-i- TO THE SUBROGATE PRESIDENT OF THE ... - Chevron

an entitlement to monetary damages for “a plan to regenerate aquatic life,” 784 an
injunctive order for the “cleanup of rivers, streams, lakes, marshes and natural and
manmade waterways” 785 is superfluous. Because plaintiffs have not even attempted to
prove an action for individualized damages under the provisions Article 2214, the only
legal basis for the claims asserted here is—as is expressly pled in Chapter VI(2)—the
EMA.
In any event, for any injunctive claim brought under these facts for contingent
damages, Petroecuador is the only proper defendant. An action to prevent potential
future harm must be brought against either the owner of the property or the party
currently engaged in the activity that causes the threat or contingent harm, since they
are the only ones who can prevent the challenged activity and the threatened harm.
Such an action cannot logically be brought against a third party who has no control over
the activity or the property. That is the case here with respect to Chevron. First,
Petroecuador alone has operated the former Consortium fields for almost twenty years.
It is thus responsible for any threatening condition that presently exists in the area—as
the current owner and operator, it alone is “negligent” under Article 2236 of Civil Code in
failing to remove any threat to unspecified persons. Second, the nature of the claim is
injunctive, in that it requires the elimination of the threatening condition. The current
operator and holder of rights over the area where the allegedly threatening condition
exists (here, Petroecuador) is the only party that is capable of fulfilling the terms of the
requested injunction. 786 Third, as discussed above, supra § 5.2.2, Petroecuador
released TexPet and itself assumed all remaining responsibility for environmental
impact in the former Consortium area. The structure of the settlement, under which
TexPet performed remediation commensurate with its minority share of the Consortium,
reflected the parties’ understanding that Petroecuador would have to answer for any
continued environmental threats in the former concession area, where it continues to
operate today. Because Petroecuador is the proper defendant, the plaintiffs have no
cause of action against Chevron for the injunctive relief they seek.
5.3.3 The Cause of Action Granted by the EMA Constitutes a Substantive
Change in the Law and Thus Cannot Be Applied Retroactively
Because no pre-existing provision of the law authorized an equivalent cause of
action, Article 43 of the 1999 EMA substantively changed the law. As demonstrated
above, such provisions cannot be applied retroactively to conduct that occurred prior to
the change in the law, especially in the face of the settlement agreement releasing
TexPet and its affiliates from any liability for environmental impacts in the area of the
former Petroecuador-TexPet concession.
784 Plaintiffs’ Complaint, filed May 7, 2003 at 11:30 a.m., Record at 73-80v, 80.
785 Plaintiffs’ Complaint, filed May 7, 2003 at 11:30 a.m., Record at 73-80v, 79v.
786 Article 1569 of the Civil Code is not applicable because the defendant is not currently in
default. Chevron has not failed to perform any preexisting legal obligation; to the contrary, the
Government of Ecuador certified that TexPet fulfilled all of its contractual remediation responsibilities.
CERT. INTERMARK VER: JD
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