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“What impresses the traveler, when he enters for the first time the primeval forests of the equatorial regions, is the immensity, the gloom, the silence and solitude of his environment. … In these mighty woods, one seems to be in some vast cathedral of nature wherein the tall and multiform columns eclipse in variety and beauty of form anything to be found in the noblest of Greek or Gothic temples.”

– H.J. Mozans, “Along the Andes & Down the Amazon,” 1911 When Cristobal Bonifaz first entered the Ecuadorian rainforest in 1992, he saw a natural cathedral desecrated. “Everywhere I looked, there were lakes of oil,” he says. “Black dust covered everything; I had to put a kerchief over my mouth to breathe. In a little village I met Maria Aguinda, a Quichua Indian, who invited me into her hut. She was barefoot, and she washed her feet in a barrel of gasoline before going inside. I also met her daughter, whose back was covered with some kind of growths. Lots of other people in the village had skin problems. They told me that they couldn’t drink from the rivers, that they had to collect rainwater instead. Their animals kept drinking from the rivers and dying.” In 1993, a year after his visit to the rainforest, Bonifaz was in Manhattan, filing a federal suit against Texaco Inc., claiming that its 20 years of oil exploration in Ecuador polluted the rainforest and threatened “the survival of the indigenous people.” Bonifaz admits that Texaco didn’t violate any Ecuadorian environmental laws (none existed at the time), and that the company complied with its contract with that government. But he argues that the company violated international law, specifically the Rio and Stockholm treaties, to which both the U.S. and Ecuador are signatories, and which identify a clean and healthy environment as an inalienable human right. Bonifaz also argues that Texaco violated U.S. tort law because the operations in Ecuador were directed from the company’s headquarters in White Plains, N.Y. Although the drilling was done by a joint venture between Texaco and Petroecuador, an Ecuadorian national company, Bonifaz has no doubt who called the shots: “There’s a saying in Ecuador: ‘Texaco manda.’ It means ‘Texaco orders.’ No one in Ecuador knew anything about drilling for oil. Nobody knew anything about protecting the environment. It’s a very poor country.” According to Bonifaz, Texaco was viewed as the savior from the north who would make everybody rich. Ecuador was so happy to get the foreign investment, he says, that they let Texaco do whatever it wanted. Texaco is represented by Atlanta’s King & Spalding and New York’s Kaye Scholer. Both firms refused to discuss the case. A Texaco spokesperson insists that the company didn’t control the operation, and that its actions were consistent with its agreement with the Ecuadorian government and its Ecuadorian commercial partners. Bonifaz’s case recently suffered two serious setbacks. In May, the district court dismissed it for the second time, stating that the suit “has everything to do with Ecuador and nothing to do with the United States.” In September, Texaco rejected a settlement proposal it had requested a few months earlier that detailed mechanisms for cleanup, medical care, and providing potable water. But if this long-shot campaign should ever succeed, the case could set the kind of precedent that keeps corporate executives up at night. Bonifaz’s solo office, near the corner of Main and Pleasant Streets in the college town of Amherst, Mass., is an unlikely launching pad for such a far-reaching challenge to corporate America. And Bonifaz, a member of one of Ecuador’s richest families and a former chemical engineer for E.I. du Pont de Nemours and Company, is an unlikely challenger. In fact, by championing the Indians and opposing the Americans, Bonifaz has alienated some family members, who are holding on to the racist views that have long dominated Ecuador. But the Indians have gained respect and political power in the country, and the suit against Texaco is one of the reasons for that change. Cristobal Bonifaz, 66, was born and raised in Quito, the capital city of Ecuador. Before his 1992 visit to the rainforest (known locally as the Oriente), he knew nothing about the area’s pollution or the suffering of the Indians. Until the 1970s, no roads or telephone lines connected Quito and the Oriente, which was officially “tierras baldias” — “vacant land.” Members of the Spanish-speaking aristocracy, such as the Bonifaz family, didn’t associate with the “salvajes” who lived there. His grandfather, Neptali Bonifaz Ascasubi, crossed that line when