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communities, 716 and “contribute to the achievement of the State’s goals” 717 —“whose main purpose is the local common weal.” 718 Thus, the “People” were the real parties in interest in these prior settlements, which have erga omnes effect. Here, too, invoking a 1999 law, the forty-eight named plaintiffs admittedly seek to vindicate only “collective rights” 719 in a clean environment that are “shared by the community.” 720 Like the Government of Ecuador and the local governments, the plaintiffs here seek to represent the “People,” which means that the parties are legally identical. The causa petendi 721 —or the factual background and legal basis for the claims— is likewise identical between the settlements and this action. A comparison of the settlements and the Lago Agrio complaint shows that they both have the same factual basis and legal grounds: the alleged impacts of the Consortium’s operations on the citizenry’s right to live in a clean environment. The plaintiffs here argue that “environmental damages” were caused by the “methods and procedures introduced, established and applied by TEXACO” during the Consortium. 722 The settlement agreements also aimed “[t]o establish the mechanism whereby Texpet will be released from any claim . . . for environmental impact as a consequence of the operations of the former PETROECUADOR – TEXACO Consortium.” 723 Plaintiffs’ legal claim purports to be based on the “collective right” to live in a “healthy, ecologically balanced environment that is free of contamination.” 724 The settlement agreements expressly purported to 716 Article 164 of the Organic Municipal Regime Law. 717 Article 19 of the Organic Municipal Regime Law; see also Provincial Regime Law, art. 1 (the Province’s “mission is to . . . work with the State and the municipalities of the respective area toward the harmonious furtherance of the national interest”). 718 Article 1 of the Provincial Regime Law. 719 Plaintiffs’ Complaint, filed May 7, 2003 at 11:30 a.m., Record at 73-80v, 78v-79; see also Article 12 of the Provincial Regime Law. 720 EMA, Glossary of Definitions (definition of “Collective Environmental Rights”) and Article 41. 721 DEVIS ECHANDÍA, Hernando. General Notions of Civil Procedure. 1966. Editorial Selecciones Graficas. Madrid, Spain. pp. 218-219 and DEVIS ECHANDÍA, Hernando. Compendium of Procedural Rights, General Theory of Procedure. 10th edition, 1985. Editorial ABC . Bogotá. Vol. I, p. 502. 722 Plaintiffs’ Complaint, filed May 7, 2003 at 11:30 a.m., Record at 73-80v, 74. 723 Memorandum of Understanding I(d) dated Dec. 14, 1994, filed May 24, 2004 at 2:18 p.m., Record at 7705-07v, 7705. 724 Plaintiffs’ Complaint, filed May 7, 2003 at 11:30 a.m., Record at 73-80v, 78v. In like manner, the complaints filed by the relevant municipalities against TexPet had, as their factual basis, the alleged “ecological catastrophe which degraded the environment and its forest biodiversity, contaminated its water sources, in streams and rivers which the population use . . . .” Orellana Municipal Complaint at 2, attached as Annex 1 to Chevron's Evidentiary Request No. 1.1.1 for the Lago Agrio 2 Essential Error Petition, filed July 30, 2010 at 5:52 p.m.; see also La Joya de los Sachas Complaint at 2, attached as Annex 3 to Chevron's Evidentiary Request No. 1.2.1 for the Lago Agrio 2 Essential Error Petition, filed July 30, 2010 at 5:52 p.m.; Lago Agrio Complaint at 1, attached as Annex 8 to Chevron's Evidentiary Request No. 1.4.1 for the Lago Agrio 2 Essential Error Petition, filed July 30, 2010 at 5:52 p.m.; Shushufindi Complaint at 1, attached as Annex 5 to Chevron's Evidentiary Request No. 1.3.1 for the Lago Agrio 2 Essential Error Petition, filed July 30, 2010 at 5:52 p.m. CERT. INTERMARK VER: JD - 161 -
elease collective claims based on the citizenry’s right to a healthy and clean environment, “including but not limited to any causes of action under Article 19-2 [] of the Political Constitution of the Republic of Ecuador.” 725 Finally, the Government of Ecuador and the local governments (municipalities in the area of the former Concession and the Provincial Council) sought the same objective in settling their claims with TexPet that the plaintiffs seek here; in the words of the former Ecuadorian Supreme Court (now the National Court), they each had the same “final result . . . in mind when filing their claims” or settling them. 726 In the complaint in the present case, the plaintiffs demand the remediation of environmental impact, specifically claiming (i) “[t]he elimination or removal of contaminating elements that still threaten the environment and the health of residents,” 727 and (ii) “[t]he remediation of the environmental damage caused.” 728 This was the same objective that the Government of Ecuador and the local governments pursued and resolved in the settlements, which secured specific environmental remediation for alleged environmental harm arising out of the Consortium operations and funds for socioeconomic programs. In turn, the Government of Ecuador and the local governments released TexPet and its parent companies, subsidiaries and affiliates, among others, from responsibility for any “environmental impact,” broadly defined as “[a]ny solid, liquid or gaseous substance present or released into the environment in such concentration or condition, the presence or release of which causes, or has the potential to cause harm to human health or the environment.” 729 It would be absurd to suggest that the same collective rights, based on the same factual predicate, and seeking the same relief, could be litigated again and again by different members of the same collectivity. As shown in this record, other groups—including members of the “affected communities” purported to be represented by the plaintiffs in this action—have 725 Remediation Contract dated May 4, 1995, filed July 15, 2004 at 9:10 a.m., Record at 7855-82v, 7862. The text of Article 19-2 of the Political Constitution of the Republic of Ecuador, as it was written in 1995, demonstrates that the State had the authority—and indeed, the “duty”—to protect and vindicate the citizenry’s right to a healthy and clean environment. See Article 19-2 of the 1978 Constitution of Ecuador (as codified in 1993) (establishing the citizenry’s “right to live in an environment free from contamination,” but placing the “duty [on] the State to ensure that this right is not abridged.”) The vindication of that constitutional “right” was accomplished through the execution of the settlement contract, which the State was constitutionally authorized, and obligated, to pursue. Any assertion that the State could not settle this constitutional right on behalf of its citizenry runs squarely against the clear text of the then-extant Constitution. 726 Rosa Elena Rey Orozco vs. Arcesio Volívar Morocho Erráez, Judgment of the Supreme Court of Justice, Second Labor and Social Division, June 7, 2004, Case 98-2004, published in Official Gazette 506, Jan. 18, 2005. Similarly, according to Hugo Alsina: “The object of a lawsuit . . . is the thing requested; . . . not in a physical sense but rather the sense of the usefulness or advantage sought.” ALSINA, Hugo, Tratado Teórico Práctico de Derecho Procesal Civil y Comercial, 2d ed., Volume IV, Editorial Ediar, Buenos Aires, 1961, p. 147. 727 Plaintiffs’ Complaint, filed May 7, 2003 at 11:30 a.m., Record at 73-80v, 79. 728 Plaintiffs’ Complaint, filed May 7, 2003 at 11:30 a.m., Record at 73-80v, 79v. 7857. 729 Remediation Contract dated May 4, 1995, filed July 15, 2004 at 9:10 a.m., Record at 7855-82v, CERT. INTERMARK VER: JD - 162 -
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TO THE SUBROGATE PRESIDENT OF THE P
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3.4.3 Mr. Cabrera’s Fieldwork Was
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7.3.1 Plaintiffs Have Failed to Pro
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the arguments in the Cabrera Report
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negligence where TexPet was directl
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they not only secretly conspired us
