Hochul’s Top Court Pick Represented Chevron in Climate Case Against Steven Donziger

CAITLIN HALLIGAN, the private attorney Governor Kathy Hochul selected for nomination to the New York Court of Appeals last week, represented Chevron in its pursuit of racketeering charges against the human rights lawyer Steven Donziger, according to legal documents reviewed by New York Focus. If her appointment is confirmed, Halligan would fill the seventh and final seat on New York’s highest court.

The new vacancy could open as soon as Monday afternoon, when sitting liberal judge Rowan Wilson is expected to sail through a confirmation hearing to succeed conservative Janet DiFiore as New York’s chief judge, freeing up his lower seat on the court. Wilson’s ascension would mark a conciliatory end to a contentious fight between Hochul and the state Senate, which rejected her last chief judge nominee, Hector LaSalle, in a historic first.

Wilson’s announcement was cheered by liberal and progressive lawmakers who knew his judicial record. Halligan, announced the same day, has never served as a judge but has a litany of liberal credentials: She clerked for Supreme Court Justice Steven Breyer in the 1990s, was floated for the Supreme Court seat that went to Sonia Sotomayor, and, while serving as New York’s solicitor general, became one of President Barack Obama’s first top judicial nominees to face a Republican stonewall. She’s been in private practice since 2007.

According to court filings, Halligan was part of Chevron’s legal team in the landmark case Chevron Corp. v. Donziger. In a nearly three-decade legal battle, the oil giant sought to take Donziger down after he won more than $9 billion in damages for poor and indigenous Ecuadorians over the company’s decades-long pollution of the Amazon.

The law firm Gibson, Dunn & Crutcher, where Halligan was employed as a partner, argued for Chevron that Donziger had improperly obtained evidence and bribed an Ecuadorian judge to ghostwrite the ruling in the case, pursuing a Racketeer Influenced and Corrupt Organizations — RICO — case against the lawyer. (The Ecuadorian judge, Chevron’s star witness, later admitted that he had lied on the stand.) In New York, a district judge barred the discussion of Chevron’s pollution in relation to the charges, holding that they were irrelevant to the case.

Halligan co-authored appeals in the RICO case in the US Court of Appeals for the Second Circuit and US Supreme Court — an effort that ultimately prevented Chevron from having to pay the damages Donziger won for the Ecuadorians. Gibson Dunn has been credited with popularizing the use of the civil provisions of RICO law to shield corporations from having to pay environmental damages. For the law firm, it’s a point of pride: Its website boasts that Gibson Dunn has been “lauded for its representation of Chevron Corporation in its successful RICO suit.”

The company has yet to pay a cent to the Ecuadorians. As Donziger fought the RICO case, a New York judge appointed a separate private law firm to pursue criminal contempt charges against him. It was a highly unusual step, taken after federal prosecutors declined to pursue the charges, that landed Donziger in prison for 45 days and on house arrest for nearly three years.

Chevron’s legal tactics have come under fire from high-profile figures including US Representative Alexandria Ocasio-Cortez, Greta Thurnberg, and the United Nations High Commissioner for Human Rights. Last year, Donziger told The Intercept and Type Investigations, “They wanted to use this bogus RICO case to try to get people to forget about the human devastation Chevron caused in Ecuador.”

Gibson Dunn’s aggressive tactics in the Chevron case were well established by the time Halligan joined. As early as 2011, the firm was sanctioned by a federal judge for harassing a witness in the Ecuador pollution case. Less clear is the role Halligan played after joining the firm in 2014; she signed the 2016 and 2017 briefs along with four other Gibson Dunn lawyers. She has since left Gibson Dunn, and joined the litigation firm Selendy & Gay in 2019.

Reached by New York Focus, Hochul’s office did not comment on the Chevron case specifically, instead pointing to cases where Halligan sought more favorable environmental outcomes.

“Something that I’m focused on right now is making sure that my exceptional nominees get through the process from which they came,” Hochul said on Friday.

For some New York climate activists, the fact that Halligan played any role in the Chevron case is disqualifying.

“Halligan defended one of the worst humanitarian criminals on Earth … followed by distorting US law to imprison the Indigenous peoples’ attorney Steven Donziger,” said Kim Fraczek, director of the anti-fracking group Sane Energy Project. “We are alarmed that this is being sneaked through.”

Halligan also represented UPS against Peggy Young, a former worker who alleged pregnancy discrimination against the parcel giant. The conservative Supreme Court ruled 6–3 in Young’s favor in 2015.

Noah Rosenblum, a professor at New York University School of Law who clerked at the Court of Appeals, said Halligan’s record in private practice didn’t reflect the whole picture. He fiercely opposed LaSalle’s nomination for top judge and continues to believe there are too many private lawyers and prosecutors on the court, but he is not opposing Halligan’s candidacy.

“Halligan is someone who clearly is an elite, nationally prominent lawyer, who has a demonstrated long-standing interest in public service,” Rosenblum said. “From a sort of crass perspective, that means that she’s willing to forego many millions of dollars in income.”

Bloomberg Law reported in 2016 that annual compensation for Gibson Dunn partners averaged $3 million. Halligan’s current firm, now known as Selendy Gay Elsberg, does not publicize salaries but reported 2022 bonuses that it said surpassed big law firms.

Rosenblum contrasted Halligan’s potential return to public service with Obama-appointed federal judges who are leaving the bench for big payouts. He said he was optimistic about the role Halligan could play on the top court, her corporate record notwithstanding. Her bio notes that she leads her firm’s pro bono work, highlighting cases where she has represented student debtors, New York City tenants, and the gun safety group Everytown. Wilson, too, was an attorney at a major corporate firm before becoming a well liked judge among progressives.

A spokesperson for the governor highlighted Halligan’s work on several other important environmental cases, including Massachusetts v. EPA, in which the Supreme Court ruled that the Environmental Protection Agency could regulate greenhouse gases. (As New York solicitor general, she signed on with 10 other states backing Massachusetts against the Bush administration.) Republican US Senator Chuck Grassley cited the case as a reason for opposing Halligan’s federal judgeship nomination in 2011. 

More recently, Halligan filed a brief defending federal water regulations in a pending Supreme Court case.

Halligan and Gibson Dunn did not immediately respond to New York Focus’s requests for comment.

Halligan’s Senate hearing is planned for Tuesday morning, less than 24 hours after Wilson’s. It was scheduled before Halligan was formally nominated for the position, since Wilson’s confirmation is a precondition of her appointment.

Maia Hibbett contributed reporting.

Update: April 17, 2023 — This story has been updated with comments from Governor Kathy Hochul’s office and New York University law professor Noah Rosenblum.