he fathered a child with an Indian woman, a fact he didn’t publicize when he ran for president of the country. (He was elected in 1932.) The Bonifaz family owned one of the biggest farms in the country. “My father lived like a feudal lord,” says Bonifaz. “I remember going out on the latifundio when I was 14. He carried a little chest of money, and hundreds of Indians came down out of the mountains to meet him. He would call out their names, one by one, and give them some money. It was their yearly wages.” Bonifaz says his father looked down on the Indians, but loved their homeland, the Oriente. In 1927 he led one of the first expeditions to the area. The concern for the environment that would be passed down to his son was also in evidence when, as ambassador to France, he led the effort to change the Galapagos Islands from an Ecuadorian prison colony to a nature preserve. Bonifaz came to the United States in 1952, and studied at Johns Hopkins, Columbia, and M.I.T., where he got his doctorate in chemistry. In 1969 he moved to the suburbs of Philadelphia and went to work for DuPont. He has a bit of the old-world formality of a Castilian gentleman, but he’s down to earth and quick to laugh. The social conscience that broke with family tradition first surfaced while he was working for DuPont, when he visited a camp of migrant farm workers outside Philadelphia. He was shocked to see the conditions in which the people were living. He wanted to help, but didn’t know how to go about it. “I was just raising hell without having much effect, so I went to law school,” he says. He attended Temple University’s School of Law at night, graduating in 1984. Bonifaz moved to Springfield, Mass., and, after a year in the public defender’s office, opened his own practice in Amherst. Today he is very much a small-town lawyer, working without associates or assistants. But he has a penchant for taking on big targets and gets a kick out of his role as a one-man provocateur; he successfully sued the Air Force for noise pollution and has a suit pending against General Electric Company for polluting the Housatonic River. Between 1972 and 1992 Texaco extracted almost 2 billion barrels of oil from the rainforest in Ecuador, and shipped it via pipeline to the Pacific coast. According to the Ecuadorian government, the pipeline had ruptured 27 times by 1988, spilling almost 17 million barrels of oil. By comparison, the Exxon Valdez spill that set off American alarms involved about 10 million barrels. When oil comes to the surface, it brings with it toxic water from the rock surrounding the oil deposit. By 1988, 19 billion gallons of production water had come to the surface, according to government figures. In the U.S., it’s been standard practice since the early 20th century to reinject the production water into the well shafts. In Ecuador, it was sent to about 350 open, unlined pits up to 10 acres in size. Inevitably, the production water and spilled crude made their way into the rivers, which the indigenous people depend on for drinking, bathing, and fishing. A 1993 study by doctors and scientists from the Harvard School of Public Health found toxins in the rivers at levels 10 to 1,000 times higher than the amount allowed by the U.S. Environmental Protection Agency. The study concluded that “the exposed population faces an increased risk of serious and nonreversible health effects such as cancers and neurological and reproductive problems.” Shortly after his 1992 visit to the Oriente, Bonifaz began planning the lawsuit against Texaco. He knew he needed help, and one source was close at hand — his son John, recently graduated from Harvard Law School. They asked a number of lawyers to join them, but all said no, except for Joseph Kohn of Kohn, Swift & Graf, a class action firm in Philadelphia. Kohn has some experience in similar matters, having sued Ferdinand Marcos in Hawaii on behalf of Philippine torture victims. Kohn won a judgment in excess of $2 billion, which he’s currently trying to collect. The lawyers announced the suit at a press conference in midtown Manhattan in November 1993. The plaintiffs are approximately 30,000 indigenous people in the Oriente; about 20 of them attended the conference. Given the importance of the occasion, they wore ceremonial dress — loincloths and crowns made from parrot and toucan feathers. That was eight years ago. Since then, the only issue considered by the court has been Texaco’s motion to dismiss for forum non conveniens, which argues that Ecuador, not New York, is the proper forum for the case. For the plaintiffs, there was never a question about where to bring the lawsuit. “We wanted to do it where