TAKING ON THE FOSSIL FUEL INDUSTRY: CAN WE MAKE ECOCIDE A CRIME?

Catching up with environmental activist Steven Donziger

Steven Donziger’s case has become well known in environmental circles. The Chevron corporation was able to use a US Court of Law to prosecute Donziger in retaliation for his winning defense of thousands of farmers poisoned by Chevron’s (then Texaco) illegal drilling practices. Between 1964 and 1992, Texaco purposely dumped 16 billion gallons of wastewater into rivers and pits in the Ecuadoran Amazon, creating a a 1,700 square mile environmental disaster. Instead of paying the $8.6 Billion judgement handed down by the Ecuadoran Supreme Court, Chevron has chosen instead to come after Steven Donziger.

This isn’t necessarily a personal animus against Donziger, of course. Rather it is an effort to freeze environmental activism among anyone seeking to emulate his success at taking on a fossil fuel company.

After 993 days in home detention, during which time he also spent 45 days in Danbury prison, Donziger has now continued his work. While Chevron’s attacks against him are not over, he is using his voice and his platform to exercise continued leadership regarding larger environmental and legal issues.

As a contributor to The Guardian, Donziger wrote a compelling article this week about fighting the climate crisis, including a discussion of whether or not ecocide should become a legally recognized crime. Here are both a video and written transcription of my conversation with Steven this last week.

You can find out more about his case and how to support Donziger’s work at FreeDonziger.com.

Marianne:

My friend, Steven Donziger, hello. It's great to see you as usual.

Steven:

Great to see you. Thanks for having me.

Marianne:

Every time I see you and you are not in home detention, I am just thrilled knowing that you're out and about doing your thing. We will talk later about constrictions and problems that still exist, but I want to talk to you first about what's going on in your life right now, and the really profound contribution that you are making to the situation that we all find ourselves in. You are now a monthly contributor, US contributor, to The Guardian. And an article that came out today is just wonderful. It says, "Make ecocide an international crime and other legal ideas to help save the planet." That's all anybody's talking about right now…. an understanding that we have to phase out fossil fuel extraction, and an understanding that COP 27 didn't really go anywhere. Your voice is so important because you're helping us clarify not only what's actually happening, but the steps that we need to take to move things forward.

So what I want to do, everyone, I want to read to you the first paragraph of Steven's article, and then I'm going to go through these five steps that he talks about and ask you to explain these. Okay, Steven. The article begins this way, "The world has reached an acute point in the highway to climate hell. Talks at COP 27 barely achieved anything, despite the fact that almost one third of Pakistan's territory was submerged during unprecedented flooding, record heat over the summer killed nearly 25,000 people in Europe, and almost 200,000 people in a major US city have not had clean water for months." Then you mention five issues, five points, five steps that we all need to understand and try to take. The first one, to make ecocide an international crime. Tell me where you think we are. Where are we and where do we need to be going?

Steven:

Sure. So the issue is, I think the most important issue in the world, which is the climate crisis. If we don't solve that, we're going to have a hard time dealing with all the other problems that we're facing as a society. The one thing I've noticed in recent months, when I really look at this stuff, is there's a lot of noise out there. There's a lot of, some people feel hopeless. I mean, the COP 27 Summit largely failed to achieve much of anything, that summit that just ended in Egypt. So what I'm trying to do with the article is provide a new kind of framework to look at some of the changes that we as citizens can help make such that we can advance the cause of dealing with the climate crisis. So I'm proposing essentially five legal changes. The most important legal changes in my opinion, that I think can catalyze our movement from the citizen level, from the ground level.

Marianne:

Okay, so the first one you say, make ecocide an international crime.

Steven:

Yes.

Marianne:

Explain that.

Steven:

So basically, if you look at the whole panoply of the law, human rights law, environmental law, it has a big gaping hole that an ecocide law would, in my opinion, fill, which is it doesn't really hold the individuals who make the decisions to pollute, like the oil company executives, and a case I've worked on for many years, the Chevron executives, they're not held accountable, they're not indicted. Basically, lawsuits are against the company and the people who are the decision makers causing this destruction through these companies get off scot-free.

