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damage, Dr. Barnthouse simply regurgitates the Cabrera Report’s initial, flawed analysis and, therefore, fails for many of the same reasons. 1026 As has recently been revealed, Mr. Cabrera did not even write his own initial analysis; rather, the portions of the Cabrera Report dealing with harm to the ecosystem were covertly drafted by, among other people, Lorena Gamboa of an activist group supporting plaintiffs and Stratus, and thus obviously lack any credibility. 1027 Dr. Barnthouse’s analysis must also be disregarded because it contradicts his own prior opinions and conclusions. As discussed in Chevron’s submission of December 21, 2010 at 11:00 a.m., the most basic flaw in both the Cabrera Report and Dr. Barnthouse’s report is that they do not identify the allegedly contaminated area as that which requires restoration. However, these reports include myriad other fundamental errors: • Neither the Cabrera Report nor Dr. Barnthouse’s analysis identifies any ecological services lost as a result of TexPet’s activities. This, standing alone, renders both of their respective “analyses” worthless because they are valuing something they have not identified. 1028 And although neither the Cabrera Report nor Dr. Barnthouse identifies any services lost as a result of TexPet’s activities, they nevertheless attempt to calculate the purported decrease of these phantom services—and do so over a greatly exaggerated area that bears no relation to the area allegedly affected by the former Consortium’s operations. 1029 • By adopting and affirming the Cabrera Report’s conclusions, Dr. Barnthouse contradicts his own positions on the appropriate methodologies for assessing and valuing lost ecological services. In his report, Dr. Barnthouse simply equates exceedances of some environmental screening levels with service losses. But Dr. Barnthouse has previously stated that “elevated chemical concentrations are not, by themselves, reliable indicators of adverse natural resource effects” and has concluded that “one cannot categorically presume that elevated levels 1026 See generally, BARNTHOUSE, Lawrence, Evaluation of Natural Resource Service Losses Related to Oil Field Development in the Concession, attached as Annex E to Plaintiffs’ Motion filed Sept. 16, 2010 at 5:15 p.m. 1027 E-mail from Douglas Beltman to Steven Donziger, dated March 11, 2008, at 2:22 p.m. (attaching outline of report) (STRATUS-NATIVE067410, 067413, 067417), attached as Annex 10 to Chevron’s Motion filed Oct. 29, 2010 at 5:20 p.m. 1028 See discussion of plaintiffs’ claimed damages for loss of ecosystem in Chevron’s Motion filed Sept. 16, 2010 at 4:35 p.m., § II.B.4.d.i., at 166, including but not limited to all references cited therein. 1029 See discussion of plaintiffs’ claimed damages for loss of ecosystem in Chevron’s Motion filed Sep. 16, 2010 at 4:35 p.m., § II.B.4.d.ii-iii, at 170-172, including but not limited to all references cited therein. CERT. INTERMARK VER: JD - 229 -
of a particular hazardous substance equate to injuries or service losses.” 1030 Yet that is precisely what Dr. Barnthouse does in his report. • Dr. Barnthouse inexplicably identifies the area lost to roads and other essential functions of petroleum operations (e.g., stations, well pads, pits, etc.) for which he contends that compensation should be granted. However, as Dr. Barnthouse himself recognizes, natural resource damages are only compensable for unpermitted activities. 1031 TexPet’s construction of roads and other essential facilities was authorized and mandated by the concession agreement. The Government of Ecuador specifically required TexPet to build roads into the former concession area and sanctioned the building of operational facilities as a necessary consequence of petroleum exploration and production activities. 1032 • Those roads and essential facilities should have been included in Dr. Barnthouse’s analysis of “baseline” conditions and, therefore, excluded from the damages assessment. 1033 The determination of baseline conditions is a critical component of assessing natural resource damages because it establishes a standard against which current conditions are measured. • Not only does Dr. Barnthouse assume service losses from both legal construction activities and as a result of alleged exceedances of some environmental screening levels, but he also assumes the alleged exceedances and attributes those alleged exceedances to TexPet alone. Dr. Barnthouse completely ignores both TexPet’s remediation efforts in the mid-1990s as well as the fact that Petroecuador has been the sole operator of oil production facilities in the former concession area since 1030 DESVOUSGES, William, Critique of Dr. Barnthouse’s Report: Estimation of Natural Resource Losses Related to Oil Field Development in the Concession, at 6, attached as Annex 5 to Chevron’s Motion filed Oct. 29, 2010 at 5:20 p.m., (citing Barnthouse and Stahl 2002). 1031 DESVOUSGES, William, Critique of Dr. Barnthouse’s Report: Estimation of Natural Resource Losses Related to Oil Field Development in the Concession, at 5, attached as Annex 5 to Chevron’s Motion filed Oct. 29, 2010 at 5:20 p.m. 1032 See TOMASI, Theodore D., Rebuttal to “Evaluation of Natural Resource Service Losses Related to Oil Field Development in the Concession” by Dr. Lawrence W. Barnthouse, at 3, 7, attached as Annex 8 to Chevron’s Motion filed Oct. 29, 2010 at 5:20 p.m. 1033 See DESVOUSGES, William, Critique of Dr. Barnthouse’s Report: Estimation of Natural Resource Losses Related to Oil Field Development in the Concession, at 9, attached as Annex 5 to Chevron’s Motion filed Oct. 29, 2010 at 5:20 p.m., (citing Leamer 2010); TOMASI, Theodore D., Rebuttal to “Evaluation of Natural Resource Service Losses Related to Oil Field Development in the Concession” by Dr. Lawrence W. Barnthouse, at 7, attached as Annex 8 to Chevron’s Motion filed Oct. 29, 2010 at 5:20 p.m. CERT. INTERMARK VER: JD - 230 -