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has repeatedly shown to be corrupte
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plaintiffs’ egregious and fraudul
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to annul the rulings of Judge Núñ
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filed on September 16, 2010 at 5:15
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after the conclusion of the evident
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conditions in the Amazon region rel
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during Consortium operations, Chevr
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alleged liability and obligations w
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the basis of Article 2260 of the Ci
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1.1 Chevron Never Operated in Ecuad
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Plaintiffs allege that this corpora
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in the complaints in the[] U.S. act
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If the plaintiffs had timely sued T
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2.1 The Plaintiffs Submitted Fabric
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As Dr. Calmbacher’s testimony ind
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were “choreographed”; just “a
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in working clandestinely and in col
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Rather, he worked alongside, and on
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During this meeting of March 3, 200
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course you really have to be comfor
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David Mills, another of plaintiffs
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consultants—it can no longer be c
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ecome the Cabrera Report, a note ob
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assembled a team of experts” beca
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And even Mr. Donziger himself predi
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from the supplemental report’s an
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Mr. Cabrera repeatedly promised to
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• Mr. Cabrera breached his obliga
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Second, to exaggerate his volume fi
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headquarters in Quito. The recordin
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(viii) The award will be made in pa
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Chevron which are unreasoned, viola
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complete investigation, particularl
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was submitted, Mr. Donziger told th
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this case by completely dismissing
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mechanism—a second, ad hoc eviden
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attempted to confirm, it recognized
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equested that Judge Ordóñez be re
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protocols for analyzing samples tak
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The plaintiffs first tried, in Janu
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Accordingly, Chevron opposed the re
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possibility to defend itself, refut
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seen conceding in the Crude outtake
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eport could be analyzed by the cour
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lacked those qualifications. Indeed
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and the installation of geomembrane
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guessing . . . always confused.”
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samples of doubtful origin and inad
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Indeed, although Mr. Cabrera stated
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degree of scientific certainty that
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pathways”-to “recommend that th
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Page 117 and 118: Chevron also invoked its constituti
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Page 127 and 128: Mr. Berlinger recently corroborated
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Page 139 and 140: ecommended dismissal of the 2003 cr
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Page 147 and 148: 4.2 Nullity Due to This Court’s L
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Page 151 and 152: 4.4 Nullity Due to the Lack of Lega
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Page 155 and 156: continue to hear [the case] until t
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Page 159 and 160: Each municipal suit was settled in
Page 161 and 162: Like the local governments, the Gov
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Page 171 and 172: i.e., to the inability to anticipat
Page 173 and 174: This was expressly acknowledged by
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Page 183 and 184: plaintiff shall not amend it, nor s
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Page 191 and 192: v. “Recovery of the land and cult
Page 193 and 194: Plaintiffs’ argument is wrong on
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Page 197 and 198: 7.2 Plaintiffs Have Failed to Prove
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Page 205 and 206: ing them below 1,000 mg TCLP-TPH pe
Page 207 and 208: The areas remediated by TexPet requ
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Page 213 and 214: None of this could have been a surp
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excess of what any similar remediat
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plaintiffs’ proposed plans to ins
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extra petita. In all events, any su
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epresentative of the Frente—the n
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establish a causal connection betwe
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Stratus, the paid consultants hired
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eached by disregarding the data pro
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As the Government had intended, col
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equests for damages. 1021 For examp
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of a particular hazardous substance
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Agreement, Scope of Work, and RAP,
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detected. However, none of these co
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contamination. 1050 This Court shou
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enrichment for the victim.” 1062
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accord, and acknowledge that a clai
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In any event, even if an unjust enr
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Second, since TexPet already undert
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• With regard to pit remediation,
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away from the figures” in the pla
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maintained, and corroded pipelines.
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the claimed health effects they all
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Article 7(20) of the Civil Code pro
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3. As Your Honor is aware since it
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g) Total lack of effective and time
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