So ecocide would essentially create a new atrocity crime, the equivalent of genocide, which came out of World War II, or the equivalent of crimes against humanity, also came out of World War II. And it would really empower the prosecutors of the world to really go after those who commit these environmental atrocities that, in the case of Ecuador, are actually killing people. So it's an important way, I think, to change the decision making calculus of those who run these big fossil fuel companies to actually think about the personal consequences. And I think that would really help the planet.

Marianne:

So in other words, if ecocide is declared a crime up there with crime against humanity, then there could actually be a prosecution of oil companies, for instance? And others who were found to be breaking this law.

Steven:

Yeah, exactly. But I'm talking about a criminal prosecution where these individuals could potentially face jail time. And that's a huge difference, because up to now you can only really sue the company for monetary damages. So the people who make the decisions, first of all, they don't pay any monetary penalty. The company i.e. the shareholders do. And personally they never face any real jeopardy. So this would really change the calculus in a very significant way. And we have to recognize, Maryanne, that some of these acts of ecocide that is the wanton, reckless, even intentional destruction of the environment, kill people.

And this isn't just a spill I'm talking about, we're talking about really deliberate or very reckless decisions to engage in oil operations, for example, that cause widespread destruction to, in this case, in our case, to the Amazon rainforest that you could easily foresee would kill people. So we're talking about very severe cases of environmental harm done by private parties, corporations, and those who are making these decisions really need to face the cold, hard truth that they could be prosecuted. And that would happen if the ecocide law became part of the weaponry of international law.

Marianne:

A phrase that's in common usage is too big to fail, like a bank that was considered too big to fail. But we have an even bigger problem, which is criminals too big to jail. So if somebody is poor and somebody commits a small crime, they might, in the United States, get decades of jail time, but if somebody's wearing a very nice business suit and head of a huge corporation and they're getting millions of dollars in CEO salaries year after year after year, and they're actually perpetrating behavior on the part of their industry that is causing cancer, or even worse, even death to thousands if not millions of people, it's almost like we have the psychological issue like, “Oh, they don't go to jail.” This is what happened with the 2008, with the housing crisis, with the implosion of the economy at that time.

Steven:

Yeah, that's a great example.

Marianne:

None of the people who actually did this went to jail. And when there were economic fines, financial fines went right through to the shareholders; it had nothing to do with any of those individuals actually paying a criminal price.

Steven:

That is a really good point, and it's exactly why we need the ecocide law in the area of the environment. I mean, a great example, by the way, if I may - it's obvious but sometimes we forget about it - is it's obvious a man named Donald Trump has committed a lot of crimes, and he still has not even been indicted. I mean, think about that. So we need to reorient our thinking. I mean, no one is above the law. There should be equal justice under the law. And the reality is, people who commit acts that lead to mass poisoning or even homicide or death, as it has in place like the Amazon of Ecuador, that a case I've been working on, they need to be held personally accountable. It's not enough to just sue the company for money. And the ecocide law would close that gap.

Marianne:

Well, there are a lot of people in a lot of situations in this country who, if you even talk about millions of dollars of crimes, of fines, that are levied on certain people, in certain situations, that can just be passed through as a cost of doing business. It's when you're talking about jail time that people start to sit up and listen. The second point you're making, enact the fossil fuel non-proliferation treaty. Explain that one to us.

Steven:

So people might, of our generation at least, might remember the nuclear non-proliferation treaties from this 1970s, 1980s. The idea is to apply the same concept to fossil fuels because really fossil fuels, if you think about it, are about as much of a threat as nuclear energy or nuclear war at this point. And really this would address a major failure of the COP 27 Summit, which was, there was never an agreement to come up with a plan for the orderly phase down of the fossil fuel industry. And without that, we're not going to get there, we're not going to really transform ourselves to a point where we can have a sustainable planet without significant mass irreversible damage.

So the idea is this is the kind of treaty that if governments would sign onto it, then they would be legally obligated to have no further investments in fossil fuels. Just like the nuclear non-proliferation, you could not build another nuclear weapon. The same concept. By the way, this idea comes from citizens, mostly a group in Canada, led by a woman named Tzeporah Berman. And it's really an amazing idea. I love the concept. And already a couple of Pacific Island nations, they're ready to sign it, and have proposed this to the United Nations and to the Climate Summit for other countries to sign.