the decisions were made, where the wrong was committed — on U.S. soil,” says John Bonifaz. But in 1996 federal Judge Jed Rakoff of the U.S. District Court for the Southern District of New York ruled that a New York trial posed “insurmountable obstacles,” and dismissed the case. The 2nd Circuit reversed, holding that the case should be heard in New York unless an “adequate alternative forum” could be found. It ordered Rakoff to decide whether Ecuador qualified. Bonifaz says that the legal system there is too weak and corrupt to handle the case. The suit would be filed in Lago Agrio, an oil boomtown deep in the Oriente. “There’s one judge and a typewriter,” he says. “The courthouse is one room. It couldn’t hold the paper that’s been filed in this case.” In addition, Ecuador doesn’t recognize class actions, doesn’t permit discovery, and doesn’t allow expert witnesses. Worse, drug-related violence has started to spill over from nearby Colombia. Kidnapping and murder, often of Americans, are not uncommon. The forum non conveniens question was pending in August 2000, when Bonifaz read an editorial in The New York Times criticizing judges for attending “seminars” at fancy resorts, paid for by groups with stakes in pending litigation. Within days, Bonifaz discovered that Rakoff had spent a week at a dude ranch run by a group that pushes a conservative environmental agenda, that Texaco is a contributor, and that one of the speakers was a former CEO of Texaco. Bonifaz moved to disqualify Rakoff. (Rakoff declined to comment.) The 2nd Circuit wasn’t convinced, and ruled that the CEO’s presence and Texaco’s contributions were “far too remote” to create an appearance of improper influence. The day after the appellate court ruled, Rakoff handed down a blistering decision dismissing the case. He wrote that the suit has a tenuous connection to the U.S., that the Ecuadorian courts have the necessary “modicum of independence and partiality” to try the case, and that a finding that their procedures are inadequate would be “insulting to [that nation].” The plaintiffs say that, if necessary, they can and will litigate the case in Ecuador. Co-counsel Joseph Kohn litigated a pollution case in Costa Rica that involved tens of thousands of individual claims. “We did it before, and we’ll do it again,” he says. But they hope it won’t come to that; a notice of appeal was filed immediately after the dismissal. If the merits of the case are ever heard, Bonifaz’s argument that Texaco is liable under international law for actions that were legal in Ecuador has far-reaching implications for U.S. corporations operating abroad. For example, human rights activists have claimed that Nike uses child labor in Pakistan. The practice is legal in Pakistan, but could a U.S. court find the company liable for violating labor standards set by international law? Catherine Powell, executive director of the Human Rights Institute at Columbia Law School, acknowledges the reach of the argument, but doesn’t believe that it will lead to endless second-guessing of U.S. corporations doing business overseas. These corporations are subject to judicial review under the Alien Tort Claims Act, which only allows jurisdiction in cases involving very serious offenses, such as torture and genocide. The case against Texaco qualifies, says Powell, because it involves claims about the destruction of entire cultures. Win or lose, Bonifaz takes pride in the changes in Ecuador that have been wrought, in part, because of the suit. Eight different groups are indigenous to the Oriente. Historically, contact among them was limited and often unfriendly. Now they’re working together against a common enemy and for a common goal. The Ecuadorian government’s position on the suit illustrates the Indians’ newfound political power. Initially fearful of scaring away foreign investment, the government took Texaco’s side in the litigation. “International comity” for that position was one of the factors cited by Rakoff when he first dismissed the case. But in 1996, after repeated demonstrations by the Indians, the government switched to Bonifaz’s side. Since then, the presidency has changed four times, and a military coup was attempted in January 2000; the government’s support has remained steady. Ecuador still feels the old divisions — racism is still deeply ingrained in the country. But, at least on this issue, the country has united behind the “indigenos.” “If we try this case in Lago Agrio, it’ll be a whole country against one corporation,” says Bonifaz. That may put Texaco in the unhappy position of getting exactly what it asked for.

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