acceptable approach to try this. However punishing Mr. Donziger past that will in the end have been a mistake. He has been become an environmental martyr, which is the very last thing Chevron ought to need. He’s not the lawyer who broke the principles to win a case. As a substitute, he’s the lawyer who stood as much as Huge Oil.



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