Marianne:

"The fossil fuel non-proliferation treaty," you say here, "is a broad and legally enforceable proposal for phasing out our global dependence on fossil fuels. The treaty requires member states to halt all new investments in fossil fuels and to begin to phase out existing operations. This addresses one of the key failures of the COP 27 Summit, which never agreed on the need for an orderly plan to phase out the industry." They didn't even go there, forget the fact that they didn't have anything to enforce. They didn't even agree that it should be done. That's how much-

Steven:

I know. I fear these climate summits have essentially been co-opted, captured by the industry, and oil producing nations like Saudi Arabia. I don't know if you saw the story in the New York Times the other day about how the Saudis have a plan to keep the world hooked on oil for generations, because that's how they make their money. So at these climate summits, you have the activists fighting to deal with these issues. Then you have governments, some of which go one way, some of which are oil producing, go another. And then you have all the industry representatives and lobbyists, and it's just, you can't make progress. It's like everyone is just in a situation where there's no consensus on anything, which by the way is exactly how the industry wants it. They win when there's inaction. They win when there's paralysis. They win when there's no action. So I fear for these summits, they're not really dealing with the issues and they're certainly not moving fast enough.

Marianne:

So this article that you just referred to in the New York Times about Saudi Arabia keeping us hooked on oil. I did not see that article. What's a sentence or phrase or something that I could look to look that up.

Steven:

Oh, it's fascinating. Look, I've been critical of the New York Times for many reasons, but sometimes they really nail their articles. And this was an investigation into all the money Saudi Arabia is spending to finance and to lobby to keep gasoline cars in production and to keep-

Marianne:

MBS. What a guy.

Steven:

On gasoline. And the irony is, they're investing massive sums of money in green energy for Saudi Arabia. They want to keep the oil and sell it to the rest of the world while making their own country green. It was a really interesting story, came out yesterday.

Marianne:

And Biden continues to protect him, even saying that he has immunity in the case of Jamal Khashoggi, it's just criminal. So the article came out yesterday. Would you please send me the link and then I will post it underneath this interview.

Steven:

Absolutely.

Marianne:

Great. Okay. This was interesting. I didn't know about SLAPP lawsuits. You put in here about SLAPP lawsuits and other legal retaliation and that of course is retaliation against the people who are trying to stop this nonsense, namely you and many, many others. So tell us about the SLAPP lawsuits and how we have to end them.

Steven:

So we need a whole host of laws to outlaw SLAPP lawsuits. SLAPP lawsuits are essentially harassment lawsuits filed by oil companies and fossil fuel companies against individuals like you or me or protestors to try to intimidate them into silence. They're sort of disguised with legal claims like nuisance, trespassing, defamation. But in reality, the people they're suing for massive sums of money have very little money. They know they'll never pay the lawsuit. They're just used to scare the heck out of people so they stop their activism. And they really are violations of free speech protections, not only in the United States, but all over the world. And they need to stop, and the only way to really stop them is to pass laws. The state of California has done this in the United States to impose significant penalties and fines on companies that bring them. So we need these laws passed on a national level. Jamie Raskin, the representative from Maryland who's a leader of the House of Representatives, has proposed a federal anti SLAPP law.

Marianne:

Excellent.

Steven:

It needs to pass the Congress. And this also needs to happen in other countries, including in Europe. By the way, SLAPP stands for, get this, it's an acronym, an academic acronym. It stands for Strategic Lawsuit Against Public Participation, meaning a lawsuit designed to just stop you from participating in civic life with your activism. And of course, I got hit by Chevron with one of the mothers of all SLAPP lawsuits, and I ended up in detention for three years, where this is happening dozens and dozens of times in the United States every year to groups like Greenpeace and to individuals. I just tweeted about Morgan Simon who got sued by a private prison company when she called out their policies and support of family separation, they're profiting from it. And she ended up beating that back in California. But this is happening with great frequency and it casts a chilling effect on advocacy, and it needs to stop.

Marianne:

Well, most people just get slapped, you got beaten up.