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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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ecommended an economic value of bil
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Chevron also invoked its constituti
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postponed a decision. 497 For insta
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“was not engaging in any exercise
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jurisdiction over Chevron. Then, as
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hasten a large judgment against Che
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Mr. Berlinger recently corroborated
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with him.” 536 The plaintiffs eve
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has “the most ridiculous legal cu
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Government “already [knew] about
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gathering evidence” against Chevr
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amount of money, and there are no a
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ecommended dismissal of the 2003 cr
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to settle the civil case. 608 Docum
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that the Government was managing Ju
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essential formalities with nullity
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4.2 Nullity Due to This Court’s L
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oth on the provisions of the Civil
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4.4 Nullity Due to the Lack of Lega
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The common legal representative’s
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continue to hear [the case] until t
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the right to bring all indivisible
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Each municipal suit was settled in
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Like the local governments, the Gov
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These services were to be administe
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5.2.4 The Settlement Agreements Sig
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elease collective claims based on t
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effect of administrative acts “is
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i.e., to the inability to anticipat
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This was expressly acknowledged by
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plaintiffs’ alleged claims, it co
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the complaint.” 768 Accordingly,
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management of natural resources, an
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Article 43 created a new course [si
Page 183 and 184: plaintiff shall not amend it, nor s
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Page 189 and 190: ecovery for such a claim must go di
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
Page 199 and 200: tripled the requested damages from
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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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Page 223 and 224: epresentative of the Frente—the n
Page 225 and 226: establish a causal connection betwe
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Page 229 and 230: eached by disregarding the data pro
Page 231 and 232: As the Government had intended, col
Page 233: equests for damages. 1021 For examp
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Page 239 and 240: detected. However, none of these co
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Page 243 and 244: enrichment for the victim.” 1062
Page 245 and 246: accord, and acknowledge that a clai
Page 247 and 248: In any event, even if an unjust enr
Page 249 and 250: Second, since TexPet already undert
Page 251 and 252: • With regard to pit remediation,
Page 253 and 254: away from the figures” in the pla
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Page 257 and 258: the claimed health effects they all
Page 259 and 260: Article 7(20) of the Civil Code pro
Page 261 and 262: 3. As Your Honor is aware since it
Page 263: g) Total lack of effective and time
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