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Testifying, Commenting and Consulting

Part 2 – For litigation in the courts

 

Part of the Climate Steps Politics page series

(Read Part 1 Here.)

 

Basic Understanding

  • When you suffer injuries or harm because of negligence from someone legally responsible for that harm, you are eligible to claim compensation for personal injury. This includes injuries related to the environmental issues.  Personal injury lawsuits are filed against

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    a person or entity that caused you harm through negligence, gross negligence, reckless conduct, or intentional misconduct, and in some cases by people or an entity legally responsible for the consequences of activity (even if the intent is not criminal).[i]Personal injury cases provide a stage for the general public, i.e., citizens, to be compensated for the actions of people or entities who have caused them harm, and these cases are an important way to hold corporations and people at power accountable; however, it is important to note that an injury inflicted does not mean that there is an actionable claim. There must be legal grounds to hold the defendant accountable, and personal injury claims usually revolve around instances of neglect caused by the defendant who legally owes a duty to the victim and breached his duty. Note, however, that the victim may have a limited amount of time to bring forth a personal injury claim because once the statute of limitations is expired, after which a claim can be forever barred. Although the statute of limitations can differ for each country, many countries and states have a three-year statute of limitations for personal injury claims; this may be shorter or longer depending on state laws and the identity of the defendant.[iv] For more information on how the overall court system works and how to start a court case, please see our Politics Courts page. Largely speaking, this legal pursuit acts in favor of public rule where corporations and influential people have their power limited or questioned, if and when they impose any form of harm onto the communities. This judicial pursuit plays a significant role in balancing powers and prioritizing public interest. Within this legal arena, when you make a statement or declare a fact in court – whether on your own case or someone else’s — you become a witness, and the statement given becomes a form of evidence. In cases of personal injury, there are usually two types of witness “testimony:” lay witness testimony and expert testimony. Lay witnesses are individuals who were eyewitnesses but do not have any specialized knowledge, education, or training related to the subject of their testimony; they testify about their actual

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    observations before, during, and after an incident where harm was inflicted.[ii] Expert witnesses are professionals who probably did not see the accident, but who possess some form of specialized knowledge, training, education, or experience about the subject matter that they can present to back up a claim.[iii] For instance, environmental damage claims often involve injuries caused by exposure to a toxic substance or hazard in your environment, such as injuries due to toxic waste, lead paint, water contamination, air pollution, or, toxic mold, and experts are needed for a clear statement about their impact. Personal injury cases are extremely important in climate action where people have commented and testified against entities that have caused environmental damage to their community and have imposed harm onto society. [v]

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  • What is the difference between testimony and commenting?
    Testimony is a form of evidence given by a witness who makes a solemn, factual statement or declaration, anyone providing testimony is under oath to do so honestly – and there can be criminal consequences if they do not. Unless testifying as an expert witness, opinions are usually limited to rational interpretations of what the witness has seen or heard. Even an expert witness, while he or she may draw on his or her specific industry or sector experience, will be providing testimony embedded in fact even when asked to give an opinion.[vi]A comment, on the other hand, is a statement made by a judge or an attorney during a trial and is based on an alleged fact, but not necessarily a proven fact. If made in the presence of the jury, the judge should follow procedure and remind jurors that it is not evidence.[vii] While testimony takes the form of a factual description of the events and circumstances relating to the dispute, a comment serves to explain the logical reason behind the testimony and evidence, and is typically used to persuade the judge, jurors, and witnesses of something.[viii]

  1. Chevron v/s Ecuador (1993 – 2018)

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In 1993, a class-action lawsuit was filed by local residents of Nueva Loja (Ecuador) against the then Lago-Agrio oil field-well operator Texaco (later acquired by Chevron Corporation in 2001) for dumping over 30 billion gallons of toxic waste and crude oil into the Amazon rainforest in the north-east region of Ecuador. Nearly 4400 square kilometers of the forest region were contaminated, and river bodies turned black, and there was a severe spike in cancer and birth defects among local residents. The lawsuit demanded the corporation clean up the area and provide for the care of the nearly 30 thousand inhabitants who were harmed by the environmental damage; thus, the plaintiffs demanded a $27 billion compensation for the inflicted harms. The 18-year legal battle within Ecuador against Chevron finally concluded in 2011 with the Ecuador court declaring that the corporation was guilty of extensive damage and pollution to the region and ordering Chevron to pay a compensation of $18 billion (although, later, the compensation was reduced to $9.5 billion).

Chevron, however, challenged the case on two grounds. First, they claimed that the case had already been settled in a 1998 legal agreement with the Ecuadorian government. Second, they claimed that the 2011 verdict was based on fraud and corruption. The Ecuadorian government had signed a settlement agreement in 1998 that released the company from further responsibility for the disaster; however, it is important to note that (1) the corporation was released only from further responsibility, and (2) the agreement clearly noted that third-party claims (like those brought up by communities harmed by the Amazon rainforest destruction) were not included in the settlement, i.e., their claims for compensation were valid in the court. It also emerged that despite said claims of environmental restoration efforts by the corporation in the Amazon, six different tests revealed that the company tried to conceal contamination by piling dirt on top of the polluted oil pits.

Chevron then hired a team comprised of former US trade representatives to lobby the U.S G.H.W. Bush and B. Obama administrations to pressure Ecuador to make a deal via a proposed threat to cancel bilateral trade benefits for Ecuador – to no avail. If Chevron had succeeded in passing the proposal to cancel benefits for Ecuador, then an estimated 350,000 jobs would have been lost.[ix]

Chevron also hired several public relations firms and law firms to advocate on its behalf and to launch countersuits against the legal team of the Ecuadorian indigenous residents who were harmed.  Even while the residents’ case was in court, the company sued Ecuador in 2009 in the Permanent Court of Arbitration (CPA) in The Hague claiming that the country had violated the 1993 Bilateral Investment Treaty between Ecuador and the United States. On September 7, 2018, the Permanent Court of Arbitration in The Hague unanimously declared the ruling in favor of the Chevron and Texaco Petroleum Company and concluded that the judgment given in Ecuador court was fraudulent, corrupt, and “should not be recognized or enforced by the courts of other States,” as well as that the Ecuadorian government should pay the company a multi-million dollar compensation. [x][xi][xii][xiii][xiv][xv]  Still as of today, Chevron has neither paid compensation to the inhabitants of the region it damaged nor cleaned up the land, which has resulted in the oil wastes continuing to poison the rainforest.

Even though the final decision ended in favor of Chevron, this case shows us the power of testimonies to influence laws and regulations. The global community united to fight against Chevron and to hold them accountable for causing severe damage and personal injury to the inhabitants of the Lago Agrio area. Despite the long struggle, this case invoked in people the need to hold corporations accountable for the impact they can cause citizens worldwide.[xvi]

For more examples of the power of individuals’ testimony, commenting, and other actions in courts, see our page: Examples of Climate Action Court Cases. Also see Climate Action: Courts, for more general information about how to take action in the courts.

References

Contributors

Contributor: Dr. Annette Olson

Header photo by Matthew Henry via Burst.com

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