Steven:

Yeah, that's true.

Marianne:

You actually got a judgment involving billions of dollars. But I'm so glad to know that there's a movement against these companies for even bringing these suits to begin with. It's worse than a frivolous lawsuit. It's a lawsuit that, by its very nature, violates the law of free speech and protests. Okay, five, binding climate reparations. We heard a lot about that during COP, about people from smaller countries, countries that had nothing to do with producing the climate problems but are the ones most suffering from it. So I saw Biden the other day said he was at least open to the idea of such a fund, even though no mechanism has been put in place. Tell us what the issue of climate reparations is.

Steven:

So this is based on a fundamental principle of equity. I mean, the big countries, the rich countries, United States, India, China, among them, the leaders, have caused proportionally more climate harm than any other country because of the quantity of our emissions are off the charts, relative to population. And in the meantime, a lot of smaller, under-resourced countries are being killed by climate impacts, negative climate impacts, migration, flooding. And who's paying for that? I mean, they have to pay for it themselves. And get this, one of the biggest ironies of this thing is they often have to take out loans from first world banks, from the IMF, to finance climate reparations at exorbitantly high interest rates when the damage is caused by the very countries that are financing these banks. So this needs to change. And the way to change it is we need what's called climate reparations.

In my opinion, every country, every wealthy country, needs to put, proportionate to its GDP, an amount of money into a fund to be administered neutrally with representation from the smaller nations for the funds to be transferred from north to south or from rich to under-resourced countries, so they can pay for the damage that we are causing to them. And this has to be binding, it has to be a legally binding treaty. Otherwise, it won't work. Now, at the end of the COP Summit that just ended in Egypt, there was an agreement to create such a fund. There was zero commitment to actually put money into the fund. So it was a little bit of a baby step in the right direction, but so much more needs to be done. And in my opinion, unless it's legally binding, it's never going to happen.

Marianne:

So we're at a strange moment, aren't we? Because on one hand you have something like COP 27, people see how institutionally resistant the fossil fuel industry is, and its handmaiden the US government and other governments, to actually making the changes towards sustainability, cleaning up what needs to be cleaned up, repairing the damage, and moving forward in a more sustainable direction. At the same time, there are more and more people who understand what you're talking about, more people like yourself who are articulating what needs to happen. So on a scale of one to 10, how hopefully are you? I mean, you're someone who, your very life is ground zero. You have taken the hits as much as any person except those who have actually been killed or their health damaged. But in terms of activism, on a scale of one to 10, how hopeful are you that we're going to turn this around?

Steven:

I'm hopeful. Let me tell you why. I think as the climate crisis becomes more acute, more and more people become aware and mobilize. And I think the battle, and really it's a war, if you really think about it, like the SLAPP lawsuits are an example. The more we mobilize, the more the industry tries to shut us down, abusing the law to do so. Or in the case of the United States, stacking our judiciary with pro-corporate extremist judges so they dismiss the climate lawsuits that have been brought by states and municipalities. There's a whole battle going on, and it's taking place at every level of government in the United States. And ultimately, it will be up to us, the citizens, to ensure that our government, not just the national government; state governments, local governments, police forces, et cetera, are on the side of justice and are on the side of climate. But I am convinced that the US government and really no other government in the world will, on its own, do the right thing. We have to pressure governments to do the right thing, and we have to get in the government.

Marianne:

Thank you.

Steven:

And be the government, so the right thing is done.

Marianne:

Yeah, it's not enough to try to influence these people. They need to get out of the chair and let us sit there. Absolutely.

Steven:

Yep.

Marianne:

Well, you yourself are an embodiment as we've already talked about, of someone who has taken the hits that they dish out against anyone who dares to challenge them, the nefarious behavior of the fossil fuel companies, in this case, Chevron in terms of the Ecuadorian Amazon. Most people who are listening know your story. You spent 993 days in detention. 45 of those were spent in Danbury Prison. You've now been out since April. And I know that I'm not the only person so grateful, not only grateful because it says that you're able to do it, but also grateful for the rest of us, that you have taken this time since your home detention to really become such a leading voice in this movement and in telling us what needs to happen.

Because when we're all aligned on what needs to happen, that makes it more probable that we will be able to take the collective action that is necessary. At the same time, people are aware, they should be aware, your story isn't exactly over. You still don't have your passport, you still don't have various aspects of what should rightfully be seen as your freedom. And I think people want to know what's going on. I know, like I said, people are happy that you're out there leading the way, but also give us a little bit of a catch up. Bring us up to speed on what's happening with you and where you still are in this seemingly endless saga with Chevron.

Steven:

Yeah. So thank you for that, and thank you Maryanne for your help and your support over this really painful ordeal for me and my family. Let me just say this, we're generally good. It was tough to be in prison and be in home detention for almost three years. I'm the only lawyer ever put in that position in the history of our country. Hope it never happens again. I'll remind people I was prosecuted not by the government, but by a private Chevron law firm in the name of the government. I was prosecuted by a corporation, which I believe is illegal. And I'm still appealing the whole thing even though I served my entire sentence and then some. And I'm hoping the Supreme Court will reverse my misdemeanor conviction for contempt of court. The case never should have happened in my opinion. And it's wrong that it happened.

Now having said that, I'm still only partially free. Let me tell you what I mean by that. As you point out, I can't work. They took my law license without a hearing. They took my passport and they won't give it back. Meaning, I cannot leave the country to help my clients in Ecuador do what they need to do to enforce their judgment. And I live under the fear really, that they might reinitiate some action against me through a federal judge here in New York who has been targeting me for many years now, in a way to hurt me or to silence me.

Now, one of the reasons I'm on your show tonight and why I talk as much as I can to the independent media and to podcasts, et cetera, is because this story needs to be told. They try to silence me, they failed. But beyond that, what happened to me affects us all because if they can prosecute and detain a human rights lawyer in the United States, this is a playbook that they plan to use against other activists in this country if you become too effective, and we can't let that happen. We are all in on this. And it goes so far beyond me and we have to really be aware of that. Not only protect me and my family so I can work and be free and do my job as a human rights lawyer, but also make sure it never happens again to anybody else.

Marianne:

Two things. Didn't your license get reinstated in one place? Am I misremembering that?

Steven:

No, I had my license in two places, New York and DC, and at one point it was revoked in New York without a hearing, although I still had it in DC, but what ended up happening is the DC authorities, also without a hearing, imposed what they call reciprocal discipline based on this really wrong decision in New York. So I have no law license at this point, and it is just unbelievable. I will say, I did have a hearing where they allowed me to present character evidence. 15 lawyers came in and vouched for my character, and the neutral hearing officer, former federal prosecutor, recommended the immediate reinstatement of my law license. I won my hearing even though I couldn't even present any factual evidence.

And then again, without a hearing, the New York State Appellate Court rejected his recommendation. So there's been a whole, I would say, abominable, almost embarrassing, shameful, actions by courts in New York to try to go along with the Chevron effort to silence me and to try to really undermine this incredibly historic achievement of the indigenous peoples of Ecuador in holding Chevron accountable for its pollution down in the Amazon. So I'm still fighting though. I have an appeal before the Supreme Court.

Let me just be clear. I believe in the rule of law. I believe in our nation's judiciary. I do recognize, however, that over the last several years it's moved way to the right because of the influence of the Federalist Society and the Koch Brothers [inaudible 00:24:43].

Marianne:

Absolutely.

Steven:

And it really no longer is... It's more of a MAGA judiciary, especially our Supreme Court. I've written about this, these spate of decisions that have come out over the last year, year and a half, are just completely undermined so many of the freedoms that we once took for granted. And you can't really trust the US federal courts like you could in the past because they've become so politicized. So having said that, there are some fair number of good judges still on the bench. Joe Biden has appointed a lot of good judges. So a lot of it depends on what judge you get or what court you're in. But here in New York, Chevron has been able to really capture a pocket of the federal judiciary here. And there's two judges that have financial ties to Chevron, are very close to the company, that have been targeting me without a jury and without hearings.

Marianne:

You're not practicing law at the moment, but you sure are doing well as a journalist, I tell you. Including everybody, remember stevendonziger.substack.com and remember that he is a monthly contributing journalist at The Guardian. Now, you mentioned the Supreme Court, and it is becoming very obvious to everybody that the Supreme Court is dominated by a bunch of corporate hacks. People do get that, and there's a lot of talk about that, not just related to your case, but related to many things, obviously, Roe v. Wade and so forth. But something happened that was very interesting at the Supreme Court the other day where it was actually people from the Federalist Society who were standing up arguing that a private corporation should not be able to prosecute a private citizen! What happened there?

Steven:

Very interesting. So the core issue that I have before the Supreme Court now is whether there can be a corporate prosecution under our constitution, and this has never happened before. Obviously, it's wrong. And I've gotten just an incredibly large and wide breadth of support for my position, including from the Federalist Society itself. And it really underscores, Marianne, how offensive what Judge Kaplan did to me really was. You have people on the progressive left, centrists, liberal Democrats, Republicans, and even far right lawyers, scholars even, from the Federalist Society supporting my appeal to reverse my conviction on the theory that it is just wrong in America for a judge to be able to appoint a private corporate prosecutor to go after a lawyer after the case had been rejected by the regular federal prosecutor. I mean, they refused to prosecute me.

And after that decision, Judge Kaplan appointed a private Chevron lawyer to prosecute me in the name of the government. In our country, under the separation of powers, it's the executive branch that prosecutes crime. The judicial branch does not prosecute crime. They preside over criminal cases. They sentence those found guilty, but they don't actually control the prosecution. It's a separate function that the normal, regular federal prosecutor is responsible for. So the fact that Judge Kaplan, that the federal prosecutor, rejected his contempt charge against me, refused to prosecute and he went ahead and did it anyway under his auspices, we think was unconstitutional and illegal. And there's a wide spectrum of opinion that agrees with us on that.

Marianne:

Well, those boys don't like you. That's very clear. But that's why we love you. You can't have it both ways. Steven Donziger, the bottom line is we do rejoice with you, many of us. about the fact that you're not in home detention anymore, and e certainly support you. I want you to know, everybody, you can go to freedonziger.com, right Steven?

Steven:

Yes.

Marianne:

Go to freedonziger.com and help with this, because the defense of this situation still goes on. There is still much to do, legal fees, et cetera. Also, Steven, you mentioned Joe Biden and you said that Joe Biden has appointed some good judges. Yes, he has. But he also should just put an end to this farce with you just as he should put an end to this farce as it relates to Julian Assange. So don't stop.

Steven:

I couldn't agree more. And let me just, if I can make one quick final point. We started a campaign directed at Merrick Garland to get the Justice Department to agree with my position, my brief before the Supreme Court seeking a reversal of my contempt conviction on the grounds that it was illegal. He, right now, has to submit a brief. Normally, the DOJ would oppose a person in my position on appeal, but on rare occasions they don't oppose. They actually agree. And we think this is one of those occasions. So we have a little petition drive going. You can get it on my Twitter feed @SDonziger.

Marianne:

Okay, great.

Steven:

(I hope people will sign the petition), we are trying to convince the DoJ to agree with me, which would be a huge boost. I asked Merrick Garland a year plus ago to intervene and take my private prosecution back from Chevron and do it out of the DOJ and he wouldn't interfere. So he now has a chance to make it right. And I'm asking the Attorney General to do so.

Marianne:

So you heard it here guys, the Department of Justice doesn't want to interfere with Chevron. And that really sort of says it all. That's where we are in America today. The US government doesn't want to interfere with the will of US corporations, but we're going to turn that around. We're going to make a U-turn and clearly as the ship does make that U-turn, you are one of the main drivers. Much love to you, Steven. I know I speak on behalf of so many people who are looking to you. Everybody, remember, this is an article in today's Guardian by Steven Donziger. The front headline on it says, "Make ecocide an international crime and other legal ideas to help save the planet." We need to phase out fossil fuel extraction completely. We need to make a just transition from a dirty economy to a clean economy. It's complicated. It won't be easy, but we're going to do it. Thank you, Steven.

Steven:

Thank you so much for having me. I really appreciate all you do. You're an inspiration. Thank you so much.

Marianne:

Right back at you. Much love.